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Wu & Kuo Childcare Pty Ltd v Brisbane City Council QPEC 27
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Wu & Kuo Childcare Pty Ltd & Anor v Brisbane City Council & Anor  QPEC 27
WU & KUO CHILDCARE PTY LTD (ACN 108 711 182) & CHING-YANG WU
BRISBANE CITY COUNCIL
CANTAL HOLDINGS PTY LTD (ACN 633 987 550) & XIN LIN
1223 of 2021
Planning and Environment Court
Submitter appeal against approval
Planning and Environment Court, Brisbane
4 August 2022
11, 12, 13 and 14 July 2022, with further submissions delivered on 21 July 2022
Williamson QC DCJ
The appeal is listed for review at 9:00 am on 5 August 2022.
PLANNING AND ENVIRONMENT – APPEAL – submitter appeal against a decision to grant a development approval for a childcare centre in the Low density residential zone – whether the development will serve a local community facility need only – whether the development is of a scale that is compatible, and will integrate, with the built form intent for the Low density residential zone – whether there is compliance with the respondent’s planning scheme – whether the planning discretion should be exercised in favour of approval or refusal.
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Hawkhaven Pty Ltd v Mackay Regional Council & Anor  QPELR 897
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Kentucky Fried Chicken Pty Ltd v Gantidis & Anor (1979) 140 CLR 675
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Trinity Park Investments Pty Ltd (atf and L’Armonia Pty Ltd) v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors  QPELR 309
Wilhelm v Logan City Council & Ors  QPELR 1321
Zappala Family Co Pty Ltd v Brisbane City Council & Anor  QPELR 686
Planning Act 2016, ss 45 and 60
Planning and Environment Court Act 2016, ss 43 and 45
Mr L Walker for the appellants
Mr R Yuen for the respondent
Mr B Job QC and Mr D Purcell for the co-respondents
Mills Oakley for the appellant
City Legal for the respondent
Connor O'Meara for the co-respondents
- The appellants have an interest in an existing childcare centre located at Lister Street, Sunnybank. The centre accommodates 115 children. The site is rectangular in shape, 2,583 m2 in size and included in the Low density residential zone. The rear boundary adjoins a rail corridor. In terms of built form, the childcare centre is a single storey structure set back about 40 metres from the road reserve. A landscaped at-grade carpark is visible from the road reserve and sits within the setback area.
- The appellants’ childcare centre is a successful one. Like a number of nearby centres, it has an occupancy rate indicative of ‘over trading’. This is unsurprising given the facility is well located. It sits to the immediate south of an entrenched hub of recreational and education facilities. The hub includes a high school and ovals, an active-use park, community hall/council centre, RSL and pre-school/kindergarten. Additional community facilities are conveniently located to the north-east of the site and include the Sunnybank Primary School and St Thomas More College. The success of the centre is also due to its accessibility. It is conveniently located in the road network and close to public transport and an employment node.
- The evidence, appreciated with the benefit of a site inspection, establishes that the appellants’ childcare centre sits comfortably in its context. That context is not fairly described as a pristine low density residential area. There is a mixed character where non-residential uses occur in, and adjacent to, existing low density residential development. The non-residential uses, including the appellants’ site, make a significant contribution to the mixed character of this part of Lister Street.
- Towards the latter end of 2020, adverse submissions were made by, and on behalf of, the appellants in relation to an impact assessable development application seeking approval for a childcare centre, accommodating 70 children, on land adjoining to the west. The proposed childcare centre, and land on which it is proposed, has much in common with the appellants’ facility. The land is rectangular in shape; is 2,393m2 in size; and is included in the Low density residential zone. The built form proposed is single storey and setback from Lister Street in the order of 23 metres. A landscaped at-grade carpark is proposed within the setback area and will be visible from the road reserve. The locational and accessibility advantages enjoyed by the appellants’ facility have equal application to the proposed childcare centre. The two distinguishing features between the proposal and the appellants’ facility are: (1) the appellants’ facility is larger than the proposal (115 v 70 long day care spaces); and (2) the existing and proposed operators of the childcare facilities are different entities with recognised differences in their adopted teaching/learning models.
- On 25 March 2021, Council’s delegate decided to approve, subject to conditions, the proposed childcare centre. This is a submitter appeal by the appellants against that decision. It is opposed by Council and the successful applicant for the development approval, namely the co-respondents. The appeal is a hearing anew.
- The appellants’ grounds for refusal raised issues with respect to land use and location, visual amenity and character, need, traffic, acoustics and stormwater. Sensibly, the grounds reduced. The trial was run on the basis that the remaining issues for determination with respect to the approval/refusal question, were as follows:
- (a)Whether the development complies with overall outcome 4(k) of the Low density residential zone code in Council’s planning scheme;
- (b)Whether an approval, if granted and acted upon, would:
- have an adverse effect on the extent and adequacy of childcare centres available to the community; and
- make good any adverse economic impacts.
- (c)Whether the planning discretion ought be exercised in favour of approval in the light of findings made in relation to (a) and (b) above.
- The disputed issues are to be determined in the context that the applicable statutory assessment and decision making framework is that provided by the Planning Act 2016 (the Act), in particular ss 45 and 60. The authorities with respect to these provisions confirm the planning discretion to be exercised is a ‘broad evaluative judgment’ where non-compliance with an adopted planning control is a relevant fact and circumstance, but does not mandate refusal. The broad evaluative judgment is to be exercised here on the footing that the proposed development can be conditioned to ensure it will not have adverse amenity, character or traffic impacts. This was common ground.
- It is for the co-respondents to establish the appeal should be dismissed.
City Plan 2014: non-residential uses in the Low density residential zone code
- Section 45(5)(a)(i) of the Act requires the Court to assess the co-respondents’ development application against Council’s planning scheme, City Plan 2014. Version 19 of this planning scheme was in force when the development application was treated as being properly made.
- An appropriate starting point is the Strategic framework in Part 3 of City Plan. For the purposes of this part of the planning scheme, the land is included in an area described as ‘Suburban Living Areas’. This area represents the majority of established residential suburbs in Brisbane. A range of ‘non-residential land uses that generally support the needs of the surrounding residential area’ are anticipated in these areas. The non-residential uses anticipated include, inter alia, ‘community facilities’. Uses of this kind support local character and amenity. Community facilities are a defined activity group. The group includes the defined use ‘Childcare centre’.
- That it is intended the community will have access to a range of accessible community facilities (such as childcare centres) is supported by Theme 2, Strategic outcome 3.4.1(1)(p) in the Strategic framework, which states:
“Brisbane has a broad range of community facilities that support the community’s recreational, cultural and social activities, promote the physical, cultural and social wellbeing of the community, and are located predominantly in centres and Growth Nodes on Selected Transport Corridors.”
- This Strategic outcome is further refined and described in the Strategic framework. A provision that may be regarded as providing refinement is Specific outcome SO1 in Table 22.214.171.124, which states:
“Brisbane has a range of accessible multi-purpose community facilities, services and open spaces which meet the physical, social and cultural needs of the local and wider community.”
- The planning and social importance attributed to community facilities in City Plan 2014 is evident in Theme 4, ‘Brisbane’s highly effective transport and infrastructure’, of the Strategic framework. For that theme, community facilities are identified as part of the ‘Social infrastructure network’. In this context, Strategic outcome 3.6.1(1) states:
“Brisbane is served by appropriate infrastructure – the land, facilities and services that support economic growth and meet environmental and social needs.”
- City Plan 2014 includes a number of zones, which organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses. A review of a range of planning scheme provisions directed at zones reveal childcare centres are anticipated in Centre zones and the Community facilities zone. They are also anticipated in residential zones. This is a reflection that the planning authority accepts there is a need for this important social infrastructure to be well located, and conveniently accessible, to the community it serves.
- Whilst City Plan 2014 recognises the need for childcare centres and makes provision for them in residential zones, the provision is not without qualification. The use is a non-residential use that has the potential to conflict with, and unacceptably impact upon, the amenity and character of residential uses also anticipated in these zones. As a consequence, a balance is called for between two competing considerations, namely: (1) on the hand, making provision for childcare centres such that they are conveniently located to meet the needs of the community – that need being a matter of planning importance given the nature of the use, which are ‘places of social and community connection’ and of ‘importan(ce) to the fabric of a community’; and (2) on the other hand, to ensure the need for these facilities is not met at the expense of residential amenity. The manner in which the balance is to be struck in the circumstances here is informed by the Low density residential zone code (LDRZC), read as a whole.
“1. The purpose of the low density residential zone is to provide for:
a. a variety of low density dwelling types, including dwelling houses; and
- community uses, and small-scale services, facilities and infrastructure to support local residents.”
- The purpose statement supports the proposition that non-residential uses are anticipated in the Low density residential zone. The non-residential uses anticipated include ‘infrastructure’, which, having regard to the Strategic framework, includes ‘Social infrastructure’ such as community facilities. That non-residential uses are contemplated in the zone is not without qualification in the purpose statement; they are to be of a particular type, and ‘support local residents’.
- The purpose of the LDRZC will be achieved through a number of overall outcomes, which are grouped under one of three topics, namely: (1) zone role; (2) development location and uses; and (3) development form.
- The overall outcomes for the ‘zone role’ provide that development is to support the implementation of the policy direction set out in the Strategic framework, in particular Theme 2, elements 2.1 and 2.2 and Theme 5, element 5.5. By reference to the Strategic framework, it can be said that a policy direction implemented through the zone relates to the provision of non-residential land uses in convenient and accessible locations to meet the community’s legitimate needs, provided they support local character and amenity.
- The overall outcomes in the LDRZC for ‘location and uses’ deal, in the first instance, with the range of residential uses anticipated, and discouraged, in the zone. Attention is then given to development generally in the zone. In this respect, overall outcome 4(g) reflects that a high level of amenity is to be expected in the zone. The overall outcome states:
“Development reflects and supports the high level of comfort, quiet, privacy and safety (including impacts of glare, odour, light, noise, traffic, parking, servicing and hours of operation) reasonably expected within a predominantly low density permanent residential environment.”
- Against the background that a high level of amenity is intended for the Low density residential zone, attention can then turn to overall outcomes 4(h) to (k) of the LDRZC. They are relevant to the location and use of land in the zone for non-residential purposes. Overall outcome 4(k) has application here. It provides what may be fairly regarded as a composite form and function limit for particular non-residential uses in the zone, including childcare centres. The provision provides for the following test:
“Development for a non-residential use serves a local community facility need only, such as a childcare centre or a substation, and is of a bulk and scale that is compatible with and integrates with the built form intent for the Low density residential zone.”
- Overall outcome 4(k) calls for two issues to be examined: (1) whether development for a non-residential use serves a local community facility need only; and (2) whether development for a non-residential use is of a bulk and scale that is compatible and integrates with the built form intent for the zone.
- Mr Job QC and Mr Purcell submitted that item (1) was satisfied in this case because the development proposed is a childcare centre simpliciter. The point made was that overall outcome 4(k), properly construed, is to be treated as deeming a childcare centre (irrespective of its specific circumstances) to be development that serves a local community facility need only. As I understood the submission, this was said to be correct as a matter of construction because the words ‘such as a childcare centre’ attach to the words preceding the comma, namely ‘Development for a non-residential use serves a local community facility need only’. By attaching the words ‘such as’ to the words preceding the comma and reading ‘childcare centre’ as development ‘of the kind specified’ by the words before the comma, it was submitted there is a clear intent; a childcare centre in the zone serves a local community facility need only. This submission is not without merit. It is founded on the principle that planning schemes are to be construed precisely in the same way as statutes.
- I do not accept the co-respondents’ primary submission about the construction of overall outcome 4(k).
- In my view, the proper construction of overall outcome 4(k) requires the phrase ‘such as a childcare centre or substation’ to attach to the words ‘Development for a non-residential use’. This is so for three reasons.
- Second, it is difficult to accept that the planning authority intended a childcare centre simpliciter to be an example of the type of development that meets the stated need test in the overall outcome having regard to the following:
- (a)the defined meaning for each use in City Plan 2014 - the characterisation of a use as a childcare centre (or substation) does not turn on the demonstration of a particular need; and
- (b)City Plan 2014 recognises that childcare centres and substations can be provided in a number of different contexts and meet different needs. For example, childcare centres can be: (1) ‘Centre activities’; (2) located in the Community facilities zone; (3) located in a residential context; and (4) ‘Commercial character building activities’ in the Specialised centre zone and Community facilities zone.
- Third, the purpose of the LDRZC states that non-residential uses are anticipated in the zone and ‘support local residents’. This qualification provides relevant context. It explains, in part, the purpose of overall outcome 4(k). If overall outcome 4(k) is construed consistently with paragraph , this provision can work harmoniously with the qualification apparent in the purpose of the LDRZC. The same cannot be said if the construction advanced by Mr Job QC and Mr Purcell is adopted.
- The construction advanced on behalf of the co-respondents creates a tension between the purpose of the LDRZC and overall outcome 4(k) in its application to childcare centres. It is a construction that results in any use defined as a childcare centre finding a measure of support in the zone, irrespective of the need it will serve, or the community it will support. This is an indicator that the construction advanced should not be accepted, particularly given: (1) the purpose statement for the zone seeks to limit non-residential uses in the zone, such as childcare centres, by reference to the community it will support; (2) there is no surrounding context in the LDRZC to suggest, or explain, why childcare centres are excluded from the limitation stated in the purpose of the zone code; and (3) such an outcome sits uncomfortably with the terms of overall outcome 4(k), which speaks of a non-residential use serving a particular need ‘only’.
- The evidence establishes that not all childcare centres are equal in terms of the community they support. They can meet different needs, be it local or wider community needs. The need met will turn on a range of factors, including the size of the facility, its location, accessibility and proximity to employment nodes and public transport. That not all childcare facilities are the same is recognised in City Plan 2014. Specific outcome SO1 in Table 126.96.36.199 speaks of Brisbane having access to a range of accessible Community facilities, which meet the physical, social and cultural needs of the local and wider community.
- If it is accepted, as I do, that the evidence and planning scheme establish what might be regarded as uncontroversial, namely that not all childcare centres are the same in terms of the community size they support, this, in combination with the purpose of the zone, provides a sound explanation for why overall outcome 4(k) requires a particular need to be demonstrated for a childcare centre in the Low density residential zone.
- The third group of overall outcomes in the LDRZC deal with ‘development form’. They are contained in section 5 of the code. It is from these outcomes, read in conjunction with the purpose of the zone code, that the ‘built form intent’ referred to in overall outcome 4(k) can be discerned. Overall outcome 5(a) applies to all development in the zone and states:
“Development is of a form and scale that reinforces a distinctive subtropical character of low rise, low density buildings set in green landscaped areas.”
Compliance with overall outcome 4(k)
- The appellants and Council contend the proposed childcare centre does not comply with overall outcome 4(k) of the LDRZC. Whilst they each accept the development is of a form and scale consistent with the intent of the zone, it is said that non-compliance arises because the facility will serve more than a local community facility need. The appellants go further and say non-compliance arises because there is no local need for the facility. The co-respondents join issue with these points and contend, in the alternative to their construction argument discussed above, that compliance has been demonstrated with overall outcome 4(k).
- Contrary to the co-respondents’ submissions, I am not satisfied the proposed development complies with overall outcome 4(k) of the LDRZC.
- It is convenient to deal with the second part of the overall outcome first. This part of the provision requires the proposed childcare centre to be of a scale that is compatible with and integrate with the built form intent for the zone. The co-respondents case in this respect was conducted on the footing that the appellants conceded compliance with this aspect of the overall outcome. Having regard to the visual aids before the Court and City Plan 2014, I am not satisfied this concession, which is said to be founded on a body of expert evidence, is necessarily sound. My concern in this regard was raised during the hearing to give the parties an opportunity to lead further evidence and make submissions about the point. Counsel for all parties took up the opportunity to lead further evidence and addressed the matter in submissions.
- In terms of the assessment against overall outcome 4(k), the second part of the provision requires a view to be formed as to the built form intent of the zone. With this intent in mind, the bulk and scale of the development is then examined for compatibility and integration. Compliance with this aspect of the provision turns on matters of impression. It is a matter about which reasonable minds may differ.
- Turning to the built form intent of the zone, the LDRZC anticipates development that is of a form and scale that ‘reinforces’ a particular character, namely ‘a distinctive subtropical character of low rise, low density buildings in green landscaped areas’. The matter to be determined is whether the proposed development, in terms of its bulk and scale, is compatible and integrates with this intended character. In my view, the scale of one part of the development is inconsistent with that intended character.
- The proposed development includes an at-grade carpark accommodating 14 carparks and associated circulation and manoeuvring area. The area of hardstand is in the order of 354m2. Whilst landscaping will be provided, to describe the carpark and built form behind it as presenting a green landscaped setting is to employ exaggeration. The carpark is a hardstand area. It will be appreciated as such from Lister Street. The extent of the hardstand area will reinforce that the use is non-residential in nature. This is made good by the visual aids before the Court.
- In arriving at this conclusion, I am cognisant that non-residential uses are anticipated in the Low density residential zone and may include at-grade carparking. However, it is another thing to suggest that a carpark of the scale proposed, accommodating 14 carparks and the associated activity, is compatible with the intent of the zone. A comparison between the size of the carpark with the minimum lot size in the zone is telling in this regard. The minimum lot size in the zone is 400m2, which is comparable in size to the hardstand area depicted on the proposed plans. A carpark of this size is not, in my view, ‘small-scale’ as envisaged by the purpose of the LDRZC.
- This finding is at odds with opinions expressed by Mr Buckley, Mr Ryan and the visual amenity experts. I do not accept their views in relation to the scale of the proposed carpark and compliance with overall outcome 4(k). Each of their views were heavily influenced by a comparison between the proposed development and the existing character of Lister Street. Whilst this is relevant to the assessment of the proposed development, it is not the assessment overall outcome 4(k) calls for. The overall outcome requires a comparison between the proposed development and the intent of the zone as disclosed by the planning scheme.
- The assessment of the proposal against the second aspect of overall outcome 4(k) yields partial compliance. The force of the identified non-compliance is minor. This is because the scale of the carpark is not unacceptable when appreciated in its context. It will be consistent and compatible with the existing character of the area. That existing character is not in direct alignment with the stated intent of the zone. As I have already observed, the area has a mixed character. The nature and extent of the mix means, in my view, that the area is more resilient to impacts from non-residential uses, such as that proposed, in comparison to other parts of the Low density residential zone. I am, as a consequence, satisfied it has been established that the proposed development, if approved: (1) would be consistent with, and support, the existing mixed character and amenity of the area; and (2) could be conditioned to appropriately manage adverse impacts on amenity and character.
- The principal area of difference between the parties involved the need question arising out of overall outcome 4(k). It is a question that requires the Court to consider: (1) what need the proposed development, if approved and operational, would serve; and (2) whether the need served is a ‘local community facility need only’.
- Council and the appellants submit the proposed childcare centre will, if approved, meet more than a local community facility need. The underlying assumptions for this submission are: (1) ‘local’ in this context is the suburb of Sunnybank (SA2); (2) the supply of childcare centres in Sunnybank is more than sufficient to meet the projected demands of the local area; and (3) significant demand for the proposed childcare centre, if approved and operational, would be derived from outside of Sunnybank.
- The position adopted by Council and the appellants is founded on economic evidence. I had the benefit of evidence from two economists. Mr Leyshon was called by the co-respondents. Mr Brown was called by the appellants.
- A review of the economic evidence reveals Mr Leyshon and Mr Brown agreed a ‘catchment area’ for the proposed development. It is the Sunnybank Statistical Area 2 (SA2). Within that area, it was agreed there is a potential supply of 353 childcare places, comprising:
- (a)three existing childcare centres (293 places);
- (b)one approved and unconstructed childcare centre located at Troughton Road (50 places); and
- (c)an approved and partially constructed childcare centre located at Yamal Street, which is located outside, but immediately adjacent to the catchment boundary (likely to supply about 10 places to serve the identified catchment).
- Mr Leyshon and Mr Brown examined the demographics of the Sunnybank SA2. Their analysis establishes that it is an area of low growth, generating a ‘local’ demand for about 141 to 151 long day care places for children five years and under. Self-evidently, the expected ‘local’ demand is less than half of the existing ‘local’ supply in Sunnybank. This balance reflects that a significant proportion of the demand for childcare facilities is generated outside of the ‘local’ area as assumed by the economists. This is consistent with other evidence before the Court. Mr Hasham is a director of Kids Early Learning Centres and has expressed interest in operating the proposed facility. He anticipates that 50 % of the enrolments for the proposed centre would, if approved, come from outside the Sunnybank SA2.
- The economic evidence with respect to overall outcome 4(k) of the LDRZC is superficially attractive. At face value, it establishes that the proposed childcare centre, to be viable, will need to draw from a catchment that is more expansive than the assumed local catchment, Sunnybank. That the use, if approved, would draw from beyond the Sunnybank SA2 can be readily accepted. I am, however, unable to accept that the Sunnybank SA2 is to be treated as the local area for the purposes of overall outcome 4(k).
- The local area for the purposes of overall outcome 4(k) was selected by the economists. The explanation for doing so is set out at paragraph 29 of the economic joint report, which states:
“For the purpose of this analysis we have considered the provision of City Plan 2014 with respect to an LDC in the Low density residential zone in terms of it needing to serve a “local community facility need only” as meaning the meeting of a need which is evident in Sunnybank.”
- I do not accept that ‘local’ need here is to be limited to a single suburb. As a starting point, the LDRZC, read with the Strategic framework anticipates that uses such as that proposed will support the needs of residents. Here, the area to be supported is the Low density residential zone, which is extensive in area and contiguous with areas beyond the suburb boundary. This, in combination with two considerations, namely: (1) that the suburb boundary is not a border within which patrons of the proposed centre are quarantined; and (2) that the proposed facility will be co-located with a hub of community facilities that have, in their own right, a significant draw or catchment size; suggests an area wider than Sunnybank should be adopted for assessment against overall outcome 4(k).
- I would add that the economic evidence suggests the primary reason for limiting the local catchment to the suburb of Sunnybank was statistical convenience or expediency. The suburb aligns with a statistical area, which lends itself more readily to analysis than parts of a suburb. Whilst convenience and expediency of analysis is understandable, this is not, in and of itself, a valid reason to limit the local area in this case to the suburb of Sunnybank.
- What is the area to be considered for the purposes of overall outcome 4(k)?
- The exercise called for was one that required the economists, in the first instance, to identify the catchment from which the proposed childcare centre would draw. Such an exercise is informed by the matters discussed at paragraph 28 of the need joint report, which is in the following terms:
“Parents make decisions about the appropriate location of an LDC for their child based on several factors including, availability of places in childcare facilities, whether they prefer a centre either close to their place of residence or their workplace, their commuting patterns and in particular the proximity of centres to public transport. Accordingly, there is not automatically a relationship between where families live and where they “consume” childcare services. In addition, parents also consider non-locational factors such as price and quality.”
- The above considerations suggest the suburb boundary may have little, if any, impact on the likely catchment. Rather, the extent of the catchment here is influenced by: (1) locational attributes that inform a parent’s decision to enrol their child in a particular childcare centre; and (2) the extent to which parents may regard a multi-purpose trip to the proposal and the nearby hub of community facilities as attractive and convenient. There is no controversy about (1). The land is very well located. It is immediately adjacent to a hub of educational and institutional facilities. It is also located in close proximity to public transport routes and an employment node. As to (2), the existing hub of community facilities has a drawing power, or catchment, which is likely to be significant in size. The extent and power of that draw is no doubt due to an identifiable concentration of educational facilities. The nature of the proposed development, and its location, means it will be complementary to this concentration of education uses. Once this is appreciated, it is not difficult to conclude that parents will likely be drawn to this part of Sunnybank for the convenience of a multi-purpose trip. That this is a genuine prospect is supported by the confidential enrolments data disclosed by existing operators of childcare centres in Sunnybank. The data confirms that a significant proportion of children enrolled in existing childcare centres come from beyond Sunnybank.
- Given these matters, it is my view the proposed childcare centre is likely to draw from a catchment that is similar in size to that served by the hub of Community facilities to the immediate north. The size of that catchment can be informed by the catchment map for local schools present in the hub and to the north-east. That map suggests the catchment extends well beyond Sunnybank and into the adjoining suburbs of Robertson and Runcorn. There is no reason, in my view, to conclude that residents of these areas would not be conveniently served by the proposed development in the same way they are likely to be served by the appellants’ childcare centre and the adjacent hub of community facilities.
- Is the identified catchment one that complies with overall outcome 4(k)?
- To determine whether compliance is demonstrated with overall outcome 4(k) of the LDRZC, it is necessary to ascertain its meaning. City Plan 2014 does not define the word ‘local’ or the phrase ‘local community facility need’. As a consequence, the word ‘local’ is to be given its plain and ordinary meaning. That meaning, considered in context with the purpose of the LDRZC and provisions of the Strategic framework examined above, conveys a flexible concept. Further, the meaning attributed to the word, and the phrase in which it appears, must also reflect there are other zones in City Plan 2014 where childcare centres are anticipated, but not constrained by a test such as that stated in overall outcome 4(k) of the LDRZC.
- This is not to suggest the meaning of the word local, and phrase in which it appears, is open ended. Recent appellate authority makes clear it is a provision that must be given meaning. In my view, it is to be given a broad meaning. This is consistent with the fluid nature of what may, or may not, constitute ‘local’, having regard to the ordinary meaning of the word and the context in which it appears. Context does however suggest the word, and phrase in which it appears, is constrained. The constraints are to be found in the purpose of the LDRZC, which anticipate ‘small-scale services and facilities’ that ‘support local residents’. These constraints do not, in my view: (1) necessarily limit the facility to one that meets the needs of a single suburb; (2) limit the need to one measured by reference to a walkable catchment, or within walking distance of residents; (3) exclude the prospect that a compliant facility may serve the needs of residents as well as the needs of visitors/workers who have a connection with the zone.
- It is unnecessary, in my view, to determine the precise area to be served by the proposed development here. This is because I am satisfied that, irrespective of the precise metes and bounds of the area, compliance has not been demonstrated with overall outcome 4(k) of the LDRZC for two reasons. Neither reason turns on the precise area to be examined. First, as I said above, the proposed development will serve a catchment that is similar in size to the existing hub of community facilities to the immediate north. Those facilities are located in the Community facilities zone and serve a need that is not constrained by a limitation equivalent to that stated in overall outcome 4(k); those facilities serve the needs of a ‘wider community’ rather than a local community. That this is so is supported by the school catchments map, which suggests the relevant catchment extends well beyond Sunnybank and into adjoining suburbs. It is also supported by matters discussed in paragraph . Second, as a general rule, form follows function. Here, the scale of the carpark is a direct concomitant of the size of the centre proposed and the need it will serve. It is not, in terms of its scale, consistent with the intent of the zone. That the carpark is not of a scale anticipated in the zone is symptomatic that the proposed development is intended to serve a catchment greater than that anticipated for a childcare centre in the Low density residential zone.
- The appellants also contend that non-compliance arises with overall outcome 4(k) because no local need has been established for the proposed childcare centre. For reasons given below, I accept a need has been established for an additional childcare centre approval to serve the needs of the community. The need identified is one for a wider community. This wider community includes a local component, but is not limited to the local component ‘only’ as required by overall outcome 4(k). That an approval would serve the needs of a wider community establishes non-compliance with overall outcome 4(k).
- Given the above, the planning discretion is to be determined on the footing that the proposed development does not comply with overall outcome 4(k) of the LDRZC. The nature of the non-compliance, particularly when appreciated against the background of the purpose of the LDRZC is serious. It represents non-compliance with a deliberate strategy in City Plan 2014 to limit the size of community facilities in, inter alia, the Low density residential zone. The nature of the non-compliance is, in my view, to be tempered by reason that the proposed development: (1) will support the needs of the local community in terms of convenient access to important social infrastructure; (2) will, consistent with the Strategic framework, support the character and amenity of the local community in that it can be conditioned to ensure there will be an absence of unacceptable impacts; and (3) can be conditioned to strike the balance discussed in paragraph , which manifests in conceded compliance with overall outcome 4(g) of the LDRZC.
Adverse impact on existing and approved facilities
- The appellants contend an approval would have an adverse impact on existing and approved childcare facilities in Sunnybank. The asserted impact is an economic one, falling into one of three categories, namely: (1) an approval would likely lead to the failure of one, or more, of the existing centres; (2) an approval would likely lead to room closures or the reduction in services offered at existing childcare centres; and (3) an approval would likely prejudice the implementation of the approval for land at Troughton Road. It is further said that an approval would not make good any adverse effect on the extent and adequacy of facilities lost to the community.
- The appellants’ case assumes the Court accepts, and acts on, the evidence of Mr Brown and Mr Leyshon. By the end of their oral evidence, it can be said that the following matters were uncontroversial:
- (a)a range of 70% to 80% represents a catchment level occupancy rate that strikes a balance between choice for parents; availability of places; and centre viability for providers to meet service quality obligations;
- (b)a catchment level occupancy rate in excess of 85% is demonstrative of a supply constrained market where public needs are not able to be met appropriately;
- (c)the market examined by Mr Brown and Mr Leyshon has a supply of 293 long day care places;
- (d)the market examined is supply constrained, with known occupancy rates for existing centres exceeding 85% for a sustained period;
- (e)the supply constraint will be eased, to an extent, by the development under construction at Yamal Street, which will serve the catchment and provide access to a further 10 long day care places; and
- (f)the identified supply constraint may be further eased if it is assumed the development approval for the site at Troughton Road is activated, which would provide a further 50 long day care places.
- Based on the above, in conjunction with data disclosed by existing childcare centre operators, I am comfortably satisfied it has been demonstrated there is a supply constrained market for long day care places in Sunnybank. That the supply constraint has an adverse impact on the public is uncontroversial. The issue is whether it can be assumed the supply constraint will be eased to acceptable levels by the childcare centre proposed at Yamal Street and the approval for the Troughton Road site. I accept the approvals for these facilities are relevant to the assessment of need.
- On the appellant’s case, it is assumed the supply constraint will be eased by the developments at Yamal Street and Troughton Road, leaving the market with sufficient supply. In this context, Mr Walker submitted that, on the best case for the co-respondents, any supply shortfall would be significantly less than the 70 long day care places for which approval is sought. In this regard, he emphasised the following concession made by Mr Leyshon in cross-examination: 
“…you don’t get to…where the undersupply equals 70 spaces, even on my best…calculations.”
- The point made on behalf of the appellants was that an approval here, taking into account Mr Leyshon’s concession, would result in an oversupply of long day care places to serve the market. The oversupply is said to be significant because it would cause the catchment vacancy rate to fall below the agreed level of 70%. Mr Brown said that a catchment wide vacancy rate below this figure creates a high risk that ‘the supply of places might ultimately be curtailed through room closures and/or service quality will be undermined. Mr Brown was unable to determine which existing childcare centre/s would sustain the most significant impacts, assuming a catchment based vacancy rate below 70%.
- As against this, the co-respondents submit the Court would not act on the evidence of the economists, nor accept that the supply constrained market will be alleviated by the activation of approvals at Yamal Street and Troughton Road. It is unnecessary to deal with the first of these points because, even assuming the assessment undertaken by the economists is the correct model to adopt, there is good reason to be pessimistic that the approval at Troughton Road will be activated and alleviate the impacts of a supply constrained market. As will be made clear shortly, this is sufficient to resolve the need and economic impact issues raised by the appellants.
- Mr Leyshon identified that the approval for the Troughton Road facility was granted in May 2019 and authorised a childcare centre providing 55 places. The currency period for the approval expires in 2024. Like the proposal, it is included in the Low density residential zone. In October 2020, the approval was the subject of a change application under the Act to reduce the number of approved places down to 50. In contemporary terms, this is a small childcare centre. A modern childcare centre provides 70 to 130 places, with the majority exceeding 100 places. Whilst the land the subject of the approval has been cleared, construction of a childcare centre has not yet commenced.
- There are a number of features, taken in combination, that suggest there can be little confidence the approval at Troughton Road will be activated as assumed by the appellants and Mr Brown. They are: (1) the age of the approval; (2) the size of the facility relative to industry standards; and (3) the absence of construction activity or activation in circumstances where the disclosed material from existing childcare centre operators suggests the market has been supply constrained for a considerable period. If it is assumed, as a consequence, that the Troughton Road approval is unlikely to address a current undersupply and is removed from the supply and demand analysis, what impact does this have on the quantitative analysis performed by the economists?
- The existing supply of long day care places was assessed by the economists at 293 places. This supply was assumed to increase to 343 places by reason of the Troughton Road approval being activated by 2026. This figure was then compared by Mr Leyshon and Mr Brown against forecast demand. Based on a multitude of assumptions, Mr Leyshon forecast a demand of 265 long day care places in 2026. Mr Brown forecast a demand for the same period of 233 places. On either assessment, the end result does not yield a deficiency in supply, assuming 343 long day care places are available to meet the need for long day care places in this locality.
- The position however changes if it is assumed the Troughton Road approval is not activated. In that circumstance, a supply of 293 long day care places, with a demand in the order of 233 to 265 places, produces an occupancy rate of 79% to 90%. The upper end of this range is consistent with the view that the market is presently supply constrained. The lower figure is inconsistent with this view. It is also inconsistent with the confidential figures disclosed by the operators of existing childcare facilities, which are demonstrative of a supply constrained market. Given the substance of the disclosed occupancy data, and given the importance of childcare facilities to the community, I am minded to accept that the demand for long day care places in this locality is significantly greater than that suggested by Mr Brown, being in the order of 233 places. His assessment was conservatively low in comparison to the disclosed data.
- If it is assumed the proposed development is approved and the Troughton Road approval is not activated, there would be a resulting supply of 373 long day care places. This can be compared to a forecast demand of 265 places. The comparison yields an occupancy rate of 71% for the catchment area analysed by the economists. Given:
- (a)the importance of childcare facilities to the community;
- (b)the supply constrained nature of the existing long day care centre market in this locality;
- (c)known locational attributes of the land and surrounding area, which attract a significant number of residents living in Sunnybank and adjoining suburbs to nearby and complementary community facilities;
- (d)the absence of any evidence led on behalf of the appellants to make good on the opinions expressed by Mr Brown about room closures, reduction of services or centre closure;
- (e)the absence of objection, or evidence, or an appeal from any other existing childcare centre operator in the local area suggesting an approval would result in the adverse economic impacts suggested by Mr Brown; and
- (f)the point of agreement recorded at paragraph (a) above;
I am satisfied a catchment occupancy rate of 71% is acceptable. It bespeaks a resulting market that will serve the community well. Indeed, it suggests an approval, if granted and acted upon, would be unlikely to lead to a circumstance where the public is worse off – that is, on the balance of probabilities, the public is unlikely to be adversely effected in the manner suggested by Mr Brown.
- It is well established that it is not the role of town planning to protect existing businesses from competition. The mere threat of competition is not a relevant consideration. That is not to say competition is irrelevant. Competition will be relevant where it has the potential to have an adverse effect on the extent and adequacy of facilities available to the public, which would not be made good by the development seeking approval. Competition in this sense is to be examined from the public perspective.
- With these principles in mind, I am satisfied that an approval here will provide choice and competition to the long day care market. The level of competition will not, in my view, result in any adverse impacts from a public perspective. Any adverse impact is, in any event, likely to be made good by the proposal offering 70 long day care spaces co-located with a complementary hub of community facilities and an existing long day care centre (operated by the appellants).
- In saying this, an approval may have the consequence that the Troughton Road approval is not activated. That the implementation of this approval may be prejudiced or be made more difficult by the subject proposal is a relevant consideration. In this context it has been said:
“In principle, having regard to the limited duration of a development approval, a Local Authority, during the currency of that approval, ought not to act so as to prejudice the implementation of its earlier decision. Considering the approval that has been granted to the Appellants it is legitimate to take into consideration whether it is likely that the proposed approval will be effected and whether the granting of any subsequent…approval would be likely to prejudice the likely development of the land already approved for its proposed purpose and when it is likely the approved land may be so developed.”
- It is reasonable to assume that an approval is likely to have an adverse effect on the development approved for Troughton Road. Whilst this effect is a relevant consideration and, as a matter of principle, it can be accepted that the implementation of that approval ought not be prejudiced, I am satisfied such an impact does not warrant refusal here. This is because the effect on the Troughton Road approval may be adverse, but as the matters discussed in paragraphs  and  disclose, that it would be activated absent an approval in this appeal is far from a foregone conclusion. The Troughton Road approval has a number of difficulties that appear to have impeded its activation. That is not without moment given the approval has been extant during a time when the market was, and remains, supply constrained.
- In my view, the evidence establishes that the economic impacts of an approval will not result in a diminution of services available to the public. Rather, this is a case where the market is supply constrained and in need of a further development approval for long day care facilities. The proposed development is well located to meet that need. It will do so in circumstances where it can be conditioned to ensure it will have no unacceptable impacts on character and amenity. All of these matters strongly suggest an approval would improve the physical well-being of the community. That it will do so is indicative of a need for important social infrastructure.
Exercise of the planning discretion
- Childcare centres provide an important community service function. As Mr Buckley said, and I accept:
“…childcare centres are important to the fabric of a community. Apart from the service they provide, they are also places of social and community connection. Inter-family and personal relationships, albeit focussed around children, are often formed when children from different households are at a centre at the same time; and if local, they continue and proceed to other levels of education as a group or larger cohort;
…the service provided has become increasingly important for Australia economically. The ability for both guardians of a child to work, and, in particular, for women to maintain participation in the work force, are desirable aspirations in the public interest. An extension of this is the ability to access a centre conveniently to and from a place of work.”
- City Plan 2014 recognises there is a legitimate community need for childcare centres. It is one of a number of community facilities that form part of a social network of infrastructure. The use is promoted in the Community facility zone and on land included in a Centre zone. It is also anticipated on land included in residential zones, but not without qualification. The qualifications stated in City Plan 2014 require consideration to be given to a number of issues. For land in the Low density residential zone, such as here, that includes a need to consider issues with respect to, inter alia:
- (a)accessibility and locational factors;
- (b)traffic impacts;
- (c)character and amenity impacts ; and
- (d)a zone specific control intended to limit the form and function of non-residential uses to protect the integrity of the zone.
- Here, it is uncontroversial that the proposed development is highly accessible and would be conveniently co-located with a hub of community facilities. It is also uncontroversial that traffic, amenity and character impacts can be conditioned to ensure they will not be unacceptable. The reasons for refusal pressed by the appellants arise out of the zone specific control stated in the LDRZC.
- For reasons given above, I accept the zone specific control is not complied with. The relevant control is set out in overall outcome 4(k) of the LDRZC, and to be read with the purpose of the same code. The non-compliance arises because the proposed development:
- (a)is not in keeping with the scale of development anticipated in the zone; and
- (b)will serve a need that goes beyond that anticipated for the use in the zone.
- The issue in this case is whether non-compliance with City Plan 2014 should be decisive. That is to say, whether non-compliance warrants refusal of the development application.
- The resolution of this issue starts from the premise that the non-compliance with City Plan 2014 is serious and represents a reason to refuse the development application. It is a reason deserving of significant weight in the exercise of the discretion. However, it needs to be balanced against four countervailing considerations pointing in favour of approval.
- First, a high degree of compliance has been demonstrated with the planning scheme. In particular, compliance has been demonstrated with the following overall outcomes of the Childcare centre code:
“(a) Development is located and designed to be conveniently accessible to users and maintains traffic safety;
(b) Development is compatible with the residential character and amenity of the zone and is sited and designed to minimise adverse impacts on the amenity of nearby residential dwellings.”
- With respect to overall outcome (a), compliance with this provision was uncontroversial. This was conceded by the appellants.
- With respect to overall outcome (b) above, the proposed development will, in my view, be compatible with the existing residential character and amenity of the area. This is not undermined because the proposed carpark is larger in scale than that anticipated in the zone. Like the at-grade carpark for the appellants’ facility, the scale of the proposed carpark is consistent with the existing mixed character and amenity of the area.
- Second, I am satisfied an approval with appropriate conditions will ensure the development will not have an unacceptable impact on amenity and character. In this regard I take comfort from the appellants’ facility. It is a life size model that demonstrates how a childcare centre, which is appreciably larger than the proposal, can be approved subject to conditions to ensure it will appropriately support the character and amenity of the area.
- Third, the non-compliance with City Plan 2014 does not sound in any unacceptable planning consequences. More particularly, an approval will not undermine the underlying planning purpose for overall outcome 4(k) of the LDRZC. The purpose of this provision is to, inter alia, control the form and function of non-residential uses in the Low density residential zone. The control is directed at protecting the amenity of the zone to ensure it is not compromised by non-residential uses. Here, an approval can be granted with confidence that the amenity of this part of the zone will not be compromised or adversely effected. This confidence is gained, in large measure, by a concession made on the part of the appellants. They sensibly conceded the proposed development complies with overall outcome 4(g) of the LDRZC, which, at the risk of repetition, states:
“Development reflects and supports the high level of comfort, quiet, privacy and safety (including impacts of glare, odour, light, noise, traffic, parking, servicing and hours of operation) reasonably expected within a predominantly low density permanent residential environment.”
- Fourth, there are a number of matters, taken in combination, that suggest an approval would be in the public interest. Those matters include a recognition that the evidence suggests the community has access to an inadequate supply of long day care places to meet its needs. This undersupply can be met by an approval on the land in circumstances where:
- (a)the land is well located and conveniently accessible to meet the undersupply;
- (b)the approval, if activated, will deliver a childcare centre operated by an experienced provider who is not represented in Sunnybank – this sounds in additional choice and competition for the benefit of the public;
- (c)the approved development will not result in adverse character, amenity and traffic impacts;
- (d)there will be an absence of adverse impacts on the adequacy or supply of existing childcare facilities presently available to the public; and
- (e)the development demonstrates a high degree of compliance with the Childcare centre code and does not undermine the planning purpose for overall outcome 4(k) of the LDRZC (as discussed in paragraphs  and ).
- I am satisfied, on balance, that the non-compliance with City Plan 2014 should not be decisive in this appeal. In short, this is because an approval, in all of the circumstances, strikes an appropriate balance between meeting an identified need, that exists today, for a childcare centre in a highly accessible and convenient location as against protecting the character and amenity of that part of the Low density residential zone of interest here.
Disposition of the appeal
- The co-respondents have discharged their onus.
- The development application the subject of the appeal will be approved, subject to conditions.
- I will adjourn the appeal for the parties to prepare a suite of conditions reflecting, inter alia, changes to the development recommended in joint reports prepared for the appeal.
- The appeal will be adjourned to 5 August 2022 for the purpose of a review. At this review, directions will be made about the delivery of draft conditions and the timing of responses to those conditions.
Ex.10, para 14.
Ex.9, p.7, Figure 1, Lot 8 on SP 184469.
Ex.9, p.12, Figure 3.
Ex.8. p.11, para 23 (e) and p.14, Figure 15.
Ex.13, p.3, Figure 1.
FG-7, FG-9 and FG-10; Brown T2-106, Line 8 to 13; and T3-19, Line 33 to T3-20, Line 20.
Ex.9, paras 26 and 62(a). The hub is about 9 ha and is bounded by Lister, Gager, Turton and Boorman Streets.
Ex.10, para 16.
Ex.10, para 17.
Ex.13, p.3, Figure 1.
s 43, Planning & Environment Court Act 2016.
Ex.31, para 3.
Brisbane City Council v YQ Properties Pty Ltd  QPELR 987, per Henry J at .
Abeleda & Anor v Brisbane City Council & Anor  QPELR 1003; Wilhelm v Logan City Council & Ors  QPELR 1321.
s 45(2), Planning & Environment Court Act 2016.
s 45(7), Planning Act 2016 and Ex.14, para 1.
Ex.14, p.47, s 3.7.1, 1. g.
Ex.14, p.48, s 188.8.131.52, 1. g(vi).
Ex.14, p.62 SO7 and L7.
Ex.14, p.98, s 6.1(1).
As is confirmed by overall outcome 2(a) and PO1 of the Childcare centre code.
Ex.9, p.15, para 59(a).
Ex.14, p.101, s 184.108.40.206, 2.
Ex.14, p.101. s 220.127.116.11, 3.
Ex.14, p.48, s 18.104.22.168, 1. g(vi).
Ex.14, p.62 SO7 and L7.
Overall outcomes 4(a) to (f).
Zappala Family Co Pty Ltd v Brisbane City Council & Anor  QPELR 686, 
Ex.14, pp.131 and 151.
In the sense that a material change of use could occur on land in the zone for the use.
Ex.14, p.157 and 158.
Brown: T2-69, Line 25 to 26 and T2-74, Line 8 to 17.
Ex.4, pp.1, 7, 9, 10
Ex.14, p.102, overall outcome 5(c)(i).
Buckley: T3-43, Line 36 to T3-44, Line 13 & T3-46, Line 46 to T3-47 Line 11; Ryan: T3-62, Line 29 to T3-63, Line 29; Ex.8, para 97 a).
Ex.31, para 59; Ex.32, para 28.
Existing and approved.
Ex.10, FG-1 and FG-2.
Ex.10. p.4, s 4.2.
Ex.10, p.5, Figure 4.1.
Ex.10, p.7, Table 4.2, excluding Kyabra Early Years Place.
Ex.10. para 38.
Ex.10, para 39.
FG-1, p.29; Ex.10, Tables 4.3 and 4.4.
Ex.12 and Ex.21.
T1-92, Line 7 to 11.
Ashvan Investments Unit Trust v Brisbane City Council & Ors  QPELR, .
Trinity Park Investments Pty Ltd (atf and L’Armonia Pty Ltd) v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors  QPELR 309.
Ashvan (Supra), .
Northern Properties Pty Ltd v Brisbane City Council  QPELR 877,  & .
Ex.9, p.24, Figure 4.
Ex.31, para 68.
Ex.31, paras 69 and 70.
Ex.10, para 72.
Gold Coast Carlton Pty Ltd & Anor v Beaudesert Shire Council & Anor  QPELR 343, 348, citing Dalgety Australia Limited v Brisbane City Council & Ors (1980) Planner Reports 198.
This concession assumes the Troughton Road approval is counted in the supply analysis and likely to be activated to meet the community’s need for a further 50 long day care places.
Ex.10, para 81.
FG-1, p.12, paras 24 to 26.
Save for clearing of the land, which occurred at an unknown time.
Ex.10, Tables 4.3 and 4.4, Supply of places (excluding Kyabra).
FG-1, p.29, Gross Daily Demand (local + inflows).
This demand is calculated assuming the catchment occupancy rate is equivalent to existing demand demonstrated by FG -7, FG-9 and FG-10. Demand, based on these figures, comfortably sits in the order of 90% occupancy on a regular and sustained basis.
Cf Parmac Investments Pty Ltd v Brisbane City Council & Ors  QPELR 480, 485  per Wilson DCJ.
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 687.
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 687; Isgro v Gold Coast City Council & Anor  QPELR 414.
Gold Coast Carlton Pty Ltd & Anor v Beaudesert Shire Council & Anor  QPELR 343, 349 per Row DCJ, cited in Hawkhaven Pty Ltd v Mackay Regional Council & Anor  QPELR 897 .
Ex. 9, p. 14, para 59. This evidence was consistent with Mr Brown’s view at T2-69, Line 37 to T2-70, Line 9.
As articulated in the purpose and overall outcome 4(k) of the LDRZC.
Ex.15, p.107, s 22.214.171.124(2).
- Published Case Name:
Wu & Kuo Childcare Pty Ltd & Anor v Brisbane City Council & Anor
- Shortened Case Name:
Wu & Kuo Childcare Pty Ltd v Brisbane City Council
 QPEC 27
Williamson QC DCJ
04 Aug 2022