Herston Kelvin Grove Residents Action Group Inc v Brisbane City Council
[2001] QPEC 15
•9/03/2001
IN THE PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
| CITATION: | Herston Kelvin Grove Residents Action Group Inc v. Brisbane City Council & Ors [2001] QPE 015 |
| PARTIES: | HERSTON KELVIN GROVE RESIDENTS ACTION GROUP INC |
Applicant
| AND: | BRISBANE CITY COUNCIL |
First Respondent
| AND: | HUDSON HOLTON GROUP PTY LTD |
Second Respondent
| AND: | HERSTON LODGE PTY LTD |
Third Respondent
| FILE NO: | Application 4091 of 2000 |
| PROCEEDING: | Application |
| COURT: | Planning & Environment Court, Brisbane |
| DELIVERED ON: | 9 March 2001 |
| HEARING DATES: | 27 & 28 November 2000. |
| JUDGE: | Newton DCJ |
CATCHWORDS: | Application for declaratory relief and injunction restraining current use of land – whether there has been a material change of use of the land by way of start of new use, or re-establishment of a use which has been abandoned, or material change in intensity or scale of use of the premises. |
| COUNSEL: | Mr T Trotter for the applicant. Mr E J Morzane for the first respondent. Mr A Heyworth-Smith for the second and third respondents |
| SOLICITORS: | Deacons Lawyers for the applicant. Brisbane City Legal Practice for the first respondent. Georgeson & Company for the second and third respondents. |
IN THE PLANNING AND ENVIRONMENT COURT
| REGISTRY : BRISBANE | APPEAL No: 4091 of 2000 |
| BETWEEN: | HERSTON KELVIN GROVE RESIDENTS ACTION GROUP INC |
Applicant
| AND: | BRISBANE CITY COUNCIL |
First Respondent
| AND: | HUDSON HOLTON GROUP PTY LTD |
Second Respondent
| AND: | HERSTON LODGE PTY LTD |
Third Respondent
REASONS FOR JUDGMENT – NEWTON DCJ
(Delivered the day of 2000)
[1] The applicant seeks a declaration that the use of premises at 129 Butterfield Street,
Herston more particularly described as Lot 128 on RP102307 constitutes a development offence
and also seeks an injunction restraining the current use of the subject land until a development
permit is obtained for the development.
[2] The grounds relied on by the applicant include the following:
(i) The subject land is contained in the Residential A Zone of the first respondent’s transitional planning scheme.
(ii) Prior to the commencement of the first respondent’s transitional planning scheme
the premises constructed on the subject land were used for Nursing Home purposes
providing care and accommodation for elderly residents.
(iii) The use of the premises on the subject land was abandoned in or around April
2000 when the premises were vacated and the subject land was offered for sale in
vacant possession.
(iv) The subject land was sold in vacant possession to the second respondent by auction
on or about 26 May 2000.
(v) In or around July 2000 the premises on the subject land began to be used for the
accommodation of mentally handicapped persons and/or the short-term
accommodation of immigrants.
(vi) The change of use of the premises on the subject land constitutes a material change
of use of the land being either:
(a) The start of a new use of the premises; or (b) The re-establishment on the premises of a use which has been abandoned; or
(c) A material change in the intensity or scale of the use of the premises.
(vii) Pursuant to the provisions of the Integrated Planning Act 1997, and the first
respondent’s transitional planning scheme, the material change of use is impact
assessable development for which a development permit is required but has not
been applied for or obtained.
(viii) The use of the premises in the absence of a development permit authorising the
assessable development constitutes a development offence.
[3] Mr Nunan, the honorary secretary of the applicant, informed the Court that the action
group was formed in May 1989 and was incorporated on 24 December 1993. The action group
was formed with the objectives of preserving and enhancing the residential amenity of the Herston and Kelvin Grove area, assisting in the preservation and development of local community
services and assisting in the development of a cohesive local community. The group has
approximately 60 paid up members and claims wide community support and involvement in local
issues. Mr Nunan states that the Herstonville Nursing Home at 129 Butterfield Street, Herston
ceased operating in early May 2000 and that the property was sold. Herston Lodge, to Mr
Nunan’s knowledge, commenced operating from the former nursing home site in late July 2000.
[4] Mr Nunan claims that members of the applicant have experienced, and the applicant has
been informed of, numerous incidents in the area involving residents of Herston Lodge. These
incidents are said to be of “extreme concern” to the applicant. While the applicant acknowledges
that there is a need in the community for homes for the disadvantaged and those with disabilities,
it believes that there should not be a fundamental change in a use of property from a Nursing
Home situated in a Residential A Zone without any consultative process or without residents
having the opportunity of expressing their views.
[5] Evidence was placed before the Court in relation to a number of incidents which
exemplify the applicants concern. Mr Asep Gunawan is the proprietor of a small convenience
store which operates at the corner of Aberleigh Road and Butterfield Street, Herston. He and his
wife live on the premises and have operated he store from that address for some 16 years. Mr
Gunawan states that from the period when he first commenced trading from the shop until early in
the year 2000, the premises at 129 Butterfield Street (which is approximately 200 metres from his
shop) was operated as the Herstonville Nursing Home providing care and accommodation for
aged residents. The Home, states Mr Gunawan, did not have an adverse impact upon the pleasant
residential nature of the local area. Mr Gunawan recalls that the elderly residents of the nursing
home were vacated from the premises in April or May, 2000.
[6] Mr Gunawan states that in or around July, 2000 a sign was erected upon the premises
which indicated that it now operated as “Herston Lodge”. From that time new residents began to
occupy the premises and two unpleasant incidents occurred in Mr Gunawan’s shop which he
believes involved residents of Herston Lodge. On the first occasion a woman from the Lodge
wished to purchase goods on credit. Mr Gunawan declined her request in accordance with his
normal policy. The woman later returned with a man and again requested that she be granted
credit and Mr Gunawan was subjected to intimidation by the woman’s male companion.
[7] On the second occasion Mr Gunawan states that three residents of Herston Lodge entered
his shop and while two of them attempted to divert his attention, the third stole some stock.
[8] Mr Gunawan states that he was able to handle both situations satisfactorily but that he now
feels that he cannot leave the shop with his wife in charge for fear of future incidents which his
wife would not be able to control on her own. Mr Gunawan believes that the residents of Herston
Lodge are not provided with appropriate supervision or control.
[9] Mrs Linnewebber, a 79 year old retired psychiatric residential care assistant, lives in a unit
at 19 Hetherington Street, Herston, a short walking distance south of the premises at 129
Butterfield Street. Mrs Linnewebber moved to her unit from the country in April, 1998 to be near
her husband when he became a resident of the Herstonville Nursing Home. Her husband died in
November 1998. During the time that Mr Linnewebber resided in the nursing home, it provided
care and accommodation for elderly residents. Mrs Linnewebber believes that it continued
operating in that manner until early 2000 when it was vacated, apparently to enable the sale of the
premises.
[10] Several months after the Nursing Home closed, Mrs Linnewebber became aware that the
premises had commenced operation as “Herston Lodge” providing accommodation for residents
who are apparently mentally handicapped and for migrants.
[11] Mrs Linnewebber catches a bus to the city approximately once a week from the bus stop
outside Herston Lodge. On Thursday 10 August, 2000, while she was waiting for the bus, a
person who appeared to be a resident of Herston Lodge left the premises and approached Mrs
Linnewebber and asked for money. On Thursday 24 August, 2000 Mrs Linnewebber was again
approached at the bus stop by a different resident of the Lodge and was again asked for money.
On that date Mrs Linnewebber claims also to have experienced another incidence of what she
described as “disturbing anti-social behaviour” by yet another resident of Herston Lodge who
appeared to her to be mentally handicapped.
[12] Mrs Linnewebber states that the three incidents experienced by her have caused her great
concern, particularly as a consequence of her age and also because she has no alternative to using
the bus stop outside Herston Lodge for her transport needs. Since the commencement of the
operation of Herston Lodge, Mrs Linnewebber has noticed an increase in activity in and around
the premises and she has become concerned by the numbers of residents of the Lodge who
regularly congregate outside the Lodge grounds. Mrs Linnewebber would have objected to the
proposal to use the premises at 129 Butterfield Street in the manner of its present use had she
been given the opportunity. She is particularly concerned as to the degree of care and supervision
being provided to the residents.
[13] Ms Sinnott lives at 137 Butterfield Street, Herston with two other people. Her house
adjoins the premises at 129 Butterfield Street. Ms Sinnott moved into the house in mid-July
2000. At that time she states that the area was a typically quiet residential area which was
attractive to her as a location that would enable her to concentrate on her university studies.
[14] Since Herston Lodge has commenced operation Ms Sinnott claims that her ability to study
and her enjoyment of residing in the area have been substantially affected. She says that she has
found living next door to the Lodge to be a most unpleasant experience. She regularly hears loud
and vulgar language emanating from the premises, including from the open doors and balconies
which directly face her house. This is particularly disturbing at night when the yelling is clearly
audible in her bedroom.
[15] Ms Sinnott further complains that on 7 September, 2000 at approximately 10.30 a.m.
when she was walking home from the shop in Bramston Terrace, a male resident of Herston
Lodge exposed himself to her. This person appeared to be mentally handicapped. The incident
occurred at the bus stop outside the Lodge.
[16] Ms Sinnott has observed that there appears to be a range of people accommodated on the
premises, some of whom are clearly in need of proper supervision and care. She is concerned that
the premises are being used beyond its capacity and that adequate supervision and care are not
being provided to the residents by the operators.
[17] Mr Crittenden lives with his wife at 1 Hetherington Street, Herston. The house is
diagonally opposite 129 Butterfield Street. Mr and Mrs Crittenden purchased their house in
April, 1999. At that time, the premises at 129 Butterfield Street were operated at Herstonville Nursing Home. Mr Crittenden states that the existence of a nursing home in the area did not pose
any problems and that he and his wife were able to quietly enjoy living in the area. In early May,
2000 the nursing home ceased operating. A sign was erected on the property indicating that it
was to be sold by auction.
[18] In July, 2000 Herston Lodge commenced operating from the former nursing home site. In
August, 2000 Mr and Mrs Crittenden received a letter from those connected with Herston Lodge
relating to the use to which the premises were being put. That letter, which has been the subject
of much comment during the hearing of this application, was in the following terms:
“
Herston Lodge 129 Butterfield Street Herston Qld.
Telephone No: 3257 3488
Dear Neighbour
7 years ago I had the opportunity to meet a women [sic] of my own age on a street in West End one Saturday morning. She has mild mental & physical disabilities. She introduced herself with care and respect. She also showed that she was not embarrassed or uncomfortable with her disability – but I was. My feelings were mixed with fear, ignorance, arrogance and confusion. Julie understood this and had enough courage and understanding for both of us. This experience stayed with me for many years until the opportunity came when I could give something back to the community.
Julie became one of the original residents of Windsor Lodge. This Lodge came about in 1997 with the help of friends and shareholders funds. It now is a home for 60 people, some with disabilities, some who are in need, and some people who prefer to live in a safe, clean and comfortable environment, rather than living on there [sic] own. We provide at Windsor Lodge a clean secure home with three meals a day; seven days a week with 24 hour supervised care.
However – we now have a problem at Windsor Lodge – we are full !!!
So that we do not have to say NO to people we have opened Herston Lodge so that we can say YES to people who need a safe home and lifestyle support.
I am inviting you to share the experience and personal growth opportunity that I have had. There is [sic] some amazing stories within Windsor Lodge & Herston Lodge. We don’t always win with everybody and when an adverse situation arises, ie drug abuse etc. these people are quickly removed from the system so that we may protect or [sic] residents as well as our neighbours.
We encourage our residents to respect and understand their fellow people and the community in which they live. Our residents not only need a home but acceptance, understanding and respect. A simple “good day” or “Would you like a cup of tea” is always greatly appreciated by our residents.
Herston Lodge is privately sponsored & receives no government funding.
Thanks for your time & support
Bob – Windsor Lodge – Telephone No 0413 835 384
John – Herston Lodge - Telephone No 3257 3488PS – The government has asked us to provide temporary accommodation for up to 43 men, women and family immigrants. They cleared [sic] by immigration and government supported agencies. We have been told they will stay with us for a minim of three days – We hope to make them welcome in our country.”
[19] Mr Crittenden specifically complains that at approximately 9.15 p.m. on 4 October, 2000
whilst he and his wife were walking their dogs in nearby Rasey Park, they noticed a group of four
or five people at the rear of Herston Lodge, within its grounds. They were all wearing hooded
jackets and were standing in a close circle. One was drinking what was apparently liquor from a
bottle. After Mr and Mrs Crittenden had passed the group at a distance of approximately 20
metres, the group followed them into the park, talking loudly, behaving in an intimidating manner
and making what appeared to Mr Crittenden to be threatening remarks. The behaviour of the
group gave Mr Crittenden grave concern for the safety of himself and his wife and the incident
was reported to the police.
[20] Mr Crittenden’s concerns in relation to the behaviour of some residents of Herston Lodge
have been compounded by previous experience before he moved to Herston. Mr and Mrs
Crittenden, for three years, lived next door to a boarding house known as Parker Lodge in
Redcliffe. This facility provided accommodation for socially disadvantaged persons such as those
who are apparently being accommodated at Herston Lodge. During the period they lived next
door to Parker Lodge, Mr and Mrs Crittenden experienced numerous problems caused by residents including excessive noise, violence, drunkenness, drug abuse, foul language and other
anti-social behaviour including urinating on the footpath and the throwing of food scraps,
cigarette butts and used syringes onto their property. Mr Crittenden claims that he and his wife
were also threatened and assaulted by staff members and that they had witnessed residents and
members of the public being intimidated and harassed. The premises were regularly attended by
the police. Upon the commencement of activities at Herston Lodge, Mr Crittenden claims that he
and his wife have observed a pattern of activity which has led them to believe that the premises
are being used in a similar manner to Parker Lodge. Mr Crittenden believes that the residents of
Herston Lodge may not be receiving adequate care or supervision.
[21] Mr Crittenden states that had he or his wife perceived that there was any prospect of the
Nursing Home being used as a boarding house or a hostel at the time they moved to Herston, they
would not have purchased a home in the vicinity. At the very least, Mr Crittenden states that he
would have expected that any proposal to establish such a use would have been the subject of
community consultation so that local residents could be satisfied that if such a use were approved,
it would be subject to appropriate conditions to ensure adequate care and supervision of residents
were maintained to minimise impacts on the community.
[22] Mrs Shipstone lives at 117 Butterfield Street with her husband and two young children
aged 6 and 2. Their home is approximately 50 metres to the east of the premises at 129
Butterfield Street. Mrs Shipstone states that until early 2000 the premises at 129 Butterfield
Street had operated as the Herstonville Nursing Home. The existence of the nursing home did not
in any way disrupt the peaceful nature of the area. Mrs Shipstone says that the area has had a
pleasant amenity and that she and her family have enjoyed living there. Mrs Shipstone has
resided in Butterfield Street for 7 of the last 10 years. She became aware of the closure of the nursing home early in the year 2000 and observed that the premises remained vacant for a time.
Several months after the premises were vacated, they were re-opened, with newly erected
“Herston Lodge” signs on the frontage of the premises.
[23] Mrs Shipstone complains that in late July 2000, shortly after Herston Lodge commenced
operation, she was verbally harassed by a man whom she believed to reside at Herston Lodge, as
she walked her daughter to pre-school at 120 Butterfield Street. Although no physical threat was
made, Mrs Shipstone found the harassment to be a most unpleasant experience and one that
caused her considerable concern. Since the incident she now either drives her children to pre-
school, or walks only on the other side of Butterfield Street which involves having to cross the
road at a dangerous point. She now considers that there is a greater need for security in her home
and she is particularly conscious of the safety of her young children. Mrs Shipstone has noticed a
distinct change in the character of the area since Herston Lodge commenced to operate. This
change, she states, has been brought about partly as a consequence of the increased level of
activity at Herston Lodge and partly because of the types of unpleasant experiences which she and
other residents of the area have had.
[24] Had she been given the opportunity to comment on the operation of the Lodge, Mrs
Shipstone would have objected to the commencement of its activities and at the very least she
would have sought to ensure that the premises were not overcrowded and that residents were
appropriately supervised.
[25] Ms Blatchford is the director of Herston Child and Development Educare Centre
“Precious People” at 120 Butterfield Street. She has held that position for the past two years.
The Centre is located approximately 100 metres to the east of the premises at 129 Butterfield Street and operates as a child care centre, providing care and education for up to 75 children
between the ages of six weeks and five years, between the hours of 7 a.m. and 6 p.m. on business
days.
[26] At the time Ms Blatchford commenced employment with “Precious People” the premises
at 129 Butterfield Street were operated as the Herstonville Nursing Home. Ms Blatchford states
that the operation of the nursing home did not in any way affect the operation of the child care
centre. The Herstonville Nursing Home was vacated in early 2000 and remained vacant for
several months. In around July 2000 Ms Blatchford became aware that the premises had
commenced operating as Herston Lodge and began to be occupied by new residents.
[27] Ms Blatchford complains that at approximately 8.30 a.m. on or about 24 July 2000, she
found a young man inside the child care centre. He appeared to Ms Blatchford to be under the
influence of drugs and claimed to be looking for work. Ms Blatchford states that the young man
verbally harassed her and generally made a nuisance of himself. Ms Blatchford was able to
ascertain the name of the young man and also that he was a resident of Herston Lodge. The man
then proceeded to verbally harass several mothers who were in the car park delivering their
children to the centre. The man subsequently returned to the centre and further harassed Ms
Blatchford. This incident is a cause of great concern to Ms Blatchford both personally and in her
capacity as director of the child care centre. Ms Blatchford is concerned not only for her own
welfare, but also for children under her care at the centre, their parents and her staff.
[28] Mr Kelly is the president of the Ballymore Kindergarten and Pre-School Association Inc.
situated at 185 Butterfield Street which is situated at the eastern end of Ballymore Park, some 300
metres from the premises at 129 Butterfield Street. The kindergarten was established in 1972 and currently has enrolled some 45 children aged from 3 to 6 years. It operates five days each week
between the hours of 8.30a.m. and 3 p.m. Mr Kelly states that the area in which the kindergarten
is situated has until recently been a quiet residential area in which parents and carers of children
felt safe walking their children to and from the kindergarten. The existence of the Herstonville
Nursing Home did not adversely impact upon the amenity of the area. Mr Kelly states that the
nursing home ceased to operate in early May, 2000 and that in July, 2000 Herston Lodge
commenced operating from the former nursing home site at 129 Butterfield Street. Although Mr
Kelly makes no specific complaint of any incident concerning residents of Herston Lodge, he
does state that the committee, staff and parents of the kindergarten are concerned at the opening
of Herston Lodge in close proximity to the kindergarten. He states that their concerns are
accentuated by the fact that the Lodge opened without any consultation with the community or
opportunity for residents to express their views on the matter.
[29] Mr Ibbott purchased and moved into his home at 137 Butterfield Street in March 1999.
He lives in the house with two university students including Ms Sinnott. Although at the time he
purchased the house he was aware that the next door premises were used as the Herstonville
Nursing Home, this did not concern Mr Ibbott. The quiet enjoyment of his home was not in any
way affected by the operation of the nursing home next door. Mr Ibbott states that the level of
activity on the premises was very low with little noticeable activity, particularly at night.
[30] Mr Ibbott became aware that in or around April 2000 the nursing home was vacated and a
“For Sale” sign was erected on the site. After several months the premises were re-opened as
Herston Lodge and new residents began to occupy the premises from around July, 2000. Mr
Ibbott states that it is apparent that the new residents include mentally handicapped people,
although the Lodge also apparently offers accommodation to other people including migrants. The letter from the operators of Herston Lodge was distributed to local residents in August, 2000,
including Mr Ibbott.
[31] Mr Ibbott complains that the operation of Herston Lodge has had a significant impact on
him and upon the other residents of his house. They regularly experience instances of loud and
offensive language including yelling and screaming emanating from the Lodge, particularly at
night. The Lodge has balconies and windows which directly face his house and this adds to the
noise problem. Mr Ibbott claims to also be aware of instances of verbal harassment from
residents of the Lodge and also an occasion when a resident of the Lodge appeared to masturbate
in front of Ms Sinnott. Such instances are said to be of considerable concern to Mr Ibbott,
particularly having regard to the close proximity of the Lodge to his house.
[32] Mr Ibbott states that he purchased his house in a Residential A zoned area in expectation
that the peaceful amenity of the area would be preserved. Mr Ibbott did not believe that the use of
the premises at 129 Butterfield Street could be changed in such a way as had occurred, without
any notification or right of public comment. He believes that the use of Herston Lodge should be
subjected to appropriate constraints to ensure that residents of the local area are not unduly
affected and that residents of the Lodge are properly cared for and supervised. Mr Ibbott states
that had he been given the opportunity of lodging a submission with the first respondent, he
certainly would have done so.
[33] Mr Hawkins is the secretary and a director of St Paul’s Hospital Pty Ltd which was the
former owner of the land and buildings located at 129 Butterfield Street. Mr Hawkins states that
the use of the subject land as a Nursing Home commenced in the early 1960’s. St Paul’s Hospital
acquired the subject land in 1979. When fully operational, the nursing home had a capacity of, and was licensed for, 89 beds and on average 89 residents occupied the home. The facility
catered mainly for elderly residents and there were approximately 35 staff on the premises during
any day. Staff were always present on the premises to care for the residents. The nursing home
held licences and approvals from both the State and Federal Governments for its operation and
received funding from the Federal Government.
[34] In 1998 the lessee, Queensland Nursing Homes Pty Ltd, determined that it no longer
wished to operate the nursing home on the subject land for reasons including:
(i) The building was old and it would have been difficult to fulfil the future building
standards required for nursing homes without substantial capital improvements;
(ii) Room sizes, bathrooms and dimensions for passageways required to maintain
future licence renewal for an 89 bed nursing home would be difficult to be
achieved with the existing building structure; and
(iii) The prospect of being unable to provide the appropriate future care needs of the
residents in the existing buildings.
[35] As a consequence of that decision, Queensland Nursing Homes Pty Ltd sold its 89 bed
licence to the Aegis Care Group and the nursing home was leased to Aegis Care Group for the
period 1 November 1998 to its closure in May 2000. During that period, St Paul’s Hospital
considered the options available to it for future development of the subject land. The forms of
development investigated by St Paul’s Hospital included:
(a) Use of the existing buildings as warehouses and office premises; (b) Re-development of the site into a unit/townhouse complex; (c) Removal of existing buildings and subdivision of the land into separate building allotments.
[36] Mr Hawkins states that the potential for re-development was abandoned in early 2000 due
to difficulties encountered with such matters as flooding. As a result, St Paul’s Hospital decided
to sell the subject land rather than develop it. The lessee of the nursing home commenced to
“wind down” the nursing home operation it was conducting on the subject land in or around
February 2000. The nursing home was completely vacated and the keys handed back by Aegis
Care Group to St Paul’s Hospital on 23 May 2000 and the subject land was sold in vacant
possession to the second respondent at auction on 26 May 2000.
[37] Mr Cox is the chairman of the body corporate of a complex of six homes units and four
townhouses located at the corner of Butterfield and Hetherington Streets, Herston. He has held
that position since November, 1994. Mr Cox visits the complex at least twice a week at various
times of the day. The duration of his visits ranges between quick visits to those lasting several
hours. He claims that during the course of his attendances he has the opportunity of speaking
with residents of the complex and of the area generally, and of observing activity in the area.
From 1983 to 1992 Mr Cox worked from an office in an old shop on the land where the unit
complex is now situated, opposite Herston Lodge. Mr Cox claims a detailed knowledge of and
affinity for the area and its residents.
[38] Mr Cox states that the premises at 129 Butterfield Street comprise a land area of 2,762m2
and that erected upon the land are several buildings including a large “dormitory” type of
building, and two buildings resembling dwelling houses. He confirms that the subject land is
contained within the Residential A Zone of the 1987 Town Plan for the City of Brisbane.
[39] Mr Cox states that the operation of the Herstonville Nursing Home on the subject land was
a most innocuous activity which did not in any way affect the amenity of the locality. During the
course of his attendances at the unit complex in April and May 2000, Mr Cox noticed that the
nursing home appeared to have closed and a sign advertising the auction of the subject land was
erected. After that time the subject land remained unoccupied until the end of July. From late
July 2000 Mr Cox noticed that the nursing home premises began to be occupied by new residents
and that there was a general increase in the level of activity on the subject land. At or about that
time a new sign with the words, “Herston Lodge” was erected on the subject land. Mr Cox also
received a copy of the letter from the operators of Herston Lodge.
[40] On the basis of his observations, Mr Cox concluded that the residents of Herston Lodge
included mentally handicapped people, migrants and other socially disadvantaged persons. It
appears to Mr Cox that Herston Lodge provides accommodation for a range of people with
different needs including people who require special care and supervision and those who are
merely in need of short-term accommodation. Mr Cox states that the operation of Herston Lodge
has had a substantial impact upon the amenity of the area. These impacts include;
(i) A noticeable increase in activity on and around the subject land including the
regular gathering of groups of residents both in the grounds of the subject land and
outside, including on the road front and in nearby Rasey Park;
(ii) An increase in traffic level;
(iii) A considerable increase in noise emanating from the subject land, including
frequent loud and offensive language at all hours of the day;
(iv) Numerous unpleasant and even disturbing incidents involving the residents of
Herston Lodge which have substantially affected the ability of the other residents
of the area to enjoy and move about freely in the locality.
(v) Concern felt by some residents of the area in respect of their own safety and that of
their families; and
(vi) The establishment of Herston Lodge in close proximity to a child care centre, a
kindergarten and pre-school, Rasey Park and the Children’s Leukaemia and Cancer
Society Inc. at 11 Bramston Terrace.
[41] Mr Cox claims to have witnessed unsolicited approaches of residents of the Lodge to
people waiting at the bus shelter. Mr Cox has raised his concerns with the first respondent and
also with the State Government. He believes that there has been a fundamental change in the
nature of the use of the subject land and that the second respondent should have applied to the
first respondent for approval to carry out the new use, in which case he and other members of the
community would have had an opportunity to lodge submissions with the first respondent in
relation to the proposed use. Mr Cox believes that approval for the use should be subject to
reasonable conditions so as to require not only that the amenity impacts upon the surrounding
community are minimised, but that the welfare and proper supervision of the residents of Herston
Lodge are ensured. Mr Cox suggests appropriate conditions would include conditions that:
(a) The number of residents accommodated on the premises does not exceed the capacity of the premises;
(b) Residents of Herston Lodge with special needs are provided with appropriate levels of care and supervision, thereby not only ensuring their own wellbeing, but
minimising and avoiding the unpleasant incidents presently occurring in the
locality; and
(c) Any other necessary approvals, permits or licences are obtained by the operators of Herston Lodge.
[42] Mr Job is a solicitor in the employ of Deacon’s Lawyers and has the conduct of this matter
on behalf of the applicant. On 7 August 2000 he lodged a Request for Freedom of Information in
relation to the subject premises, with the first respondent. Two files were subsequently made
available for his inspection, namely:
(i) A file relating to an extension of the premises for the purposes of a 90m2 laundry;
and
(ii) A file relating to “pre-lodgment” discussions conducted with the first respondent in
January and February 2000.
[43] Following his inspection, Mr Job had a discussion with Mr Wesener, the first respondent’s
Freedom of Information and Administrative Team Leader. Mr Job was informed that the first
respondent did not possess any files or documents relating to the approval of an “Institutional
Residence” on the premises, or any applications, consents or permits relating to the present use of
the premises. On 18 October 2000 Mr Job spoke with Ms Clark, a Development Compliance
Officer employed by the first respondent. Mr Job was advised that Ms Clark and her supervisor
had previously inspected Herston Lodge and had determined that an application for a permit was
required under the first respondent’s Local Law (Accommodation Standards) 1999 and that no
such application had been lodged with the first respondent at that date.
[44] Evidence was given at the hearing of this application by a number of witnesses called on
behalf of the second and third respondents. Mr Negus is a director of the second respondent. He
informed the Court that the subject land had been purchased by the second respondent under a
contract dated 26 May 2000, which settled on 26 June 2000. As the land and buildings on the
subject land were suited only to be used as a residential institution, the second respondent
negotiated with Herston Lodge Pty Ltd (the third respondent) to lease the premises, such lease to commence on 26 June 2000, the premises to be used as a residential institution for the care of
disadvantaged persons. Mr Negus stated that there was very little time lapse, approximately one
to two weeks, between the closure of the nursing home and the commencement of the present use
as arrangements were made with the vendor for the third respondent to enter possession of the
premises prior to settlement in order to prepare the premises to receive the new occupants.
[45] Over the past three years Mr Negus has been a consultant to and employee of, the State
Department of Housing. Part of his role was to investigate the availability of suitable and
affordable housing in the inner city area for socially and intellectually disadvantaged people, the
kind of people likely to become resident at Herston Lodge. Mr Negus’s experience in that
vocation and his expressed concern for such people, led him to decide that the second respondent
would purchase Herston Lodge. Mr Negus was aware that a similar institution, Windsor Lodge,
was full to overflowing and that there was a great need for more accommodation for
disadvantaged people. He inspected Windsor Lodge on several occasions to satisfy himself as to
the nature of the institution and of the suitability of Herston Lodge to provide a similar facility.
Mr Negus also relied upon his experience in choosing Mr McCallum to manage the proposed
institution, and in granting to Mr McCallum’s company a lease for that purpose.
[46] Mr Negus and his wife, as directors of the second respondent, express a strong belief in
the philosophy underlying the policy of the authorities to make such accommodation available to
certain disadvantaged people, so as to bring them out of closed institutions and enable them to
live lives as close as possible to normal in the open community. Mr Negus states that he is aware
of his responsibility to ensure that the impact of the institution upon the neighbourhood is
minimised and that such impact should be no greater than that of the antecedent nursing home.
He claims that the use now being made of Herston Lodge differs very little from its former use, save that residents are fewer and younger and more capable of a measure of self-management.
Mr Negus sees the present use as being far less intense in terms of numbers of residents and staff
and of activity.
[47] Mr McCallum is a director of the third respondent which is the lessee of the subject
premises at 129 Butterfield Road, from the second respondent. Herston Lodge Pty Ltd was
incorporated in June 2000 for the sole purpose of taking such lease in order to conduct, on the
site, a residential care unit to provide accommodation and some appropriate supervision for
socially and intellectually disadvantaged persons. Mr McCallum resides on the site and is the
“hands-on” manager of the institution. He states that, at present, Herston Lodge employs five
part-time staff and that there are 28 residents. No maximum has yet been placed on the number of
persons who can be accommodated in the present use but it will be no more than 60.
[48] Mr McCallum accepts people as residents of Herston Lodge who have been referred by
one of a number of agencies. He states that residents are screened for suitability by the referring
agencies and accepted only if they meet Herston Lodge’s criteria. Above all, residents must not
have criminal or anti-social tendencies, and there is no tolerance of substance abuse. Most are
middle-aged, and recipients of disability pensions. Typically, they are persons who are mildly
schizophrenic, but amiable. About half of the residents take medication and some of those are
able to administer their own medicines. For the others, medicine is professionally dispensed in
“Webster packs”. A medical practitioner in private practice visits the institution to attend to the
medical needs of individual inmates. There are regular visits from the mental health authorities.
In addition to the accommodation units and staff facilities, there is an institutional kitchen and
dining room, laundry, and caretaker’s residence, just as there were for the former nursing home.
[49] Mr McCallum disagrees with those witnesses who claim that the former nursing home was
a most innocuous activity which did not affect the amenity of the area in any way. He claims that,
in fact, the nursing home generated a great deal of activity and noise. There were staff changes at
10.30 p.m. and 5.00 a.m. There were frequent visits by ambulances and deliveries of supplies
took place in the early hours or the morning. Some of the patients were demented and given to
shouting, crying and even screaming. Others were “wanderers”. There was far more vehicular
traffic than at the present time, even with visits by patients’ relatives and doctors alone. Mr
McCallum claims that very little of that happens now. He says that the residents are not noisy and
that most of them spend their time sitting out at the rear of the site, chatting and smoking. They
tend not to form groups and their condition is such that they keep largely to themselves.
[50] As Herston Lodge has no psychiatric nursing facility, Mr McCallum states that it cannot
and will not provide special care and supervision. It offers long-term solutions for mildly
handicapped persons who need to be organised rather than supervised. The residents are not
lunatics or dangerous. Mr McCallum claims that he has rarely seen groups of residents outside
the Lodge’s boundaries and that such groups are no more worrying than any other group of
people.
[51] Traffic levels have decreased according to Mr McCallum. The Lodge’s residents have
few, if any, visitors and only one doctor comes to the premises. There are no ambulance
deliveries and no night staff to change shifts. None of the residents owns a motor vehicle.
[52] Mr McCallum states that he remains on the premises at all times and that he has heard no loud and offensive language. If such language was used he could easily identify the source and if such language continued, the offending resident would not remain at the residence but would be
re-assessed for some other kind of institution.
[53] Mr McCallum points out that residents of Herston Lodge are free to go to the nearby shop
to buy, e.g. cigarettes. He accepts that in passing the bus stop one or more residents may have
spoken to a person waiting for a bus. However, Mr McCallum claims that these were isolated
incidents and the problem, to the extent it is a problem, is being addressed.
[54] The person identified by Ms Blatchford is known by Mr McCallum who states that the
person was brought to the premises by the Salvation Army on the evening of 17 July 2000. It was
discovered at once that the person was a drug user and because Herston Lodge has “zero
tolerance” of substance abuse, the person was asked to leave early the following morning and did
so. Mr McCallum was not aware of the incident of 24 July 2000 complained of by Ms
Blatchford.
[55] Mr McCallum claims to be unaware of the noise of which Ms Sinnott complains and states
that he has unsuccessfully made inquiry into the allegation that one of the residents of Herston
Lodge exposed himself in front of Ms Sinnott. Mr McCallum claims that if a resident did have
such a propensity, it would soon become known to himself and his staff. He states that by and
large, the residents are decent people, and they themselves would quickly report such conduct to
him. Again, Mr McCallum was unaware of this particular incident. He was also unaware of the
matters of complaint raised by Mr Gunawan. Mr McCallum again claims that the conduct of
which Mr Gunawan complains is uncharacteristic of his residents. The noise complained of by
Mr Ibbott has not come to the notice of Mr McCallum or his night manager. However, any
resident given to such conduct (loud and offensive language) would be regarded as unsuitable for the Lodge. Once again, Mr McCallum was unaware of Mr Ibbott’s complaints. With respect to
the complaints of Mrs Linnewebber, Mr McCallum, although unaware of them, concedes that it is
possible that until he and his staff get to know the individual residents better and put appropriate
controls in place, isolated incidents such as those of which Mrs Linnewebber complains, may
occur.
[56] As to the complaint by Ms Shipstone, Mr McCallum was unaware of this. In relation to
Mr Crittenden’s specific complaint, Mr McCallum expresses surprise to know that the persons
wearing hooded jackets were residents of the Lodge. He points out that the public regularly uses
the institution’s driveway on its right-hand side to access Rasey Park at its rear. He claims that
the residents would not be out and about at 9.15 p.m, far less drinking alcohol, if that is what is to
be inferred. Mr McCallum notes that in general the complaints made by the various witnesses
called on behalf of the applicant, relate to times very soon after the institution began to accept
residents and when there were fewer than 10 residents in occupation.
[57] Dr Croft has a medical practice in Windsor and has been in practice in that area for some
19 years. He has many patients living in hostels and nursing homes whom he visits on a regular
basis. He states that at times he had patients living at Herstonville Nursing Home and that he
used to visit them there. As it was a nursing home that had beds catering for psycho-geriatric
patients, a number of his hostel patients were transferred there when they could no longer be
managed in the hostels. Some, in fact, were transferred back to the hostels as their behaviour and
condition improved. Dr Croft states that while visiting Herstonville he often heard shouting and
noisy behaviour from the residents and at times was asked to visit to settle disruptive patients. On
occasions he also witnessed “unsocial” behaviour occurring in the front yard.
[58] Dr Croft now visits his patients who reside at Herston Lodge. As he does his own after
hours calls, he has been there at night and on weekends, as well as during the day. Dr Croft
claims to have never been aware of any great levels of noise or disruptive behaviour by residents
of the Lodge. He states that the residents may be a little different in some ways from the majority
of the community, but that they have never displayed threatening or aggressive behaviour towards
himself or anyone who has been with him. Dr Croft considers the operation of Herston Lodge,
compared with the operation or Herstonville Nursing Home, to be almost identical except for the
ages of the residents and the fact that the intensity of the day-to-day activity of the present use is
markedly reduced because of the lower numbers of residents and staff. He considers that the
Lodge is well managed by staff who have a good lay knowledge of the requirements of people
with disabilities and he is aware that the Lodge receives many referrals from government
hospitals and agencies.
[59] Mrs Hartland lives in a residence at 125 Butterfield Street and has done so for the last 12
years. Her residence is immediately adjacent to the building that now operates as Herston Lodge.
Mrs Hartland for many years worked as a cook at the Herstonville Nursing Home and is still
employed at another nursing home operated by the same company. She states that she was
closely involved in the day-to-day activity of the nursing home, both with patients and staff.
Since Herston Lodge opened she has worked there on a part-time basis on two days per week.
She claims that apart from the age of the residents, she finds the general operation on a day-to-day
basis to be very similar and that the level of noise generated both inside the building and into her
residence next door is much reduced. She claims that the residents at the Lodge, while different
from most of the community, are friendly and attempting to lead as normal a life as possible. Mrs
Hartland finds that the amount of traffic generated in the street and parking outside her residence
is now much reduced from the time when the nursing home was operating.
[60] Mr Hartland also considers that the amount of general activity and noise levels being
generated from the building has reduced from when the premises were used as a nursing home.
Mr Hartland points out that the nursing home always had in excess of 80 patients and that a large
number of medical practitioners, visiting relatives and approximately 10 staff created heavier
flows of vehicular traffic and greater demands on parking in the street. There were often
ambulances arriving, sometimes with sirens blasting. Mr Hartland found that the nursing home
patients were often very noisy and loud and that yelling and screaming could often be heard at all
hours of the day and night. Often there would be incidents of patients escaping into the street or
out onto the park at the rear and this would create noise and unusual activity. The changing of
shifts at 5.00 a.m. and 10.30 p.m. also generated noise from motor vehicles and there were regular
early morning deliveries of bread and milk as well as commercial garbage collections that
generated noise. Mr Hartland claims that these activities do not occur now the premises are
operated as Herston Lodge. He has had no reason to complain about noise or any other behaviour
of residents of the Lodge, whom he finds friendly and polite. He considers the Lodge to be well
managed.
[61] Mr Hoare is the manager and part owner of Windsor Lodge and a shareholder in Herston
Lodge Pty Ltd (third respondent). Mr Hoare confirms that both Windsor Lodge and Herston
Lodge comprise supported accommodation facilities which look after people with disabilities.
Over recent years residents have moved from Windsor Lodge to Herstonville Nursing Home and
similar nursing homes, and from the nursing homes back to Windsor Lodge. Mr Hoare states that
as at 27 November 2000 there were three residents at Windsor Lodge who had previously been
residents at the Herstonville Nursing Home and that when Herstonville closed, one of Windsor
Lodge’s former residents was residing at Herstonville Nursing Home.
[62] Mr Oudolf is a social worker attached to the Mental Health Section of the Royal Brisbane
Hospital. He works mainly with people with mental disabilities who are living in the community.
When the Herstonville Nursing Home was operating, Mr Oudolf had clients who were patients of
that institution and he currently has clients who are residents of Herston Lodge. It is government
policy, states Mr Oudolf, that where possible, people with mental illness should live in the
community and lead as normal a life as possible. This includes living in normal residential areas,
sometimes receiving limited assistance and care. Mr Oudolf considers Herston Lodge to be a
facility that provides such assistance and care. He regards the general day-to-day operation of
Herston Lodge as being in many ways similar to Herstonville Nursing Home and many residents
of Herston Lodge would have been able to reside at Herstonville Nursing Home.
[63] Mr Drew is a consultant town planner practising with Fletcher Drew Consulting. He
confirms that the subject site was previously zoned Residential A and has a current area
classification of low-medium density residential. Mr Drew has outlined the town planning
history, in so far as it could be researched, as follows:
· 10 February 1959 – permission to use a building on subs 129/131 Por.279, and to make additions to the building for a “convalescent home” and provide off-street parking. · 18 July 1963 – permission to relocate an existing single storey timber dwelling from sub 128 so as to straddle subs 128/129 and to erect a brick addition to the building and to use subs 128/133 for the purpose of a convalescent home. · 15 November 1993 – Town Planning Consent Permit to erect a laundry as an
extension to the existing building for the purpose of Institutional Residence.
[64] A convalescent home, it may be accepted, houses people who are recovering from illness.
Care, to varying degrees, would be provided on the premises. A convalescent home would
sometimes serve as a “half-way house” between hospitalisation and returning to private residence
and at other times accommodate people with short or long-term chronic illnesses that do not
warrant hospitalisation.
[65] The 1993 approval included the use in the purpose definition “Institutional Residence”
introduced in the 1987 Town Plan. The approval granted was for:
“The extension and use of an existing building and the erection and use of a further building or other structure on the land for the purpose of an extension to an institutional residence (new laundry and deck)”.
Reference was made in the approval to the use of the premises for institutional residence purposes
at the time the application was made. The application, in indicating that the use was a non-
conforming use without approval, stated that, “The use has been continuous use as institutional
residence since before the Town Plan”. Mr Drew notes that institutional residence is a Column 3
use in the Plan.
[66] In or around 1968 the premises came to be used for the accommodation and care of the
aged and infirm and became known as the Herstonville Nursing Home and was a licensed nursing
home. In July 2000 the new operators took possession and established Herston Lodge as
premises for the accommodation and care of persons with an intellectual disability and/or
psychiatric illness. The care component of the business includes 24 hour supervision, provision
of all meals, assistance with medication and regular visits by a doctor.
[67] The trigger for the need to apply for a development permit in relation to the change of
businesses around July of 2000 is contained in the Integrated Planning Act 1997 (“IPA”).
Section 3.1.4(1) provides that a development permit is necessary for assessable development.
Indeed, it is an offence to carry out assessable development without a development permit, (see
section 4.3.1). The term “development” includes making a material change of use of premises
(section 1.3.2(e)). A “material change of use” of premises means –
(a) the start of a new use of the premises; or (b) the re-establishment on the premises of a use that has been abandoned; or (c) a material change in the intensity or scale of the use of the premises. (Section 1.3.5).
[68] With respect to the question of whether there has been the start of a new use of the
premises, it is relevant to note that the original convalescent home probably mainly housed and
cared for people disabled by physical illness or injury, while the nursing home mainly housed and
cared for people disabled by age-related conditions, and the present use mainly houses and cares
for people disabled by intellectual or psychological disabilities. The common threads, therefore,
may be said to include residence, care and disability. Mr Drew considers that in town planning
terms, it is not clear that the current use is a new use compared to the previous uses. He points
out that the focus in society has changed over the years in respect to the accommodation of people
with a disability or illness who are unable to stay at home but who are not sufficiently disabled or
ill to warrant hospitalisation. I accept that as the population ages, age-related physical and
psychological conditions become more evident. Mr Drew observes that an increasing reluctance
or inability of children to accommodate their ageing parents in their own homes, creates the need
for others to do so. It can also be accepted that the push to de-institutionalise people with mental
illness, together with the development of new medications for the management of mental illness, creates the need for non-hospital establishments to accommodate such people, often as a
transition to living in their own homes.
[69] In the 1987 Brisbane Town Plan, all three uses carried out on the site over the years, are
included in the purpose definition – “Institutional Residence”. Institutional Residence was a
consent use in the then Residential A Zone. In the City Plan 2000 they are all included in the use
definition of “multi-unit dwelling”. This use is impact assessable on the subject site. In the
context of the history of uses on the site I have formed the opinion that the current use is best
described as a variation of the previous uses but that it cannot be accepted to be a new use.
[70] Existing use rights are now dealt with in part 4 of IPA. Under the provisions of section
1.4.1(1) the protection of existing use rights now only applies where there has been “no material
change of use” since the new planning instrument came into force. Thus, the protection provided
by section 1.4.1 would be excluded if there has been a “material change of character, intensity or
scale of use”. For a non-conforming use to be protected it is not necessary that the use should
have continued in precisely the same form or manner (Gatton Shire Council v Toby Lane Pty Ltd
[1997] QPELR 285 at 290 per Skoien SJDC). In Shire of Perth v O’Keefe (1963) 110CLR 529 at
535 Kitto J said:
“First, it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of the gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that the use generally for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities or through a precise cataloguing of individual items of goods dealt in but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.”
[71] In ACR Trading, North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd
(1989) 16NSWLR 50 at 59 Kirby P (as he then was) stated the following three propositions:
“1.
Defining the ‘existing use’ depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ.
2.
Nevertheless, the general approach to be taken is one of construing the ‘use’ broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question.
3.
In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood… ”.
[72] It was submitted on behalf of the applicant that a new use has started with the
commencement of the operation of Herston Lodge because the present use is not a nursing home
which is innocuous and neutral as to impact on its locality. Counsel for the applicant has
characterised the present use as that of a tenement building. I am unable to accept this submission
having regard to the impact on the locality which existed during the operation of the nursing
home, particularly in relation to noise generated from the premises. I am further unable to accept
that the characterisation of the present use as a tenement building is accurate, having regard to the
care, assistance and supervision provided by the Lodge to its residents. I am not persuaded that a
new use has started.
[73] An issue that may arise under IPA is whether intensification of use prior to the
introduction of the new existing use regime ought to be retrospectively caught by IPA. The
protection in section 1.4.1 expressly applies only where there has been no material change of use
since the planning instrument came into force. I accept that the proper construction should be to
construe “planning instrument” in the section as referring to a new IPA planning scheme or a
transitional scheme with effect from the date of commencement of IPA.
[74] As to whether there has been a re-establishment on the premises of a use that has been abandoned, I was informed by Counsel during the hearing of this application, that it was no longer suggested that abandonment had occurred in the light of the evidence establishing that the
period between the two occupations of the premises was of such short duration.
[75] The real issue, in my view, is whether there has been a material change in the intensity or
scale of use within the meaning of IPA. To determine this requires some comparison to be made
between the activities of the Herstonville Nursing Home and Herston Lodge. The evidence
establishes to my satisfaction the following:
(a) The average resident of Herston Lodge is likely to be somewhat younger than that of Herstonville Nursing Home, and is also likely to be more mobile and more
independent.
(b) In relation to the nature of disability of residents of the two institutions, I accept the evidence of Mr McCallum that most residents of Herston Lodge are typically
mildly schizophrenic but amiable, whereas many of the residents of the
Herstonville Nursing Home were geriatrics, often with psychiatric illness.
(c) There was a greater need for care, assistance and supervision of the residents of the nursing home than presently exists for those of Herston Lodge. The latter
generally do not require special care and supervision but rather need organisation,
particularly with regard to the taking of medication.
(d) It seems clear that there were far greater staff numbers during the operation of the nursing home than is presently the case with Herston Lodge. I accept that the
present staff are lay persons in the sense of not holding professional nursing or
care qualifications, whereas the previous use required qualified nursing staff as
well as more frequent visits from medical practitioners.
(e) It may be that a greater proportion of residents of Herston Lodge have psychiatric illness than was the case in relation to residents of the nursing home, many of
whom seem to have simply been aged persons. However, I accept the evidence of
Mr McCallum that no resident is accepted into Herston Lodge if they have
criminal or anti-social tendencies. I also accept that the Lodge does not tolerate
substance abuse on the part of its residents. I note that only half of the residents of
the Lodge require medication and that some of those are able to administer their
own medicines. It seems unlikely that only half of the residents of the nursing
home would have required medication and it is probable that medical or nursing
assistance was needed in the administration of medicines to those residents.
(f) In relation to the level of activity of residents, it must be accepted that the residence of Herston Lodge in general, is far greater than was the case with the
residents of the nursing home. This may be nothing more than a reflection of the
younger age of most of the residents of Herston Lodge.
(g) The purpose of the two institutions differs in that the present use is generally to provide a residential care unit which includes accommodation and some
appropriate supervision for socially and intellectually disadvantaged persons,
whereas in the former use the purpose was to provide nursing home
accommodation for patients.
(h) Although I accept that the specific incidents complained of by those witnesses who testified on behalf of the applicant did occur, I have formed the view that the level
of disturbance or intrusiveness of the operation of the nursing home has been
understated. In this regard I accept the evidence of Dr Croft that while visiting the
Herstonville nursing home he often heard shouting out and noisy behaviour from
the residents. I also accept that Dr Croft, on occasions, witnessed “unsocial behaviour” occurring in the front yard, whereas with respect to Herston Lodge, he
has never been aware of any great levels of noise or disruptive behaviour.
(i) The building structure utilised by the two operations does not seem to differ
greatly, although administrative arrangements have been put in place under the
present operation to cater for residents who require a lower level of intensity of
supervision and care.
(j) The provision of food and linen, in my view, was more frequent under the former use than is presently the case, where a significant proportion of the residents seem
capable of some independent self-management.
(k) Community services and the use of community resources seems to be at a lower intensity under the present use than was previously the case. For example, there
seems to be a significant decline in the use of ambulance deliveries (and perhaps
even a cessation of this) with the present use. Similarly, there are fewer medical
visits required by the present residents than was the case when the nursing home
was operating.
(l) With respect to the length of stay of the residents, I note that in some cases under the present use, residents are able to move out of the Lodge after a relatively short
period of time whereas such an event was probably unlikely during the operation
of the former use.
[76] I have formed the view that in relation to the perception of noise being a problem for
neighbours, proper management procedures would be capable of controlling such occurrences.
Neighbouring residents could easily be made aware of a contact number to register any
complaints or concerns they may have in this regard. Indeed, many of the unpleasant incidents
experienced by some of the local residents were never brought to the attention of the operators of the present facility. Instead of the patronising letter which was sent by the operators to nearby
residents shortly after the facility began operating, it would have been far more useful to explain
the types of conditions that residents of the Lodge may have and to invite neighbours of the
facility to discuss any concerns directly with management. The owners and operators of Herston
Lodge must bear much of the blame for the problems that have arisen through lack of
communication between neighbouring residents and the Lodge management. I accept that some
people with mental illness may appear unkempt and quite different. I further accept that some
people in the community are fearful of mental illness and of the mentally ill. However, there is
no evidence before me to suggest that properly medicated persons with mental illness present any
more or less risk to public safety than other members of the community.
[77] It must always be a matter of degree in attempting to assess the overall impact of the scale
and intensity of the current use compared to the previous use and whether there has been a
“material change”. The evidence adduced on this application satisfies me that while the intensity
and scale of operation has somewhat intensified in relation to mobility of residents and their
contact with the community, there has been a corresponding decrease in intensity and scale of
operation in relation to noise from visiting vehicles including ambulances, staff and visitors.
There is some evidence which would tend to support a conclusion that the intensification arising
from increased contact with the community by residents may have created a greater perception of
intrusion among some members of the local community. Whilst I accept that fear and perception
are valid concerns of amenity, in my view the evidence does not establish that these concerns are
of such significance as to support a finding that there has been a material change of use. IPA
requires an impact-based assessment and on the evidence adduced during the hearing of this
application, I have formed the view that there has not been established a significant change of impact. I conclude, therefore, that under the criteria set down by IPA, there has been no material
change of use.
[78] Finally, it should be noted that Counsel for the second and third respondents, during the
hearing of the application, indicated that he held an undertaking from his clients to make an
application for a relevant permit with respect to the continued operation of the Lodge within 21
days. It seems that on application being made under the relevant local law for a permit, the first
respondent would be able to carry out proper inspections of the premises to satisfy itself as to
compliance with accommodation standards.
[79] In the result, I am not persuaded that the declarations and orders sought by the applicant
should be made. The application is, therefore, dismissed.
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