Fraser Shores Properties Pty Ltd v Hervey Bay City Council

[2003] QPEC 13

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Fraser Shores Properties Pty Ltd v. Hervey Bay City Council [2003] QPEC 013

PARTIES:

FRASER SHORES PROPERTIES PTY LTD (Appellant)

v.

HERVEY BAY CITY COUNCIL (Respondent)

FILE NO/S:

2789 of 2002

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

17 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2002

JUDGE:

Quirk DCJ

ORDER:

That the Appeal be allowed and that the following amendments be made to the proposed conditions:

1.   Condition 15 be amended to include the following uses: (a) Commercial laundry & (b) Commercial catering establishment;

2.   Condition 16 be deleted;

3.   Condition 46 be amended to substitute 6 years for 4 years.

CATCHWORDS:

BUILDING CONTROL AND TOWN PLANNING – Town planning – Council Approval – Appeal against conditions imposed  upon preliminary approval for a material change of use of land

COUNSEL:

Mr S Ure for the Appellant
Mr M Rackemann for the Respondent

SOLICITORS:

Finemore Watters & Story for the Appellant

Connor O’Meara for the Respondent

1. This appeal is against conditions imposed upon the preliminary approval of an application for a material change of use of land at Pialba.  The appellant has been involved in a number of large scale developments in the area.  Lately its attention has turned to a large parcel of land on the southern side of Nissan Street, the bulk of which has been allocated to the Stage 2 development of the Fraser Shores Retirement Village.

1. The application before the Council on this occasion dealt, in the main, with the second stage of the retirement village and there were no problems with this part of the proposal. The matter that has given rise to concerns is a component of the application which relates to 10 hectares of the site which is intended to provide a “Medical Emergency Services/Community Health Precinct”.  Initially a number of conditions were disputed but, at the hearing, these had been reduced to three.

1. I will deal with each in turn, but before doing so I should note that the subject land is included in the Rural zone in the relevant Town Planning Scheme.  In the Strategic Plan the land is designated “Urban Residential” the intent for which is, in general terms, to accommodate a range of housing styles and densities at appropriate locations.  The Strategic Plan envisages that ancillary and small scale intrusions of other non-residential purposes may be permitted in some cases.  The consensus of opinion was that a level of tension existed between the proposal and the Strategic Plan. 

1. However, the Council was prepared to accept that the public benefits to be obtained from an integrated development which located a private hospital and higher order specialist medical facilities not currently provided in Hervey Bay (together with complementary uses) immediately adjacent to the existent Hervey Bay Public Hospital justified a departure from the Strategic Plan in this case.  In this the Council was supported by Town Planning consultants who gave evidence at the appeal and I agree that the approach is a valid one.

1. At the heart of this notion of acceptance is that the elements of the proposal are not to be provided in isolation but are to be integrated and complimentary to one another. The disputed conditions are intended by the Council to achieve this.  What has to be decided is whether the conditions are an appropriate response to the proposal. 

1. Of the three disputed conditions, Condition 16 and 46 are concerned with the timing of the development.  Condition 16 provides:

“The Medical Centre, Indoor Recreation – Gymnasium, Institution, Community Care Centre (with the exception of the Nursing Home), Educational Establishment, Motel, Food Services and Reception Room, shall not commence until such time as a Development Permit has been issued for a Hospital on the subject land and there has been substantial commencement of construction of the Hospital.  For the purpose of this condition ‘substantial commencement’ shall be understood to mean the completion of footings of the proposed Hospital building.”

1. There appears to be no argument that the private hospital will form the nucleus of the integrated facilities.  As mentioned, in its absence, any planning justification for locating other components (which, by themselves) could be better located elsewhere is considerably diminished.  I accept that it is important that if the proposal is to be favoured, it should be on the basis that the private hospital will be part of the overall development. 

1. Whether it is necessary to condition the approval with a requirement that the private hospital be on its way prior to the advent of other components is perhaps another matter.  The appellant’s contention is that such a condition could lead to difficulties and, in fact, to commercial disincentives to other parties (principally medical specialists) to become part of the important community facility.

1. The presence of a strong body of medical speciality in the Hervey Bay area is, on the evidence, an important component of any basis of the private hospital’s likely commercial success.  It is also clear that the setting up of such a hospital takes time.  Government scrutiny and approvals are called for, and, as experience has taught us, these matters are rarely rushed.

1. Specialist medical practitioners will not arrive at the Hervey Bay area in a band.  It is clear that the area has experienced and has continued to experience a high level of population growth.  Nevertheless, the specialist force will build up over time and if those who are enticed to the area prior to the advent of the private hospital have to locate elsewhere, the planning objective of establishing a truly integrated centre might well be defeated.

1. I believe the problems were well appreciated and described by Mr. Norling, an experienced economic analyst who said:

“Tying the majority of the components in the Medical-Emergency Services/Community Health Precinct to the commencement of the Private Hospital provides only a “Clayton’s approval”.  It does not provide certainty to the market and health care providers as to where to locate.  It will encourage a further dissipation of services to ad hoc locations elsewhere in the City until such time as the Private Hospital can be constructed.  The collocation of medical services, an integral part of Queensland Health’s strategy, would not result, preventing the community from realising the full benefits of collocation.  It is most likely that some of the medical services proposed will be required by the Hervey Bay Hospital prior to the establishment of the Private Hospital.”

1. I am satisfied that to favour this approval on the basis of the probabilities established by the evidence rather than seeking to ensure co-location by way of condition may be the better course.  I believe that Mr. Norling was correct in his observation that:

“There is clear evidence from both the market and planning perspective for the collocation of a full range of medical services (e.g. Ipswich, Bundaberg, Southport, Nambour).  This collocation provides convenience benefits to patients and workers and economic benefits to the myriad of activities able to obtain synergies from this arrangement.

The subject application provides a long term solution for the creation of Hervey Bay’s medical precinct.  The establishment of the adjoining Base Hospital and TAFE College dictates that the subject site is the only practical site for the desired Precinct.  The Pialba CBD is unable to accommodate this Precinct, nor can it accommodate any significant elements of it.”

1. I am satisfied on the evidence that the probabilities are that the private hospital will eventually take its place on this site and that, in the circumstances, the imposition of Condition 15 is not warranted. 

1. Condition 46 provided:

“The currency period of this preliminary approval shall be 4 years from the date the approval takes effect regardless of any development permits issued for any components or aspects of the proposal.”

1. The appellant argues that a greater period (12 years) should be allowed having regard to the complex nature of the establishment of such a facility.  The Council was not prepared to depart  from the standard approval period of 4 years. 

1. In the circumstances of the case I believe that it is appropriate that some time limit should be set upon the approval to ensure that genuine efforts are being made to put it into effect.  I have in mind a period of 6 years, the reasonableness of which did not appear to be rejected by the evidence of Mr. Norling. 

1. That is not to say that the currency of the approval might be extended (s.3.5.22 of the Integrated Planning Act) and if the indications are that satisfactory progress towards the establishment of the hospital is being made, it is hard to envisage any reasonable basis for such an extension’s not being forthcoming.  It was also pointed out that in that time frame a review of the Planning Scheme might be anticipated.  However, history has provided a basis for some circumspection in relying on such an anticipation. 

1. The only other contentious matter involved Condition 15 which identified the uses to which the precinct may be put. Of those put forward by the applicant the following have been excluded:

·     Commercial laundry

·     A commercial catering establishment.

This appeal seeks the reinstatement of those uses in the condition. 

1. It is true that these facilities are planning on a scale that might serve a regional catchment.  On the other hand the facilities provided are of a kind to which a retirement village (present here on a relatively large scale) and a private hospital would certainly resort. 

1. There is little that needs be said about the benefits of collocation when a measure of interdependence exists.  There are both planning and economic advantages involved. (To give but one example, the evidence indicated that the Base Hospital now sends its laundry to Maryborough).  These advantages have been recognised and acted upon elsewhere in this case.  To suggest, as does the Council, that the land is appropriately zoned and designated for these uses elsewhere, really seeks to avoid the force of the point.

1. On the whole of the evidence I am satisfied that the onus of showing that the appeal should be allowed has been discharged.  Accordingly I order that the appeal be allowed and that the following amendments be made to the proposed conditions:

1.          Condition 15 be amended to include the following uses:

·     Commercial laundry

·     Commercial catering establishment

2.          Condition 16 be deleted.

3.          Condition 46 to be amended to substitute 6 years for 4 years.