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Wormell Pty Ltd v Gold Coast City Council (No 2)[2021] QPEC 22

Wormell Pty Ltd v Gold Coast City Council (No 2)[2021] QPEC 22

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Wormell Pty Ltd v Gold Coast City Council & Anor (No 2) [2021] QPEC 22

PARTIES:

WORMELL PTY LTD

ACN 607 321 157

(appellant)

v

GOLD COAST CITY COUNCIL

(respondent)

and

DANCE HEADQUARTERS PTY LTD

(co-respondent)

FILE NO:

249/2018

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court at Southport

DELIVERED ON:

16 April 2021

DELIVERED AT:

Southport

HEARING DATE:

16 to 19 November 2020; 1 April 2021

JUDGE:

Kent QC DCJ

ORDER:

  1. The appeal is dismissed.
  2. The matter is adjourned to permit agreement on relevant conditions of approval.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – MODIFICATIONS – GENERALLY – Appeal against approval – Where the appellant appeals against the approval for a material change of use – Whether the proposed use is indoor sport and recreation or an educational establishment –

Where it was held that the use is for indoor sport and recreation – Whether the use complies with relevant elements of the existing City Plan – Whether noncompliance, if any, can be remediated by the imposition of relevant conditions – Whether the application should be approved in the exercise of the relevant planning discretion

LEGISLATION:

Planning and Environment Court Act 2016 (Qld) s 43.Planning Act 2016 (Qld) s 45. 

CASES:

AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793

Jedfire Pty Ltd v Logan CC [1995] QPELR 41

Jones v Dunkel (1959) 101 CLR 298

Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271

PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144  

Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355

Shire of Perth v O'Keefe (1965) 110 CLR 529

Smalley v Whitsunday Regional Council [2011] QPEC 105

World Agriculture Society of New South Wales v Sydney City Council [1987] 61 LGERA 305

Wormell Pty Ltd v Gold Coast City Council & Anor [2021] QPEC 12

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686

COUNSEL:

Mr R Quirk for the Appellant

Mr J Ware for the Respondent

Mr D Purcell for the Co-Respondent

SOLICITORS:

Hickey Lawyers for the Appellant

McInnes Wilson for the Respondent

Lee Lawyers for the Co-Respondent

Introduction

  1. [1]
    The appellant appeals against the approval by the respondent Council of an application for “material change of use” in relation to the co-respondent’s premises at 1 Geary Crescent, Molendinar.  The broad background to the appeal is canvased in the previous Judgment concerning a preliminary point.[1]  Broadly, the appellant contests the Council’s approval of a material change of use for the co-respondent’s lot in the community title scheme, that is, the approval of the use of indoor sports and recreation, being a dance studio.  The substantive hearing of the appeal took place between 16 and 19 November 2020.  A “preliminary point” (although not preliminary in a chronological sense, its resolution was necessarily anterior to the resolution of the remaining issues) emerged which was dealt with in the interim judgment.[2] 
  2. [2]
    The proposed development is for a dance studio in an existing building over two levels for a maximum of 45 people.  The building is approved for warehouse use[3] comprising two units which have shared access and manoeuvring areas.  The adjoining unit to the south is utilised by the appellant for a laser cutting (metal fabrication) business.  The site is located in an established low-impact industry area at Molendinar. 
  3. [3]
    An agreed list of issues was tendered on the first day of the hearing.[4]  The traffic issues are no longer a reason for refusal, so that the issues have narrowed to paras 2(a) and (b) and 4 of the agreed list of issues.  These are: whether the use is Indoor Sport and Recreation or Educational Establishment; whether the proposal complies with elements of the City Plan, namely the Strategic Framework, the Low Impact Industry Zone Code and the Transport Code; and whether it should be approved having regard to those matters and the impacts of the development; whether noncompliance (if any) can be cured by the imposition of conditions; and other relevant matters.

Assessment Criteria

  1. [4]
    The appeal is by way of a hearing anew.[5]  Dance Headquarters, as the applicant, carries the onus.[6]
  2. [5]
    As the application is impact assessable, assessment must be carried out against relative assessment benchmarks in a categorising instrument (in this case the City Plan) for the development and having regard to any matters prescribed by regulation.  The assessment may be carried out against, or having regard to, any other relevant matter other than a person’s personal circumstances, financial or otherwise.[7] 
  3. [6]
    The decision of the Court is thus to be based on the assessment required by ss 45(5)-(7) of the PA (pursuant to s 59(3) of the PA, subject to s 46(2) of the PECA). 
  4. [7]
    The approach to such an assessment set out in Ashvan Investments Unit Trust v Brisbane City Council[8] has recently been affirmed by the Court of Appeal in Abeleda & Anor v Brisbane City Council & Anor.[9]
  5. [8]
    What is thus required is a balanced decision in the public interest, based upon an assessment of the merits of an application, having regard to established policy and other relevant considerations.[10] 

Regularizing Application

  1. [9]
    This application is to regularize an existing unlawful use of the land. In that context the appellant correctly points out that the co-respondent should have no benefit from operating unlawfully for some time. In Leda Holdings Pty Ltd v Caboolture Shire Council,[11] there was reference to no advantage accruing to an appellant as the result of commencement of a contrary use, but recognising nevertheless the fact that such a use was underway had consequences which could be relevant in the determination of an appeal, for example a real assessment of impacts on amenity and environmental matters; the judge was entitled, in that case, to conclude on the evidence that no adverse impacts had been created. To regard such factual matters is to use the best information available rather than give the co-respondent a benefit of improper conduct.[12]

First Issue: Whether the proposed use is “indoor sport and recreation” or an “educational establishment”

  1. [10]
    This has become an issue in the appeal.  The appellant seeks to rely on this distinction, that is, that the proposed use of land for a dance studio is not properly characterised as “indoor sports and recreation” but rather as an “educational establishment” use.  On this topic, the co-respondent submits that the alleged distinction is a mere distraction, as the proposed development applied for approval for an indoor sports and recreation use (dance studio) and an assessment can and has been made on the potential impacts associated with that proposal and the acceptability of the use on the site; i.e., as I understand it, the proposed use is the only one under examination, according to the co-respondent’s submissions.

Co-Respondent’s submissions

  1. [11]
    The co-respondent submits that the level of assessment is not changed by the different characterisation; it remains impact assessable, and thus, consistent with Smalley v Whitsunday Regional Council,[13]  the focus should be on the activities constituting the use rather than fitting that activity into a definition within the City Plan 2016.  If the proposed use could otherwise be characterised as an “educational establishment” use, which the co-respondent denies, it is in any case a matter for compliance and regulatory enforcement proceedings rather than a merits assessment of the application the subject of the appeal. 
  2. [12]
    The co-respondent submits in any case that any element of an “educational establishment” use would be at most ancillary to the use of indoor sports and recreation and the focus should be on the merits assessment of the activities constituting the use for which approval is sought. 
  3. [13]
    The co-respondent further argues that the general legal principles relevant to the proper characterisation of the use include:
    1. (a)
      Characterisation is not to be approached through a meticulous examination of the details of processes or activities.[14]
    2. (b)
      The use must be characterised in the practical and common sense way;[15]
    3. (c)
      One must undertake an objective and logical examination of the words of the statutory instruments in question, according to established legal doctrine;[16] and
    4. (d)
      What is required is the determination of the appropriate genus which best describes the activity in question. If the activities, processes or transactions are capable of being treated as all or the majority of species of genus, then that genus may properly be regarded as describing the purpose of the use of the land.[17]
  4. [14]
    The co-respondent submits that the planning scheme adopts the definitions required by the Planning Regulation 2016 (Qld). Thus, interpretation thereof is akin to statutory construction and the oft-cited approach of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority[18] remains applicable.
  5. [15]
    The co-respondent further submits that its proposed use as a dance studio is inherently a sports, leisure and recreation use, conducted wholly indoors. Any instructional/ training component of the use is ancillary to that primary purpose.[19]  Thus, the genus of uses falling within indoor sports and recreation including bowling alley, gymnasium, squash and enclosed tennis courts, each can comprise elements of instruction or training which are ancillary to the primary use, which is leisure, sports or recreation.[20]  The fact that a level of instruction may be present enabling participants to go on to make a career in the field does not render the facility an educational establishment.[21] It is submitted that the evidence of Mr Enders on this issue does not pay sufficient regard to the evidence of the witnesses, particularly Ms Sinclair.[22]
  6. [16]
    Thus, the co-respondent submits that the evidence of Mr Adams and Mr Perkins on this point should be accepted. Further, as a matter of construction in the text and context of the scheme, the genus of identified (inclusive) uses are a type which are not inherently sensitive land uses – in contrast to those identified as educational establishment uses – such as to warrant separate treatment under the scheme; relevantly here, exclusion from general industrial areas as provided by the strategic framework. It is rather submitted that a dance studio fits within the same categorisation as evidenced by the fact that the use has been successfully operating on the land for some time.
  7. [17]
    The co-respondent submits that primarily educational establishments, such as primary and secondary schools, colleges, universities, technical institutes and so forth, lack the leisure, sport and recreational component as their primary focus.  The educational uses primarily involve formal, theoretical and pedagogical syllabi and courses of study for formal qualifications, as opposed to training and instruction (absent qualifications) in a physical skill being secondary to sport, leisure and recreational purposes.  Thus, it is that set of activities which must inform the use. It is said that this characterisation is practical and plainly common sense.
  8. [18]
    Thus, the co-respondent submits that the proposed used is properly characterised as indoor sports and recreation,[23] which is of course the use sought and applied for. It is noted that the “indoor sports and recreation” land use definition has been applied to dance studios in the local government area.[24] It is also relevant that in terms of the interpretation of the City Plan, it does not provide any legal consequence for an inconsistent use.

Respondent’s submissions

  1. [19]
    The respondent points out that the use is carried out wholly or mainly indoors.[25]  Also, the use of the dance studio for the activity of dancing is categorised as a leisure, sport or recreation.[26]
  2. [20]
    The respondent engages with the evidence of the appellant’s town planning witness, Mr Enders, where he expresses the opinion that the dance studio is an educational establishment because the entirety of classes are done under instruction to impart knowledge and develop skills; that this is done to advance to a new or higher level; and (but not apparently decisively) involves formal qualifications.[27] Thus, accordingly this is the “best fit” (as between indoor sport and recreational on the one hand and educational establishment on the other).[28] Mr Enders alluded to a comparison with swim schools; the respondent submits that such establishments have somewhat of a historic character, and the comparison is not helpful or relevant.
  3. [21]
    However the respondent argues that the “best fit” approach to categorising a use under a planning scheme has been eschewed by the Court of Appeal and the ordinary principles of construction should be applied in construing a planning scheme.[29]  Thus it is argued that Mr Enders’ approach should be rejected.
  4. [22]
    The respondent submits that instruction and training are ancillary to the recreation sport or leisure component for a number of reasons:
    1. (a)
      Ms Guest is a principal of the co-respondent. Her evidence was that most of the students just tend to get training in one or more dance styles, be active and have fun, rather than receiving a formal qualification or accreditation at the end of it.[30]  The evidence of Ms Sinclair (whose daughters have attended for a number of years) was that while one does learn how to dance better at the studio, the focus is on being active and having fun;[31]
    2. (b)
      Instruction and training are normal elements of many sport and recreation activities including, for example, yoga, pilates and martial arts.  These are indoor sport and recreation activities, as Mr Enders accepted.[32]  Thus a dance studio also falls within indoor sport and recreation;
    3. (c)
      the dance studio’s website itself describes as “dance, fitness and fun” with no reference to qualifications;
    4. (d)
      only one of the studio’s teachers is accredited to conduct ballet exams recognised by the Royal Academy of Dance;[33]
    5. (e)
      from the studio’s published list of classes only 8 of 48 are Royal Academy of Dance classes, just under 17 percent;
    6. (f)
      in 2020, only 7 from 100 students participated in exams;
    7. (g)
      the dance studio’s website refers to three XT Triple Talent Performing Arts Academy, which is the brand for younger dancers.  Although this refers to “tuition”, “training” and “student”, it does not appear to result in formal qualifications;
    8. (h)
      end of term certificates are more like a participation trophy than a qualification level;
    9. (i)
      these matters provide context for interpreting definitions and similar comparisons as to the genus which includes dance studio are made as advanced by the co-respondent.  Overall these uses are much closer in nature to the dance studio than the educational institution examples provided. 

Appellant’s submissions

  1. [23]
    As to the contest as to the use, the appellant submits that the relevant difference between these definitions is that if the court determines that the development is an educational establishment then that would be an inconsistent use for the zone (clause 6.2.9.2(2)(vi) of the City Plan), but if the development is considered indoor sport and recreation it may be considered consistent in some instances.[34]
  2. [24]
    The appellant commends Mr Enders’ evidence saying he did not apply the “best fit” approach, rather construed the scheme properly. It is submitted that Ms Guest said that the teachers are subcontractors, teaching on skills and techniques learned through experience, and each different class teaches different skills and techniques.
  3. [25]
    It is submitted that it should be concluded that none of the other teachers’ evidence would have further assisted the co-respondent, in a Jones v Dunkel[35] sense; however it is doubtful whether this assists the appellant much, in that the above evidence seems to have been non-controversial. It was not a case, such as Jones v Dunkel, where “there was one person who could have told them the facts and they have no answer from that person”[36]. Rather the evidence of Ms Guest outlined above was non-controversial and there is no reason to think any teacher would give significantly different evidence, favouring either party. There is no precise inference pointed to, different from the evidence of Ms Guest, which the appellant contends should be drawn. There was no exploration at the trial as to the identities of the other teachers or what their availability was to give evidence (or what, if anything, different from Ms Guest, they may have said).
  4. [26]
    Contrary to the submissions of the other parties, it is argued that the educational component is central, not ancillary. The absence of obtaining qualifications is said not to be of central importance, and teaching is integral. Purely recreational dancing would not involve instruction. The comparison is made with a swim school. The issue of the correct characterisation of the use is one of construction. The conclusion contended for is that the use is properly described as “educational establishment” and that this is then inconsistent with the zone in the present location, namely Low Impact Industry, thus the application ought be refused on that basis.

Conclusion re: Issue 1

  1. [27]
    In conclusion on this issue, the submissions of the respondents ought be accepted. Education and training are in fact ancillary to the main activities of the dance school; as submitted by the respondents, these are, on balance, primarily for fitness and fun rather than aimed at any particular formal qualifications. This is the conclusion, approached in a practical and common sense way, of the determination of the genus which best describes the use, namely indoor sport and recreation.

Second Issue: Whether the proposed use complies with the strategic framework of the City Plan

  1. [28]
    This is an issue which developed in the hearing of the appeal, analysing whether the use is consistent with the framework for development in the city’s industrial areas; the appellant advances the idea of compromise of the planning intent.
    1. (a)
      Clause 3.2.2 of the strategic framework – City shape and urban transformation
  2. [29]
    This clause provides for future plans to accommodate such contingencies as population growth, business efficiency and productivity. It sets out, inter alia, that development will be regulated in the city’s industrial areas to “ensure the residential or other sensitive uses do not adversely impact their safe and optimal operations”.[37]

The Co-Respondent’s submissions

  1. [30]
    The co-respondent engages with the appellant’s submissions that this planning intent is compromised by the use.  The term “sensitive use” is not defined in City Plan 2016 however, Schedule 1, Table SC1.2.2: Administrative Definitions defines “sensitive land use”.[38]
  2. [31]
    This definition sets out a genus of land uses (residential and other) which are particularly susceptible or sensitive to amenity impacts from particular development.  Section 3.2.2 is concerned with addressing reverse amenity impacts arising from sensitive land uses being adversely impacted by industrial development to the level contemplated by the scheme which might otherwise impact their safe and optimal operations.  In this case the issue is low impact industry as contemplated in the low impact industry zone.
  3. [32]
    The co-respondent argues that this issue does not arise in the present case.  The use is not properly characterised as one particularly susceptible to impacts.  It has continued to successfully operate on the relevant land for some time without concern.  Indeed, Dance HQ submits the opposite is the case; it is a particular land use that by its nature is likely to affect the amenity of surrounding sensitive land uses rather than the reverse.
  4. [33]
    The co-respondent submits that Mr Enders’ characterisation of the use as an educational establishment is misconceived, and with that falls concern as to it being a “sensitive land use”.  Conversely the evidence of Mr Adams and Mr Perkins is that the proposed use of indoor sports and recreation is not in conflict with section 3.2.2 as it is not a sensitive land use as defined; rather such a use is one that by its inherent nature may impact on sensitive land uses. 
  5. [34]
    Any concerns such as noise and pedestrian movements arising from the proposed use can be appropriately mitigated and managed by the imposition of appropriate conditions requiring, for example, compliance with the revised traffic management plan, particularly where the hours of operation are largely outside the operating hours for the local industrial uses.  The evidence generally is that the dance studio commences from late afternoon when the local businesses are starting to wind down operations.
  6. [35]
    Thus the co-respondent argues that the proposed development does not depart from the assessment benchmark under section 3.2.2; it does not establish a sensitive use which would adversely impact on the safe and optimal operations of the industrial area.[39]

Respondent’s submissions

  1. [36]
    The above submissions are again broadly supported by those of the respondent.  It is pointed out that sensitive uses are generally residential in nature, which the present proposal is not.  Sensitive uses involve activities where people may be on site for extended periods such as community care centres and health care services, which is quite different from the present use. 
  2. [37]
    It is noted that Mr Enders agreed that the dance studio was not a use that was susceptible to amenity impacts such as noise, dust, odour, vibration etc.  Mr Perkins was of the same view.[40]
  3. [38]
    The respondent refers to the opinion of Mr Perkins that an indoor sporting recreational use is not a residential or “sensitive use” but rather the converse.  It is “a use which by nature of its operations may also impact on sensitive uses (e.g. noise arising from music, hours of operation and traffic movements)”.[41]
  4. [39]
    The respondent also submits that the dance studio will not adversely affect the safe and optimal operations within the industrial area.  Such provisions should be qualified by an adverb such as “unacceptably”.[42] The approach of Judge Skoien in Jedfire referred to by the respondent is a well accepted and endorsed principle.
  5. [40]
    The evidence is that the dance studio has operated on the site for approximately six years and that as far as Ms Guest is aware there has never been a traffic or pedestrian incident involving the dance studio’s attendees.[43]  This evidence, as far as I am aware, is uncontradicted. The respondent also submits that the reference by the appellant to the operation of Dance HQ in the present location being partly driven by cost considerations is simply a distraction; the motivations are not part of the planning considerations. It is, in any case, only one of several factors.[44]
  6. [41]
    The respondent submits that where the traffic impacts can be appropriately managed and conditioned, then non-compliance with clause 3.2.2 is solely dependent on a conclusion that the dance studio is a sensitive use.  As the traffic issues are no longer contentious and the dance studio is not a sensitive use, clause 3.2.2 is not engaged.

Appellant’s submissions

  1. [42]
    Section 3.2.2 sets out the Strategic Intent. Industrial areas are ‘scarce and economically important’ and not to be used up simply because they are cheap (Ms Guest refers to the cost). If the use is indoor sport and recreation (which I have concluded it is) it is sensitive use and contrary to the City Plan. A use involving attendance of children, similar to a child care centre, is sensitive, in the appellant’s submission.

Conclusion as to Issue 2(a) re: sensitive use

  1. [43]
    On this issue, I am more inclined to accept the respondent’s submissions to the effect that the converse is the case; the use may itself impact other sensitive uses (such as educational establishments or residential or commercial uses) because of its tendency to generate noise and traffic and its hours of operation.
  1. (b)
    Section 3.5.2.1(9) of the strategic framework – specific outcomes (General industry areas)
  1. [44]
    This section of the City Plan provides a specific outcome for General Industry Areas under the scheme, of which the low impact industry zone is one (the three categories are low, medium or high impact).  It is expressed in permissive rather than restrictive terms providing a non-exhaustive indicative list of uses where the land use intent may be achieved.

Co-Respondent’s submissions

  1. [45]
    The co-respondent submits that the specific outcome contemplates non-industrial land uses in general industry areas where:
    1. (a)
      the land use supports the immediate industrial area; or
    2. (b)
      other land uses are not readily catered for within other areas due to their scale or nature; such uses may be established if they do not compromise the long term use of general industry land for its intended purposes.
  2. [46]
    The proposed development is not a land use which supports the immediate industrial area, however Mr Adams and Mr Perkins opine that the indoor sports and recreation use is one which cannot be readily catered for within other areas due to the large floor area requirements and potential amenity impacts on sensitive land use, including where located in residential or commercial zones.[45]  On this topic Mr Enders does not seem to dispute this opinion, but rather asserts that the specific outcomes specifically set locational requirements for sport and recreational uses (i.e. directly fronting Brisbane Road, Labrador, Reedy Creek Road, Burleigh and Spencer Road (north of Pappas Way), Nerang) (clause 3.5.2.1(9)(h)), which the proposed development does not achieve.[46]
  3. [47]
    The co-respondent argues that while the proposed development does not meet the preferred locational requirements, this is not determinative of compliance.  The expressed outcome is for preference in a performance based planning scheme, not a prohibition.  The language is permissive: “may be established”. The outcome can be met where the use achieves the objective intent therein.  The use, not readily catered for in other areas, does not compromise the long term use of the industrial land for its intended purpose.  This is confirmed by the review of development approvals obtained 15 March 2016 and 12 December 2018.  Only one of the 27 sports and recreation uses approved in the light industry zone was located within the purported locational constraints.[47]
  4. [48]
    The co-respondent submits that the evidence of Mr Adams and Mr Perkins should be accepted to the effect that the land provides an opportunity for this use to be established without compromising the long term use of general industry land for its intended purposes.[48]  It has so operated for six years and can readily revert to an industrial use upon cessation of the indoor sports and recreation use.  Thus there is no compromise of the strategic framework, in particular, section 3.2.2 and 3.5.2.1(9).

Respondent’s submissions

  1. [49]
    The respondent submits on this topic that the dance studio may be established in a general industry area if:
    1. (a)
      it is not readily catered for in other areas due to its scale and nature; and
    2. (b)
      it does not compromise the long term use of general industry land for its intended purpose.
  2. [50]
    It is submitted that the dance studio is not readily catered for within other areas for a number of reasons:
    1. (a)
      the large floor area requirements for such a land use;[49]
    2. (b)
      the potential amenity impacts such as noise on sensitive land uses in residential and commercial zones;[50]
    3. (c)
      the after-hours nature of the use (and attendant noise and traffic impacts).
  3. [51]
    It is submitted that the Council has approved approximately 39 development applications (including this site) for indoor sport and recreation uses in low impact industry zone between 15 March 2016 and 18 September 2020.  Only one of these is in one of the locations identified in clause 3.5.2.1(9)(h).[51]  These approvals included four other dance studios.[52]  This indicates that these uses are not readily accommodated in other areas, and also gives rise to a community expectation of consistency in application of the City Plan.
  4. [52]
    Emphasis is placed on the language that the dance studio must not be “readily” catered for in other areas, as opposed to not catered for at all.
  5. [53]
    The dance studio is submitted not to compromise the long term use of general industry for its intended purpose, with reference to the contextual meaning of “compromise”.[53]
  6. [54]
    Thus it is submitted that there is no such compromise here where there is no traffic basis to refuse the application; no other unacceptable impacts are identified; the proposed use is not sensitive to amenity impacts such as to create “reverse amenity” limitations of industrial uses in the neighbourhood; and the proposed hours are typically, or mostly, outside the hours likely to be used by other industrial uses in the neighbourhood.  Further, it is pointed out that the dance studio has been retro-fitted from a warehouse and can easily be re-converted.  Thus it will not clearly threaten, imperil, or endanger the current or intended industrial uses in the area in the long or short term.
  7. [55]
    It is also submitted that the list of uses in clause 3.5.2.1(9)(h) is non-exhaustive.  The fact that indoor sport and recreation is included at certain locations not including the subject site does not mean the proposal is not complaint.  Rather indoor sport and recreation is contemplated as one of the uses that may comply and the locations identified simply provide particular locations where they might do so; this does not shut out other locations that might otherwise meet the two criteria, or evince an intention to do so.

Appellant’s submissions

  1. [56]
    The appellant argues that general industry land should be protected from encroachment. Generally only complementary uses should be accommodated, which this is not. As to the other uses which may be permitted, this property is not within the geographical restriction, which ought be regarded, where the use can be accommodated within other areas, on Mr Enders’ evidence. Ms Guest’s desire or need to save costs should not be determinative. On Mr Enders’ evidence, the development in this zone is contrary to the City Plan.

Overall Conclusion re Second Issue

  1. [57]
    Again, the respondents’ arguments are more persuasive. In my conclusion the dance studio is not readily catered for in other areas, because of its scale and nature, and its potential amenity impacts on surrounding uses such as residential and commercial zones. It does not compromise the long or short term use of general industry land. It is not in conflict with the strategic intent of the Plan or the specific outcomes, for the reasons outlined. Clause 3.5.2.1 contemplates indoor sport and recreation as a use which may comply, and in this instance it does.

Third Issue: Whether the proposed use complies with the Low impact industry zone code of the City Plan

  1. (a)
    Section 6.2.9.2(1) - Purpose
  1. [58]
    Section 6.1 of the City Plan provides that zones organise the planning scheme to facilitate the location of preferred or acceptable land uses. Section 6.2.9.2(1) sets out the purpose of the low impact industry zone code (“the code”).  The code’s purpose is to provide for service and low impact industrial uses as well as other “support” uses where they do not compromise long term use of the land for industrial purposes. The appellant points out that the dance studio does not strictly meet this purpose.

The Co-Respondent’s submissions

  1. [59]
    The co-respondent submits that this does not mean that all other forms of development are precluded, rather it is an expression of preferred land use.  The code should be read as a whole; this is particularly relevant in the context that section 6.2.9.2(2) of the code itself states that the purpose of the code will be achieved through identified overall outcomes.
  2. [60]
    Thus some particular uses, other than for service and low impact industry uses and non-industrial and business uses which support the industrial activities, are contemplated if they do not compromise the short or long term use of the zone for industrial activities, as specifically contemplated by section 6.2.9.2(2)(iv) of the code.  This explicitly includes indoor sport and recreation uses.
  3. [61]
    The City Plan does not deem such a use “inconsistent development” in the zone, or as being “inconsistent” with the zone code.  Thus it is submitted that the Court ought not readily conclude non-compliance.
  4. [62]
    Section 6.2.9.2(2)(iv) explicitly contemplates a non-aligning use provided it does not compromise the short or long term use of the zone for industrial activities.  It is submitted that this is such a case, particularly where it has been shown to be able to co-exist within an industrial area for the past six years; it is submitted that the co-respondent is not required to demonstrate that the proposed development could not be appropriately accommodated on any available site across the planning scheme area. 
  5. [63]
    It is pointed out that the tables of assessment anticipate the assessment of a range of uses in the zone and it would be incongruous if such uses were made assessable development, to be assessed against the code, were they not contemplated in the zone. 
  6. [64]
    Although the non-exhaustive list of uses suggests a locational limit on indoor sports and recreation and showroom uses to where they directly front Spencer Road (north of Pappas Way), Nerang, this is considered by Mr Adams to be a mere preference rather than being exhaustive.[54]  Thus it does not explicitly preclude those uses occurring elsewhere in the zone, so long as the pre-requisites are met and the intent of the zone is not compromised.  Thus (on a similar theme to the respondent’s submission set out at [51] above) of 27 indoor sports and recreation uses approved in a light industry zone in the city between 15 March 2016 and 12 December 2018, only one was located with a street frontage to Spencer Road.[55]

Respondent’s submissions

  1. [65]
    On this topic the respondent acknowledges that the dance studio does not strictly meet the purpose of a support use, but urges that the code should be read as a whole.  Clause 6.2.9.2(2)(a) sets out uses that may achieve the purpose of the code, including uses which do not meet the purpose.  Thus if the code is “read in a way which is practical, and read as a whole, and as intending to achieve a balance between outcomes”[56]  the code admits of the possibility of uses referred to in 6.2.9.2(2) but not specifically referred to in the purpose clause 6.2.9.2(1).  This interpretation also aligns with clauses 3.2.2 and 3.5.2.1(9). 
  2. [66]
    The dance studio complies with the overall outcomes of the code and thus the code itself (when read as a whole).  Even if this were not so, the non-compliance is technical or minor, in that the dance studio will not compromise the long or short term operation of the industrial uses intended for the zone. 

Appellant’s Submissions

  1. [67]
    The appellant refers to the fact that the use does not support the industrial activities, consistently with clause 6.2.9.2(1). This is correct, but as outlined above, the code should be read as a whole and clause 6.2.9.2(2)(a) sets out uses that may achieve the purpose of the code, including uses which do not meet the purpose.  Thus if the code is “read in a way which is practical, and read as a whole, and as intending to achieve a balance between outcomes”, it admits of the possibility of uses referred to in 6.2.9.2(2) but not specifically referred to in the purpose clause 6.2.9.2(1).  The proposed use is in this category, in my conclusion. 
  1. (b)
    Clauses 6.2.9.2(2)(a)(iv) and (vi) of the low impact industry zone code – Purpose achieved through overall outcomes
  1. [68]
    The relevant overall outcomes in the code are sub-clauses (iv) and (vi).  Sub-clause (vi) provides that the land uses “that are incompatible and have the potential to compromise the industrial operations of the zone, such as sensitive land uses are not supported”. 

Co-Respondent’s submissions

  1. [69]
    The Co-Respondent submits that the proposed development is consistent with the overall outcomes. It is not an “Educational establishment” as discussed above. Mr Adams and Mr Perkins opine that the use does not compromise the long term use of the land for industrial purposes and can comfortably co-exist in the industrial area as it has done for six years.
  2. [70]
    Further, the overall outcome in s 6.2.6.1(2)(a)(iii) is expressed in positive terms, encouraging particular uses but not explicitly excluding others. In the context of the scheme overall, non-compliance does not arise. Then overall outcome (2)(a)(iv) contemplates other uses where they are not appropriate in other areas due to their scale and nature, if they do not compromise the short or long term use of the zone for industrial activities; this is such a case and is consistent with the planning intent. (2)(a)(iv) simply provides a non-exhaustive, non-determinative, indicative list of uses. It contemplates non-industrial uses in the low impact industry zone and the development under discussion is not incompatible with the surrounding uses.

Respondent’s submissions

  1. [71]
    Sub-clause (vi) is similar to clause 3.2.2. of the Strategic Framework, however unlike clause 3.2.2, sub-clause (vi) uses the defined term “sensitive land use”.  The respondent submits that the dance studio is not a “sensitive land use”; see above.  As the dance studio will not compromise the industrial operations of the zone and does not have the potential to do so, it is not incompatible. 
  2. [72]
    Sub-clause 2(a)(iv) provides that land uses “that may not be appropriate in other areas due to their scale and nature will be considered providing they do not compromise the long or short term use of the zone for industrial activities.  These include sport and recreation and showrooms where directly fronting Spencer Road (north of Pappas Way), Nerang…”
  3. [73]
    Sub-clause 2(a)(iv) is similar to clause 3.5.2.1(9).  However, 2(a)(iv) relevantly provides that land uses “may not be appropriate” in other areas due to their scale and nature (as opposed to “not readily catered for”).  Thus it is submitted that, if anything, the test in 2(a)(iv) is broader than that in 3.5.2.1(9).  In any case, for the same reasons earlier relied upon, the dance studio may not be appropriate in other areas due to its large space requirement and amenity impacts due to hours, noise and traffic.  It is submitted the dance studio will not compromise the short or long term use of the zone for industrial activities.  Sub-clause 2(a)(iv) admits of the possibility of non-industrial uses for particular sites, and an absolute prohibition on non-industrial uses for a particular site cannot have been intended. 

Appellant’s Submissions

  1. [74]
    The appellant submits that sub-clause 2 (a)(iv) mirrors the restrictions in the strategic framework, pointing out the limitation of uses as to scale and nature, also the geographical restriction for the uses of indoor sport and recreation and showroom. Thus the development is contrary to the City Plan.

Conclusion as to Overall Outcomes

  1. [75]
    In my conclusion, the Respondents’ submissions on this issue should be accepted. As they advance, it is not a sensitive land use; its scale and nature is inappropriate for other areas; and the use does not compromise the long or short term use of the land for industrial purposes and can comfortably co-exist in the industrial area as it has done for six years. Sub-clause 2(a)(iv) does admit of the possibility of non-industrial uses for particular sites, and an absolute prohibition on non-industrial uses for a particular site cannot have been intended. 

Fourth Issue – should the development be approved having regard to the above and other relevant matters

Co-Respondent’s submissions

  1. [76]
    As to the proposal not conforming with reasonable expectations, the compliance with assessment benchmarks would conclude this issue in favour of the development, particularly when there are a number of other approved dance studios in the low impact industry zone, and consistent decision making is to be expected.
  2. [77]
    Any conflicts with the City Plan can reasonably be remitted by appropriate conditions.
  3. [78]
    The proposed development could not be concluded to be inconsistent with current approvals nor compromise the use of Lot 1 and common property; again the long operation without apparent problems in the location is relevant.
  4. [79]
    Issue 7 has been addressed by the revised traffic management plan and can be dealt with by a condition requiring the plans and drawings to be corrected in accordance with the surveying expert evidence. 
  5. [80]
    As to any difficulty with the Body Corporate (i.e. the unlikelihood of any relevant consent being forthcoming where the appellant is the only other member of the two lot scheme), this is not a matter for this Court and any decision thereof is of course reviewable under the relevant statutory regime.

Respondent’s submissions

  1. [81]
    The respondent submits that three relevant matters are relied on in the list of issues.  Firstly, as to the impacts of the proposed development, with traffic matters no longer a reason for refusal, it is submitted that there are no unacceptable impacts arising from the dance studio which cannot be addressed by the recommendations of the traffic experts.  The terms of s 45(5)(b) of the Planning Act are wide enough in an appropriate case for the absence of a negative impact or detrimental effect to be taken into account as a relevant matter on an impact assessment.[57]
  2. [82]
    The second issue is whether any non-compliance or impact can be cured by the imposition of conditions.  What is submitted by the respondent is that there is no non-compliance warranting refusal and, as above, conditions can address traffic impacts.
  3. [83]
    Thirdly, the respondent submits that “other relevant matters” are dealt with by the co-respondent’s submissions, outlined above.  What the co-respondent submits in relation to these matters is, firstly, in relation to issue 4 suggesting that the proposal does not accord with reasonable expectations, this is determined by a conclusion as to compliance with the assessment benchmarks in the situation that reasonable expectations are informed by the scheme.  The co-respondent also submits that this is considered in the context of the existing uses in the surrounding locality.  Further, the fact of the approval of other dance studios in the low impact industry zone under the City Plan is relevant.  Finally, that the community should expect consistent decision making by a local government in the same context.

Appellant’s submissions

  1. [84]
    There is a community expectation that the Council would adhere to the City Plan; noncompliance cannot be cured by conditions; it is not an appropriate use for the land; the public interest is in supporting the intent and restrictions of the City Plan; and the unlawful use cannot continue indefinitely. There are some neighbouring occupiers not in favour.

Conclusion as to Relevant Matters

  1. [85]
    As to reasonable expectations, I accept that compliance with assessment benchmarks concludes this issue in favour of the development, particularly when there are a number of other approved dance studios in the low impact industry zone, and consistent decision making is to be expected. Any conflicts with the City Plan can reasonably be remitted by appropriate conditions. I accept generally the respondents’ submissions on this issue.

S 60 of the Planning Act - should the development application be approved in the exercise of the planning discretion?

  1. [86]
    This discretion involves the assessment of the application against the applicable assessment benchmarks; non-compliance, if any, is a relevant “fact and circumstance” in the exercise of the discretion under s 60(3) of the Planning Act; whether this warrants refusal is a separate question, and non-compliance does not automatically warrant refusal. A balanced decision in the public interest may be called for.[58]

Co-Respondent’s submissions

  1. [87]
    The co-respondent also submits that the proposed development achieves compliance against the relevant assessment benchmarks, and thus ought to be approved.  Alternatively the question arises as to whether the discretion conferred by s 60(3) ought be exercised to grant approval to the extent non-compliance is established (subject to appropriate conditions).
  2. [88]
    The co-respondent submits the discretion ought be exercised for the purpose for which it was given, that is, to approve an application notwithstanding non-compliance with some of the assessment benchmarks in the public interest absent any meaningful adverse town planning or traffic outcomes (which could not otherwise be conditioned).[59]

Respondent’s submissions

  1. [89]
    The development ought be approved subject to appropriate conditions as it is a balanced decision in the public interest. If that conclusion is reached, the matter may be adjourned to permit agreement on conditions.

Conclusion as to the Planning Discretion

  1. [90]
    Again, I accept the respondents’ submissions on this topic. The proposed development broadly achieves compliance against the relevant assessment benchmarks, and thus ought to be approved subject to appropriate conditions. Approval is, in my conclusion, a balanced decision in the public interest.

Conclusion

  1. [91]
    In my conclusion the appeal should be dismissed. As outlined above, the proposed development does achieve compliance with relevant assessment benchmarks, and in any case approval is in the circumstances a balanced decision in the public interest. None of the arguments presented on behalf of the appellant persuade me to the contrary. Thus the appeal is dismissed with the result that the respondent’s approval of the development application is confirmed, with the matter to be adjourned to permit agreement on conditions.

Footnotes

[1] Wormell Pty Ltd v Gold Coast City Council & Anor [2021] QPEC 12.

[2]  Supra.

[3]  See Exhibit 4, the Town Planning Joint Expert Report (TPJER), p 7, para 13. 

[4]  Exhibit 2.

[5] Planning and Environment Court Act 2016 (PECA), s 43.

[6]  PECA s 45(2). 

[7]  PECA s 46(2); Planning Act 2016 (PA) s 45(5). 

[8]  [2019] QPELR 793.

[9]  [2020] QCA 257 at [52] to [62]. 

[10] Abeleda at [57].

[11]  [2006] QCA 271 at [31] per Jerrard JA

[12]  See Westfield Management Ltd v Pine Rivers Shire Council (2005) QPEC 015 at [22]

[13]  [2011] QPEC 105 at [34].

[14] Shire of Perth v O'Keefe (1965) 110 CLR 529 at 534-535; PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144 at [105].

[15] PMM Group Pty Ltd v Noosa Shire Council (supra) at [105].

[16] AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R at [46].

[17] World Agriculture Society of New South Wales v Sydney City Council [1987] 61 LGERA 305 at 311; PMM Group Pty Ltd v Noosa Shire Council (supra) at [105].

[18]  [1998] 194 CLR 355, particularly at [70]-[71], [78].

[19]  Exhibit 4, p 17, paras 61-62.

[20]  Exhibit 4, p 17 para 62 and p 19, para 71.

[21]  Exhibit 4, p 19, para 71.

[22]  At para [12] and [13] of her affidavit

[23]  Exhibit 4, p 18, para 63 and p 19 para 71.

[24]  Exhibit 4 p 17 para 61, p 19 para 71.

[25]  T4-20, l 6 (Mr Enders).

[26]  Enders at T4-19, l 46 to T4-20, l 11 and T4-27, ll 1-3 and 16-17.

[27]  Exhibit 4, p 18, para 66.

[28]  Enders at T4-27, ll 14-17 and T4-54, ll 27-29.

[29] AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1 per Philippides J at [73].

[30]  Exhibit 11, p 5, para 38.

[31]  Affidavit of Ms Sinclair at p 3, para 13.

[32]  T4-27, ll 19-20; T4-55, ll 32-33.

[33]  Affidavit of Ms Guest, Exhibit 11, p 5, para 38.

[34]  Exhibit 4 at [69]-[70]

[35]  (1959) 101 CLR 298, 308, 312, 320-1

[36]  Supra at 308

[37]  Planning scheme extracts, Exhibit 17, p 19.

[38]  Exhibit 17.

[39]  Exhibit 4, p 23, para 82.

[40]  T3-32, ll 14-33.

[41]  Exhibit 4, p 23, para 81.

[42] Jedfire Pty Ltd v Logan CC [1995] QPELR 41 at 43; Lockyer Valley v Westlink Pty Ltd (2011) 185 LGERA 63 at 73 [19]-[20].

[43]  Exhibit 11, p 7, para 55.

[44]  Affidavit of Ms Guest, para [48]

[45]  Exhibit 4, p 24, para 85, p 29, para 113.

[46]  Exhibit 4, p 24, para 88.

[47]  Exhibit 4, p 24, para 90.

[48]  Exhibit 4, p 24, para 86.

[49]  Exhibit 4, p 24, para 85.

[50]  Exhibit 4, p 24, para 85.

[51]  See Exhibit 15, p 6, para 7 and Appendix B.

[52]  Exhibit 4, pp 18-21, para 71 and Table 3.

[53]  See Brown v Brisbane City Council [2005] QPELR 629 at 631, para [9].

[54]  Exhibit 4, p 26, para 100.

[55]  Exhibit 4, p 26, para 101, p 29, para 113.

[56]Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686 at [56].

[57]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 at [61].

[58]Supra at [54], referring to Ashvan

[59]  See Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 at [85].

Close

Editorial Notes

  • Published Case Name:

    Wormell Pty Ltd v Gold Coast City Council & Anor (No 2)

  • Shortened Case Name:

    Wormell Pty Ltd v Gold Coast City Council (No 2)

  • MNC:

    [2021] QPEC 22

  • Court:

    QPEC

  • Judge(s):

    Kent QC DCJ

  • Date:

    16 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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