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Griffith Capital Pty Ltd v Redland City Council[2022] QPEC 21

Griffith Capital Pty Ltd v Redland City Council[2022] QPEC 21

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Griffith Capital Pty Ltd v Redland City Council [2022] QPEC 21

PARTIES:

GRIFFITH CAPITAL PTY LTD

(ACN 637 242 392)

(Appellant)

v

REDLAND CITY COUNCIL

(Respondent)

FILE NO/S:

505 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23 June 2022

DELIVERED AT:

Kingaroy

HEARING DATE:

11, 12 and 13 October 2021

JUDGE:

Kefford DCJ

ORDER:

I order:

1. by 4 pm on 21 July 2022, the respondent is to provide the appellant with a draft suite of conditions;

2. by 4 pm on 4 August 2022, the appellant is to notify the respondent, in writing, of its position with respect to the draft suite of conditions; and

3. The appeal be listed for review at 9 am on 18 August 2022.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking a development permit for material change of use for a childcare centre in the Low density residential zone – whether the proposed development is small scale – whether the proposed development is of a house-like scale – whether there is a need for the proposed development – whether the proposed development should be approved in the exercise of the planning discretion

LEGISLATION:

Planning Act 2016 (Qld) ss 45, 59, 60

Planning and Environment Court Act 2016 (Qld) ss 43, 45, 47

Planning Regulation 2017 (Qld) s 31, sch 24

CASES:

AAD Design Pty Ltd v Brisbane City Council & Anor [2012] QCA 44; [2013] 1 Qd R 1, applied

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

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved

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

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved

Luke & Os v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, approved

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcott Pty Ltd & Ors [2021] QCA 95, applied

Wilhelm v Logan City Council & Ors [2020] QCA 273, applied

Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82, applied

COUNSEL:

M Batty and R Yuen for the Appellant

D Whitehouse and A Hellewell for the Respondent

SOLICITORS:

Connor O'Meara Solicitors for the Appellant

Redland City Council Legal Service for the Respondent

TABLE OF CONTENTS

Introduction 3

What is the applicable framework for the decision? 4

What are the issues to be determined? 5

Is the scale of the proposed development appropriate? 7

What are the relevant assessment benchmarks? 8

Does s 3.4.1.8 of City Plan apply?10

Is the proposed development a non-residential use for a community purpose or community service function?11

Is the proposed development located on a collector or higher order road?11

Is the proposed development stand-alone? 11

Will the proposed development significantly detract from residential amenity?12

Will the proposed development impact on the function of any nearby centre or compromise the role
of any centre?
12

Is the built form of the proposed development of a house-like or house compatible scale?13

What is the existing character of the locality?14

Is the proposed development of a house-like or house compatible scale?16

Is the proposed development consistent with the open and low density character of the locality?19

Conclusion regarding the appropriateness of the built form20

Is the proposed development small scale?20

Conclusion regarding compliance with the assessment benchmarks?24

Is there a need for the proposed development?25

Are there other relevant matters that support approval?29

Should the development application be approved in the exercise of the planning discretion?30

Conclusion31

Introduction

  1. [1]
    The Appellant, Griffith Capital Pty Ltd (“Griffith Capital”), wants to redevelop land at 13-15 Ziegenfusz Road, Thornlands (“the subject land’) for use as a childcare centre.  The subject land is located in the Low density residential zone under the Redland City Plan 2018 version 4 (“City Plan”). 
  2. [2]
    The subject land consists of two contiguous residential allotments being Lots 121 and 122 on RP 198375.  They are located on the north-western corner of Ziegenfusz Road and Abalone Crescent, opposite Carmel College and near Bay View State School.  The lots are of roughly equal size and together have an area of 1,615 square metres.  Each of the lots is currently improved by a detached single-level dwelling house. 
  3. [3]
    On 27 March 2020, Griffith Capital made a development application to Redland City Council (“the Council”) for a development permit for a material change of use to facilitate its desire to redevelop the subject land.  The Council did not decide the development application within the statutory timeframe provided under the Planning Act 2016 (Qld).  On 3 March 2021, the Appellant lodged an appeal in this Court against the Council’s deemed refusal of its development application.
  4. [4]
    This appeal proceeds by way of hearing anew.[1]  The Appellant has the onus of establishing that the appeal should be allowed.[2]  The ultimate issue to be determined in the appeal is whether, in the exercise of my discretion, I should approve the development application.

What is the applicable framework for the decision?

  1. [5]
    The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 applies.  In deciding the appeal, the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate.[3] 
  2. [6]
    There is a broad discretion in determining the appeal.[4]  As the development application was impact assessable, the exercise of the discretion must be based on an assessment that, relevantly:[5]
    1. (a)
      must be carried out:
      1. against the assessment benchmarks in City Plan to the extent relevant;[6] and
      2. having regard to, relevantly, any lawful use of the premises and adjacent premises and the common material, including properly made submissions about the development application;[7] and
    2. (b)
      may be carried out against, or having regard to, any other relevant matter other than a person’s personal circumstances (financial or otherwise).
  3. [7]
    The Court may also give weight to any amendments to the planning scheme.  In this case, that is not necessary.  The Council concedes that, while the planning scheme has changed, there are no relevant amendments to consider.[8]
  4. [8]
    The appropriate approach to the statutory assessment and decision-making process is well documented.  That approach is set out by the Court of Appeal in four recent decisions, namely Brisbane City Council v YQ Property Pty Ltd,[9] Abeleda & Anor v Brisbane City Council & Anor,[10] Wilhelm v Logan City Council & Ors,[11] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcott Pty Ltd & Ors.[12]  Collectively, those cases confirm the approach articulated by this Court in Ashvan Investments Unit Trust v Brisbane City Council & Ors[13] and Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[14]
  5. [9]
    As is apparent from the Court of Appeal authorities, the starting point generally remains that the planning scheme is taken to be an embodiment of the public interest.[15]  Nevertheless, the Planning Act 2016 affords flexibility for an assessment manager, or this Court on appeal, in deciding an impact assessable development application.[16]

What are the issues to be determined?

  1. [10]
    In accordance with the usual practice of the Court,[17] an Agreed List of Issues[18] was tendered by the parties identifying the focus of the dispute between the parties.  Originally, the Council raised issues associated with traffic and car parking, and waste management and water quality.  The Council accepts that these are no longer matters that warrant refusal.  Rather, they can be addressed by the imposition of conditions.[19]  The Agreed List of Issues reflects that, by the commencement of the trial, not all the issues previously identified as disputed issues in the court documents remained in dispute.  The document identified the narrow scope of the dispute.  For that, I am grateful.  
  2. [11]
    As indicated in the Agreed List of Issues,[20] the Council contends that the proposed development fails to comply with the following provisions of City Plan:
    1. (a)
      within the Strategic framework, s 3.4.1.8(4); and
    2. (b)
      within the Low density residential zone code, the overall outcomes in ss 6.2.1.2(2)(e) and (g), and performance outcomes PO18, PO30, PO33, PO37 and PO38.[21]
  3. [12]
    Griffith Capital disputes that the proposed development fails to comply with the assessment benchmarks identified by the Council.  It also contends that, even if there is non-compliance, having regard to relevant matters, the proposed development should be approved.
  4. [13]
    The matters relied on by Griffith Capital are identified in the Agreed List of Issues.  They are:
    1. (a)
      the proposed development complies with all applicable assessment benchmarks;
    2. (b)
      there is a need for the proposed development;
    3. (c)
      the proposed development is well located, including being located on a trunk collector road[22] and co-located with Carmel College;
    4. (d)
      the proposed development is a modern, well-designed childcare centre;
    5. (e)
      the proposed development would provide residents of the locality with additional choice in childcare services; and
    6. (f)
      the proposed development represents an appropriate transition between the built form and use of Carmel College and residential built form in the area.
  5. [14]
    During closing submissions, the Council made additional concessions, further refining the issues to be determined.  The Council conceded that:
    1. (a)
      the proposed development is for a childcare centre, which is a form of non-residential use that is expressly anticipated in the Low density residential zone, given it is code assessable in that zone if it has a gross floor area of less than 250 square metres;[23]
    2. (b)
      the proposed development is for a community purpose or for a community service function;[24]
    3. (c)
      the proposed development is stand-alone;[25]
    4. (d)
      the proposed development will not significantly detract from residential amenity;[26]
    5. (e)
      the proposed development will not compromise the role of a particular centre;[27]
    6. (f)
      the proposed development is a modern, well-designed childcare centre;[28] and
    7. (g)
      the proposed development would provide residents of the locality with additional choice in childcare services.[29]
  6. [15]
    Further, the Council no longer contends that the result of an assessment of the proposed development against performance outcomes PO33, PO37 and PO38 of the Low density residential zone code calls for refusal.[30]  This concession was made having regard to the evidence given by the visual amenity expert retained by Griffith Capital, Mr Powell, during his cross-examination about landscaping.
  7. [16]
    The concessions were appropriate considering the evidence that transpired during the hearing.  I am grateful to Ms Whitehouse and Ms Helliwell, Counsel for the Council, for appropriately directing the focus of the case.  That they took the time to revisit the extent of the disputed issues and make the further appropriate concessions saved the resources of the Court that would have otherwise been unnecessarily expended in addressing issues that are not truly in contention.  The approach of Ms Whitehouse and Ms Helliwell is to be commended.
  8. [17]
    Given the concessions made by the Council during closing addresses, not all the issues in the Agreed List of Issues[31] require adjudication.[32]  Having regard to the assessment benchmarks and relevant matters still in dispute, the following questions require determination:
  1. Is the scale of the proposed development appropriate?
  2. Is there a need for the proposed development?
  3. Are there other relevant matters that support approval?
  4. Should the development application be approved in the exercise of the planning discretion?

Is the scale of the proposed development appropriate?

  1. [18]
    The Council contends that the proposed development is an inappropriate non-residential use in a residential area because of the scale of the use and the built form.  It says the scale is inconsistent with s 3.4.1.8(4) of the Strategic framework and the overall outcomes in ss 6.2.1.2(2)(e) and (g), and performance outcomes PO18 and PO30 of the Low density residential zone code.
  2. [19]
    Griffith Capital disagrees.  It says that s 3.4.1.8(4) of the Strategic framework does not apply.  It also says that, even if the provision does apply, the proposed development complies with it.  Griffith Capital also contends that it complies with the other assessment benchmarks relied on by the Council.

What are the relevant assessment benchmarks?

  1. [20]
    The Council relies on s 3.4.1.8 of City Plan, which forms part of the Strategic framework.  The Strategic framework sets the policy direction for City Plan.  It forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of the planning scheme.[33]  For the purpose of describing the policy direction for the planning scheme, the strategic framework contains:
    1. (a)
      a statement of the strategic intent;
    2. (b)
      five themes that collectively represent the policy intent of the scheme, namely:
      1. liveable communities and housing;
      2. economic growth;
      3. environment and heritage;
      4. safety and resilience to hazards; and
      5. infrastructure;
    3. (c)
      strategic outcomes proposed for development in the planning scheme area for each theme.[34]
  2. [21]
    Section 3.4.1.8 is one of several strategic outcomes for the economic development theme contained in s 3.4 of City Plan.  It states:

3.4.1.8 Out-of-centre development

  1. (4)
    Non-residential uses only occur in residential zones where they are for a community purpose, are stand-alone and small scale, do not significantly detract from residential amenity and do not compromise the role of any centre.”
  1. [22]
    The subject land is in the Low density residential zone in City Plan.  As such, that code contains applicable assessment benchmarks.  With respect to the issue of scale, the Council contends that the proposed development does not comply with the overall outcomes in ss 6.2.1.2(2)(e) and (g), and performance outcomes PO18 and PO30.  Those provisions state:

6.2.1.2 Purpose

  1. (2)
    The purpose of the code will be achieved through the following Overall Outcomes:
  1. (e)
    uses which provide a community service function, such as a community use may be established where they are small scale, do not significantly detract from residential amenity, do not compromise the role of any centre and are located on a collector or higher order road;
  1. (g)
    buildings are of a house-like scale;

Performance outcomes

Acceptable outcomes

For assessable development

Non residential uses

PO18

Non-residential uses, only occur where they:

  1. (1)
    are for a community service function;
  1. (2)
    are located on a collector or higher order road;
  1. (3)
    do not unduly detract from residential amenity;
  1. (4)
    are of a small scale; and
  1. (5)
    do not impact on the function of any nearby centre.

No acceptable outcome is nominated.

Built Form (other than for dwelling houses)

PO30

Development occurs in a form that is:

  1. (1)
    of a house compatible scale and consistent with open and low density character of the locality; and
  1. (2)
    allows for provision of substantial open space and landscaping on the site.

No acceptable outcome is nominated.

  1. [23]
    In assessing whether there is compliance with these assessment benchmarks, the provisions call for the following factual determinations:
  1. Is the proposed development a non-residential use for a community purpose or community service function?
  2. Is the proposed development located on a collector or higher order road?
  3. Is the proposed development stand-alone?
  4. Will the proposed development significantly detract from residential amenity?
  5. Will the proposed development impact on the function of any nearby centre or compromise the role of any centre?
  6. Is the built form of the proposed development of a house-like or house compatible scale?
  7. Is the proposed development small scale?
  1. [24]
    Before turning to those questions, it is useful to first address Griffith Capital’s contention that s 3.4.1.8 of City Plan does not apply.

Does s 3.4.1.8 of City Plan apply?

  1. [25]
    Griffith Capital contends that this provision does not apply.  More particularly, Griffith Capital contends that it does not apply to childcare centres but to shopping centres.  It submits that such a construction is aided by the context in which the provision sits.  In that respect, Griffith Capital notes the provision immediately follows the setting out of the centres’ hierarchy for this local government area, with s 3.4.1.8 of City Plan stating the circumstances where out of centre shopping centre development may be permissible.  Further, the sections that proceed s 3.4.1.8, more particularly ss 3.4.1.1 to 3.4.1.7 inclusive, clearly refer to the word “centre” based on a shopping centre.  Finally, it notes that City Plan takes its definitions from the Planning Regulation 2017 (Qld), which separately defines shopping centre and childcare centre.
  1. [26]
    The established principles and canons of statutory construction apply to the construction of planning documents.[35]  As such, it is necessary to consider the context of the provisions that are being construed, and to read them in a way that is practical, and as intending to achieve balance between outcomes.[36]  Further, it is not unduly pedantic to begin with an assumption that words mean what they say.[37]
  2. [27]
    Here, the plain meaning of the words does not support the construction for which Griffith Capital contends.
  3. [28]
    I also do not accept that the references to “centre” are based on a shopping centre.  As is explained in s 3.4.1.1(1) of the Strategic Framework, Redlands’ settlement pattern is structured around a hierarchy of multi-purpose activity centres which provide:
    1. (a)
      community meeting places;
    2. (b)
      hubs of community services and facilities;
    3. (c)
      shopping areas;
    4. (d)
      location for education and employment;
    5. (e)
      settings for leisure and entertainment activities;
    6. (f)
      housing and visitor accommodation; and
    7. (g)
      access to public transport services.
  1. [29]
    The planning intent that centres will be multi-purpose activity centres is supported by other outcomes sought in ss 3.4.1.1 to 3.4.1.7 of City Plan.  For example, s 3.4.1.2(1) identifies that the principal centres at Cleveland and Capalaba are intended to contain the highest-order and largest concentrations of shopping, offices, community services and facilities, cultural and entertainment activities, and tertiary and other specialist education and training facilities.[38] 
  2. [30]
    In those circumstances, I do not accept that s 3.4.1.8(4) of City Plan should be read down in the manner contended by Griffith Capital.  It is a relevant assessment benchmark against which the proposed development is to be assessed.

Is the proposed development a non-residential use for a community purpose or community service function?

  1. [31]
    As I have mentioned above, the Council concedes that the proposed development is a non-residential use for a community purpose and will serve a community service function.[39]  The concession is appropriate having regard to the evidence of the town planners.  Mr Christopher Buckley and Mr Ashley Lovell, the town planners retained by Griffith Capital and the Council respectively, agree that childcare centres provide a community service function.[40] 

Is the proposed development located on a collector or higher order road?

  1. [32]
    The proposed development is located on a corner site on the northern side of Ziegenfusz Road.  It also fronts Abalone Crescent.  Ziegenfusz Road is a local collector road and Abalone Crescent is a typical local residential street.[41]
  2. [33]
    In the circumstances, I am satisfied that the proposed development is located on a collector road.  This is a matter that was uncontroversial.[42] 

Is the proposed development stand-alone?

  1. [34]
    The Council concedes that the proposed development is stand-alone.[43]  The concession is appropriate given the evidence of Mr Buckley that the proposed development is stand-alone in that it does not form an aggregation or clustering of non-residential uses that creates a de facto centre.[44]

Will the proposed development significantly detract from residential amenity?

  1. [35]
    The Council concedes that the proposed development will not significantly detract from residential amenity.[45]  The concession is appropriate.
  2. [36]
    As is observed by Griffith Capital in its written submissions, the Council cannot point to any unacceptable impact arising from the proposed development.  Traffic and car parking, and waste management and water quality issues were raised by the Council as part of their reasons for refusal.  However, the Council has accepted that they are now matters for conditions.  Further, there is no evidence to suggest that the proposed development would result in any unacceptable impact such as overshadowing impacts, impacts on breezes, or adverse impacts from noise, light or odour.  The conclusion that the proposed development will not significantly detract from residential amenity is also supported by the combined evidence of Mr Buckley and Mr Nathan Powell, the visual amenity expert retained by Griffith Capital.

Will the proposed development impact on the function of any nearby centre or compromise the role of any centre?

  1. [37]
    The Council concedes that the proposed development will not compromise the role of a particular centre.[46]  However, it contends that the proposed development will undermine the role and function of centres more generally.  It relies on the evidence of Mr Lovell in that respect.
  2. [38]
    Mr Lovell says that whilst centres are primarily commercial and retail in nature, they also rely on community uses.  He says that the location of community uses in a centre allows for efficiencies in planning the transport network.  He opines that approving a use that is not small scale undermines the role and function of centres generally by undermining the ability for centres to become the community hub as intended.[47] 
  3. [39]
    Mr Marcus Brown, the economist retained by the Council, expresses a contrary view.  He says that approval of the proposed development would have no effect on the centres’ hierarchy.[48] 
  4. [40]
    Although the observations by Mr Lovell have force as a general planning concept, the evidence of Mr Brown persuades me that Mr Lovell’s broader strategic concern is not founded in any identifiable impact in this case.  As such, I am satisfied that the proposed development would not impact on the function of any nearby centre or compromise the role of any centre. 

Is the built form of the proposed development of a house-like or house compatible scale?

  1. [41]
    The Council says the built form of the proposed development will be significantly larger in bulk and scale than the surrounding low density residential developments.  It says the proposed development would be noticeable as a non-residential development from both of its street frontages.  As such, the Council contends that the built form of the proposed development is not of a house-like or house compatible scale nor consistent with the open and low-density character of the locality.  Griffith Capital disagrees.
  1. [42]
    Each of the parties presented expert evidence to assist me with the determination of this issue.  It included evidence of Mr Nathan Powell and Mr Leslie Curtis, the visual amenity experts retained by Griffith Capital and the Council respectively.  The issue was also addressed by the town planners. 
  1. [43]
    There was no dispute between the experts about the built form metrics of the proposed development.  Their description of the built form accords with the depiction of the proposed development in the plans.[49] The proposed childcare centre is to be conducted in a single, two-storey building that spans the two contiguous allotments.  The building is less than 8.5 metres in height.  It will have a site cover of 886.9 square metres or 54.9 per cent of the two contiguous lots.  It incorporates setbacks to building walls of:
    1. (a)
      5.687 to 6.099 metres along Ziegenfusz Road;
    2. (b)
      3.451 to 5.576 metres along Abalone Crescent;
    3. (c)
      3.595 to 5.555 metres to the south-western boundary; and
    4. (d)
      2.048 to 5.170 metres to the north-western boundary.[50]
  2. [44]
    The built form of the proposed development includes articulation in the form of a five metre by five metre “cut out”.  The cut out is in the middle of the southern elevation of the building, which fronts Ziegenfusz Road.  This full height “cut” into the southern elevation creates two prominent sections to the building.[51]
  3. [45]
    On the ground level, adjacent the building, are outdoor play areas for the children.  Those play areas are located behind a fence on both street frontages.  There is an additional outdoor play area located on the upper level of the building.  It is on a platform that extends toward the northern boundary, over the 23 car spaces that are proposed to be located at ground level at the rear of the building.[52] 
  4. [46]
    Other than at the driveway crossovers, the proposed development will incorporate landscaped area along both frontages.[53]
  5. [47]
    The noise occasioned by the proposed development will be attenuated by acoustic barriers that are:
    1. (a)
      1.8 metres high along the Ziegenfusz Road frontage;
    2. (b)
      2 metres high at the eastern boundary truncation (extending about 8.5 metres north-west of the truncation);
    3. (c)
      2 metres high along the north-western boundary; and
    4. (d)
      transitioning from 2 to 2.2 metres high along the south-western boundary.[54]
  6. [48]
    Despite agreeing the built form metrics, the experts’ opinions differ on whether the proposed development will be of a house-like or house compatible scale and whether it is consistent with the open and low density character of the locality.  Before considering those issues, it is helpful to understand the existing character of the locality.

What is the existing character of the locality?

  1. [49]
    The subject land is in a suburb of Redlands located between Cleveland to the north and Victoria Point to the south.  The subject land and its locality are readily accessible to all services supporting residential living, and to many areas of employment outside of the local area by way of commute along Ziegenfusz Road.[55]
  2. [50]
    The town planners describe the locality as one that is defined by two clear parts.  From Ziegenfusz Road north, the suburb is of an urban character featuring predominantly low density, well established residential areas.  It reads as an extension of the well-established suburb of Cleveland to the north.  With the exception of nearby Carmel College, land use south of Ziegenfusz Road is a predominantly low density residential area characterised by its presentation of backyard fencing and landscaping to Ziegenfusz Road.  Further west is rural residential and rural in nature.[56]
  3. [51]
    The town planners agree that schools are a notable feature of the locality.  Carmel College, a private high school with approximately 1250 students, is located diagonally opposite the subject land.  Bayview State School, a primary school with approximately 750 students, is located approximately 500 to 600 metres to the west.  On school days, the extent of parked cars in the road reserve and along Abalone Crescent is material.  It is parking that appears to be associated with Carmel College.[57]
  4. [52]
    Ziegenfusz Road is a local collector road that connects the sub-arterial Cleveland-Redland Bay Road in the east to the arterial Panorama Drive in the west.  It carries in the order of 7,000 to 8,000 vehicles per day.[58]  Both Cleveland-Redland Bay Road and Panorama Drive are major north south roads.  Abalone Street is a typical local residential street.[59]
  5. [53]
    The town planners agree that the built form in and off Abalone Street is entirely one and two storey dwelling houses.  The dwelling houses fronting Ziegenfusz Road are of a similar nature.[60]
  6. [54]
    The visual amenity experts also gave evidence about the character of the locality.  They agree that, in considering whether the proposed development is consistent with the open and low density character of the locality, it is relevant to understand the areas from which the subject land, and elements upon it, have the greatest potential to be viewed.  They describe that area as the “primary theoretical visual catchment”.  Its extent is depicted on Figure NP1.1 in the Visual Amenity Joint Experts’ Report.  It is an area that is largely localised around the intersection nearest to the subject land and extends in a linear configuration approximately 150 to 200 metres to the north-west and north-east and approximately 150 metres to the south-west.[61] 
  7. [55]
    Mr Powell opines that roads, road verges, driveways, bus stops, and carparks (with the latter associated with Carmel College) and additional on street parking in Tuna Court form a large proportion of that primary theoretical visual catchment and are a major contributor to its character.  Mr Powell acknowledges that those features are framed by buildings, including residential buildings to the north and east and College buildings to the south-west, which contribute to the character of the locality.  However, Mr Powell says that it is the car parks in front of the College buildings (on the outside bend of Ziegenfusz Road) that contribute the greatest sense of openness to the primary visual catchment.[62]  Mr Powell’s evidence in this regard is supported by photos.[63]  I accept his evidence.
  8. [56]
    Mr Curtis considers that the local context extends beyond the primary theoretical visual catchment.  In his view, the relevant locality extends to William Stewart Park to the north, Cleveland-Redland Bay Road to the east, Ziegenfusz Road to the south and Vintage Drive to the west.  Those are higher order perimeter roads that provide relatively robust delineations between the local area and the areas opposite.  Mr Curtis says that the cumulative impression of the subject land’s local area, including its neighbourhood character and extent, is informed by what is visible along the paths that receptors travel along in that local area.  The area within the boundaries of Mr Curtis’ defined local area is comprised of typical suburban residential development, whereas the areas to the east of Vintage Drive and to the south of Ziegenfusz Road also include educational facilities within large grounds.[64] 
  9. [57]
    The grounds of Bay View State School on Vintage Drive and Carmel College on Ziegenfusz Road extend along the road frontages opposite the local area defined by Mr Curtis.  Mr Curtis says they present a land use and streetscape character that is varied and differentiated from the consistent low density residential land uses and character within the defined local area.  He opines that the frontage of the properties to the south of Ziegenfusz Road between its intersection with Vintage Drive and the Carmel College is characterised by the continuous vegetated verge that extends along the rear of the properties.  Those properties are accessed from Lidgard Street to the south.  In Mr Curtis’ opinion, the separation provided by the perimeter roads, and the differences between the homogeneous land use and residential character of his defined local area as compared to the varied land uses and mixed character of the areas opposite, distinguishes his local area as the relevant locality for an assessment of character impacts.  He considers it notable that Abalone Crescent, to which the subject land has a frontage, passes through the local area between Ziegenfusz Road and Vintage Drive, serving as a collector road for several local streets including Trochus Court, Trevally Court, Trout Street and Herring Drive.  He says that many of the properties within the local area are therefore accessed via Abalone Crescent, whereupon many persons travelling through the local area will pass the subject land and understand its relationship to the local area, including the existing houses and the low density character of the locality.[65]  Mr Curtis’ evidence in this regard is supported by photos.[66] 
  10. [58]
    I accept that the local area defined by Mr Curtis is relevant to a consideration of the character of the locality.  I accept his description of the character of that local area, and his evidence about the residents’ perception of the character of the local area and adjacent areas. 

Is the proposed development of a house-like or house compatible scale?

  1. [59]
    The visual amenity experts and the town planning experts addressed whether the proposed development of a house-like or house compatible scale.
  2. [60]
    Mr Curtis opines that the proposed development is not of a house-like or house compatible scale.  His opinion is premised on four matters.  First, it will have a footprint and bulk that is approximately twice the size of the existing houses that characterise the locality.  Second, it will occupy twice the land area of the existing houses that characterise the locality.  Third, it will be comprised of elements that are not a house-like scale, including a large car park under croft, an elevated outdoor play area and acoustic barriers.  Those elements will be visible from the street frontages and neighbouring properties, where they will be clearly inconsistent with the residential character of the locality.  Fourth, he opines that the overall articulation and visual composition of the built form will not effectively mitigate the impacts of building bulk and scale in relation to the locality.[67]  In his assessment of the scale of the proposed development and its impact on the character of the locality, Mr Curtis focused on the existing houses in the area.  He attributed no weight to the intended, anticipated or encouraged built form under City Plan.[68] 
  3. [61]
    During cross-examination, Mr Curtis accepted that, in terms of intended or planned built form in the locality, under City Plan there is potential for a large house to be constructed within the local area across an amalgamation of two lots;[69] and for four dual occupancy dwellings to be developed on the two lots the subject of this appeal.[70]
  1. [62]
    Mr Lovell opines that the proposed development is more compatible with a multiple dwelling than a house.  His opinion is premised on five matters. 
  2. [63]
    First, he relies on the evidence of the visual amenity experts about the scale of existing housing in the locality.  Those experts note that the scale of the existing housing within the local area is generally one and two storey detached dwellings on typical suburban lots that vary in size from approximately 630 square metres to 850 square metres.  Most lots are approximately 700 square metres.  The visual amenity experts also observe that houses have a typical footprint of approximately 250 to 350 square metres and a site cover of less than 50 per cent.  Most are also generally setback more than six metres from the street frontage, behind unfenced landscape gardens. 
  3. [64]
    Second, Mr Lovell relies on Mr Curtis’ assessment of the footprint of the proposed development, wherein Mr Curtis says:

“… the proposal will have a ‘footprint’ of approximately 886m2, which is more than twice the footprint area of the neighbouring houses.  The footprint requires two lots with a total area of 1614m2 to be accommodated.  The size of the built form will be of a large scale in relation to the existing neighbouring properties in the Local Area.”

  1. [65]
    Third, the terminology within the scheme provisions is singular, not plural, that is house, not houses.  As the proposed development seeks to present the built form as two houses, rather than a single house, Mr Lovell considers that it is evident that the scale of the built form is larger than a house.
  2. [66]
    Fourth, Mr Lovell considers the scale of the proposed built form, including its 886 square metre footprint, the arrangement of building space to open space areas at ground level and above ground deck, and 23 car parks, is more compatible with a multiple dwelling than a house.
  3. [67]
    Fifth, Mr Lovell is of the view that the siting provisions of the Queensland Development Code are not appropriate when considering scale as the provisions do not correlate to land size. 
  4. [68]
    In the opinions of Mr Buckley and Mr Powell, the proposed development features several important design aspects which positively contribute to its house-like scale.
  5. [69]
    First, the proposed development is modulated in its appearance and includes “house like” architectural elements, such as the pitched roof form, the window proportions, covered balconies and residential construction materials.  Mr Curtis also accepts this to be the case.[71]
  6. [70]
    Second, the proposed development has a typical two storey residential height of less than 8.5 metres.  Such a height is an indication of buildings that are low rise and of a house compatible scale.[72]
  7. [71]
    Third, the proposed development provides generous setbacks from all boundaries.  On average, they triple the setbacks required by the acceptable outcomes.[73]
  8. [72]
    Fourth, the proposed development reads as two buildings, with the width of the recess or step in the middle of the buildings exceeding the acceptable solution in the Queensland Development Code for separation between buildings.[74]
  9. [73]
    Fifth, the proposed development has a site cover marginally over the 50 per cent allowance under the siting provisions of the Queensland Development Code, where much of that site cover is recreation space.[75]  Mr Powell’s diagrams illustrate that site cover is acceptable.[76]
  10. [74]
    Ultimately, whether the proposed development is of a house-like or house compatible scale is a matter about which reasonable minds might differ.  It is a question of fact and degree to be informed by a range of relevant considerations. 
  11. [75]
    Each of Mr Buckley, Mr Powell and Mr Curtis consider that built form metrics, such as site cover, height, setback, lot sizes and building separations, are relevant to the assessment of scale.[77]  Mr Lovell disagrees as the metrics do not correlate to land size.[78]
  12. [76]
    Performance outcome PO31 of the Low density residential zone code relates to built form of buildings other than dwelling houses.  It requires buildings to be low rise and of a house-compatible scale.  The associated acceptable outcome states that building height is not to exceed 8.5 metres.  This indicates to me that the height is a relevant consideration.
  13. [77]
    City Plan provides no guidance on the horizontal dimensions, minimum wall lengths or articulations for non-residential development that would be regarded as house-like scale either in performance outcome PO30 or elsewhere in the Low density residential zone code.  However, such matters are addressed in the acceptable solutions for dwelling houses under the Queensland Development Code, to which City Plan refers.  As such, I consider they provide a relevant guide.[79]
  14. [78]
    Mr Curtis accepts that the proposed development largely, if not completely, complies with the metrics for a dwelling house contained in the acceptable outcome in City Plan and the acceptable solutions in the Queensland Development Code with respect to site cover, height, lot sizes and building separations.[80]  These metrics do not correlate to land size.  For that reason, I do not regard the built form metrics to be determinative of the issue.  Nevertheless, they are relevant.
  15. [79]
    The reference in the assessment benchmarks to a house-like or house compatible scale calls for consideration of the appearance of the proposed development.  I accept the evidence of Mr Buckley and Mr Powell set out in paragraphs [67] to [72] above about the design attributes of the proposed development that inform its appearance.  Their evidence is supported by the plans and visual representations of the development.
  16. [80]
    I accept the evidence of Mr Curtis about the relative size of the built form of the proposed development compared to that which exists in the locality.  His evidence is consistent with concessions made by Mr Powell.  During cross-examination, Mr Powell accepted that, putting aside Carmel College (which is in the Community facility zone), the building footprint of the proposed development is substantially larger than that of the low-density residential dwellings that are found in this locality.  The footprint of the proposed development is twice the size of the footprint of the neighbouring buildings.  In addition, Mr Powell accepted that he is unable to identify a double-lot residential dwelling that has a footprint similar to that of the proposed development.[81] 
  17. [81]
    The significance of those matters is diminished when one considers the intentions for the area.  Under City Plan, the Low density residential zone is intended to include dual occupancy dwellings.
  18. [82]
    Overall, I am satisfied that the proposed development is of a house-like or house compatible scale.  My conclusion in that regard is particularly informed by the plans and visual representations of the proposed development.  The plans demonstrate that the proposed development will have a substantial separation from the adjoining houses.  The proposed development also has cut-outs at the corners, which mitigate the visual impact of the reduced setbacks to the intersection to the extent that there are no readily discernible or material visual impacts.  The visual representations show that the building is positioned and oriented to face the busy Ziegenfusz Road.  The substantial articulation in the building gives the overwhelming impression that it is two separate houses.[82]  Its presentation to Abalone Crescent is also house-like.  Landscaping will further assist the building to integrate into its setting.  

Is the proposed development consistent with the open and low density character of the locality?

  1. [83]
    When judging consistency with character, it is relevant that the proposed development is located on a road that forms a boundary for Mr Curtis’ local area rather than in the heart of the local area.  This means that the proposed development will be viewed in an immediate context that has a land use and streetscape character that is varied and differentiated.  It includes the significant built form of Carmel College, which contains several larger buildings and presents as a very intense use.  Carmel College’s location on the outside bend of Ziegenfusz Road also makes it more visually prominent than the development proposed on the subject land.[83]
  2. [84]
    Having regard to the matters referred to in paragraphs [43] to [82] above, I am satisfied that the proposed development is consistent with the open and low density character of the locality.

Conclusion regarding the appropriateness of the built form

  1. [85]
    For the reasons explained above, I am satisfied that the built form of the proposed development is of a house-like and house compatible scale and consistent with the open and low density character of the locality.  As such, it complies with the overall outcomes in s 6.2.1.2(2)(g), and performance outcome PO30 of the Low density residential zone code.

Is the proposed development small scale?

  1. [86]
    Griffith Capital contends that the proposed development is small scale.  The Council disagrees.
  1. [87]
    There is no definition of “small scale” in City Plan.  As such, the phrase is to be given its ordinary meaning.  Whether the proposed development is “small scale” is also to be determined by looking at the words used in the relevant provision in City Plan, and the terms of City Plan as a whole to determine the meaning the terms were intended to have in City Plan.
  1. [88]
    As was identified by the Court of Appeal in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcott Pty Ltd & Ors:[84]

[75] “Small scale” is defined to be “of limited size or extent,”[85] in the Oxford Dictionary and, relevantly, is defined in the Macquarie Dictionary as “unambitious, or of small extent, as an enterprise.”[86]

[77] In Zappala Family Co Pty Ltd v Brisbane City Council,[87] Morrison JA, with whom McMurdo P and Douglas J agreed, stated that the same principles which apply to statutory construction applied to the construction of planning documents. In particular, his Honour referred to the principles set out by the majority in Project Blue Sky Inc v Australian Broadcasting Authority,[88] in the following terms:

“The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:

[78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning …” (underlining added)

[78] Morrison JA in Zappala Family Co Pty Ltd v Brisbane City Council also referred to the decision of AAD Design Pty Ltd v Brisbane City Council,[89] where Chesterman JA stated in relation to planning schemes, they can “often lack clarity, contain ambiguities and sometimes appear contradictory,” and noted that the Court should adopt a common sense approach and endeavour to give words meaning. Justice Morrison stated that the approach should start and end with the text, seen in its context in the way suggested by Project Blue Sky.[90] His Honour also referred to High Court decision often cited as setting out the modern approach to statutory interpretation, CIC Insurance Ltd v Bankstown Football Club Ltd,[91] where the majority stated that the modern approach to statutory interpretation insists that the context be considered in the first instance, and context is to be used in its widest sense.”[92]

  1. [89]
    Griffith Capital contends that, properly construed, the overall outcome in s 6.2.1.2(2)(e) contemplates the establishment of uses that provide a community service function in the Low density residential zone subject to certain conditions.  The conditions require that the type of community use that is established is one that is small scale.  In that respect, Griffith Capital says that you compare the proposed community use, being a childcare centre, to other uses that might constitute a community use (such as a detention facility, educational establishment, place of worship and residential care facility).  It says some of the community uses, such as detention centres, are not small scale by their nature but others, such as childcare centres, are.  Griffith Capital contends that, on that approach, childcare centres are contemplated provided they meet the other pre-conditions, namely that they do not significantly detract from residential amenity, they do not compromise the role of any centre and they are located on a collector or higher order road.  Griffith Capital contends that this approach is supported by comparing the overall outcomes in s 6.2.1.2(2)(e) to the overall outcomes in other zones that reference “small scale” uses.
  2. [90]
    One example provided is the overall outcome in s 6.2.4.2(2)(c) of the Character residential zone, which states:

“a limited range of small scale non-residential uses which provide services to the local and tourist community, such as food and drink outlet, roadside stall, a childcare centre or community use, may be established where they do not significantly detract from residential amenity and do not compromise the role of any centre.”

  1. [91]
    Griffith Capital says that the overall outcome in the Character residential zone code is more restrictive than that in the Low density residential zone code as evidenced by the reference to “a limited range of small scale non-residential uses”.  Griffith Capital notes that the overall outcome in the Character residential zone code provides a non-exhaustive list of examples of the uses that are small scale non-residential uses.  The list includes a childcare centre.  Griffith Capital contends that this demonstrates that a childcare centre is a small scale use by its very nature.[93]
  2. [92]
    Alternatively, Griffith Capital contends that the appropriate approach is that taken by Mr Buckley, namely that whether the proposed development is small scale is a question of fact that is informed by matters that include built form, the extent of the use, and the setting and context of the locality in which the use is to be conducted.  In that respect, Griffith Capital says this Court’s observations in Parmac Investments Pty Ltd v Brisbane City Council & Ors[94] are relevant.  In that case, the Court observed:

[43] When the text of overall outcome (4)(g)(i) is considered in that context, it seems to me that an assessment of the compatibility of the “scale” of the proposed development requires consideration of not only built form metrics, but also indicia of the intensity (or impact) of the use. Relevant indicia of the intensity, level of activity or impact of the use include hours of operation, extent and duration of lighting and volume of traffic associated with the proposed development.”[95]

  1. [93]
    The Council contends that when considering scale, it is linked to both the assessment of the built form and the use.  Mr Buckley and Mr Lovell both consider that approach was appropriate.  The Council says that, in terms of the built form aspect, the concept is tied to the requirement for a house-like or house compatible scale.  In terms of the operation of the use, the Council accepts that a community care centre or community use that does not exceed 250 square metres in gross floor area is small scale given it is code assessable in the Low density residential zone.  However, it says there is no utility in then comparing the size of the proposed development to other forms of community uses, like detention centres.  The Council also does not rely on the approach of its economist, Mr Brown, who compared the size of the proposed development to that of other childcare centres.  The Council says that whether the use is small scale is a question of fact to be determined having regard to the context in which the development sits.[96] 
  2. [94]
    On either interpretation, there is no bright line to define whether a proposed development is “small scale”.  It is a relative phrase that calls for a factual determination having regard to the terms of the assessment benchmarks viewed through the lens of the local context in which the development is proposed.  Construing the reference to “small scale” in s 6.2.1.2(2)(e) in a way that produces a result that is harmonious with the balance of City Plan, I accept that a childcare centre is a type of non-residential use that is capable of being a small scale use, particularly if it has a gross floor area of less than 250 square metres.  That said, I do not accept Griffith Capital’s contention that City Plan contemplates that the use is small scale regardless of its size.  Whether a proposed childcare centre is small scale is a question of fact to be determined having regard to the built form and operating parameters of the proposed use and the context in which it sits in the locality. 
  3. [95]
    This approach provides a construction of the overall outcome in s 6.2.1.2(2)(e) that is harmonious with the overall outcome in s 6.2.2.2(2)(d) and performance outcome PO2 of the Low-medium density residential zone code, which are in identical terms to the overall outcome in s 6.2.1.2(2)(e) and performance outcome PO18 of the Low density residential zone code respectively but where the overall anticipated character for the zone is more intense.  It is also a construction that is harmonious with the overall outcome in s 6.2.2.2(2)(d) and performance outcome PO2 of the Low-medium density residential zone code, the overall outcome in s 6.2.3.2(2)(c) and performance outcome PO2 of the Medium density residential zone code, the overall outcome in s 6.2.4.2(2)(c) and performance outcome PO1 of the Character residential zone code, and the overall outcome in s 6.2.5.2(2)(b) and performance outcome PO2 of the Tourist accommodation zone code.
  4. [96]
    Whether the proposed development is a non-residential use that is small scale calls for a factual determination about which reasonable minds might differ.  It calls for consideration of the use, not simply its built form. 
  5. [97]
    The operating parameters of the proposed childcare centre include that it is to accommodate 98 children and about 17 staff.  It is to operate between 6 am and 7 pm, Monday to Friday.  It will provide childcare facilities and outdoor play on the ground level for children up to three years old and childcare facilities and outdoor play on the upper floor for children between two and five years of age.  There are to be 23 car spaces at ground level at the rear of the building.  Except at crossovers, the proposed development will incorporate landscaped areas along both frontages that is at least one metre wide.
  6. [98]
    The noise occasioned by the proposed development will be attenuated by acoustic barriers that are:
    1. (a)
      1.8 metres high along the Ziegenfusz Road frontage;
    2. (b)
      2 metres high at the eastern boundary truncation (extending about 8.5 metres north-west of the truncation);
    3. (c)
      2 metres high along the north-western boundary; and
    4. (d)
      transitioning from 2 to 2.2 metres high along the south-western boundary.
  7. [99]
    Griffith Capital submits that the proposed development can be considered small scale on the basis that it has an acceptable built form, and it would not result in any unacceptable impact such as overshadowing impacts, impacts on breezes, or impacts from noise, light or odour. 
  8. [100]
    I am satisfied that it has an acceptable built form, and that it would not result in any unacceptable impact such as overshadowing impacts, impacts on breezes, or impacts from noise, light or odour.  While those matters are relevant to a consideration of the acceptability of the scale, they do not demonstrate that the proposed development is small scale. 
  9. [101]
    On balance, in considering the use of the proposed development and the level of activity that it would generate, not simply its built form, I am not satisfied that the proposed development is small scale.  The provision of 23 car parks is demonstrative of a scale of use that could not be fairly regarded as small scale in the context of the Low density residential zone.  As such, I am not satisfied that the proposed development fully complies with s 3.4.1.8(4) of the Strategic framework, and the overall outcome in s 6.2.1.2(2)(e) and performance outcomes PO18 of the Low density residential zone code.

Conclusion regarding compliance with the assessment benchmarks?

  1. [102]
    The town planners agree that childcare centres can have a legitimate place outside of centre zoned land, such as in or near residential areas.  They say that City Plan recognises this and is flexible in supporting the location of childcare centres on land in the Low density residential zone and on a collector or higher order road, provided the use is small scale, does not unduly detract from residential amenity and does not impact on the function of any nearby centre.[97]
  2. [103]
    For the reasons explained above, I am satisfied that the proposed development is on a collector or higher order road, will not unduly detract from residential amenity, and will not impact on the function of any nearby centre or compromise the role of any centre.  In addition, the built form of the proposed development is of a house-like and house compatible scale.  However, I am not persuaded that the proposed development is a small scale use.  As such, while there is substantial compliance with the assessment benchmarks, the proposed development does not fully comply.  I address the significance of the nature and extent of compliance below as part of my consideration of the exercise of the planning discretion.

Is there a need for the proposed development?

  1. [104]
    The existence of a need for the proposed development is a relevant under s 45(5)(b) of the Planning Act.  This was not disputed by the Council.
  2. [105]
    Griffith Capital contends that there is a need for the proposed development.  It says that it is one of the matters that supports approval of the proposed development. 
  3. [106]
    The Council’s submissions on the existence of a need were brief.  The Council submits:

“56. Mr Duane conceded that if this proposal wasn’t constructed or approved that there would not be any one that could not get a child care place.  The difficulty, he stated may occur, in some instances, is that they may not get the centre that they want or the particular days sought.  However, he clarified that “I’m not saying people couldn’t get childcare facilities”.”

  1. [107]
    Although these concessions are relevant to an assessment of whether there is a need for the proposed development, they are not determinative of the issue.
  2. [108]
    The general principles that inform and guide an assessment of need are well-settled.  They are conveniently summarised in Isgro v Gold Coast City Council & Anor.[98]  As His Honour stated:[99]

“Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community… Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or not being adequately met.”

  1. [109]
    Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire but relates to the well-being of the community.[100]  Need is a relative concept to be given a greater or lesser weight depending on all the circumstances which the planning authority is to consider.[101]  Whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors.[102]
  2. [110]
    Recent guidance on the concept was also provided in Abeleda & Anor v Brisbane City Council & Anor,[103] wherein Mullins JA (as her Honour then was) observed:

[51] The focus in K & K and King of Gifts in respect of s 326(1)(b) of the SPA was whether the planning need for the proposed development overrode the planning scheme in relation to the development of that particular site. Under s 60(3) of the Act, the decision is made in respect of the development application for a particular site, but the parameters of the impact assessment undertaken by the decision-maker do not necessarily suggest that, where planning need is a relevant matter, the planning need must be limited to the need for the proposed development on that particular site only and no other site, rather than a planning need for that type of proposed development that would be appropriately satisfied by the development on that site. The weight to be given to the planning need may be greater if the evidence showed that the need would be satisfied only by the proposed development on the particular site. The process of decision-making provided for by the Act under s 45(5), s 59(2), s 59(3) and s 60(3) does not restrict planning need to the proposed development of the specific site in the manner discussed in Bell, K & K and King of Gifts for the purpose of s 326(1)(b) of the SPA, but the existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter.”[104]

  1. [111]
    On the issue of need, I had the benefit of expert evidence from Mr Gavin Duane and Mr Marcus Brown, the economists retained by Griffith Capital and the Council respectively.  Their evidence addressed both the quantitative and qualitative aspects of need.  I also had the benefit of other evidence that informs the assessment, including the unchallenged evidence of Mr Samuel Guifre.  He is a co-director of Harmony Early Learning, which is an entity that operates and develops childcare centres in Australia.[105]
  2. [112]
    Although the economic experts ultimately disagree about whether there is a need for the proposed development, there were substantial areas of agreement.  Further, their disagreement is reflective of the fact that their opinions were informed, in part, by uncertain information about which highly qualified and experienced experts might disagree.  In this case, it is not necessary for me to resolve the key disputes between the economic experts.[106]  The matters about which there is little, or no, disagreement persuade me that there is a need for the proposed development.  They include the following eight matters.
  3. [113]
    First, approval of the proposed development would result in a childcare centre approximately 500 metres from the existing Bay View State School, which is a large primary school with about 750 students.  It is the only primary school in either the local or broader catchment area where the community is not afforded the benefit associated with a childcare centre located proximate to the local primary school.[107]  I accept the evidence of Mr Duane that the co-location of childcare centres with primary schools is a very important and growing part of an education community.  It provides convenience options for parents with children at childcare and primary school ages.[108]
  4. [114]
    Second, the proposed development would provide enhanced choice, competition, and convenience.[109]  This is a matter that is relevant, but not necessarily determinative of itself, of need for development.  In a relative sense, it is of greater significance in this case as the proposed development provides a community use that has become a necessary incident of everyday life.  In contemporary times, the provision of appropriate childcare facilities is both required socially and economically for any properly functioning society.  As was observed by His Honour Judge Wilson SC (as his Honour then was) in Luke & Os v Maroochy Shire Council & Anor:[110]

[55] The undeniable purpose of a town Planning Scheme is to regulate, within reasonable limits consonant with the personal liberties of landowners, the provision and distribution of appropriate community facilities, both private and public, with a view to promoting the general wellbeing of the occupants of the relevant local government area. …”[111]

  1. [115]
    Third, there are nine zones in City Plan that expressly contemplate a childcare centre as a code assessable use.  They are the Principal centre zone, the Major centre zone, the District Centre zone, the Local centre zone, the Neighbourhood centre zone, the Community facilities zone, the Mixed use zone, the Character residential zone and the Specialised centre zone.  The local area and the broader catchment area includes land in the Neighbourhood centre zone, but none of the other zones.  In the local area, there is one location where there is land in the Neighbourhood centre zone.  It is at Kinross Road.  The Kinross Road neighbourhood centre includes a childcare centre and medium density residential development.  In the broader catchment area, there are an additional three locations where there is land in the Neighbourhood centre zone.  One is the Crystal Waters Childcare Centre.  It forms part of a larger shopping centre that includes an IGA grocery store, a medical centre, a gymnasium, a veterinary clinic, and other uses.  Another is where the Guppy’s Early Learning Centre adjoins four specialty stores.  That centre is closer to Thornlands State School than the subject land.  There is also vacant land of around one hectare along Thornlands Road at the intersection of George Thorn Drive.  It is on the eastern side of Cleveland-Redland Bay Road.  However, that site has approval for a 92-bed aged care facility.  At the time of the Economic Need Joint Expert Report, dated 16 August 2021, that development was commencing construction.  Having regard to those matters, I am satisfied that there are no alternative sites in the local area or the broader catchment area that would be able to accommodate a childcare centre, unless an impact assessable proposal was lodged and approved.[112] 
  2. [116]
    Fourth, a finding that there is a need for the proposed development is supported by the unchallenged evidence of Mr Giufre.[113]  His evidence establishes that:
    1. (a)
      Harmony Early Learning has entered into an agreement for a lease to operate the childcare centre that is the subject of this appeal;
    2. (b)
      Harmony Early Learning presently operates 10 childcare centres in Australia and is committed to operating 21 centres by the end of 2023;
    3. (c)
      Mr Guifre himself, a co-director of Harmony Early Learning, has over 20 years of experience in the child care centre industry;
    4. (d)
      Harmony Early Learning has a particular learning approach targeted towards the higher end of the market.  It spends more on the fit-out for each childcare centre, and offers extensive extracurricular activities, such as yoga, and provides extensive onsite facilities and services, such as meals prepared by chefs.  It delivers quality fittings and fixtures and has a commitment to cutting edge programs;
    5. (e)
      Harmony Early Learning is a high quality service provider, which differentiates itself from its competitors.
  3. [117]
    Mr Brown accepts that Harmony has a proven “track record”.[114]
  4. [118]
    The qualitative offer to the market that would likely result from Harmony Early Learning operating from the subject land is a matter that is demonstrative of need.[115]   It is also a relevant matter that supports approval of the proposed development of itself, regardless of whether there is, on balance, a need for the proposed development.[116]
  5. [119]
    Fifth, there are difficulties with existing providers in the local area and the broader catchment.  Mr Duane says that while Crystal Waters Child Care Centre and Guppy’s Early Learning Centre might have been refurbished, they are still dated.  They do not provide the external playgrounds and facilities that are typical of modern facilities.[117]  Mr Brown also accepted that Guppy’s Early Learning Centre has issues.  It is not meeting criteria that are considered appropriate in terms of national quality standards.[118]  As such, the current state of some of the existing child care facilities in the catchment supports a finding that there is a need for a contemporary and high quality facility such as is proposed by Griffith Capital in this case.
  6. [120]
    Sixth, there are difficulties associated with availability for new enrolments at the existing centres. Table 3.2 of Mr Duane’s statement of evidence[119] demonstrates that there are significant limitations on the ability for children to be enrolled at the existing centres, particularly in respect of facilities at Crystal Waters, C & K Thornlands and Jumping Beans.  While some availability exists at Guppy’s Early Learning Centre, that centre is the “lowest standard centre in the catchment” according to Mr Brown.[120]  Further, Thornlands Play and Learn Centre only has availability on particular days.  Beyond the catchment area, there is no availability at either Waterloo Street Early Education Centre or Sheldon College Wonderland.  I accept the submission of Griffith Capital that parents are reasonably entitled to expect a choice of facility in respect of days of enrolment and standard of facility.  As such, the lack of availability at existing centres is indicative of a need for the proposed development.
  7. [121]
    Seventh, there has been rapid population growth in the locality.  It is agreed in the Economic Need Joint Expert Report that both the catchment considered relevant by Mr Duane and that considered relevant by Mr Brown are presently experiencing growth in the population aged 0-4 years old and that aged 5.  This is reflective of the fact that the area is one in which the extent of residential development continues to grow. Further, the Kinross Road structure plan area is within the local catchment defined by Mr Duane.[121]
  8. [122]
    Eighth, I accept that the proposed development will not impact on the centres hierarchy or compromise any neighbourhood centres.  Relevantly:
    1. (a)
      the Kinross Road neighbourhood centre includes a childcare centre and medium density residential.  Mr Duane says the centre is well placed to serve substantial further growth around the centre site;
    2. (b)
      Crystal Waters Childcare Centre forms part of a larger shopping centre that includes an IGA grocery store, a medical centre, a gymnasium, a veterinary clinic and other uses.  These components are not impacted by any childcare centre on the subject land; and
    3. (c)
      Guppy’s Early Learning Centre adjoins four specialty stores and is part of a centre that is closer to Thornlands State School than the subject land.
  9. [123]
    Having regard to the evidence referred to above, I am satisfied that there is a need for the proposed development on the subject land.  It will improve the ease, comfort, convenience, and efficient lifestyle of the community.  This is a relevant matter that lends support to approval of the proposed development. 
  10. [124]
    That said, need is but one of several issues that is required to be considered in an application of this kind.  It is not, on any view, paramount in all cases.[122]  I address the importance of need to the exercise of the planning discretion below. 

Are there other relevant matters that support approval?

  1. [125]
    In addition to the need for the proposed development Griffith Capital says the following are matters that are supportive of approval of the proposed development:
    1. (a)
      the proposed development is well located, including being located on a trunk collector road and co-located with Carmel College;
    2. (b)
      the proposed development is a modern, well-designed childcare centre;
    3. (c)
      the proposed development would provide residents of the locality with additional choice in childcare services; and
    4. (d)
      the proposed development represents an appropriate transition between the built form and use of Carmel College and residential built form in the area.
  2. [126]
    Each are relevant matters for the purpose of assessing the development application under s 45(5)(b) of the Planning Act 2016.  The issue is whether they have been established on the evidence and, if so, how they inform the exercise of the discretion.
  3. [127]
    As I have already noted in paragraph [14] above, the Council concedes that:
    1. (a)
      the proposed development is a modern, well-designed childcare centre;[123] and
    2. (b)
      the proposed development would provide residents of the locality with additional choice in childcare services.[124]
  4. [128]
    The evidence that I have considered, and accepted, in my assessment of the proposed development against the assessment benchmarks, persuades me that the proposed development represents an appropriate transition between the built form and use of Carmel College and residential built form in the area.  My finding in that respect is supported by the absence of adverse town planning consequence occasioned by the proposed development.  As I observed in paragraphs [35] and [36] above, the proposed development will not significantly detract from residential amenity.[125]  In addition, the proposed development would not result in any unacceptable impact such as overshadowing impacts, impacts on breezes, or adverse impacts from noise, light or odour.  Further, traffic and car parking impacts, and waste management and water quality issues can be satisfactorily addressed by conditions. 
  5. [129]
    Having regard to the evidence with respect to the need for the proposed development, I am satisfied that the proposed development is well located.  It is also relevant that the proposed development would provide an opportunity for children in the Bay View State School catchment to be part of an education community that has continuity from childcare through into primary school.[126]  Mr Brown accepts that the proposed development would be beneficial in this respect.

Should the development application be approved in the exercise of the planning discretion?

  1. [130]
    Whether an approval is in the public interest is a question of fact to be determined in the exercise of the planning discretion.  A planning decision, and the inherent balancing exercise it entails, is invariably complicated and multifaceted.[127]  The relevant principles, and an appropriate explanation of the approach to be taken, are contained in the Court of Appeal authorities referred to in paragraph [8] above.
  2. [131]
    For reasons explained above, the case for refusal has little force.  Although the proposed development is not small scale, there is a substantial degree of compliance with the assessment benchmarks. 
  3. [132]
    Further, even if I am wrong about the matters that are relevant to a determination of house-like or house compatible scale, I do not consider that non-compliance with those assessment benchmarks that might follow would warrant refusal of the proposed development in this case.  That is because the matters upon which I rely to conclude compliance are nevertheless relevant matters in the exercise of the discretion.  They persuade me that, were there non-compliance, such non-compliance does not warrant refusal of the proposed development.
  4. [133]
    In addition, while there is no requirement to demonstrate that a need would be satisfied only by the proposed development on the subject land,[128] there is evidence that is indicative of that outcome in this case.  As was observed by Mullins JA (as her Honour then was) in Abeleda & Anor v Brisbane City Council & Anor:

“…The weight to be given to the planning need may be greater if the evidence showed that the need would be satisfied only by the proposed development on the particular site ...”[129]

  1. [134]
    On balance, I am satisfied that, taken in combination, the extent to which the proposed development does not comply with the assessment benchmarks[130] should not stand in the way of an approval given the considerations that I have identified that support approval.  The matters that support approval are compelling.  They persuade me that the proposed development is meritorious and should be approved, subject to the imposition of reasonable and relevant conditions.

Conclusion

  1. [135]
    Griffith Capital has discharged the onus.
  2. [136]
    In due course, the appeals will be allowed, the Council’s decision will be set aside, and the development application will be approved subject to reasonable and relevant conditions.
  3. [137]
    I will adjourn the appeal to 18 August 2022 to allow the parties to prepare the necessary suite of conditions.  To facilitate that course, I direct as follows:
  1. By 4 pm on 21 July 2022, the respondent is to provide the appellant with a draft suite of conditions.
  1. By 4 pm on 4 August 2022, the appellant is to notify the respondent, in writing, of its position with respect to the draft suite of conditions.
  2. The appeal be listed for review at 9 am on 18 August 2022.

Footnotes

[1] Planning and Environment Court Act 2016 s 43.

[2] Planning and Environment Court Act 2016 s 45.

[3] Planning and Environment Court Act 2016 s 47.

[4] Planning and Environment Court Act 2016 s 47; Planning Act 2016 s 60(3).

[5] Planning Act 2016 ss 45(5) and 59.

[6]  Version 4 of City Plan was the categorising instrument for the development in effect when the development application was properly made.

[7] Planning Regulation 2017 (Qld) s 31 and Sch 24.  The properly made submissions were placed in evidence before me in Exhibit 7.1.  I have read them.  The town planners accurately summarise their effect.  The majority were adverse and raised issues in respect to traffic and parking and the need for the proposed development.  Neither party contends that their contents are material to the outcome of this appeal.  That is unsurprising given the Council does not contend that traffic impacts warrant refusal.  In any event, the submissions assisted me to understand the character of the locality.

[8]  Respondent’s Outline of Submissions p 4 [14].

[9]  [2020] QCA 253.

[10]  [2020] QCA 257.

[11]  [2020] QCA 273.

[12]  [2021] QCA 95.

[13]  [2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].

[14]  [2019] QPEC 46; [2020] QPELR 328, 333-7 [12]-[22].

[15] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [42], [54]; Wilhelm v Logan City Council & Ors [2020] QCA 273, [77].

[16] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 804-6 [40]-[51]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 334 [13]-[14].

[17]  Practice direction 2 of 2020 [25].

[18]  Exhibit 11.3.

[19]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 2-5. See also Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 33.

[20]  Exhibit 11.3.

[21]  Both parties conducted the case on the basis that the Agreed List of Issues now defined the ambit of the dispute.  The Council no longer contends that traffic and car parking, and waste management and water quality, are matters that warrant refusal.  As such, to the extent that the Agreed List of Issues are narrower than the issues previously defined, that was the consequence of concessions made by the Council. 

[22]  A trunk collector road is a higher order street in the road network.

[23]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 32.

[24]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 32.

[25]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 32.

[26]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 32.

[27]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 32.

[28]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 30.

[29]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 30.

[30]  The concession in the Council’s outline was initially constrained to a circumstance where the Court was satisfied that the proposed development is small scale and of a house like scale: Respondent’s Outline of Submissions p 11 [45] – [48].  During oral submissions, the Council clarified that the concession was not so limited.  The adequacy of landscaping is not relied on as a reason for refusal.  See Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 29 and 57-8.

[31]  Exhibit 11.3.

[32]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 29.

[33]  City Plan s 3.1(1).

[34]  City Plan s 3.1(3).

[35] AAD Design Pty Ltd v Brisbane City Council & Anor [2012] QCA 44; [2013] 1 Qd R 1, 19 [73]; Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82, 94-5 [52]-[56].

[36] AAD Design Pty Ltd v Brisbane City Council & Anor [2012] QCA 44; [2013] 1 Qd R 1, 19 [73]; Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82, 94-5 [52]-[56].

[37] AAD Design Pty Ltd v Brisbane City Council & Anor [2012] QCA 44; [2013] 1 Qd R 1, 1-2 [37], citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 304-5.

[38]  See also ss 3.4.1.2(3), (4) and (10), 3.4.1.4(1), and 3.4.1.7(1).

[39]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 32.

[40]  Exhibit 5.4 p 14 [48] and [52].

[41]  Exhibit 5.4 p 7 [25] and [26].

[42]  Exhibit 5.4 p 14 [52].

[43]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 32.

[44]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 9.

[45]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 32.

[46]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 32.

[47]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 19-20. 

[48]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 40. 

[49]  Exhibit 10.1.

[50]  Exhibit 10.1; Exhibit 5.1 p 7 [13]; Exhibit 5.4 p 9 [29].

[51]  Exhibit 10.1; Exhibit 5.1 p 7 [13]; Exhibit 5.4 p 9 [29].

[52]  Exhibit 10.1; Exhibit 5.1 p 7 [13]; Exhibit 5.4 p 9 [29].

[53]  Exhibit 10.1; Exhibit 5.1 p 7 [13].

[54]  Exhibit 10.1; Exhibit 5.1 p 7 [13].

[55]  Exhibit 5.4 p 7 [18] and [22].

[56]  Exhibit 5.4 p 7 [19]-[21].

[57]  Exhibit 5.4 p 7 [24]; Exhibit 7.1.

[58]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 78-9.

[59]  Exhibit 5.4 p 7 [25]-[26].

[60]  Exhibit 5.1 p 7 [27].

[61]  Exhibit 5.1 p 9 [18]-[19], p 14 [35], p 28 [71(a)].

[62]  Exhibit 5.1 p 9 [20]-[21].

[63]  Exhibit 5.1 pp 10-1.

[64]  Exhibit 5.1 p 14 [36]-[38].

[65]  Exhibit 5.1 pp 14-6, [39]-[43].

[66]  Exhibit 5.1 pp 14-6.

[67]  Exhibit 5.1 p 29 [72(b)].

[68]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 72. 

[69]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 75. 

[70]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 67. 

[71]  Exhibit 5.4 p 15 [59(b)]; Exhibit 5.1 p 28 [71(c)].

[72]  Exhibit 5.4 p 15 [59(d)]; Exhibit 5.1 p 12 [28] and [33].

[73]  Exhibit 5.4 p 15 [59(c)]; Exhibit 5.1 pp 11-2 [23]-[25] and p 28 [72(a)(i)(B)]; Exhibit 6.1 pp 5-13 [8]-[21].

[74]  Exhibit 5.4 p 15 [59(b)]; Exhibit 5.1 p 12 [33] and p 28 [72(a)(i)(C)];

[75]  Exhibit 5.4 p 15 [59(f)].

[76]  Exhibit 6.1 p 12.

[77]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 62-5.  Exhibit 5.4 p 15 [59]; Exhibit 5.1 pp 11-2 [23]-[25] and p 28 [72]; Exhibit 6.1 pp 5-13 [8]-[21].

[78]  Exhibit 5.4 p 19 [78(e)].

[79]  Exhibit 6.1 pp 5-13 [8]-[21].  I do not accept the opinion of Mr Lovell that they are not relevant to understanding what might be considered a house-like scale.

[80]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 62-5.  This is consistent with the evidence of Mr Powell: Exhibit 5.1 pp 11-2 [23]-[25] and Exhibit 6.1 pp 5-13 [8]-[21].

[81]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 51-2.

[82]  Exhibit 10.1.

[83]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 57. 

[84]  [2021] QCA 95.

[85] The Australian Oxford Dictionary (2nd ed, 2004) ‘small scale’.

[86] Macquarie Dictionary Online, 2021, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd, www.macquariedictionary.com.au.

[87]  (2014) 201 LGERA 82 at [52], followed in Gerhardt v Brisbane City Council (2017) 226 LGERA 257 and Wilhelm v Logan City Council [2020] QCA 273, at [54].

[88]  (1998) 194 CLR 355 at [69] – [71].

[89]  [2013] 1 Qd R 1.

[90] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[91]  (1997) 187 CLR 384 at 408.

[92] Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcott Pty Ltd & Ors [2021] QCA 95, [75]-[78] (original footnotes).

[93]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 43-51.

[94]  [2018] QPEC 32; [2018] QPELR 1026.

[95] Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, 1036.

[96]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 32-5.

[97]  Exhibit 5.4 p 14 [48] and [49].

[98]  [2003] QPEC 2; [2003] QPELR 414, 417-20 [20]-[30].

[99]  [2003] QPEC 2; [2003] QPELR 414, 418 [21].

[100] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 417-8 [20].

[101] Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [20].

[102] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 418 [22].

[103]  [2020] QCA 257.

[104] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [51].

[105]  Exhibit 6.3.

[106]  That said, I generally prefer the evidence of Mr Duane to that of Mr Brown with respect to the results of a supply and demand analysis for the reasons outlined in the Written Submissions of the Appellant at pp 18-20 [99]-[102].

[107]  Exhibit 5.2 p 26 Map 6; Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 17-8.

[108]  Exhibit 5.2 p 39 [96].

[109]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 38; Exhibit 5.2 p 39 [96] and p 40 [98].

[110]  [2003] QPEC 5; [2003] QPELR 447.

[111] Luke & Os v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, 459, [55].

[112]  Exhibit 5.2 pp 37-8 [93]-[95], p 39 [96].

[113]  Exhibit 6.3.

[114]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 8.

[115]  Exhibit 6.2 p 11 [4.1-[4.2]; Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 11 October 2021) 27-8.

[116] Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 414-7 [473]-[.491]

[117]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 11 October 2021) 28.

[118]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 26.

[119]  Exhibit 6.2 p 10.

[120]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 26.

[121]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 21.

[122] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 419 [28].

[123]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 30.

[124]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 30.

[125]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 13 October 2021) 32.

[126]  Transcript of Proceedings, Griffith Capital Pty Ltd v Redland City Council (Planning and Environment Court of Queensland, 505 of 2021, Kefford DCJ, 12 October 2021) 19.

[127] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 808 [60].

[128] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [51].

[129] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [51].

[130]  Regardless of whether it is the extent of non-compliance found by me or as contended by the Council.

Close

Editorial Notes

  • Published Case Name:

    Griffith Capital Pty Ltd v Redland City Council

  • Shortened Case Name:

    Griffith Capital Pty Ltd v Redland City Council

  • MNC:

    [2022] QPEC 21

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    23 Jun 2022

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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