Kotku Education & Welfare Society Inc v Brisbane City Council & Ors
[2004] QPEC 68
•5 November 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Kotku Education and Welfare Society Inc v Brisbane City Council & Ors [2004] QPEC 068
PARTIES:
KOTKU EDUCATION AND WELFARE SOCIETY INC
(Appellant)v
BRISBANE CITY COUNCIL
(Respondent)And
McFADYEN, AGUIAR, ENRIGHT & ORS (Co-Respondents)
FILE NO/S:
288 of 2004
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:
5 November 2004
DELIVERED AT:
Brisbane
HEARING DATE:
30 and 31 August, 1, 2, 3 and 10 September 2004
JUDGE:
Judge Alan Wilson SC
ORDER:
CATCHWORDS:
PLANNING – APPEAL AGAINST REFUSAL FOR DEVELOPMENT OF MOSQUE AND COMMUNITY CENTRE – appeal by small minority religious group – generally inappropriate development – need – relevance of availability of other sites – expectation – nature of conflict with Planning scheme – relevant planning grounds – sufficient planning grounds
Integrated Planning Act 1997, s 3.5.1.4(2)(b)
Cases Considered:
Arksmead Pty Ltd v Council of the City of Gold Coast (2000) 107 LGERA 60
Aquatic Sub v Sydney City Council (1981) 43 LGRA 126
Baptist Union of Queensland v Brisbane City Council (2003) QPELR 61Canterbury Municipal Council v Moslem Alawy Society Ltd (1987) 162 SR 145
Green v Moreton Shire Council (1985) QPLR 328 at 330;
Ecovale Pty Ltd v Gold Coast City Council (1999) 2 Qd R 35
Energex Ltd v Logan City Council (2002) QPELR 370 Grosser v Gold Coast City Council (2001) 117 LGERA 153
Norris Clarke and O’Brien v Brisbane City Council (1996) QPELR 262
Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390
Westfield Management Ltd v Pine Rivers Shire Council (unreported, Planning and Environment Court, Brisbane, 14 November 2003, 1627/2003)COUNSEL:
Mr C Hughes SC for the appellant
Mr T Trotter for the respondent Brisbane City Council
Mr Enright, Ms Aguiar and Mr McFadyen, co-respondents on their own behalves and as agents for other submittersSOLICITORS:
Connor O’Meara for the appellant
Brisbane City Legal Practice for the respondent Council
Co-respondents in person
This is an appeal against Council’s deemed refusal of the appellant’s application for a Material Change of Use permitting the construction of a mosque and cultural centre on land at 1860 Mt Gravatt-Capalaba Road, Capalaba West. Following the institution of the appeal, issues were notified by the Council so as to constitute the grounds upon which the application should be refused.[1]. The co-respondents were a group of local residents, mostly submitters against the proposal, some of whom appeared in person and took an intermittently active role in the proceedings, while others confined themselves to written or oral submissions at the conclusion of the case.
[1]Exhibit 4, p 10
The appellant is an Islamic religious organisation taking its name from a 20th century Turkish Muslim scholar, Mehmed Zahid Kotku. It was first established in Australia in 1984 and in Brisbane a decade later. It has about 40 members here, for whom it provides religious services and instruction, and society. Its constitution[2] has the announced object of promoting Islam in general and, with that in mind, the aspiration of establishing and maintaining an Islamic centre “…to provide all kind of religious services to the Muslim community living in Queensland” and, also, to promote Islamic and Turkish culture. The Society’s present religious leader (its Imam, Mr Yilmaz) said its progenitor in Australia, Professor Mahmud Esad Cosan, was a leading figure in the Australian Turkish Muslim community who persuaded some of its members to move to Brisbane from Sydney and Melbourne in the early 1990’s, and it is they who form the Society here.
[2]Exhibit 30
A relevant part of the Society’s aims springs from a tenet of the Muslim faith which requires that where five Muslim families live in one area, they should build a place of worship. Both Mr Yilmaz and another witness for the appellant, Mr Yusuf Cavus, spoke of the Society’s attempts since 1994 to find a suitable place for a mosque which, to date, has involved inspecting over 50 sites.
Indeed, the Society has gone so far as to purchase two other properties in 1994 and 1996 (and the relevant parcel, in 1999). It was forced to move from a house on the first property after the respondent advised that it was not a proper place for religious activities. The second, at Capalaba (in Redland Shire) was purchased after extensive consultation with that Council’s town planning staff but met strong, and I accept quite unpleasant, local opposition and the Society’s application was ultimately refused. In the years 1997-2004 the Society has rented five properties, mostly in shops and office premises and it currently operates in an office building in an industrial estate at Capalaba for which it has no town planning approval, and where it limits its activities to prayers.
The co-respondents are local residents. Almost all the immediate neighbours are adverse[3]. Their oral and written submissions (including submissions at the end of the hearing) were based around opposition not, to their great credit, to the appellant’s faith or ethnic or cultural background, but to the size and features of the proposal and what were said to be its discordant elements when compared with the existing “rural residential” nature of local development, which they cherish. While their concerns about some of the more technical aspects of the proposed development (drainage, etc) were ameliorated by expert evidence at the hearing, those who provided final statements illustrated an undiminished opposition to a development which, in the words of one of them (Mr Enright) they fear is “…just too big and out of character for the site that has been chosen. It will unduly impact on our lives in many ways, and on the environment and character of the area”.
[3]Map of co-respondents and submitters: Exhibit 12, Attachment “F”
The Land
The land is described as Lot 26 on SL 11034. It contains 1.187 hectares. On inspection it presented as a long, thin parcel with frontages of 50 metres on Mt Gravatt-Capalaba Road and, at the rear, on Tinchborne Street and a depth of about 200 metres. It is cleared but for one or two trees, and is presently used for agistment of horses. It is low lying, and in its immediate vicinity surrounded by blocks of about the same dimension on which there are dwelling houses, some of them quite substantial. The impression of the immediate environs is of a relaxed, residential but semi rural character – with, relevantly, open wire fences which do not amount to linear visual barriers[4]. That impression is limited, however, to a defined area which is not, here, extensive. Mt Gravatt-Capalaba Road is a busy, arterial road. A few hundred metres to the south west is the very large True Jesus Church on the corner of Torbay Road; about equidistant, to the east, is the Tenrikyo Taiten Brisbane Mission; and, to the south west and opposite the True Jesus Church is a large golf driving range. These features and Old Cleveland Road to the north have the effect of limiting the rural, residential character and amenity of the particular neighbourhood to a relatively small area, covering a few streets.
[4]See, generally, Exhibit 29
The Proposal
Details of the proposed structure appear in the report of the architect called by the appellant, Mr Riddell[5]. At the eastern end facing Mr Gravatt-Capalaba Road is a landscaped carpark. Then, moving west, the first building is an information centre of 215 square metres. Between it and the next structure, the cultural centre, is a formal Turkish garden of 600 square metres. The cultural centre building contains large and small rooms including a kitchen, lavatories and extensive verandas. Behind it, to the west, are an ablution area and then the worship area of 245 square metres. The cultural centre has an overall area of 915 square metres but this includes the verandas, a pool area and internal courtyard and the enclosed part of the building is only 375 square metres. The mosque contains 245 square metres. The combined site cover of all the proposed buildings including eaves and verandas is about 11 per cent. All these buildings (and the formal garden) are in a ‘Turkish’ style, featuring colours and intricate patterns of Turkish origin, quite different from the nearby houses but on any view interesting and pleasing.
[5]Exhibit 7, p 9
The distinctive style of the structures would be relieved and offset by extensive revegetation with native flora. West of the mosque, the remainder of the site through to Tinchborne Street is to be extensively landscaped with native plantings and there would also be densely vegetated buffers on both sides of the worship area and cultural centre, and a two metre high acoustic fence along both residential boundaries from the main road back to a point adjacent with the rear of the worship area; and then, back to Tinchborne Street, the customary local “open” post and wire fencing.
The mosque would be used for worship, and the cultural centre for meetings and study. Traditionally the first Islamic service is held about 20 minutes before sunrise each day, and there are further daily services at noon, in the afternoon, evening and at night (1.5 hours after sunset). The Imam set out present attendances at paragraph 22 of his statement[6] and I accept that, as he says, the average duration of each service is 15-30 minutes and average attendances are between five, and twenty people. He also says, and I accept, that the largest attendance is at the Friday service at 1 p.m., averaging about fifty; and, twice a year, there are special holy days attracting about sixty people (although the current trend is that these larger celebrations are held at a central mosque, like that at Holland Park).
[6]Exhibit 18
The Imam measures his potential congregation as including about 200 Islamic families within the eastern part of Brisbane but says only 30-40 percent are practising Muslims, and many find it difficult to attend prayers because of commitments with family, or work. Hence, it is generally only the older members of the Society who attend for the early morning service. He also says that, generally speaking, attendances at prayers and interest in religion are declining, while the average age of those attending is increasing.
Council argues this development would be much more than a place of religious observance and contends that the size of the carpark, for example, signifies its greater, primary purpose: as a cultural and meeting centre designed and intended to accommodate large numbers of people on occasions which are not only religious, but also social or educational. There is other evidence, however, which points more strongly to the conclusion that while the buildings are capacious they are unlikely, in truth, to attract a significant increase in the congregation, and their size does not necessarily signify that will occur.
First, the present congregation is wholly or predominantly of Turkish background and, as with some denominations in the Christian church, different ethnic groups are attracted to places of worship used by their compatriots, or those with whom they share some other common heritage. The Imam said the mosque at Bald Hills is predominantly used by persons of Fijian background, and the one at Kuraby by South Africans, while the mosque at Buranda is predominantly attended by people with Pakistani, or Afghan connections. Some mosques provide food after the major services, usually with a national flavour, which is not necessarily attractive to those of other cultures.
Secondly, this proposal features buildings designed by Turkish architects, of particular interest (and pleasure) to persons with a Turkish background. That factor is unlikely to overcome the natural human desire to mingle with persons of a similar background, and shared interests – ie, the buildings themselves would not constitute a strong attraction for non-Turkish Australians. Third, it was clear from the evidence of the Imam and Mr Cavus that, in spending so much on the plans (which cost over US$100,000) and the buildings (which, plainly, will be expensive to construct) the Society was not moved by a desire to attract other followers of their faith but, only, to provide a religious home for Muslims of Turkish background.
Finally, the dimensions and capacity of various features can be misread. Of the 75 carparking spaces at the frontage on Mt Gravatt-Capalaba Road only 34 are actually sealed, with the balance being grassed and partially paved. No weddings or funerals will be held at the site. The Muslim form of prayer means the mosque is unlikely to hold more than 100 or, at the very outside, 130 worshippers. These findings compel the conclusion that as the Imam (whom I found a very impressive witness) said, the primary purpose of the facility is to provide a place of worship for Australians of Turkish background practising the Muslim faith, and a place for them to meet and take religious instruction; and that future usage is unlikely to exceed, or not by much, the present relatively small numbers of the congregation.
It is undeniable that the buildings are exotic, and interesting. Mr Riddell described them as “…a genuine embodiment of the symbolic traditions of Turkish Islam carried out in a contemporary and Australian context”[7]. An eminent firm of architects in Istanbul prepared the original plans, and Mr Riddell’s only involvement was some reconfiguration to meet the demands of the site. Important features include design and decoration in the Turkish style, much of it complex and intricate and, anywhere in Brisbane, exotic. Certainly, it is quite different from the general nature of the surrounding homes. A feature upon which the respondents particularly focussed are minarets 16.32 metres in height which form part of the mosque (but will not, however, be used to broadcast any calls to prayer). While structures of that kind are hardly common in any part of Brisbane, I accept the evidence of Mr Riddell who said:
The scale and height of the proposed buildings compares favourably to other buildings and landscape elements. Houses are generally below 8.5 metres in height but several are greater and of comparable bulk. The minarets are less than the height of the mature trees and telegraph poles. The proposed buildings are smaller than the True Jesus Church … the aerial photo dated 2000 shows the surrounding conditions at that time, which have varied little to the present. The closest houses are single storey with pitched roofs. The superimposed overlay of the roof view of the proposed buildings shows that their relationship to the adjoining development is both in scale and separate by sufficient distance not to cause disturbance … I am satisfied that the size, scale and extent of the project and its design satisfies its intended use and should not cause an unacceptable loss of amenity to the location. On the contrary it provides a building of quality, purpose built to an exacting brief. As well, it recovers an area of natural bushland previously lost. … the locality as it exists, has a mix of buildings mostly dwellings and associate out buildings, some of which are large and bulky, in settings which are often cleared for lawn, or with exotic landscape. The proposed building would make minimal impact visually into this existing setting.[8]
[7]Exhibit 7, p 7
[8]Exhibit 7, pp 6-7
The Issues
The primary issues involve allegations the proposal is in conflict with parts of the Brisbane planning scheme; that it is out of character with the surrounding area and discordant with the reasonable expectations of local residents; that it will have serious adverse effects on amenity including, in particular, visual amenity, and through the impacts of associated noise, and lighting; that it is incompatible with policies concerning the protection of koalas; and, that it will have adverse effects in terms of transport, and traffic.
Some other announced issues, concerning stormwater drainage and effluent disposal, were extinguished by expert evidence[9] and now present no impediment. The issue of the impact of lighting was raised by some submitters and Council’s visual consultant, Mr King[10] but a witness called for the appellant, Mr Paul King gave evidence which established that light emanating from the site, or from headlights, would not cause any unacceptable impact on the local amenity[11].
[9]Evidence of Mr Purdon, and Mr McAlister; and, Exhibit 10
[10]Exhibit 16, pp 9 and 10
[11]Exhibit 8
Town Planning Controls: City Plan 2000
The Brisbane planning scheme, City Plan 2000 (City Plan) contains a number of provisions said to effect planning decisions in this location, but the parties are in vivid conflict about their relevance, and the weight to be given them. For the appellant, Mr Hughes SC submitted there was little or no conflict between the proposal and the important elements of City Plan while Mr Trotter, for the Council, asserted it was in serious conflict with those elements. The wide discrepancy is explained in part by the size and complexity of City Plan and, inevitably, the many different parts of it which might be relevant. Difficulties of analysis and emphasis in town planning schemes are not novel, and the proper method for their construction has been considered on a number of previous occasions. Many were helpfully collected by Britton SC, DCJ in Westfield Management Ltd v Pine Rivers Shire Council (unreported, Planning and Environment Court, Brisbane, 14 November 2003, 1627/2003) at pp 8-9:
a)They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd.R. 352 at 360; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 at 73, 75, 78; Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313 at 318.
(b)They should be construed as a whole (Luke v Maroochy Shire Council & Anor (2003) QPELR 447
(c)They should be construed in a way which best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (supra); Nordale Management Pty Ltd v. Maroochy Shire Council (1995) QPLR 368 at 370; Acts Interpretation Act 1954 s 14A;
(d)In the light of the proscription against prohibiting development contained in IPA (s 6.1.2(3));
(e)Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degee v Brisbane City Council (1998) QPELR 287;
(f)A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v. Gold Coast City Council (1994) 83 LGERA 224 at 230;
(g)A Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council (supra));
(h)Although planning documents have the force of law they are not drawn with the precision of an Act of Parliament;
(i)A conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbon’s Hotels Pty Ltd v Logan City Council (1997) QPELR 208 at 212;
(j)Implementation Objectives must be read sensibly and in context. They are but a function of the principle objective. The purpose of the objective is better understood by reading all of the implementation objectives and understanding the strategy that is inherent (Jenkinson Pty Ltd v Caloundra City Council (20002) QPELR 527 at 528.
City Plan has surprisingly little content about provision for places of religious worship and as the Town Planner called by the appellants, Mr John Butler, said[12] provides only limited guidance as to what is considered an appropriate location for a proposal like this – ie, a place of religious observance for a small, minority religious group. Indeed, mosques and the like are not mentioned at all and it appears they are intended to be encompassed within the notion of “Community Facilities”, which are defined[13] as:
Community Facilities: A use of premises for the provision of cultural, social or community services e.g. community centre, community hall, youth sub, library, church or public building
Mr Trotter nevertheless asserted that City Plan does not seek to have the effect of placing additional burdens on minority groups, consistently with what the High Court has said are “…currently accepted standards of religious equality and tolerance in this country”[14]and, certainly, the “Vision” section contains statements encouraging social and cultural diversity, and a wide social and cultural “mix”[15].
[12]Exhibit 11A, p 7
[13]City Plan Chapter 3, p 67
[14]Canterbury Municipal Council v Moslem Alawy Society Ltd (1987) 162 SR 145, at 149
[15]Chapter 2, p 6
Those laudable aspirations aside, City Plan’s relative silence about places of religious worship extends to the fact that very few land use designations contemplate Community Facilities as an acceptable use. They might be accommodated in a Community Use Area (Chapter 3, Part 8) but no suitable site in any of those Areas has been identified by the parties, despite the vigorous efforts of Mr Cavus and other Society members who have, I accept, inspected at least 50 sites within a 10 kilometre radius of Capalaba. Another category of Area described as “Centres” (Chapter 3, part 7) is more plainly intended for retail or commercial uses, and does not seem readily amenable to small religious groups. Other Areas, identified by the Town Planner called for the Council, Ms Rayment[16], seem even more unsuitable, being principally intended for such things as sport and recreation, and light and general industry.
[16]Exhibit 12, s 5.5
As the Imam said[17] and I accept the location of this facility in Centres of those kinds would be unsatisfactory. Muslim times of worship are quite different from those of Christian churches whose co-location in a Centre could, at least, take advantage of the fact that parking facilities are not as heavily used on Sunday mornings – while here, the principal service is at midday on Friday when there is likely to be peak demand for parking. Female members of this congregation are reluctant to wear their traditional clothing in highly urbanised areas, like shopping centres. Finally, a building of this design cannot readily be seen as an integral part of, or a ready adjunct to, the normal structures in Centres. It is also futile to imagine that worshippers in a minority religious group like this one can take advantage of satisfactory public transport services, something said to be another advantage of co-location in these Centres.
[17]Exhibit 18, pp 4-5
The compelling conclusion is that City Plan does not address the needs of small religious groups like the Society or a proposal of this kind in a detailed or comprehensive way. That is neither a criticism, nor surprising – space would not permit the drafters, with the best intentions, to cater for every small minority interest; but the consequence must be that any provisions having possible relevance here should be construed in a way which acknowledges that, generally speaking, the planning documents contain no specific direction or firm guidelines with respect to the appropriate locational criteria for a use of this kind. That circumstance means the case bears some similarity to those in which a planning scheme simply fails to identify appropriate sites for a particular form of development, and the choice of suitable sites is left to ad hoc selection[18].
[18]See, e.g., Energex Ltd v Logan City Council (2002) QPELR 370, at 380
The parties do agree that, by reference to City Plan, this land lies:
(a) Within the Brisbane Greenspace System in the City Structure Plan, Map A;
(b) In the Greenspace System Biodiversity Value in Map B;
(c) Within the Environmental Protection component of the Brisbane Greenspace System, Map C;
(d) And, in proximity to the Movement System, Map B.
It is also, too, within the ambit of Desired Environmental Outcome provisions (DEOs), which appear both in the Strategic Plan and the parts of City Plan touching the Environmental Protection Area.
The Strategic Plan: Desired Environmental Outcomes
City Plan Chapter 2 Part 3 contains DEOs and strategies for the City, expressing a number of what are obviously very broad-based goals: development that is sympathetic to the character of a surrounding area, and the prevention of intrusion of incompatible uses (Clause 3.3.2.2); co-location of services and facilities in centres, linked with pedestrian ways, bikeways and public transport routes (3.3.2.3); preservation of natural environments and environmentally sensitive areas (3.1.2.1); the achievement of “environmental quality” (3.1.2.3); the protection of landscapes that enhance amenity and character in rural and semi rural areas, and sympathetic development which complements surrounding character and style in both urban and rural areas (3.2.2.4); encouraging the use of public transport, cycling and walking (3.2.2.6); and, encouraging development in locations that enhance the use of those methods of transport (3.5.2.2).
As Dr Philippa England has remarked in the second edition of her work Integrated Planning in Queensland[19] DEO’s “…set the framework for all other aspects of the Planning scheme”, and are the “…backstop for decision making but they will rarely provide an isolated rationale for it”. Their very general wording means the broad statements of principle they contain may, sometimes quite easily, be trawled for words supportive of differing conclusions. Clause 3.3.2.2 is an example: it requires that a proposal enhance the amenity, environmental and cultural context of its locality through, on the one hand, development that is sympathetic to the character of surrounding areas but, at the same time, that the same development creates places “with a distinct character”. It can readily be argued that a proposal which introduces unusual, even exotic architecture and uses to a particular area enhances cultural contexts and a creates a distinctive character - unless, perhaps, the opposite is meant and these phrases are intended to signify uniformity, and the creation of enclaves of similar structures and uses.
[19]The Federation Press, Sydney, 2004, p 170
There is, then, inherent difficulty in the proposition that a small development proposal on a small parcel can yet compromise city-wide DEOs. That difficulty is compounded here by other “city wide strategies” which appear to promote social and cultural diversity, and non-discriminatory access to public and private development (3.2.2.8). Only by taking an extreme view of particular, selected phrases in the DEOs could it be argued there is a discernible conflict between this proposal, and their generalised, “in-principle” contents.
The Greenspace System
City Plan Chapter 2 Part 4.1 propounds the maintenance, management and enhancement of “Green Spaces” and contains a general requirement that any private development in them must minimise environmental impacts, and retain “greenspace values”. The present poor natural qualities of this denuded parcel will be, on balance, improved and enhanced under this proposal and I agree with Mr Butler[20] that significant elements of it are supportive of greenspace values. At present the land is almost devoid of native vegetation but under the subject proposal a large proportion of the site will be intensively replanted, providing new habitat for native birds and animals including koalas and restoring the impression of, at least, semi-natural bushland. I accept it would, as Mr Butler says “…make significant positive improvements on the existing environment and the greenspace values of the area that will not occur otherwise”.
[20]Exhibit 11A, p 8
Environmental Protection Area
Under Chapter 3, Part 3.4 land of this kind is an important component of the greenspace system. It is comprised principally of privately owned property in the Environmental Protection Area which accommodates, primarily, very low residential and rural uses. Council strongly asserts that various DEOs set out in this part of City Plan (cl 3.4.2) are inimical to this proposal. These DEOs appear in Volume 1 of City Plan, at page 18. DEO 1 discourages intrusion in these Areas from urban or suburban land uses but, as the present, existing development shows that cannot mean the exclusion of structures on a domestic scale and must, rather, be construed as an intention to prohibit developments of traditional urban or suburban density. Nor can it be intended to prohibit uses which might commonly be found in those areas (like places of worship), but rather those which are of such intense design that they compromise the preservation of these Areas.
DEO 2 does not seem to apply. DEO 3 appears to encourage development of the kind envisaged in this proposal, with its very high “landscape values” and restoration of natural vegetation. DEO 4 also seems to be respected by the proposal, since there is no clearing involved and the visual impacts of the buildings are “minimised” by separation, and intensive landscaping. The remaining DEOs (5, 6 and 7) appear to be irrelevant.
Generally Inappropriate Impact Assessable Development
The Table of Development for Environmental Protection Areas (Chapter 3, pp 19-20) categorises the proposal as “any other material change of use” and, therefore, as a “generally inappropriate impact assessable development”. As the Table is constructed, however, the proposal is not within any of the preceding categories, and it therefore falls into this class by simple default. Hence the Table should not be read as giving rise to a presumption City Plan has necessarily turned its face against churches or mosques or the like in this locality. Certainly, there is no indication in other scheme provisions suggesting any deliberate planning decision to discourage places of worship here – and they are, of course, common in the area. Chapter 3, cl 2.5.2 indicates no more than that development of this kind is “… not specifically envisaged in the Area”, and:
The appropriateness of a proposal in any particular circumstances will be dependent on its location, design and impacts.
Cl 2.5.2 then provides that a development falling into this category needs to meet 12 criteria but the provision must also be read in the light, firstly, of IPA s 2.1.23(2) which insists that Planning schemes must not prohibit development and can only regulate it; and, secondly, as Mr Butler says, the fact that there is nothing in the planning scheme signifying positive discouragement of this type of use which is, in truth, generally consistent with the intent and DEO’s for the Environmental Protection Area. Only a few criteria might be said to present hurdles for this development. They relate to the reasonable expectations of the community for future development on land in this area, and impacts on landscape and streetscape; a requirement that a proposal does not detract from the “appearance, environment or amenity” of the area; and others requiring that it accord with reasonable expectations in respect of scale, that it not generate greater traffic movement than would reasonably be expected, and that it should not create “negative community impacts” by affecting such things as “community identity, cohesion and cultural practices”.
The fact this development involves buildings in an architectural style quite different from, and a little larger than, the established residences does not mean it will detract from the appearance or amenity of the area, or the “streetscape”. Indeed, in comparison with the True Jesus Church, its impacts will be much lower. Its scale is, as Mr Riddell’s evidence showed, only slightly greater than most of the immediately adjoining residences but, as he also said, that will be neutralised by landscaping and significantly offset by attractive and interesting design elements. The suggestion that it might detract from the appearance or the amenity of the area or reasonable expectations for it must be founded on the proposition that this parcel is necessarily earmarked for a new house which is to be much like its neighbours. That would ignore the apparent absence, in the planning scheme, of any positive discouragement of this type of use and, indeed, a degree of consistency with other provisions; and assume a drive for uniformity which City Plan does not elsewhere seem to encourage. The question of traffic, and other matters to do with reasonable expectation raised by the co-respondents are considered later but, if they resolve in the appellant’s favour, it cannot be said the proposal is necessarily in conflict with the criteria relevant to its impact assessment, or fails to meet them to a satisfactory extent.
Community Use Code
City Plan does not nominate any specific applicable code for the assessment of a Community Facility[21] but, of the codes set out in Chapter 5 the Community Use Code may be relevant, since it indicates that it applies both in the Community Use Areas and to “…community uses in other Areas”[22]. Mr Butler carried out a detailed analysis of this Code including its Performance Criteria and Acceptable Solutions in Appendix 1 to his report (Exhibit 11A) which purports to show, as I accept, that this development is consistent with the majority of the relevant Acceptable Solutions and, where it is not, other solutions are proposed which satisfy the requirements of the Performance Criteria. Of those which might be said to be contentious, only the matter of the scale, height and bulk of the buildings warrants further comment. The Performance Criteria requires that the design of the buildings must be consistent with “…reasonable expectations of development on surrounding land”. The Acceptable Solution stipulates that the scale, height and bulk of structures are no greater than those of surrounding buildings but that is, plainly, no more than one method of addressing the Criteria. Again, the absence of a prohibition upon places of religious worship, combined with the fact that it would be rare for them to be of a domestic scale or appearance means a development of this kind cannot be outside the compass of reasonable expectations – a conclusion reinforced by the presence of the much larger True Jesus Church. Considered in that light, apparent efforts to reduce the perceived scale of the mosque by siting it on a large parcel and surrounding it with significant landscaping constitute a satisfactory response to the Criteria.
[21]See Chapter 3, s 3.4.3
[22]Chapter 5, p 65
Traffic
The evidence of experienced traffic engineers, Mr Brameld and Mr Beard established there are no traffic safety issues arising in respect of this proposal[23] and that traffic generated by it:
…will have no significant adverse impact on traffic volumes, traffic safety or traffic operations on the local road network provided that the ingress and egress works proposed are undertaken.
[23]Exhibit 9, Appendix B
The only points of disagreement involve the number of car parking spaces and some aspects of the site location in the context of the City Plan Movement System. Mr Beard contended there should be no relaxation in the number of spaces (from 84 to 75), and observed that the site is disadvantaged by the absence of public transport facilities, remoteness from other community or Centre facilities, and apparent dependence by the congregation upon private motor vehicle transport. The evidence of the Imam establishes this is a small congregation, and a significant increase in its numbers in the foreseeable future is unlikely. One of the co-respondents adduced evidence suggesting parking at other mosques including the large one at Holland Park is unsatisfactory, but none appear to cater for on-site parking so well as this proposal, and I do not think the attempted comparison is relevant. No funerals or weddings will occur and, as the Imam also said, the few major days of significance in the Muslim calendar are likely to be celebrated elsewhere. It is clear that 75 parking spaces are more than adequate.
There appears to be a bus service on Mt Gravatt-Capalaba Road but I accept evidence from local residents that it is at least intermittent, if not sparse. City Plan Chapter 2 cl 4.5.1 encourages “equitable” access to a “safe, economic, comfortable and convenient movement system” and an increase in the use of public transport, bicycles and pedestrian modes of travel. It is clear this proposal does nothing for those principles but, as Mr Beard conceded, members of the congregation of a minority religious group will always have to rely predominantly on private car transport[24]. For the reasons given earlier, establishment in a Centre or co-location with other Community Facilities appears to be both inappropriate, and unattainable. It would be unrealistic to construe City Plan as insistent that a small religious group walk, cycle or catch public transport to their place of worship; or, that its diffuse members should congregate, ghetto like, in proximity so as to improve the chances they will use buses or the like. Lastly, Mt Gravatt-Capalaba Road is already very busy and as the traffic engineers agree, the private transport used by the congregation will have no measurable adverse impacts upon it or local traffic numbers generally.
[24]T335.55
Existing Places of Worship
Evidence produced by Ms Rayment tended to support the conclusion that places of worship (including mosques) are relatively commonplace in this locality and the construction of new ones would more likely than not fall within the bounds of the reasonable expectation of a reasonable person contemplating the matter: Exhibit 12, Attachment E. Another of her maps also showed that, in general, mosques are located adjacent to or surrounded by residential development, a fact supporting the conclusion that they are not incompatible with residential amenity: Attachment D. That plan also shows the geographic distribution of mosques in the region, and that this location is well placed to serve Muslims in the district.
Noise
The noise experts called by the parties, Mr King and Mr Kamst are in agreement that the acoustic barrier fence will achieve strict compliance with noise impact assessment criteria in City Plan. Mr Kamst suggests, nevertheless, that noises associated with the religious services in the early morning, and the evening, may affect local residents because they are “entirely uncharacteristic”. As he conceded, however, even in winter this locality becomes progressively noisier from about 4 a.m.[25].
[25]Exhibit 15, p 7, Figure 2
Mr King prepared a list of appropriate draft conditions and a site management plan[26], the latter designed to ensure that attendees in the early morning use the carparks at the front of the site on the Mt Gravatt-Capalaba Road, and are advised to minimise noise in external areas. These matters were of particular interest, of course, to the immediate neighbours but the weight of evidence suggests the impact will be minimal.
[26]Exhibits 8A and 8B
Koalas: State Planning Policy 1/97
State Planning Policy 1/97 (“Conservation of Koalas in the Koala Coast”) is designed to protect koala habitat and encourage their preservation, and increase. Dr Carrick, an acknowledged expert in the field, contended in his Report that the proposed development would produce a “…net negative impact on the koala habitat values of the site” and be “…inconsistent with the conservation strategy intention and provisions for a property within the Koala Conservation Area” but during his evidence it became clear that the site does not presently provide any koala habitat, although the landscaping proposed by the appellant would do so[27]; and, signs in the area on the trees indicated the land provided, at most, a “linkage function” for koalas and it was traversed by, on average, one koala each month[28]. Dr Carrick’s concerns appeared to contract to the acoustic fence, and the barrier it would present to a koala wishing to cross the land, which might encourage the animal to move towards the busy Mt Gravatt-Capalaba Road. He fairly conceded, however, that it may be possible to construct acoustic fences which overcame this problem by overlapping panels or other forms of physical treatment to ensure koalas could climb or penetrate them. Those concessions, and the proposed landscaping and re-vegetation compel the conclusion that any effect on koala habitat values is likely to be at worst neutral and, more probably, beneficial.
[27]T 319.13
[28]T321.2
These State Planning policies are interpreted somewhat more flexibly than statutory instruments[29] but regard should be had to their spirit and intention which, here, requires the identification of planning objectives at which they are directed and their application with a view to ensuring those objectives are achieved in the best possible way. The acoustic fences, even as presently designed, do not extend for the length of the property and allow ready access, in the area furthest back from the busy Mt Gravatt Capalaba Road, for migrating koalas to the proposed natural flora. Any adverse effects created by the acoustic barrier appear to be capable of reduction, if not extinguishment. The appellant has established, for reasons set out later, a compelling need for this development, and the balancing of all of these factors suggests the Policy has been acknowledged and addressed in a satisfactory way.
[29]Norris Sarke and O’Brien v Brisbane City Council (1996) QPELR 262 at 264
Local Residents Concerns
There is a considerable body of local opposition to this proposal. The residents’ primary concerns were well expressed by Mr Enright who emphasised the existing nature of the area, which he categorised as low intensity residential land use, with semi rural open spaces, and in his submissions said:
The proposed buildings, whilst of architectural interest, are out of character with other structures in the area – which are residential dwellings, many also having backyard sheds and chook houses in keeping with the nature of the area. Despite attempts to ultimately block views of the structures with planting of trees, the buildings will still be quite easily visible, particularly from Tinchborne Street.
The proposed buildings can certainly be described as alien to the structures on the immediately surrounding properties, but they do not occupy a large proportion of the site and, while also larger than some houses in the area the excess is not dramatic and potential impacts will be ameliorated by large setbacks from the side boundaries, acoustic fences and landscaping. While the architecture is exotic, it is of a very high standard and the fact of difference does not, as Mr Butler said, make it inherently undesirable or necessarily detrimental to the amenity of the area[30]. Even the most jaundiced eye would concede it is no less attractive than some of the residential development that has taken place, and the only fair conclusion is that, as Mr Riddell said, it will ultimately be, while different, nevertheless attractive and pleasing.
[30]Exhibit 11A, p 31
The acoustic fences are different from the less intrusive, common form of local fencing and will form a visual barrier, but only in that part where the buildings themselves may be intrusive until the new vegetation has grown. They perform an important function, protecting the neighbours from noise intrusion (although I am not persuaded that would ever be seriously problematic) and may be masked, and their effect diminished, by landscaping on the residents’ own properties. They do not seriously damage the visual amenity of neighbours and are, at worst, an intrusion into the customary layout of the local properties.
The opposition of local residents is not, of course, unsurprising and the matters the co-respondents raised were rational, and related to planning issues. Ultimately, however, those matters devolved to questions involving amenity, and reasonable expectations. The evidence shows there are no likely effects on amenity save visual impact, which does not tell against the proposal. The reasonable expectations of residents have to be considered in the light of the provisions of the City Plan, and existing circumstances. The planning scheme does not appear to turn its face against this development, and the area’s present amenity must fairly include the presence of two nearby places of a religious nature, a large commercial facility, and a busy road.
The subjective desire of the appellant to obtain an appropriate place of worship, and the subjective desire of local residents for that not to occur in their neighbourhood must ultimately be weighed by reference to objective evidence with respect to likely, real impacts, in the context of the planning controls.
Conflict with the Planning scheme?
The decisions of the Court of Appeal in Weightman v Gold Coast City Council[31], Grosser v Gold Coast City Council (2001) 117 LGERA 153 and Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390 indicate that where there is clear conflict with the planning scheme which is plainly major or substantial, the decision maker must undertake the three stage test set out by Atkinson J in Weightman, at 173. It is, with respect, less clear what course decision makers should follow if the conflict is apparently minor or if parts of a planning scheme appear both to support and be contrary to a development proposal – or, as here, are largely silent about it. Dr England[32], the commentator mentioned earlier, holds that on a proper analysis of these decisions they “… curtail the discretion available to decision makers to interpret the Planning scheme flexibly as new circumstances arise” and argues that, notwithstanding the provisions of IPA s 2.1.23(2) :
If an application presents a conflict with a Planning scheme, its approval needs to be justified on sufficient planning grounds and not on an inherent power to read the Planning scheme in a more flexible or purposive manner.
[31](Supra)
[32](Supra, at pp 163-168)
The earlier traverse of the various different parts of City Plan which might, conceivably, be said to operate in respect of this proposal shows how difficult it can be for the decision maker to determine whether or not conflict truly arises. That said, however, IPA s 3.5.14(2)(b) squarely raises the question and appears to give statutory imprimatur to the notion that if the decision maker is left uncertain whether conflict arises but there is, at least, a discernible indication of it the proper response is to undertake the Weightman exercise.
The earlier analysis of what the parties have advanced as relevant parts of City Plan points strongly to the conclusion that, if conflict with particular provisions does arise in this matter, it falls within a range best described as minor to, at the highest, moderate. Two particular matters lead to that conclusion.
First, I was impressed by the evidence of Mr Butler, who had undertaken a fair and dispassionate analysis of provisions which are worded in broad terms and are, generally, quite unspecific so far as a proposal of this kind is concerned. I preferred his evidence to that of the town planner called by the Council whose views, it seemed to me, involved an attempt to be far more definitive than City Plan provisions permitted. In particular, her opinions were strongly wedded to the proposition that a Community Facility was an urban, suburban, centre or industrial use so its location in an Environmental Protection Area would offend the DEOs for that Area, when it is clear the proposal does not fit comfortably within that description and City Plan does not support the conclusion that Community Facilities cannot be located anywhere else.
Mr Butler was persuasive that the proposal is consistent with and supported by Chapters 2-4 of City Plan and, in particular, the Intent and DEOs for the Environmental Protection Area. As he pointed out, a mosque encourages that diversity of people and activities which will contribute to a broad social mix in the City and, therefore, its character and liveability. It is also one of the related facilities like convenience shopping, local parkland, schools, churches, hotels and clubs acknowledged by City Plan as an element of a residential area, regardless of residential density. This proposal has the added advantage that it will significantly restore the natural landscape and natural vegetation. It is not an inherently urban, suburban or centre use; there will be no clearing of the land and, in visual terms, it will make a positive contribution; and, finally, values important for the Environmental Protection Area will be not only protected, but also significantly enhanced[33].
[33]Exhibit 11A, p 23
Secondly, City Plan does not address appropriate locations for places of worship for minority religious groups with the particular sensitivities which attach to this Society’s members, and the absence of provision of that kind, combined with the fact that the various parts of the planning scheme which might be said to apply do not convey clear opposition means the conflict, if any, cannot be categorized as major and must fall toward the lower end of the scale envisaged in Weightman.
Relevant, Sufficient Planning Grounds?
The planning grounds relied upon by Mr Hughes SC for the appellant are an overwhelming town planning or community need to provide for a proper place of worship for this minority religious group; the benefits revegetation will bring, by reference to the Greenspace and Environmental provisions of the planning scheme; enhancement of the character and amenity of the locality through attractive and interesting buildings, with good landscaping; the addition of buildings of “considerable architectural merit” benefiting Brisbane as a whole; and, the absence of unacceptable impacts. Mr Trotter concedes architectural merit may be relevant, but discounts it because of what he argues is excessive size and bulk, and the proposal being out of character with surrounding development. He also appears to concede that need has been established, in the sense that this small congregation requires a worship facility, but contends the proposal is of a size and scale which exceeds the extent of that need. In particular, it is submitted by Council that need is only on a minor scale because of the existence of other mosques nearby, but that ignores the cultural and linguistic differences between Muslim congregations, which I accept exist and are a particular element of this proposal.
The planning grounds advanced for the appellant are, I also accept, generally relevant. They are matters raised in the planning scheme itself (save need, which should be considered in more detail) and properly reflect a fair analysis of the scheme. Dr England suggests need will not ordinarily constitute a relevant planning ground invoking s 3.5.14(2)(b) because matters of that kind should be adequately dealt with in the planning scheme itself[34].
[34]Supra, p 172
Insofar as City Plan addresses the needs of minority religious groups it only does so in a manner fairly described as desultory. For the reasons given earlier, that is not a criticism of it. In a number of decisions both this court and the Queensland Court of Appeal appear to have accepted that need can, and should, be taken into account when assessing development proposals. In Arksmead Pty Ltd v Council of the City of Gold Coast (2000) 107 LGERA 60 the Court of Appeal held that, if it was contended that a proposed development would have a detrimental effect of the amenity of an area, it was legitimate for the court to take into account the possibility of countervailing need and (in respect of the previous legislation) the court said, at 67:
… we conclude that the Legislature did not intend to deprive the Planning and Environment Court of the authority to consider the question of need or the absence of it in a case like the present one: Bell v Brisbane City Council (1982) 2 QPLR 375 at 378 and Poar Hotels Pty Ltd v Brisbane City Council (1989) QPLR 188, at 190
Similar conclusions were reached in Ecovale Pty Ltd v Gold Coast City Council (1999) 2 Qd R 35, albeit, again, in the context of a provision in the previous legislation[35] which squarely raised need as a factor relevant in the determination of a rezoning. The decision in Arksmead was followed by Brabazon QC, DCJ in Baptist Union of Queensland v Brisbane City Council (2003) QPELR 61, a case involving not dissimilar issues. His Honour said at 71:
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, organization 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 Council (2001) Qd R 347 (my emphasis)
[35]Local Government (Planning and Environment) Act 1990, s 4.43(b)
In Kentbrock Pty Ltd v Gold Coast City Council (2003) QPELR 587 McLauchlan QC, DCJ said at 592:
There is no definition of the expression “planning grounds” but some assistance with respect to its meaning can be gathered from the definition of “town planning” which is defined to include all matters necessary or expedient for securing the improvement, orderly development, healthfulness, amenity, embellishment, convenience, conservation or commercial advancement of an area or part of an area.
It is difficult to see how questions like need (or excess) would not fall to be included in these broad, general but plainly relevant categories and I am satisfied it is a relevant issue here.
Elsewhere in the Baptist Union case Brabazon QC, DCJ addressed the meaning of the word in the town planning context (and, interestingly, in the particular context of a religious congregation, albeit one much larger than the appellant’s) and said, at 71-73:
“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.
…
The construction of rather similar large churches … (built elsewhere in recent times) serves to demonstrate the community need for such religious and welfare facilities.
…
While there is a community need for this proposal, it would not be right to describe it as “overwhelming”. 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.
In the present case the proposal does involve a new place of religious observance being established for the first time, in a place where nothing similar exists. Of course, that distinction is not central to the point being made by Brabazon QC, DCJ but his judgment appears to acknowledge that need can exist, in this context. Indeed, the circumstances here are in some respects similar to those he considered in the Baptist Union case, at 73:
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 the development, notwithstanding conflict with the schemes. Reliance was placed on an earlier decision in McWilliams McEwens v Brisbane City Council (1981) QPLR 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 has not been 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.
It is clear this religious group has a latent and unsatisfied demand for a place of religious observance which reflects its ethnic and cultural background. City Plan does not appear to make adequate provision for minority religious groups, like this one. Unlike the position which arose in the Baptist Union case, the congregation does not already have a satisfactory and useable, albeit too small, facility available to it – and, it seems, has encountered great difficulty in finding one. This small group would certainly be advantaged by approval, as would the community in general if important matters involving religious and cultural tolerance, and the encouragement of diversity, are taken into account. These factors all press the conclusion that, notwithstanding the small size of the appellant group, it is entitled to raise the question of need, and, indeed, has established it exists to a high degree.
An effort was made by Ms Rayment to establish the existence of other suitable and allegedly preferable sites but that is an exercise which has generally been disapproved in this court: Baptist Union (supra at p 72); Green v Moreton Shire Council (1985) QPLR 328 at 330; Aquatic Sub v Sydney City Council (1981) 43 LGRA 126 and Ecovale (supra) at 47 where Fryberg J said, forcefully:
The court is not a super planning authority for the various local authorities of Queensland. It cannot in a particular appeal carry out the sort of inquiry which must be carried out formulate a new Planning scheme. In a case involving the rezoning of small allotments, I do not think the court derives much assistance from evidence relating to the market availability of a few other similar allotments in the neighbourhood. When such evidence is advanced by opponents of the development, its supporters may be tempted to advance evidence that the supposedly similar allotments are in fact unsuitable for the proposed development. Such an approach could turn the appeal into an inquiry into the suitability and planning terms of all those allotments. The resulting delay in cost may easily be imagined.
That is precisely what occurred here, with inordinate time and effort being expended by the appellant in considering and addressing various sites identified by Ms Rayment[36]. The alleged existence of alternative sites has to be considered, too, in light of Mr Yilmaz’ evidence[37] which shows this group has expended a good deal of time and effort over many years attempting to find a suitable site, and, even after initial encouragement, has been rebuffed or driven away. Of the sites Ms Rayment referred to only one is in the Local Government area of Brisbane; others are in the Koala Conservation Area; only one is in a Centre; three are in Residential Zones; and, almost all are not unlikely to attract exactly the same response from submitters as occurred here. The exercise neither extinguished nor, indeed, reduced the force of the appellant’s contentions about its strong need for a mosque, and a community centre.
[36]Exhibits 44, and 45
[37]Exhibit 18
Unlike the surrounding circumstances in Baptist Union, this case does not involve a very large development for a very large congregation with associated needs for extensive carparking, earthmoving, roadwork and the like. Impacts upon the local community have been shown, notwithstanding residents’ expressed concerns, to be relatively minimal and it is difficult to discern any clear, measurable conflict with the planning scheme which, largely, ignores this kind of development. Against those factors I must weigh clear and strong need, and other relevant planning grounds of sufficient force to establish that, on balance, they far outweigh conflicts which, adopting a cautious approach, I have assessed as being no more than moderate.
Conclusion
For these reasons, I conclude the appeal should be allowed but, otherwise, adjourned for further hearing to permit the preparation of a list of appropriate conditions by the respondent which can include those suggested by the expert witnesses heard during the proceedings.
1
3
1