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Nadi Lane Projects 1 Pty Ltd v Brisbane City Council[2021] QPEC 5

Nadi Lane Projects 1 Pty Ltd v Brisbane City Council[2021] QPEC 5

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Nadi Lane Projects 1 Pty Ltd v Brisbane City Council [2021] QPEC 5

PARTIES:

NADI LANE PROJECTS 1 PTY LTD

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO:

390/2020

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

15-19 February 2021

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against deemed refusal of a development application for a childcare centre in the low density residential zone

PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with the planning scheme – whether there is a need for the proposed development – whether the proposed development has unacceptable impacts on traffic in the vicinity of the site

LEGISLATION:

Planning Act 2016 (Qld) ss 45 and 60

Planning and Environment Court Act 2016 (Qld) ss 43, 45 and 46

CASES:

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253

Richards & Ors v Brisbane City Council & Ors [2020] QPEC 26

COUNSEL:

D C Whitehouse for the appellant

J J Ware for the respondent

SOLICITORS:

Natasha Patrick Town Planning Law for the appellant

City Legal for the respondent

 

Introduction

  1. [1]
    This is an appeal against the deemed refusal by the respondent of a development application for a material change of use for a childcare centre (“the proposed development”) on land at 1019 to 1021 Waterworks Road, the Gap (“the site”). 
  2. [2]
    The design of the proposed development within the site is uncontentious and it is intended that it cater for up to 67 children, operating between Monday and Friday from 6.00am to 7.00pm.[1]

The site and the surrounding area

  1. [3]
    The site is on the north-west corner of the signalised intersection of Waterworks Road and Pammay Street, comprises an area of 1702m2 and has a 35 metre frontage to Waterworks Road and a 34 metre frontage to Pammay Street.[2]  The site currently contains two separate dwelling houses which are to be removed.  One of these dwelling houses takes access from Waterworks Road and the other from Pammay Street.[3]
  2. [4]
    The site is within the Low density residential zone (“LDRZ”) in the respondent’s planning scheme (“the planning scheme”)[4] and adjoins residential land to the immediate north and west of the site.  It is directly opposite The Gap State High School and is within approximately 200 metres of the District Centre which contains The Gap Village Shopping Centre and other commercial uses.[5]  Immediately to the north of the Waterworks Road/Pammay Street intersection there is a 25 metre long loading zone adjacent to the Pammay Street frontage of the site which is a pick up/set down area for students attending The Gap State High School.  The pedestrian loading zone limits the duration of a stay to a maximum of two minutes between 7.00am and 9.00am and between 2.00pm and 4.00pm.  It would typically allow up to four vehicles to pick up and drop off students from any position within it.[6]
  3. [5]
    Access to the proposed development is to be restricted to Pammay Street only.[7]  The driveway is intended to be 20 metres from the signalised intersection referred to above.[8] 
  4. [6]
    It is conceded by the respondent that the proposed development is well located apart from the problematic traffic environment in Pammay Street during peak hours.[9]

The statutory assessment framework

  1. [7]
    Pursuant to the Planning and Environment Court Act 2016 (“PECA”) the appeal is by hearing anew,[10] and the appellant must establish that the appeal should be upheld.[11]  Section 46 of the PECA addresses the nature of an appeal and relevantly provides:

(2) The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if—

  1. (a)
    the P&E Court were the assessment manager for the development application; and
  1. (b)
    the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.”
  1. [8]
    As the proposed development was impact assessable, s 45 of the Planning Act 2016 (“PA”) provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances of the appeal before me, are the relevant provisions of the planning scheme.[12]  Furthermore, the assessment may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[13]
  2. [9]
    In deciding an impact assessable development application pursuant to s 60(3) of the PA, the court must decide:

(a) to approve all or part of the application; or

  1. (b)
    to approve all or part of the application, but impose development conditions on the approval; or
  1. (c)
    to refuse the application.”
  1. [10]
    As the Court of Appeal observed in Brisbane City Council v YQ Property Pty Ltd, the ultimate decision “called for when making an impact assessment under s 45 and s 60 (of the) Planning Act is a broad, evaluative judgment.”[14]

The relevant provisions of the planning scheme

  1. [11]
    I must assess the development application against or having regard to the planning scheme in effect when the development application was properly made.  However, I can give the weight I consider appropriate in the circumstances to any subsequent amendments.[15]  I note that the town planning experts who gave evidence, Mr Schomburgk, who was called on behalf of the appellant and Mr Gaskell, who was called on behalf of the respondent agreed that “there is no significant difference in policy intent relevant to this appeal” between the version of the respondent’s planning scheme in force at the time the development application for the proposed development was lodged and the current version of it.[16]  Accordingly, the appeal proceeded having regard to Version 16.00/2019 of the planning scheme.[17]
  2. [12]
    Relevantly, the Low density residential zone code (“LDRZC”) provides:

6.2.1.1 Low density residential zone code

  1. The purpose of the low density residential zone is to provide for:

b. community uses, and small-scale services, facilities and infrastructure, to support local residents.

  1.  Development location and uses overall outcomes are:

g. Development reflects and supports the high level of comfort, quiet, privacy and safety (including impacts of glare, odour, light, noise, traffic, parking, servicing and hours of operation) reasonably expected within a predominantly low density permanent residential environment.

k. Development for a non-residential use serves a local community facility need only, such as a childcare centre or a substation, and is of a bulk and scale that is compatible with and integrates with the built form intent for the Low density residential zone.”[18]

  1. [13]
    Essentially, s 6.2.1.1.1.b makes it clear that the proposed development, being a community facility,[19] is contemplated in the LDRZ but subject to the restrictions in s 6.2.1.1.4. In the circumstances before me, the need for the proposed development, its impacts on traffic and the manner in which refuse collection is proposed are contentious.
  2. [14]
    Furthermore, the Transport, access, parking and servicing code (“TAPSC”) relevantly provides as follows:

9.4.11.2 Purpose

  1. The purpose of the Transport, access, parking and servicing code is to assess the suitability of the transport, access, parking and servicing aspects of the development.
  1.  The purpose of the code will be achieved through the following overall outcomes:

 

c. Development provides safe access for all transport modes that does not impact adversely on the efficiency and safety of the transport network or diminish the amenity of nearby land uses.

e. Development provides site access arrangements to ensure that any adverse impacts on other development, the transport network and those who use it, are minimised to maintain amenity of the area and the safety and efficiency of the transport system.

f. Development ensures that access, parking and servicing arrangements and impacts such as noise, are consistent with the community’s reasonable expectations and avoid risk of damage to people, property and vehicles.

k. Development provides for on-site servicing that is safe, convenient to use, but discrete, and adequate to meet the reasonably expected demands generated by the development, without significant adverse impacts on the external road system or adjacent premises.”[20]

  1. [15]
    Thereafter, the following performance outcomes have been identified as being relevant to the determination of the appeal:

PO1

Development is designed:

  1. to include a technically competent and accurate response to the transport and traffic elements of the development;
  2. in accordance with the standards in the Transport, access, parking and servicing planning scheme policy;
  3. to ensure the efficient operation and safety of the development and its surrounds.[21]

PO3

Development provides vehicle access that is located and designed so as to have no significant impact on the safety, efficiency, function, convenience of use or capacity of the road network.[22]

PO9

Development provides access driveways in the road area that are located, designed and controlled to:

  1. minimise adverse impacts on the safety and operation of the transport network, including the movement of pedestrians and cyclists.[23]

...

PO19

Development layout provides for services which:

c. are designed to contain potential adverse impacts of servicing within the site;

d. do not detract from the aesthetics or amenity of the surrounding area.”[24]

  1. [16]
    It is important to note when assessing the proposed development against various codes, s 5.3.3 of the planning scheme states that code assessable development “that complies with the purpose, overall outcomes, and performance outcomes or acceptable outcomes of the code complies with the code”.[25]

The disputed issues

  1. [17]
    The disputed issues narrowed considerably during the course of the appeal, partly as a result of design changes undertaken by the appellant.  The following issues remain for determination:
  1. Whether the appellant has demonstrated a local community need for the proposed development;
  2. Whether the proposed development has unacceptable traffic and servicing impacts as a result of the location of the access driveway, the proposed refuse collection arrangements and whether these in turn lead to unacceptable impacts on local amenity; and
  3. Whether relevant matters contended for by the appellant, including that the proposed development is well located, would allegedly address a local community need as well as a planning need and could be conditioned to comply with the applicable assessable benchmarks in the planning scheme, justify approval of the proposed development. 

Traffic and servicing impacts

  1. [18]
    Two traffic engineers gave evidence, Mr Trevilyan was called on behalf of the appellant and Mr Holland was called on behalf of the respondent. Two issues assumed particular significance from a traffic and servicing perspective. The first issue was the impact of the traffic likely to be generated by the proposed development on the already congested traffic situation in Pammay Street, particularly during morning peak periods. The second issue was the impact of the proposed development on the loading zone for the dropping off and collecting of students at the nearby high school.
  2. [19]
    I accept the evidence of Mr Trevilyan that a development such as that proposed typically experiences a peak morning drop off time from about 7am and that the peak drop off for high school students in the pedestrian loading zone is routinely between 8.10am and 8.40am.[26] As Mr Holland observed and I accept, the am peak for the proposed development is likely to coincide with, or at least considerably overlap, the am school peak and the peak period for commuters going to work.[27] At this time, there is significant queueing in Pammay Street, extending as far back as 74 metres from the intersection.[28] In the circumstances, as Mr Trevilyan conceded, it would take multiple phases of the traffic lights for vehicles to clear Pammay Street.[29] I have had the benefit of viewing a number of photos showing the significant congestion caused by vehicles queuing in Pammay Street during the morning peak.[30]
  3. [20]
    It is uncontentious that the proposed development is likely to generate traffic movements of 50 vehicles an hour during this period.[31] Mr Holland stated that there was “just no opportunity” for vehicles to turn out of the proposed driveway into Pammay Street towards the intersection with Waterworks Road and that this could lead to a dangerous situation.[32] I accept his evidence in this regard. The problem of exiting the proposed development during this time is made worse by the proximity of the proposed driveway to the traffic signals at the intersection with Waterworks Road.[33]
  4. [21]
    The other significant impact of the proposed development relates to the access driveway being located in a position where it cuts through the school loading zone, effectively shortening it from 25 metres to 12 metres, which will accommodate two vehicles south of the driveway and one vehicle north of the driveway,[34] a loss of one vehicle space. Mr Trevilyan sought to justify this outcome, as the overall effect of the proposed development would be to remove a driveway that is currently utilised to access one of the houses on the site to Waterworks Road within a bus zone. Mr Trevilyan maintained that this trade off was sufficient to justify the proposed access in circumstances where it was “not ideal”.[35] Firstly, I have reservations as to whether this can even be a relevant consideration where it is the role of the court to assess the impacts of the proposed development rather than such indirect consequences of it. However, in circumstances where I accept the evidence of Mr Holland that the existing student loading zone already does not have sufficient capacity, I am of the view that it is an unacceptable impact to remove one of the car spaces available and replace it with a driveway, effectively cutting in two.[36] The additional congestion occasioned by the 50 vehicle movements in the context of the compromising of the passenger loading zone and its capacity to adequately meet the needs for dropping off students and picking them up, is such that any benefits brought about by the loss of a residential driveway into Waterworks Road pale into insignificance.
  5. [22]
    There is a further notable impact in the vicinity of the passenger loading zone adjacent to the proposed development. The appellant proposes eight wheelie bins be collected two to three times per week from the curb adjacent to the passenger loading zone. This considerable number of bins would potentially further impede the effective operation of this very congested area from both a vehicular and pedestrian perspective. I am of the view that it is impossible to impose a condition to ensure that the effectiveness of this important facility for students is not further compromised by the regular presence of numerous wheelie bins. A condition requiring them to be removed by a certain time would be unable to be effectively enforced.
  6. [23]
    Accordingly, I am of the view that the proposed development does not provide safe access and will impact adversely on the efficiency and safety of the transport network. So far as the wheelie bins themselves are concerned, I am of the view that there is a significant risk that regular placement of them in the vicinity of the pedestrian loading zone will diminish amenity by impeding pedestrian access in this congested area. Effectively, there will be unacceptable impacts contrary to the relevant provisions of the purpose of the TAPSC and the relevant performance outcomes identified above.

The need for the proposed development

  1. [24]
    Two economists gave evidence in the course of the hearing.  Mr Lee gave evidence on behalf of the appellant and Mr Brown gave evidence on behalf of the respondent.  At the outset it is important to consider that the Gap comprises a leafy residential community approximately 7 kilometres north-west of the Brisbane central business district.[37]  It is a suburb with a net jobs balance such that 68 percent of employed people who live in the Gap go to jobs outside the suburb.[38]  This results in commuters ultimately leaving the suburb to travel to work through the main access road which connects the suburb with inner Brisbane and beyond, Waterworks Road. However, Waterworks Road has good connectivity with another significant road which runs roughly parallel to it for a considerable distance within the suburb, Payne Road.[39]
  2. [25]
    The Gap contains one high school and four primary schools with catchments which appear to not be determined by the location of Waterworks Road.[40]  Nonetheless, Mr Lee contends that in analysing the need for the proposed development, rather than generally having regard to the Gap Statistical Area 2, which coincides with the locality boundary for the suburb, it should be divided into a primary sector which consists of the northern part of the Gap and a secondary sector which consists of the southern part of the Gap.[41]  When considering matters such as school catchments and the ready connectibility within the suburb, I prefer the evidence of Mr Brown, that there is no discernible difference between these two areas and that there is no basis for separating out the suburb into the sectors as contended for by Mr Lee.[42] 
  3. [26]
    A statistical feature of the Gap which is accepted by both experts, is the fact that recent data from the Australia Bureau of Statistics shows a further decline in births in the suburb which has led to a further lowering of the proportion of residents in the zero to four year age group, which is the focus of the proposed development.[43]  To accurately calculate any demand for the proposed development, it is necessary to include approved but not yet available childcare places in the analysis. Significantly, when the additional approved but not yet available childcare places in the Gap are allowed for in the calculations undertaken by Mr Lee, his calculations show a shortfall of supply for childcare places of only 25 in 2021 and 35 in 2023, when it is likely that the proposed development would be operating.[44] 
  4. [27]
    That is not the entirety of the picture in terms of the demand for childcare places in the Gap however, as Australian Bureau of Statistics childcare survey information indicates there is a significant proportion of people who make a choice to enrol their children close to work as opposed to close to home.[45]  The net outflow of residents of the Gap choosing to do this has been calculated to be greater than 40 percent.[46]  Assuming new childcare centres are developed as approved, Mr Brown estimates that this resultant leakage will drop to 25 percent.[47]  Mr Lee nominates a rate of only 15 percent leakage in these circumstances.[48]  However, these are just intuitive judgments on the part of both experts, made against the backdrop of more families seeking childcare over time, leading to an extra demand for childcare places.[49]  Whichever approach to calculating the leakage component is preferred, it remains a relevant factor that will further reduce the demand for childcare places assessed by Mr Lee.   The demand is certainly well less than half of the 67 places sought to be provided by the proposed development in circumstances where Mr Brown asserts that any demand for additional places could be readily accommodated by incrementally increasing numbers at existing centres.[50]
  5. [28]
    As I observed in Richards & Ors v Brisbane City Council & Ors, the reference to the requirement that proposed developments serve “a local community facility need only” is a reference to planning need.[51]  I further observed that:

“Essentially, planning need, or the term need in a planning context without qualification, refers to whether there is a latent unsatisfied demand in an area for the proposed development which is not being adequately met ...”[52]

  1. [29]
    Even allowing for the application of this appallingly drafted provision to extend to attracting patrons from beyond its local area, such as people who travel to the Gap to work,[53] the appellant has not discharged the onus of demonstrating a “local community facility need” for the proposed development as required by s 6.2.1.1.4.k of the LDRZC.
  1. [30]
    Turning to the relevant matters identified above, any benefits from the proposed development being otherwise well located are more than offset by the impacts of the additional vehicular movements in the congested context of Pammay Street, the compromising of the pedestrian loading zone and the consequences of the wheelie bins further impacting upon the amenity of the street from a functional perspective.  The proposed development cannot be conditioned to comply with the applicable assessment benchmarks quoted above.

 Conclusion

  1. [31]
    The proposed development has failed to demonstrate the requisite need for it.  It is poorly located from a traffic management perspective.  This has serious consequences for other road users and students utilising the adjacent pedestrian loading zone. 
  2. [32]
    The appeal is therefore dismissed.  

 

Footnotes

[1]  Exhibit 3, para 19.

[2]  Exhibit 5, p 2.

[3]  Exhibit 3, paras 8 and 10. 

[4]  Brisbane City Plan 2014.

[5]  Exhibit 5, p 2.

[6]  Exhibit 4, paras 30-32. 

[7]  Exhibit 3, para 10. 

[8]  Exhibit 4, para 96, Exhibit 8, p 2.

[9]  Written submissions of the respondent, para 116, T3-103, ll25-40.

[10]  Planning and Environment Court Act 2016 (Qld) s 43.

[11]  Ibid s 45(1)(a).

[12]  Planning Act 2016 (Qld) s 45(5)(a)(i).

[13]  Ibid s 45(5)(b).

[14]  [2020] QCA 253 at [59].

[15]  PA s 45(7) and (8).

[16]  Exhibit 3, para 36. 

[17]  Exhibit 10. 

[18]  Ibid p 38.

[19]  Ibid p 83.

[20]  Ibid p 61.

[21]  Ibid p 62.

[22]  Ibid p 62.

[23]  Ibid p 63.

[24]  Ibid p 64.

[25]  Ibid p 28.

[26]  Exhibit 4, para 53.

[27]  Ibid para 93.

[28]  Ibid para 97.

[29]  T1-60 ll 30-35.

[30]  Exhibit 13A, Appendix C.

[31]  T2-33 ll 35-40.

[32]  T2-22 ll 15-25.

[33]  T2-31 ll 1-10.

[34]  Exhibit 4, para 47.

[35]  T1-51 ll 15-20.

[36]  Exhibit 4, para 40.

[37]  Exhibit 5, p 4.

[38]  Ibid and T3-38, ll 5-25.

[39]  Exhibit 2.

[40]  Exhibit 5, p 4.

[41]  Ibid p 14.

[42]  Exhibit 9, p 591-597.

[43]  Exhibit 7, p 14.

[44]  Exhibit 7, p 16, Table 4, T 4-35, ll 20-30.

[45]  T3-45, ll 1-6.

[46]  Exhibit 5, p 34 and T3-1, ll 5-10.

[47]  Ibid.

[48]  Exhibit 7, p 13.

[49]  T3-7, ll 35-40.

[50]  Exhibit 5, p 43.

[51]  [2020] QPEC 26 at [22].

[52]  Ibid.

[53]  Northern Properties Pty Ltd v Brisbane City Council [2019] QPEC 66 at [78]-[80].

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Editorial Notes

  • Published Case Name:

    Nadi Lane Projects 1 Pty Ltd v Brisbane City Council

  • Shortened Case Name:

    Nadi Lane Projects 1 Pty Ltd v Brisbane City Council

  • MNC:

    [2021] QPEC 5

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    23 Feb 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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