Leggett v Brisbane City Council

[2001] QPEC 79

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Leggett v Brisbane City Council & Anor [2001] QPEC 079

PARTIES:

SUSAN LEGGETT, SECRETARY – WEST TOOWONG COMMUNITY ASSOCIATION INC. on behalf of E CASSIE, J McCARTHUR, J SALMON, A MURDOCH, J EDNEY, J BENTLEY, K SOUTHERN, J MAGUB, S WICKENDEN, E ROBINSON, P FIRTH AND J TURNOUR
Appellants

and

BRISBANE CITY COUNCIL
Respondent

and

NOBLE MANSIONS PTY LTD
Co-Respondent

FILE NO/S:

2490 of 2001

DIVISION:

Planning and Environment Court

PROCEEDING:

Submitter appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

20 December 2001

DELIVERED AT:

Brisbane

HEARING DATE:

19 – 22 November 2001

JUDGE:

Judge Quirk

ORDER:

Appeal dismissed

CATCHWORDS:

Integrated Planning Act ss. 4.1.52(2), 6.1.30(3)(b)

COUNSEL:

Mr S.Couper QC for the appellants  

Mr M.Rackemann for the respondent

Mr D Gore QC for the co-respondent  

SOLICITORS:

Brisbane City Legal Practice for the respondent

Deacons Lawyers for the co-respondent

1. This appeal, by adverse submitters, is against the respondent’s approval of an application for consent to a material change of use of land at Toowong.  The subject land is the site of the former Toowong Municipal Swimming Pool and is on the western side of Coronation Drive immediately to the east of the Toowong Village Centre. 

1. The appellants, as a group, were active against the Council’s decision to close the pool.  Although a good deal of evidence was directed to the merits or otherwise of this decision, it has to be said at once that this is not an area of controversy into which this Court is able to intrude.  The fact that the pool is no longer there cannot be avoided.  Attention must now be focussed upon what is an appropriate future for the subject land. 

1. In the Town Plan (in force at the time of the application) the land was included in the “Sport and Recreation” Zone.  In the City Plan a comparable classification was maintained.  The case advanced by the appellants was essentially that such a classification should remain and that to allow the proposed development would prevent that.  In this context it was observed that the possibility that a future (and more enlightened from the viewpoint of the appellants) Council might appreciate the wisdom of re-establishing the pool.  At the very least, it was contended, the land should remain in a situation where it can fulfil a role in providing recreational or open space opportunities for the area’s residents.

1. The site occupies an area of a little over 3,000 square metres.  It remains in Council ownership and is presently vacant.  The co-respondent has entered into a contract to purchase the subject land which is conditional upon its obtaining the approvals necessary for the proposed development which is before the Court.

1. The co-respondent has been active in the re-development of this area of the city.  It has, before the appropriate authorities, a proposal to develop land on the opposite side of Booth Street which includes the former site of the now relocated public library.  Adjacent to this land to the north-west is a fairly large scale residential development being undertaken by it. 

1. The proposal before the Court is for an attractively designed and landscaped six storeyed office complex.  For the purpose of deciding the appeal it is unnecessary to go into the details of the proposal which can been seen in a material place before the Court.  The intended development will, in terms of appearance and utility, complement other existing development in the area. 

1. Although, as I have indicated, it is not for this Court to make any judgment about the Council’s decision to close the pool, in fairness to the Council it has to be said that (on the evidence given) it was not a decision that was taken capriciously.  The pool was built in the early part of the last century.  It suffered in a physical sense in the 1974 floods.  Falling attendances, high maintenance costs and competing priorities appeared to have played a large part in the decision that (perhaps  not surprisingly) failed to met universal approval. 

1. More importantly in the context of the appeal it must be recognized that the pool pre-dated the introduction of formal planning controls in the city.  The observations of the experienced town planners, Mr Brown (called by the Council) and Professor Brannock (called by the co-respondent) that the land’s zoning was more a recognition of history than an exercise in forward planning strategy  have considerable force. Their view was that, with the demise of the pool, the importance of the zoning (from a planning perspective) has been considerably diminished. 

1. What is important in the determination of this case is what the planning instruments now in force have to say about the land. The application was lodged prior to the commencement of the City Plan. The Town Plan was a “transitional planning scheme” within the meaning of Chapter 6 of the Integrated Planning Act.  Accordingly the determination of the matter was governed by s. 6.1.30(3)(b) of that Act.  Pursuant to s. 4.1.52(2), the Court, in deciding the appeal may give weight “to any new laws and policies” the Court considers appropriate.  The fact that the City Plan is now in place is a matter of some consequence.

1. In the Strategic Plan (part of the Town Plan) the land was in an area which, in a general sense, was designated as a major district centre.  The need for consolidation and extension (where necessary) of such centres was recognized by the Strategic Plan.  The appellants argued that the land could be regarded as part of the Brisbane Greenspace System under the Strategic Plan but a careful examination of the Strategic Plan’s intent in this respect (s.3.3.1.1) does not really support this suggestion.  It is difficult to see the subject land as an integral part of such a Greenspace System.  What is, in my view of the case, of substantial importance is the Draft Local Area Plan for Toowong which has been prepared consistently with the approach of the City Plan.  It is in such plans that more detailed planning strategies for the various areas are intended to be found.

1. Preparation of this particular plan commenced prior to the City Plan and this involved a significant level of public consultation.  In the appellant’s evidence an attempt was made to criticize this consultation but I reject the criticism as unrealistic and unfair.  Public exhibition of the Draft Local Area Plan has now concluded. 

1. In the draft Local Area Plan, the removal of the swimming pool is recognized and the subject land has been included in the centre core precinct of the Toowong Major Centre.  The proposed development of the subject land is entirely consistent with that designation.

1. Whatever inconsistencies with the Town Plan and the “Sport and Recreation” classification of the City Plan might be pointed to, I am satisfied on the evidence that there is overwhelming planning justification for overlooking such inconsistency.  Relevant matters include the following:

·     The proposed development would constitute a logical and convenient extension to the Toowong Major Centre;

·     The proposal is consistent with the planning authority’s forward planning as reflected by the Draft Local Area Plan;

·     The land’s utility for “sport and recreation” has been diminished considerably by the decision to close the swimming pool.  I accept the evidence given on behalf of the respondent and co-respondent that physical demands now placed upon sites where aquatic recreation facilities are located would make it highly improbable that such a facility would be reconstructed on the subject land.

·     The land’s utility for park purposes is questionable and, in any event, it was not zoned nor is it classified for park or open space purposes.

1. Need was raised as an issue and, because the proposal would (under the Town Plan)  have required a rezoning, the matter must be looked at.  Evidence from Mr McLean (who was called by the co-respondent and has considerable experience in this area) showed that there is an appropriate level of commercial demand for office space of the quality that will be provided here.  The appellants made the point that there were vacancies in office accommodation in other areas of the commercial fringe but I believe this involves a too narrow consideration of the question of need.  What is fundamental to this question is the public interest and I am satisfied that this interest would be well served by securing this important site for a use that is entirely consistent with what the elected planning authority has in mind for this part of the city. 

1. On the whole of the evidence I am satisfied that the onus of showing that the application is one that should be approved has been discharged. The appeal is accordingly dismissed.