Baptist Union of Queensland v Brisbane City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Baptist Union of Queensland v Brisbane City Council & Anor [2002] QPEC 041

PARTIES:

BAPTIST UNION OF QUEENSLAND
Appellant
v
BRISBANE CITY COUNCIL
Respondent
And
RURAL ENVIRONMENT PROTECTION ASSOCIATION
Co-Respondent

FILE NO:

4728 of 2001

PROCEEDING:

Appeal

DELIVERED ON:

18 July 2002

DELIVERED AT:

Brisbane

HEARING DATES:

22, 23, 26, 29, 30 April; 1, 2, 13, 14, 15, 16, 24 May 2002

JUDGE:

Judge Brabazon Q.C.

ORDER:

Appeal dismissed

CATCHWORDS:

TOWN PLANNING – Council approval – Application for material change of use – where proposal was for development of church in semi-rural area – whether proposal conflicts with strategic plan or developmental control plan - whether sufficient planning grounds to justify approval

TOWN PLANNING – matters to be considered by court – nature of proposed church – planning scheme directives – “need” – availability of alternative site – location – traffic – impact of the development – environmental impact – local residents

COUNSEL:

Mr Lyons QC for the Appellant
Mr Gore QC and Mr Rackemann for the Respondent
Members of REPA in person

SOLICITORS:

Corrs Chambers Westgarth for the appellant
Brisbane City Legal Practice for the Respondent

REASONS FOR JUDGMENT

The Application

On 29 August 2000 the Baptist Union of Queensland lodged a development application with the Brisbane City Council. The application asked for a development permit for a material change of use and a preliminary approval for building work with respect to land at 2427-2475 Moggill Road, Pinjarra Hills, Brisbane. If approved, the application would have allowed the relocation of the Kenmore Baptist Church. The Baptist Union proposed that a new church, and surrounding car parking areas, should be built on the Pinjarra Hills land.

There were 350 submissions to Council. Almost all of them supported the application – a large proportion of the supporters were members of the Baptist Church.

On 28 August 2001 the Council resolved to refuse the development application. It said that building a new church on the land would be contrary to the provisions of the Town Plan, that its size would have an unacceptable impact upon the amenity of the surrounding area, and that the topographical changes would have an unacceptable impact upon the visual amenity of the site, and the surrounding area, to the detriment of the city. The Council adopted recommendations of its Urban Planning Committee and the Development Assessment Team.

On 27 September 2001 the Baptist Union filed an appeal against that refusal. Issues were identified in the Notice of Appeal, by the Council. Earlier this year, the Baptist Union produced some amended plans, which included revised access arrangements to the land and to the neighbouring Brisbane Independent School.

Those amendments led to an assertion by the Council, that the changes were not minor ones. If that were true, the application and decision making process would have to begin again, and this court could not hear the appeal – see s.4.1.52 of the Integrated Planning Act (IPA). A preliminary hearing dealt with that issue, in favour of the Baptist Union. Reasons for the decision were published. The appeal has now been heard, over a total of 12 days.

REPA had earlier expressed its concerns in a written submission. It elected to become a party to the appeal.

This Appeal

When the application was made the 1987 Town Plan was in force. It had become a transitional scheme under the provisions of IPA, which came into effect in late 1997 (see s.6.1.2 and s.6.1.3). The new City Plan replaced the repealed Town Plan on 30 October 2000. Each plan contains provisions affecting this land.

This appeal is principally about the effect of the transitional scheme. Even though the machinery provisions of IPA applied to the application and assessment, some of the substance of the repealed legislation will still apply (see s.6.1.29 and s.6.1.30 of IPA). Section 6.1.29(3) of IPA says that the following matters apply in assessing the application –

(a) The common material for the application;

(b) The transitional planning scheme (i.e. the 1987 Town Plan);

(c) Any transitional planning scheme policies;

…

(h) The matters specified in the former Local Government (Planning and Environment) Act against which the application would have been assessed if it had been lodged under that Act;

(i) Any other matters which regard would have been given if the application had been made under that Act.

Therefore, it is necessary to remember that an application for consent would have been required under the P & E Act, as the proposed development was a consent use under the Town Plan. Attention has to be paid to the criteria to be considered under the P & E Act, for such an application. Those requirements are set out in s. 4.13 of that Act – the assessment of a town planning consent application. Section 4.13(5A) goes on to provide that:

“The local government must refuse to approve the application if –
(a)The application conflicts with any relevant strategic plan or development control plan; and
(b)there are not sufficient planning grounds to justify approving the application despite the conflict.”

That is to say, even if a proposal for development conflicts with a strategic plan it might still be approved if it has sufficient planning merit to justify the application, despite the conflict. If there is a conflict, then the expression “must refuse” is mandatory – the application has to be rejected. The words are not merely directory, leaving a discretion in a council or the court, if there are not sufficient grounds. Therefore, the task of this court is to:

(a) examine the nature and extent of the conflict;

(b) determine if there are any planning grounds which are relevant to be part of the application which is in conflict with the planning scheme, and if the conflict can be justified on those planning grounds;

(c) determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict. (See the Court of Appeal in Weightman v Gold Coast City Council [2002] QCA 234.)

These town planning documents are largely the work of town planners. They are not the work of parliamentary counsel who have to consider a piece of legislation. If there are any ambiguities or inconsistencies, it is necessary to read the documents as a whole to discover their planning intent. They should be read and applied in a practical commonsense way, rather than in an overly technical way. They should be interpreted in a way which will best achieve their evident purpose.

Section 4.1.50(2) of IPA says that it is for the Baptist Union to establish that the appeal against Council’s refusal should be allowed, and that its proposal should be approved. The appeal is by way of hearing anew. That is, the court makes a fresh decision on the merits of the case. Here, as in most appeals, the court has the benefit of more extensive evidence compared to that put before Council. The court’s duty is the traditional one, to give an impartial and reasoned decision on the evidence. The court is not a town planning authority, as is the Council. The court’s task is to accept the town planning documents (in the light of any earlier court decisions about how those documents should be applied) and to apply them in this particular case.

Even though the appeal is by way of a fresh hearing, it does not follow that the town planning scheme in force at the time the appeal is decided is to be applied. Rather, s.4.1.52(2) of IPA provides that the court must decide the appeal based on the laws and policies applying when the application was made, though it may give weight to any new laws and policies, as the court considers appropriate.

The application was for a consent use under the Town Plan. As appears later in these reasons, the City Plan makes such a development “impact assessable”. The City Plan also says that such a development would be generally inappropriate. How does one consider what may be different or competing considerations under each planning scheme, and how much weight should be given to the City Plan provisions?

In Donald Thallon Surveys Pty Ltd v Brisbane City Council [2002] QPEC 014 (Judgment 11 April 2002), Judge Quirk had to consider a similar situation. There, the application was made just three days before the commencement of City Plan. As he put the matter:

“City Plan came into force only three days later and, if it was a matter that was determinant of the appeal, the provisions of City Plan would in the circumstances, attract considerable weight. … it has to be remembered that City Plan does not expressly prohibit such a proposal. What it does is make it impact assessable with the rider that it falls within the category “generally inappropriate”. It remains the position however that the application must be considered on its merits and, notwithstanding City Plan, if a merits’ assessment is called for, not to do so against the background of the criteria set out in s.20.2.1.5 of the Town Plan would, in my view, be an inappropriate application of s.4.1.52 of the Integrated Planning Act. I am not persuaded that there is, within the meaning of s.5.1(6A) of the repeal legislation, any conflict with the Strategic Plan in either the Town Plan or City Plan. …”

Those remarks, quite rightly, reflect the statutory requirement that the court must first consider the merits of the application measured against the criteria set out in the Town Plan. Then, if the court considers it appropriate to give weight to any new laws and policies, they must be taken into account as well. As Judge Quirk observed, and as counsel for the Baptist Union submitted, the court’s first task is to assess the merits of the application against the criteria of the Town Plan. He must not be taken to have said that the appeal must be decided solely according to the Town Plan. Rather, in that case and in this one, the question is how much weight should be appropriately given to the provisions of City Plan. It came into effect two months after the application was lodged, and ten weeks before it was refused. It has now been in effect for about twenty months.

It was submitted for the Baptist Union, that it should be recognized that the application was the culmination of a lengthy search for a suitable site over years when the Town Plan was in force. As the Town Plan influenced those responsible for the search the impact of City Plan should be given less weight for that reason (it was submitted). No authority for that proposition was mentioned, in a written submission which otherwise made meticulous reference to relevant authorities. In principle, it is desirable to pay attention to the timing of an application for development or a particular piece of land. An earlier search, for other suitable land, can hardly affect the way the present application is considered. If it be important to know if the application is about the only possible land then the unsuccessful search may be evidence to prove that aspect.

The Land

The land is on the western side of Moggill Road, about 2.5km to the southwest of the Kenmore business centre. There are four allotments which will immediately be affected. To the north, the two lot 1’s have a combined area of some 4.2 hectares. Together, they are roughly square in shape. It is proposed to build the church and most of the car parking spaces on that land. The two lots together have a frontage of 189 metres to Moggill Road, and a depth from 215 to 250 metres.

To the south of them can be seen lot 3 and lot 6. Lot 3 is owned by Main Roads, and is involved because of the need for access from Moggill Road over it to Lot 6 to the west. Lot 6, it is proposed, will contain an overflow car park.

The total areas of the church’s own land, lots 1, 1, and 3, would be 5.4 hectares.

The church’s main land to the north would be separated from its overflow car park area by land owned by the Brisbane Independent School. The school land lies to the west of the church’s main land. The school land includes a narrow strip, giving access to Moggill Road.

There are detached houses on both the larger lot 1 and the smaller lot 1. The Main Roads land is vacant. The house on the larger lot 1 is presently unoccupied, and appears to be in poor condition.

The Baptist Union land is dominated by a hill on the northern part. The hill is heavily vegetated. There has been clearing for grazing, and regrowth. Some native trees remain. The hill and the steep slope facing Moggill Road are more heavily vegetated. The land slopes down to a low lying area before one reaches the Brisbane Independent School. The access road to the school crosses this low lying area. There are dense stands of trees around the access road. They include weeping willows and Chinese elms.

The proposed church, the school, and some neighbouring residences would all share the one access point to Moggill Road. Shortly after leaving Moggill Road, the access to the church, and the access to the school, would become separate roads. Main Roads has agreed that it will grant easements over its lot 3, in favour of the Baptist Union.

The Proposed Church

A large church building is proposed to be built on the northern land. These will be its main features:

(a) The ground floor will include an auditorium seating 1,800 people, a foyer, backstage area, five counselling rooms, six meeting rooms, a books/tapes area, and a social fellowship area.

(b) The lower floor will include a workshop, administration area, five community rooms, a foyer, kitchen, plant, and storage room.

(c) The total floor area would be 5,470m².

(d) The building plans show a maximum height from ground level of 18.3m. The western and southern walls of the building (those which would be most visible) are each about 74m long.

(e) The roof is to be green, while the walls are to have non-reflective surfaces with colours designed to be sympathetic with the colours of the surrounding land and vegetation.

(f) The building is to be built on a level platform to be excavated from the hill. At its deepest point, the excavation will be about 9m. The result is that the top of the building will be some 1.3m above the highest ground at the northern boundary. Some 90,000 cubic metres of fill is to be removed, with most of that to be taken off the site. A small proportion will be used as fill for the overflow car park.

(g) Six hundred and three car parking spaces are to be provided. Beside the church there will be a two-level car park to the north, and a car park on the ground to the west (378 spaces). The overflow car park, to the south, will be on the fill which is taken from the excavation (225 spaces). The car parks will have lighting, directed downwards. There are to be three bus bays.

(h) The earthworks will require removal of some 300 existing trees. New planting of some 480 trees is proposed. The area to be cleared is 2.9 hectares.

(i) Sewage is to be carried by pipe to a sewer connection on the eastern side of Moggill Road.

Walking tracks, and a lookout point, are to be provided for pedestrians. A track links the overflow car park to the church.
It can be seen that a very substantial development is planned. It is a large building, as churches go - some diagrams compared it to the Brisbane cathedrals, and to City Hall. The footprint of the building sits within a square with sides a little less than 80m. The footprint size is considerably less than St Stephens Cathedral, St Johns Cathedral, and St Brigid’s Church at Redhill. The square within which its footprint sits is not much smaller than that of City Hall. Its height is not dissimilar to City Hall (if one ignores the clock tower above the main building). It is necessary to understand why the Baptist Union proposes such a development. It would be the largest Baptist Church in Queensland. It would be, as Mr Challenor said, “a very large urban development”.

The Kenmore Baptist Church

The purpose of the application is to provide a new church, to replace the existing Kenmore Baptist Church, at a place convenient for its present congregation. (There is no settled plan, about the future of the existing church buildings, should this application be allowed).

The Baptist ministry began in the Kenmore-Chapel Hill area in 1968. In 1973 the Baptist Union built its church on the land at 57A Kenmore Road, Kenmore. The congregation was about 300 strong. The congregation grew, and extensions were built in 1986. The present church building can accommodate a maximum of 400-500 people at the one service in the auditorium. The original church provides an adjoining hall. Offices and meeting rooms are downstairs. The land is steeply sloping. It provides rather awkward parking for about 190 vehicles. Access for the elderly or disabled is difficult.

The congregation has now grown to about 2,500 people. A central role has been played by Senior Pastor Benson. He has held that position since 1989. Apart from his local duties, he has a high profile in church affairs, appearing regularly on national television. He is a leader, strong in his faith and committed to achieve his vision for the future, which includes this relocated church. While some members of the congregation come and go, there is presently a net increase of 100-150 members a year.

There are four services on Sunday. There are also children’s services. The children have to go to other nearby buildings, or to a kindergarten, because there is not enough space in the church. The most popular service is at 5 pm. About 1,900 people come each Sunday to the various services, including children, babies, and the teachers.

The church runs an impressive number of activities during the week. They require the use of meeting rooms, both large and small. They range from a 110 member youth choir, performance groups including dance, drama and video, prayer groups, different types of counselling, English classes for migrants, meetings for young people, a girl’s brigade, programs to help those with personal difficulties – (such as for female survivors of sexual abuse), sporting teams and a kids’ club for activities during school holidays. That list is not complete. It illustrates the breadth of the church’s pastoral activities. Some of the activities are linked to the style of worship, which usually includes music and drama. It should be explained that the auditorium has a rather different appearance compared to, say, a Catholic or Anglican church. It has more similarities to a theatre, with considerable equipment for music, sound and lighting, and a stage. The religious ornamentation and furniture is plain and restrained. The altar is a simple table, carrying an open bible.

About 60% of the congregation live north of the Brisbane River, and come from the suburbs of Kenmore, Chapel Hill, Indooroopilly, Kenmore Hills, Brookfield, Bellbowrie, St Lucia and Toowong. About 20% of the congregation live on the other side of the river, in the Centenary suburbs. About 20% live outside these fairly close areas. Because of that distribution, the position of the church and scarce public transport, most of the congregation attend by car.

For several years it has been realised by the Baptist Union that the Kenmore church is unsuitable to cope with the growing demands upon its facilities. Nearby buildings have to be borrowed, especially for children and young adults’ activities. There are problems with parking on the current site, and on Kenmore Road. The on-site parking is inadequate. There are often complaints from adjoining owners and surrounding residents. Some nearby residents are also sensitive to the noise and traffic. There is inadequate access for disabled people to the whole of the church complex. There are insufficient rooms for staff for counselling, and for meetings. Presently some 16 full and part time staff are employed.

As the church sees itself serving its congregation and the local community, it does not wish to move too far away. Efforts have been made to find another suitable site. The church has been assisted by Mr McConaghy, an elder of the church, who is also an experienced property developer. He explained why several sites in the district had proved to be unsuitable. In his opinion, there is no available alternative to the present site, which would satisfy the church’s needs. (His statement gives details of considerable efforts over a long period of time to find a new location)

The Planning Schemes

The 1987 Town Plan

The strategic plan sets the broad framework for managing private development. Map 1 shows that this land is in the southeastern part of a large green space area, including Mt Cootha and the Enoggera and Gold Creek reservoirs. The green space provisions were introduced in 1997. According to para 3.3.1.1 the Green Space System is intended to enhance the long term liveability of the city by ensuring that areas of habitat, rural, semi-rural, open landscape, open space, recreation, scenic and corridor value are retained and managed as part of an integrated city-wide system.

Map 2 of the Strategic Plan places this area within the green space area, having “rural, semi-rural, semi-natural and open landscape value”. Para 3.3.1.1 describes it as having “… landscape values which are characteristic of rural, semi-rural/semi-natural and open landscapes … these lands may have agricultural value and provide visual diversity to the city, a contrast to urbanised areas, and pleasant views along movement networks”.

Map 3 places this land in the “semi-rural and agricultural area”. Para 3.3.1.1 (c) says that such a component of the Brisbane Green Space Area is “intended to be retained and enhanced for rural and semi-rural activities. Land with semi-rural and agricultural value occurs throughout the outer areas of the city, often forming significant buffers with incompatible land uses and between built-up areas. They are intended to retain these functions and to define the edges of urban expansion, provide pleasant vistas along movement networks and provide open landscape character to many areas of the city. These areas are also often part of important gateways to the city.”

The land is in the Rural Residential Zone. The intent of the Strategic Plan for that zone is set out in para 7.5.1 of the Strategic Plan:

“land included in the Rural Residential zone is intended to provide for attached house development on allotments larger than those normally associated with suburban areas … land within this zone generally consists of allotments of 1 hectare or more but less than 4 hectares in area. … sewage is not generally available but is not required to be provided in this zone … the minimum allotment size will assist in retaining a semi-rural character in which buildings do not dominate. … the green space values and other characteristics of this land are such that it is not intended to be developed for suburban residential development. … the lack of sewerage facilities and the low capability of the existing water supply contribute to the unsuitability of this land for close subdivision. It is intended that further development reflecting the existing lifestyle of these areas should be encouraged. … development for purposes which require the consent of the Council in this zone will be assessed for consistency with the green space values of the area, and will not be approved where it adversely impacts of those values …”

The Table of Development for that zone provides that agriculture and detached housing are “as of right” developments. A “place of public worship” is a permissible use in the zone (and is the subject of this application for consent). The Town Plan defines “a place of public worship” as meaning:

“any premises used or intended for use for the public religious activities of a religious organisation whether or not those premises are also used for religious instruction:
The term includes –
(a)the use of the premises for the social or recreational activities of, or conducted by, the relevant religious organisation;
(b)the residential use by a minister of religion of a building erected on the land contained in those premises, but does not include the use of any childcare centre or educational establishment."

In Cooper v Gold Coast City Council (1998) QPELR 162 at 166, the court dealt with the meaning of that definition. It held that the ordinary concept of a church or place of worship would include such ancillary or incidental uses normally associated with church life such as an auditorium for the body of the church to worship, administration offices, a hall for cultural activities or recreation, separate meetings rooms for counselling or religious instruction, car parking, children’s activity area and other areas which would normally be associated with the practice of a particular religion. Here, it is clear enough that what is proposed is “a place of public worship”, notwithstanding its scale and range of likely activities. One witness, an architect, did describe the proposal as “an entertainment centre”. His remark seems to have been directed to the style of the building, rather than to the style of worship. The definition does not require any particular form of building.

Column 4 prohibits development for many other purposes including a “place of assembly”. That is, it does not allow use of the land as a public hall, theatre, cinema, music hall, concert hall, dance hall, open-air theatre or drive-in theatre, or for the conduct of trade fairs or exhibitions or as a function room. This proposal is not described by that definition.

Local Planning Policy 19.22 applies, as this site includes a waterway. It sets out the requirement in respect to developments on land in the vicinity of waterways.

The City Plan

The Strategic Plan sets out a number of Desired Environment Outcomes (DEOs) for the city. Para 3.3.2.2, (land use in the built environment) requires development to enhance the amenity, environmental and cultural context of its locality through:

“(c)enhancing character – development that is sympathetic to the character of surrounding area.

(h)sense of place – development that creates a feeling of belonging and places with a distinct character.”

Para 3.3.2.3 deals with promoting the optimum location of community services and facilities, to meet community needs through:

“(b)centrality – locating services and facilities in centres wherever possible.
(c)co-location – co-location and shared use of community services and facilities and efficient use of resources.
(d)accessibility linking centres with pedestrian ways, bikeways and public transport routes.”

There is a Brisbane Green Space System. As before, this land is within that system. Para 4.1.1 describes “The Challenge”:

“In the past, the demand for land to accommodate the city’s anticipated growth steadily reduced green space. Green space was seen as a holding zone ultimately bent for other uses. Its intrinsic value and contribution to the urban fabric were often ignored. However, green space continued to serve many functions now taken for granted as an integral part of the city’s character and liveability such as landscape, recreation, protecting ecological functions, providing for economic growth and defining the edge of the city.
More recently, changing lifestyles and a better understanding of ecology have increased the community desire to protect and enhance green space for its own space. As the city grows and consolidates its liveability will rely heavily on having green space that is diverse and widely distributed in sufficient amounts to have a positive effect. This valuable asset must be maintained, managed and enhanced, in accordance with strategies for growth management throughout South East Queensland.”

The key challenges for the city’s green spaces are to:

· “Achieve an effective distribution of important breathing spaces and areas that define the city;
· Ensure that recreational and cultural values of land contained in the Green Space System are protected.
A careful balance is needed to resolve competing pressures in today’s economic climate. Once lost, green space is difficult to regain. In para 4.1.2, the Strategic Plan sets out a response to the challenge … as a balance to growth, important green space values and functions will be identified, retained and enhanced through the Green Space System.”

Para 4.1.2.1 sets out some green space values, which include:

“Biodiversity value – significant stands are important remnants of vegetation community types in the area providing habitat for the city’s flora and fauna, including those areas required for wildlife movement or migration.
Rural, semi-rural/semi-natural and open landscape value – open landscape providing pleasant views along movement networks, adding to visual diversity, and allowing for ongoing rural activities.”

Para 4.1.2.2 describes components of the green space system. They include rural components, which:

“include land that defines the city’s edges, acts as a buffer between incompatible land uses and can provide pleasant vistas along movement networks. These components will be retained for the ongoing operation of rural and semi-rural activities and their landscape value will be enhanced where possible. Fragmenting this land has detracted from its landscape and agricultural production values and is no longer considered appropriate. This practice will be discouraged”.

If the present application were under the City Plan, it would require “impact assessment”. Para 2.5.2 sets out some development which is generally inappropriate - that is, by way of contrast with generally appropriate impact assessable development which can be seen in assessment tables for each Area. For example, in the rural area, the following are generally appropriate – cattery, home business, kennels, outdoor sport and recreation, park, riding school, stable, utility installation, youth club. Other material changes of use are said to be generally inappropriate. That is consistent with the intent of the rural area, to be found in para 3.5.1:

“some broad hectare, low intensity uses may also be accommodated in this area where they have low environmental impacts, such as riding schools and camping grounds.”

In para 3.5.2, the DEOs include these:

”2.Semi-natural and natural habitats biodiversity, waterways and natural and rural landscape values are protected and enhanced through appropriate design, construction and operation of developments both in these areas and on adjacent land.

3.Visual impacts of clearing, building design and construction, material, intensity of use, access ways and other aspects of development are minimised.”

One then turns to para 2.5.2, dealing with the generally inappropriate impact assessable development. City Plan says these things:

“other impact assessable developments are usually inappropriate and not specifically envisaged by the Plan. In assessing this development the proposal will need to demonstrate that it accords with the Strategic Plan in chapter 2 and that there is a social economic or environmental need for the development that could not be met in an area where land has been allocated for that use under the plan. (emphasis added)
… the proposal will need to demonstrate that:
· The character, location, siting, bulk, scale, shape, size, height, density, design and external appearance of the proposal accords with the reasonable expectations and DEOs for the area in which the land is classified.
· The proposal has a positive impact on the landscape, scenic quality and streetscape of the locality.

· The proposal does not detract from the appearance, environment or amenity of the locality. …

· The proposal does not generate greater traffic movement or hazard than is reasonably expected in the surrounding locality by reason of … on-site and on-street parking, number or types of vehicle movements, and manner of access to the site.

· The capacity of the road system in the locality is suitable for the proposed activity.

· The site has a reasonable level of accessibility by all modes of transport, including pedestrian, and cyclists.

· The public transport and private vehicular access that is appropriate to the proposed activity.

· Noise generated by the proposal is within levels expected for the area in which the land is classified.

· Where the proposal is of a nature or a scale not reasonably expected in the area in which the land is classified, that sufficient land is dedicated for public open space to offset or mitigate impacts. In particular, buffers should be provided along waterways, wetlands and areas of biodiversity importance.”

The minimum allotment size has moved from 1 hectare (in the Town Plan) to 4 hectares (Ch 3, 3.4.3).

It may be accepted, as counsel for the Baptist Union submitted, that the above

provisions should be kept in perspective. The strategic plans, and the statements of intent, specify broad desired objectives and general policies. They are not usually cast in prescriptive or mandatory language. The language of City Plan does not say, for example, that this development will not be permitted. Not every objective in the strategic plans has to be met before an application may be accepted. Likewise, the statements of intent provide guidelines as to the planning intent of the Council. They are not inflexible provisions. Attention has to paid to the merits of an application, even if it is “generally” not acceptable. That expression indicates that there may be exceptions to the general rule.

In short, close attention has to be paid to the merits of this proposal for development. It is necessary to turn to some particular issues.

Need

The question of need was a significant aspect of the case for the Baptist Union. The submission can be summarised this way:

(a) There is an overwhelming community need for the services and the facilities that the church will provide to the members of its congregation and the local community.

(b) There is no other available land, appropriately zoned, which is suitable to accommodate the relocation of the church.

(c) The Town Plan and the City Plan have made inadequate provision for such a significant community use.

(d) Therefore, there are sufficient grounds to approve the development, notwithstanding any conflict that may be demonstrated with the planning provisions.

“Need” can mean rather different things. In the abstract, it might refer to anything which might be provided for the benefit of the community. Usually, if there is a demand for something, then there will be a need for it, even if some members of the community may disapprove of that need. So, there is a need for hospitals, shops, housing, hotels and bottle shops. Undoubtedly, there is a need for churches.

There may be an issue about whether or not there is an actual need for land to be used to provide a particular benefit to the community. That is this case. It is submitted for the church that the evidence reveals an overwhelming community need for the benefits that the church will offer on this land. Indeed, it is the need of the community that is at the heart of the issue – the subjective ambitions of any citizen, organisation or congregation do not amount to need, in the planning sense. It is now established that actual need, or its absence, can be raised as an issue when consent for a development is requested. See the decision of the Court of Appeal in Arksmead Pty Ltd v Gold Coast City Council [2001] Qd R 347.

Here, the Council and REPA recognised the good work done by the church at Kenmore:

“The church obviously has a genuine desire to expand and enhance its facilities. Its wish to do so is respected and appreciated. It is accepted that the church performs an important and successful community function …” (Council submissions).
“REPA is well aware of the need for community facilities in the Kenmore area, and the beneficial community activities of the Baptist Church. In the view of the existing institutional uses in the area, REPA does not oppose the proposed development in principle.” (The REPA submission, which opposed the development on planning grounds)

The existing church has set out to meet the needs of its expanding congregation, and also the local community. Most of its benefits will be for members of the congregation. Apart from offering the traditional Sunday services, it offers a wide ranging and vibrant program that attracts other members on other occasions, and for different reasons. Activities based on sport, music, theatre, study groups, counselling, spiritual and social development, activities directed towards children and teenagers – all provide things which benefit the congregation, and so the community at large. The community as a whole has a need for such things. For example, young people need social activities which are safe and free from drug taking. Two local police officers gave evidence. Sergeant Watson speaks of a distinct lack of social facilities in the Kenmore area – such as a police youth club, a YMCA, community halls, sporting facilities, and a “drop in centre” for youth. The Kenmore church has been helpful in trying to establish a drop-in centre – so far not established, for other reasons.

Likewise, Detective Sergeant Park sees many social problems facing the younger members of the community, and that there are no Kenmore facilities to address those problems. He sees this development having social benefits, especially if it had facilities which young people could engage in. While church social facilities would not appeal to many juveniles, a significant proportion of them might be attracted to this new church.

Dr Gillian Brannock, a social analyst, reported on the social impact of this proposal on the locality. The residents are relatively affluent and well educated. The rate of home ownership, and the number of families with children, is significantly higher than the average. They are more likely to be employed, and in relatively high status, well paid occupations. While overall church attendance has been falling, with less people declaring themselves to be Christians, the proportion of Baptists increased, during the 10 years 1986-1996, from 2.2% to 3%.

Dr Brannock found that the development would bring social benefits to the whole community. That was because of the present significant shortcomings in the supply of community facilities, especially those focusing on young people. The church would offer welfare services to the community. It had a demonstrated record in the provision of such services. The Kenmore church is over-extended, and its relocation would be to a convenient site, which would be much more “user friendly”, with such things as better parking facilities. Her conclusion also relied on the strong evidence of potential social benefit, compared with very minimal evidence of any potentially negative impacts, and the comparison between a high level of community support, and little expressed community concern. (The concern included the only negative opinions of the church’s work which emerged in evidence - two of her advisers in the area stated that the evangelical thrust of the church was a potential concern, as its evangelism permeated all of its work. Many Christians would not see that as a criticism.)

There is no reason to doubt Dr Brannock’s evidence about the facts in her report, which was uncontradicted. However, the actual impact of the relocated church should be viewed in perspective. Overall, it should be accepted that the redeveloped church would be more convenient for its congregation, and members of the local community, than the present church. While it would be more remote from suburban Kenmore, and be harder to reach on foot, or on bicycle, or by public transport, it would provide larger and more useable facilities and car parking spaces. Already, the great majority of people travel to the Kenmore church by car. There would be room for more members of the congregation, more visitors, and more staff. Rather similar large churches have been built elsewhere in recent times. They serve to demonstrate the community need for such religious and welfare facilities.

It is submitted for the church that there is no available land, appropriately zoned, which would be suitable to accommodate the relocated Kenmore church. It should be accepted that there have been serious efforts, led by Pastor Benson and Mr McConaghy, to identify other suitable land. Mr McConaghy detailed those efforts, since 1990. He tried to buy land adjoining the church, but was outbid by property developers. He then considered renovating and enlarging the Kenmore church buildings. That would have been expensive, and would still not have provided sufficient car parking or easy access.

Then followed a search for land elsewhere. The land had to be greater than 10 acres, reasonably close to the majority of the congregation, accessible to cars on a major road, appropriately zoned, relatively flat, and on the market for sale. (Pastor Benson, in the Property Development Report (Exhibit 33) believed that the Kenmore Baptist Church should “be a regional community church i.e. with a central location somewhere in the local area that has high visibility and substantial acreage to locate the facility necessary for such a church”).

There was then identification of many potential sites. Six were described by Mr McConaghy as “first priority”. Another 11 sites were also investigated. Unfortunately, none of the sites was found to be suitable, for a variety of reasons. They are set out in Mr McConaghy’s statement.

Mr McConaghy’s group also approached the local councillor on a number of occasions, and had other discussions with Council, in an attempt to identify a suitable site. Those efforts were unfruitful.

Mr McConaghy believes that the proposed site is suitable for the church’s requirements. The only disappointing feature is that it is not flat land. He concludes by saying:

“The only site that has been identified is the proposed site … based on my knowledge of the local area and my experience over the last 10 years, there is no other alternate site which is both convenient to the majority of the congregation and a community served by the church and meets the future requirements of the church.”

The evidence, and this appeal, shows that the church is genuine in its belief that this is the only suitable land. Quite rightly, there was no attempt to investigate whether the church was right or wrong in preferring this site over many others. Traditionally it has not been the function of the court to determine whether better sites exists – or, for that matter, determine whether a better site does not exist. Such inquiries would place an intolerable burden on the parties and the court and should be seen as irrelevant. Similarly, neither the parties nor the court should be obliged to explore the reasons why a particular applicant did not proceed with the purchase of some other land. That is also generally irrelevant. (See for example Green v Morton SC [1985] QPLR 328 at 330, Aquatic Club v Sydney CC (1981) 43 LGRA 126).

Some effort was made to show that other land might be currently available. Mention was made of the Kenmore Village Centre. That seems unlikely, if only because of Mr McConaghy’s evidence, that there are structural reasons why a second level could not be built on top of the existing shopping centre. It is also likely that the advent of seven day trading would make it impractical to share the car park spaces on Sundays.

Some land outside the Kenmore Village Centre is zoned special uses, which might be appropriate. However, it is not available for sale and is believed to be not suitable to accommodate the church. Mr Mulcahy, the town planner, was unable to identify another site which was available for this development.

Therefore, it is submitted for the church that there are shortcomings both in the Town Plan and the City Plan, and that such inadequate provision would justify approval of a development, notwithstanding conflict with the schemes. Reliance was placed on an earlier decision in McWilliams McEwens v Brisbane City Council [1981] QPRL 33 at 34. There, in a situation which seems to have some similarities to the present, the court spoke of the need to make a value judgment as to whether the community would be possibly advantaged, or disadvantaged, by the proposed change, and the need to ensure a proper balance which at a particular time adequately expresses the will of the community. Importantly, there is then reference to this “… a basic assumption must be that there is in existence at the time of the application a latent and unsatisfied demand on the part of the persons affected by the planning scheme which is not being met at all nor being adequately met by the scheme in its present form”. There, land in the non-urban zone was found to be suitable for the construction of a hardware outlet. There was a need for a hardware shop, which was not adequately met, so the application was allowed.

Three conclusions should be reached. First, the difficulty in finding suitable land is very much a consequence of the large building and large area of land with car parking that is desired by the Baptist Union, and the Kenmore congregation. As Pastor Benson says, the aim is to create a regional church. That difficulty does not necessarily mean that the planning controls have made inadequate provision for churches. Secondly, while there is a community need for this proposal, it would not be right to describe it as “overwhelming”. While the Kenmore church is generous in looking to the community as a whole, its focus will necessarily be on its own congregation, which is a small percentage of the population in the area. Thirdly, although the present facilities are rather overcrowded and inadequate, the church’s spiritual and welfare mission is successful. Need has to be judged by the additional benefits that might be available on this land. It is not as if the new church were being established for the first time in a district which has no existing church at all.

Otherwise, the question of need should be considered in the final balance, together with other significant considerations.

Location

The Town Plan does not make specific provision for church sites. They are permissible in the rural residential area. They are also part of the wider idea of “community services and facilities”. In that respect, the strategic plan aims to achieve a “well serviced and equitable city”, by intending that development retains and enhances access to basic services and facilities and the strong sense of community spirit ... (see para. 3.2.3.) One way of achieving that aim is to promote the optimum location of community services and facilities, in accordance with community needs, through ... locating them in or around centres, or otherwise convenient to the population they are to serve (para. 3.2.3.4(c)). While churches in particular are not mentioned, it can be seen that the strategic plan, in a very general way, supports the idea that such community facilities should occur in a centre, wherever possible. See 3.3.4.1, and in particular the fifth paragraph. Such statements of intent show a desire to avoid ribbon development, and to promote co-location in centres. See, for example, paras. 3.2.4.2 and 3.2.3.4(b).

City Plan presents a similar approach to community facilities. They should be located in centres whenever possible – see s.3.3.2.2.(d) and 3.3.2.3(b) of the strategic plan and s. 3 of the Community Use Code. There is no local plan prepared for this area. In any event, a local plan would be likely to concentrate on parkland, sporting facilities and schools (see City Plan pp. 287-288). By way of contrast, more emphasis is placed on the desirability of having commercial development in centres – see s. 4.4.2.6 of City Plan. If that is not possible, then co-location of community services facilities is desirable – see para. 3.2.2.3(c).

Here, the evidence shows that there is no reasonable possibility of the enlarged church being located in the Kenmore Centre. The witnesses called by the Council did not suggest that it could be.

The Baptist Union pointed to the benefits of co-location, mentioning the other community uses in the same general area – the University Vet Farm across Moggill Road to the east, the RSL to the south, the CSIRO further again to the south and the Brisbane Independent School itself, immediately to the west. All of those, with the exception of the school, are in designated community use areas. However, the separation between them and the nature of these uses can hardly allow the description of “co-location”.

Under City Plan, a church is expressly included within the definition of “community facilities”. Therefore, the location of churches is subject to the Community Use Code. The purpose of the Code is to:

(a) facilitate the establishment of community uses for community benefit while mitigating adverse impacts;

(b) ensure the locations of community uses do not have an adverse impact on adjoining residential areas;

(c) encourage the integration and co-location of community uses particularly in centres; and

(d) promote the location of community use in areas that are well serviced by public transport.

Consistently with the above purposes, Performance Criteria P1, P2 and P7 should be noted. There is an emphasis on higher accessibility to a site, the reasonable expectations of development on surrounding land, and the aim of co-location. It is apparent that such performance criteria would not be met in this case. While the site is accessible to motorists, and there is a bus stop on Moggill Road, it is not easily accessible by pedestrians or by the use of public transport. It is a bulky development, away from a centre.

Overall, it can be seen that the proposal gains no support from the above provisions about location. While the Kenmore centre may not be available for a relocated church, it does not follow that such difficulties would provide a positive reason for its relocation to this land. There is some conflict with the Town Plan and more definite conflict with the City Plan provisions.

Traffic

As Mr Brameld explained (report at p. 6) the Town Plan requires the provision of 540 car parking spaces for this development. In fact, a total of 607 spaces is being provided, in the upper and lower carparks.

There was some difference of opinions among the traffic engineers as to the sufficiency of those 607 spaces. Mr Beard thought that 723 spaces were needed, based on his surveys of existing traffic habits. It is difficult to know what would happen on this site. There would seem to be no objection to parking vehicles in the traffic isles on a few peak occasions. The church also proposes other arrangements involving buses e.g., having a private bus service from Grace College at St Lucia, and to the retirement homes.

Attention was paid to the maximum capacity of the carpark, because there is no other nearby carparking space that could be used on busy days. However, as Mr Brameld said, it is not normal practice to design carparking for absolute peak demand, that may occur on rare occasions. On that basis, the 607 spaces would be adequate.

The carparks would be linked by a minor access road to Moggill Road. It is a busy road. The weekday peak periods are from 7 a.m. – 9.30 a.m. and 2.30 p.m. – 6.30 p.m. It is a two lane road, presently carrying around 15,000 vehicles a day. That is a relatively high traffic volume for a two lane road. There is a “turn right” lane opposite the access road.

Queensland Transport has current plans for upgrading that section of Moggill Road which passes this access point. If the development were to go ahead, then the access itself would be somewhat improved. In any event, as Mr Brameld explained, there are current plans for upgrading Moggill Road to four lanes in this area. There is no prospect that signals would be placed at this intersection – they are not likely to be part of Queenlsand Transport’s planning. That is because the average daily usage of the access road will not be high, and so signals will not be justified.

Present use of the access road is low, being used mainly by the average of 20 or so vehicles a day that are used to bring students to the school.

The speed limit in the area is presently 70 kilometres per hour. Vehicles coming from Kenmore have to turn right across oncoming traffic which is going down hill. Vehicles leaving the access road, and wishing to proceed outbound, have to find an opportunity to cross oncoming traffic both from the driver’s right and left.

As might be expected, the major use of the access road would be on Sundays. There might be considerable use on weekdays for particular events such as funerals. As Mr Beard pointed out, if 200 vehicles were to enter or leave the proposed church parking during peak periods that would cause a substantial traffic conflict on Moggill Road.

When it is remembered that almost all churchgoers would travel by car, that few will be pedestrians, and that Moggill Road in this area is presently unsafe for the use of bicycles, then the question of traffic safety assumes considerable importance. Overall, Mr Beard’s opinion was persuasive – even an upgraded intersection, without traffic lights, would not be good enough.

Transport

The issue of transport planning for churches was closely related to the location and traffic issues. The principal witnesses were the traffic engineers, Mr Beard and Mr Brameld. Both recognized the importance that the planning documents place on proper transport arrangements for the city. However, they differed about their application to this proposed development. In short, Mr Beard thought that transport considerations gave no support to such a large church on this land. Mr Brameld recognized the significance of the transport issues, but thought that they should not apply to this church on this land.

While Mr Beard was critical of the proposal, he recognized that the majority of the church’s congregation came from Kenmore and its surrounding suburbs, that a relocated church needed to be in a location reasonably proximate to the centre of its congregation, and that, in fact, none of the large churches constructed in Brisbane over the last ten years was located in a regional centre. Those concessions were against the background of his general opinion, which was undoubtedly correct, that both the Town Plan and the City Plan aim to avoid ribbon development and to protect the capacity of the movement network. Therefore, encouragement is to be given for the location of commercial, retail and community services in centres.

Mr Brameld thought that large centres, such as Indooroopilly, should contain high density residential or commercial facilities, as that would reduce road traffic during the week. However, he thought that the church was in a different position, especially as its peak period use would be on Sundays.

The argument for the church, in seeking to avoid the general impact of such transport policies, was this:

(a) unlike all other activities, the busiest time would be on Sundays;

(b) the congregation, as at the present church, will largely use private transport in any event.

(c) the distribution of the congregation makes it hard to use the bus service already provided along Moggill Road. It is difficult to see that a church is necessarily better off in a centre with other community facilities – adopting the observations already made in this court in Brisbane Congregation of Jehova’s Witnesses v Pine Rivers Shire Council [1984] QPLR 227 at 230.

(d) The church is not in any of the categories, identified in the City Plan, as the basis for such transport planning principles.

Despite those arguments, it is difficult to see that any of the planning provisions, from a point of view of transport, would support this location for the church. There is a conflict with the provisions of para. 3.2.2.2 of the Town Plan – especially (c). It is necessary to see if there are good planning reasons for approving this proposal, notwithstanding that conflict.

The Locality

The visual amenity of the locality is high. The Council says that the proposed development would be in conflict with the green space provisions of the Town Plan and the City Plan. The church responds by saying that this is an area in transition and, in any case, the design of the development will minimize its impact, especially from those travelling along Moggill Road.

Mr Challenor and Mr Chenoweth referred to it as a transitional area, because of other existing uses that are urban in character. The position can be understood by looking at an aerial photograph – see Mr Chenoweth’s report Figure 4. As the photograph shows, Moggill Creek is the barrier to urban development to the north east. The generally rural residential nature of the whole surrounding area can be seen in that photograph. However, several existing developments were referred to, particularly by Mr Challenor, the town planner.

Across Moggill Road to the east of this land is the University Vet Farm. It looks very much like a farm, with an unobtrusive group of buildings on a ridge surrounded by paddocks. It contributes significantly to the present rural nature of the immediate locality.

The Brisbane Independent School lies immediately to the west of the church land. It is a small school. The buildings are low and unobtrusive. The grounds are typical of the surrounding properties. This school also contributes to the rural nature of the locality.

Further to the south, and out of the immediate visual catchment of this land, the outbound motorist on Moggill Road passes the RSL Veterans Home and then the CSIRO buildings. As the photograph shows, they are adjoining properties. They are indeed incompatible with their semi-rural surroundings. The RSL site has been in use for many years. It used to be zoned for a potentially high intensity use, as a sanatorium. In 1996 the zoning was downgraded to “retirement village” which meant less intense development. The buildings are low. In fact, the most visually obtrusive part of the development is the high concrete retaining wall facing Moggill Road.

The CSIRO site is owned by the Commonwealth. It was developed despite the wishes of the Council. Its buildings, and an unattractive chainwire fence to Moggill Road, are visually intrusive and inappropriate in the area.

Further to the south west there is the Woodcrest Estate, which is zoned rural residential. There is a small shopping centre presently being developed on Moggill Road.

The immediate locality was aptly described by the landscape architect, Mr King:

“The subject land is located in an area with semi-rural character. The general character of the area is one of farmland, with stands of eucalypt trees and scattered houses occasionally visible from the roads. Exceptions to this pattern are the RSL Care Hostel and the CSIRO Complex. These land uses are not typical of the general district and because they are isolated forms they sit as discrete and incongruous elements within this landscape.
The district is scenic and has high amenity, due to the undulating land form, the dominance of vegetation (the mosaic of bushland and scattered trees and grassland) and the low density of the houses, which are generally hidden from the road. This district provides a contrast with the nearby suburbs, a breathing space for the city’s residents and is popular as an escape from the urban form of the city”.

Mr Mulcahy, the town planner, noted that this locality was part of the semi rural area to be found once one crossed Moggill Creek to the north. His summary of this particular locality is appropriate:

“After the initial transition provided by the bridge and plant nurseries in Moggill Road, the Rafting Ground Reserve and the open rural use of the University Veterinary Farm reflect the rural and semi rural character which is intended by the area’s green space allocation on the Strategic Plan.

While there are notable intrusions into this character (namely the RSL Veterans Home and the CSIRO building) these exceptions highlight the impact of inappropriate land uses on the intended green space function of the area. However, their existence in the locality is in a different visual catchment to the subject site, and does not justify or support any further erosion of the strategic intent by inappropriate forms of development. “

The important conclusions are these – the subject land should not be seen as being in a transitional area, and the visual values of its immediate catchment should be recognized. While the presence of the RSL and CSIRO developments may be regrettable, the reasons for their existence should be understood. The school and the Vet Farm make positive contributions to the immediate visual catchment. The immediate locality is not urban in character.

In summary, as Mr Mulcahy explained, the site contains these characteristics and values –

(a) it provides contrast or relief to the urban area, which is located to the east;

(b) it helps to maintain viable natural habitats;

(c) it forms part of the larger green space area at the edge of the city;

(d) it has landscape values which are characteristic of rural, semi-rural, or semi natural landscapes;

(e) it provides visual amenity which contrasts with the urban area to the east of Moggill Creek;

(f) it provides motorists with pleasant views along Moggill Road.

It follows that there are substantial conflicts with both the Town Plan and City Plan provisions about the preservation of green space.

The Impact of the Development

Pastor Benson believed that the new Kenmore Baptist Church should “be a regional community church ie with a central location somewhere in the local area that has high visibility and substantial acreage to locate the facility necessary for such a church”.

The aim of high visibility is perfectly understandable. On the other hand, the present proposal is based on very considerable efforts to make the church buildings almost invisible. Strenuous efforts have been made to avoid the otherwise inevitable conflicts with the aims of the planning schemes in this semi rural area.

Development would see 62% of the subject land disturbed. 300 trees, some of them up to 100 years old, will be cleared, and replaced with 450 young trees. The proposal is to integrate the church into the land form and rehabilitate the existing vegetation on the land, apart from the watercourse which will be retained in its natural state. Design elements for the church building include the following:

(a) The architect has designed the building to be broken up into smaller elements by the use of colours, materials and openings to create shadows.

(b) He intends it to be “a non statement building” which has been designed to integrate with the natural bushland setting. He says that it should “complement” its surrounds – by which he means, that it will be of a height and colour which is not contrary to the surrounding bushland.

(c) The colours of the building have been chosen to match the natural bush colours, and the proposed landscape.

(d) There are no reflective or brightly coloured surfaces – for example, the roof is to be a mid green colour. It will also slope away from the western side of the building, so as to minimize its appearance from the point of view of the residents on elevated land to the west.

(e) It is proposed to have the carparking areas covered with grass, rather than hard standing. Any concrete will be painted green.

A significant feature of the design is the amount of excavation required to lower the church buildings into the hillside, particularly so that they will not be visible from Moggill Road. The excavation will be nine metres deep, at one point. The civil engineering works are extensive.

Much evidence involved conflicting views as to the end result. A considerable period of time of up to 20 years has to be allowed for the new vegetation to grow up around the building. There were differences of opinion, particularly between the landscape architects, Mr Chenoweth and Mr King, as to the ultimate screening effect of the vegetation. Extensive use was made of photographs, simulated visual aids, predictions, the growth habits and screening effects of various types of trees, and of perceptions that residents and visitors to the area would have of the church building. The question is, are the conflicts with the planning schemes sufficiently avoided, at least in the future, so that the proposal might be approved, taking account of other factors in its favour?

The model (Exhibit 11) shows the landscaping at maturity – though the trees in the model are rather more dense than the final result is likely to be. In addition, the elevations, photo montages, and cross sections are helpful (Exhibits 18, 43 and 15 – Figures 112, 12, 13 and Attachment 2). In any case, at least 10 to 15 years is required for the vegetation to have a substantial impact, and some eucalypts will take 20 years to grow to an appropriate height. It is clear that many years will pass before the screening effect of the new vegetation will be effective. It should be kept in mind that a desired environmental outcome in the rural area, under City Plan is that “visual impacts of clearing, building design and construction, material, intensive use, access ways and other aspects of development are minimised” – s. 3.5.2. DEO 3.

The clearing of the 300 trees will be the beginning of a substantial construction period. Ordinarily, the noise and inconvenience of construction can be taken to be part of any development, and it is usually the permanent outcome that will be the critical factor, rather than the impact of construction. Considerable efforts have been made here to lessen those impacts – such as having most of the heavy excavation work done during the school holidays. There was considerable evidence about how long construction would take. It is likely that the earthworks would take at least 10 weeks. There will be two heavy bulldozers on site, and probably some blasting of rock. There will be continuous tiptruck movements (about 40 movements each hour) in and out of the property during that 10 week period. The noise will be quite noticeable to the residents on Pullenvale and Woodfield Roads. The overall construction period, including the carparks, is likely to be up to about 10 months.

The important thing is to concentrate on the impact of the finished project. It would be very obvious, for example, to the students at the Independent School. Nearby residents on high ground will see the large roof through the trees. It is true that the building should not be very obvious to motorists on Moggill Road – the deep excavation, and the remaining vegetation on the slope facing Moggill Road, will largely screen the building. However, there will be at least 120-150 lights on the carparks, on some 78 poles. The residents will be aware of the lights after dark. The scale of the lighting is a large one.

Overall, it is inevitable, especially in the early years, that the church will be visible, in varying degrees, to those living around or driving past the land. Issues about screening have to be kept in perspective. Mr Mulcahy was right when he observed:

“I think if the application of all those planning provisions in both plans really comes down to the fact of whether the building can be screen or not and whether a certain planting or a certain type of tree or a certain plant will or won’t screen the development, then I think it’s not paying due regard to the importance of the Green Space Provisions in City Plan or in the superseded Town Plan. I think there are greater issues than that which really are central to this application” (T 1012)

There is also reason to be cautious about the strenuous efforts to make the church and its carparks visually unobtrusive. For example, it is (quite correctly) proposed to use eucalyptus trees to screen the buildings. However, they tend to have a rather thin canopy, and are not always effective as a screen. The end result is likely to be rather less effective than Mr Chenoweth’s visual aids would indicate. The maximum height of the structure, on a southern western elevation, is 18.2m. That is the equivalent height of a five storey building. Mr Chenoweth was unable to identify a five to six storey building anywhere in the State which has the extent of screening proposed in this building – see Exhibit 18.

Secondly, the development relies upon design elements that are new and untested – such as the extensive use of grass surfaces in the carparks. There is tension between the need for sunlight to make the grass grow and the use of trees to screen the cars. If the grass fails, then the experts agree that concrete pavers should be used to repair any significant failures. The ability of trees to be a screen is subject to the usual hazards, such as fire, storms, the impact of construction activity, and the quality of fill. Overall, the more cautious views of Mr King should be preferred to those of Mr Chenoweth. It is also notable that Mr Chenoweth’s proposals partly depend on screening to be grown on neighbouring properties, rather than just on the church land. It is hardly the usual approach. There is no control over what the neighbours will want to plant on their properties. As a matter of planning it is inappropriate, as the impacts of development should be dealt with on the land itself.

Evidence was given about noise, from the start of construction through to the use of the church building. Obviously enough, there will be construction noise commensurate with the scale of the project. However, the more important thing is to concentrate on the noise after completion. That is not a significant issue. There will be some noises from the carparks, but it should be accepted that they will fall within acceptable limits. In most cases, they will be inaudible. Likewise, it was agreed by the experts that noise from the auditorium and associated church activities could be appropriately dealt with by conditions of any development approval. Plant noise was in the same category. Ongoing noise is not a reason for refusing the application.

It can be seen that the impact of the development, particularly because of its scale, earthworks, visibility, the extensive clearing of vegetation and the need for extensive screening, is in conflict with the aims of the Town Plan and City Plan for the amenity of this land. To that may be added the impact of the likely human activity when the church is completed. Even if the congregation did not increase, there would be some 560 vehicles arriving and departing on Sundays.

Future Roadworks

The Moggill pocket sub-arterial road may be constructed at some unknown time in the future. Queensland Transport owns land on which it could be built. Provision for it has been planned for many years now. If it were to be built, then there would be a significant interchange where it would cross under a raised Moggill Road just to the south of this proposed development. It would mean greater volumes of traffic passing near this development. The majority of people who will look at the land will be motorists, doing so from the roads.

In principle, the potential for significant new roadworks should not be seen as being in favour of this development. Rather, there is a need for caution to ensure that the semi rural landscape be protected for the benefit of future motorists. As Mr Chenoweth put it in his report – “paradoxically, arterial roads give meaning to green belts by offering opportunities to experience the semi rural amenity”. Admittedly, it is likely that uses of the new road will catch only a brief view of the bottom carpark and perhaps a filtered view of the church through trees.

Environmental Impacts

When the hearing began, there were substantial issues involving the semi-permanent creek which lies to the south west of the proposed development, at the bottom of the sloping land between the church building and the Brisbane Independent School. The plans required the “rehabilitation” of the creek, with its disturbance of fauna, particularly an unusual bird called Lewin’s Rail. There were also concerns about the treatment of runoff from the site, both during the construction phase and on a permanent basis.

During the hearing those difficulties were very largely resolved during the conclaves held between the environmental and hydraulic experts. In the result, the creek will be undisturbed, and the control of sediment and runoff has been enhanced. Mr Collins, the hydraulic engineer, remained cautious about the end result but he concluded his evidence by saying – “On balance, my view is that there is enough in redundancies that can make it work. Despite that, it places a considerable onus in terms of operation and maintenance down the track”. Those remarks were with regard to the sediment and runoff control systems to be put in place. They were proposed by Mr Sutherland on behalf of the church.

The REPA submissions expressed some remaining concerns about stormwater. (Mr Bristow, one of the members of REPA who appeared during the hearing, was himself an expert in the field of water management). It should be accepted that Mr Bristow’s remaining concerns about the settling basin could be dealt with in appropriate conditions, were the development to proceed. In its submission, REPA echoed the concerns of Mr Collins, as to whether or not a groundsman could manage the rather sophisticated drainage system from the carparks, including water from a detention basin being used for watering in dry times. They also could be appropriate matters for conditions.

The Expectations of Local Residents

The Council submits that this development is inconsistent with the expectations of residents about the future amenity of the area and so conflicts with the strategic plans. Evidence was given by a number of residents from the nearby Pullenvale Road and Woodfield Road areas. Those roads are to the north and to the west of the subject land. In varying degrees, they will have views of this large scale development. As time passes, some of those views will be largely obscured by the screening effect of the revegetation. They complain about the noise and construction traffic of the construction period and intrusiveness of noises, which they fear, from the use of the church and its carparks. They felt that the development was out of character of the area, which they wished to maintain. They regarded the area as being in a stable condition, rather than in transition.

Evidence was also given by the principal of the Brisbane Independent School. His concerns are rather different. The school is closer to the school than almost all the residents. Admittedly, the physical presence of the church will be strong, particularly in the early years. He feared that the attractiveness of the school would be reduced, from the point of view of parents and students. As the school numbers are low at the present time, he feared that a further reduction in numbers would see the future of the school threatened. There is no reason to think that the quality of the teaching and learning at the school would be threatened. However, there is reason to accept that the physical surroundings and apparent lifestyle of the locality will be less attractive, so that prospect parents might not be so keen to send their children to it.

The only evidence in favour of the proposal was given by local residents who had an immediate connection with the church, or were members of its congregation. It can be seen that the majority of views were against the development.

The residents’ concern about noise can be discounted, for the reasons explained by Mr Rumble. In truth, their objections are to a large development which they will know to be close by, and which some of them will be able to clearly see, particularly in the early years. The lights from the carpark are likely to be visible to some residents.

It is natural enough that such residents would wish to maintain the existing, relatively undisturbed nature of the area. However, from a town planning point of view, their expectations must be reasonable in light of all the planning provisions applying to this land. When judged in that way, some concerns might not be maintainable. In principle, expectations should be based on a full and impartial understanding of all the aspects of the planning controls. They will include, for example, the possibility that consent might be given for a variety of uses in the area, some more attractive than others. For example, under the Town Plan, in the Rural Residential zone, some of the following permissible developments might be unwelcome – a club, a community dwelling, a school, a hospital, an hotel, a night tennis court, a church, welfare premises, or a youth club. By way of contrast, permissible uses under the City Plan are fewer and less intrusive.

At the same time, residents could fairly have in mind Para. 7.5.1 of the Strategic Plan (set out above) with its emphasis on the absence of sewerage, the preservation of green space values, and a need for further development to reflect existing lifestyles, and the maintenance of a semi rural character in which buildings do not dominate. Since the introduction of City Plan, residents would notice a strengthening of the need to keep the area free from fragmentation and the destruction of its landscape values. Impact assessment would see low scale activities (such as a park or riding school) permitted.

Therefore, even under the provisions of the Town Plan, it can be seen that the present large scale development would be contrary to the reasonable expectations of the local residents. The more emphatic provisions of City Plan give them even greater reason to complain. The impact on their reasonable expectations about the lifestyle values of the locality is in conflict with the Town Plan provisions. There is conflict with many of the provisions of para. 2.5 of City Plan particularly because of the large scale of the development. The size and bulk of the church building, the extent of excavation and clearing, the number of car park spaces, the use of lighting, particularly in the car parks and the number of traffic movements, and the fact that the proposal requires the construction of a rising main across Moggill Creek to a pump station off Scenic Road at Kenmore (in an area where the residents do not expect to have sewerage) mean that the development is well beyond the reasonable expectations of the local residents.

Overview

Can the conflicts identified above (with regard to location, transport, the visual amenity of the locality, the need to preserve green space, the inappropriate impact of this development, and the disregard for the expectation of other residents) be overcome by planning reasons in favour of the development? There is a demonstrated need for the relocation. However, it is clear enough that there are not sufficient reasons to approve the application, despite that conflict. The disadvantages of the development from a planning point of view (including the traffic difficulties) are apparent, even under the Town Plan. Real weight should be given to City Plan, because of the timing of the application, Council’s decision, and this appeal and its greater emphasis on the protection of this green space locality. See also the City Plan provisions (set out above) dealing with impact assessable developments that are generally not appropriate. This proposal has not demonstrated that the conditions set out in para 2.5.2 are satisfied, or that the DEO’s are met (see para 3.5.2), are that the Community Use Code would be observed.

When both planning schemes are considered, it can be seen that the case against the development is overwhelming. That is, the Baptist Union is unable to show, on balance, that its application should be allowed - despite the meticulous and determined efforts of its representatives, particularly during the hearing of the appeal.

The Council’s decision was correct. The appeal is dismissed.

Key Legal Topics

Areas of Law

Planning & Development Law

Legal Concepts

Development Approval
Strategic Plan
Developmental Control Plan
Environmental Impact
Alternative Site

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Citations

Baptist Union of Queensland v Brisbane City Council [2002] QPEC 41

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CITATION:	Baptist Union of Queensland v Brisbane City Council & Anor [2002] QPEC 041
PARTIES:	BAPTIST UNION OF QUEENSLAND Appellant v BRISBANE CITY COUNCIL Respondent And RURAL ENVIRONMENT PROTECTION ASSOCIATION Co-Respondent
FILE NO:	4728 of 2001
PROCEEDING:	Appeal
DELIVERED ON:	18 July 2002
DELIVERED AT:	Brisbane
HEARING DATES:	22, 23, 26, 29, 30 April; 1, 2, 13, 14, 15, 16, 24 May 2002
JUDGE:	Judge Brabazon Q.C.
ORDER:	Appeal dismissed
CATCHWORDS:	TOWN PLANNING – Council approval – Application for material change of use – where proposal was for development of church in semi-rural area – whether proposal conflicts with strategic plan or developmental control plan - whether sufficient planning grounds to justify approval TOWN PLANNING – matters to be considered by court – nature of proposed church – planning scheme directives – “need” – availability of alternative site – location – traffic – impact of the development – environmental impact – local residents
COUNSEL:	Mr Lyons QC for the Appellant Mr Gore QC and Mr Rackemann for the Respondent Members of REPA in person
SOLICITORS:	Corrs Chambers Westgarth for the appellant Brisbane City Legal Practice for the Respondent

[2002] QPEC 41

18 July 2002

Key Legal Topics

Areas of Law

Planning & Development Law

Legal Concepts

Development Approval

Strategic Plan

Developmental Control Plan

Environmental Impact

Alternative Site