Maleny District Community Learning Centre Ltd v Caboolture Shire Council - [1999] QPEC 40

IN THE PLANNING AND ENVIRONMENT COURT

HELD AT BRISBANE

QUEENSLAND

[Maleny District Community Learning Centre Ltd. v. Caboolture Shire Council]

[Before SKOIEN SJDC]

Appeal No 2751 of 1998

BETWEEN:

MALENY DISTRICT COMMUNITY LEARNING CENTRE LTD.

Appellant

AND:

CABOOLTURE SHIRE COUNCIL

Respondent

JUDGMENT

Judgment delivered: 27 August 1999

Catchwords: Consent use for day and boarding school; condition limiting number of boarders for first three years; whether condition might impose a bond for compliance with conditions; whether conditions are reasonable.

Counsel: Mr. Ure for respondent
Mr. Sheppard, agent for appellant

Solicitors: King & Co. for the respondent

Hearing Date: 5,6, 19 August
IN THE PLANNING AND ENVIRONMENT COURT
HELD AT BRISBANE
QUEENSLAND Appeal No. 2751 of 1998

BETWEEN:

MALENY DISTRICT COMMUNITY LEARNING CENTRE
Appellant

AND:

CABOOLTURE SHIRE COUNCIL

Respondent
REASONS FOR JUDGMENT - SKOIEN S.J.D.C.

Delivered the Twenty-seventh day of August 1999

This is an appeal under the Local Government (Planning and Environment) Act 1990 against two conditions imposed on the approval by the Council of the appellant’s application for consent to use land as a school.
The Site and Locality
The site contains 16.42 hectares and is on the Maleny - Stanley River Road, Booroobin, about 12 kilometres from the town of Maleny. It is in an area which is both zoned and used for rural purposes. The site slopes down steeply from the road, is partly cleared and partly heavily timbered or overgrown with other vegetation. It has an old farmhouse on it as well as some sheds. The site forms part of the catchment in which the Mary River rises.
History
The establishment by the appellant of a school has had a long and chequered history. In earlier times the site which is the subject of this appeal was part of a larger area, portion 261, which abutted portion 214. In August 1995 the appellant applied to the Council for consent to use portion 214 for school and student/staff accommodation purposes. That was conditionally approved by the Council.
In March 1996 the appellant applied to the Council for consent to use portion 261 for school and student/staff accommodation purposes. On 9 May 1996 the Council advised the appellant that it approved the application on the basis that the siting of the school would be transferred from portion 214 to part of portion 261 on a new lot to be created by a subdivision. That subdivision was effected and a number of lots, including lot 1, were created. Lot 1 is the site of this appeal. The use permitted was described as an educational establishment (150 students) and was allowed to be established in the existing farmhouse. The use was permitted only until 30 December 1998. The permit (No. 1203) which issued for the staff and student accommodation was expressed to apply to portion 214 and to be ancillary to the educational establishment on portion 261.
On 23 July 1996 permit No. 1215 was issued by the Council over portion 261 to permit on that portion an educational establishment for up to 150 students. It permitted the use to be carried on in the existing farmhouse but limited that use to 30 December 1998.
On 2 August 1996 the appellant applied for Council approval for building work to alter the classification of the farmhouse from 1A (residential) to 9B (assembly, that is, a school). A building permit finally issued on 24 December 1998. Condition 8 of the permit stipulated that there be no use or occupation of the farmhouse until the issue of the certificate of classification to 9B (that is, a certificate that all necessary work had been properly carried out). That certificate of classification has not issued, all necessary work not yet having been completed.
Meanwhile on 9 February 1998 the appellant applied for the Council’s consent to use the site for educational establishment purposes, with school buildings including accommodation buildings. Essentially the object was to relocate the staff and student accommodation previously permitted in respect of portion 214 (see para 3 supra) to the site.
The appellant has been using the former farmhouse as a school building from early 1996
to the present day. This has been in obvious breach of the building permit (see para. 6 supra) and the consents given on 9 May 1996 (see para 4 supra) and 23 July 1996 (see para 5 supra). It is also the fact that the Council has received, from August 1996 onward, complaints of unauthorised accommodation of people on the site in tents and caravans, as well as some improper release of sullage water. The evidence establishes that these complaints were well founded.
Mr. Sheppard, who conducted the case for the appellant and who described himself in the evidence as a caretaker and school administrator, lives in the one caravan which is now lawfully permitted to be on the site with his wife and four children, all four being students at the school. There are currently thirteen students at the school of whom only six are not the children of Mr. and Mrs. Shepherd and another staff member. The staff comprises one teacher, one grounds clerk and Mr. Sheppard.
Proposed Development of the School
The current application proposed ten free-standing accommodation units and is planned to house up to thirty boarding students and up to fifteen resident staff within ten years. This will be done in three stages:-
Stage 1:- 3-5 accommodation units within 3 years.
Stage 2:-3 accommodation units within further 3 years.
Stage 3:2-4 accommodation units within final 4 years.
Mr. Sheppard, in evidence, emphasised the importance of the boarding side of the proposed school which he described as “a lucrative aspect of the future income of the school”. The intention is to run the school so that income exceeds expenditure.
Of the present student enrollment of thirteen, eight would now be boarders if that were possible. Mr. Sheppard said he expected boarders to come from beyond Maleny, from inter-state and even overseas. He expects the students to be aged between four and nineteen as well as some mature age day students. He contemplates occasional educational workshops being held but that would not involve the participants living at the school.
First Disputed Condition
Condition 1 is in dispute. It is:
“(1)The use hereby permitted shall be an Educational Establishment (maximum one hundred and fifty (150) students) and for the purpose of this use students shall be defined as aged between 5-19 years. No student accommodation shall be allowed for five (5) years. No staff accommodation other than a caretaker’s residence and/or School Principal’s residence shall be allowed. No other people shall be allowed to reside on the site either temporarily or permanently. The maximum number of dwellings allowed shall be two (2).”
This condition is obviously relevant to the proposed use. The question is whether it is reasonable (see P & E Act, s.6.1(1)(c)).

Mr. Tabulo, the Council’s Shire Planner, said that the reason for imposing this condition was that the establishment of a boarding school would increase greatly the population density on the site over and above the norm for a rural area. So the condition is designed to delay the influx of residents to the site until it is shown that a day school had been firmly and economically established. He expressed the concern that if the school expanded too rapidly and then failed, the site would be left containing numbers and types of buildings quite incompatible with a rural area. There is, he considered, a risk that accommodation buildings could be used as boarding houses for lodgers who were not students. He felt that the appellant’s history on the site did not inspire confidence in the appellant’s intention to obey the letter of the law.
In my view these concerns are one which a responsible Council could legitimately hold. The evidence on the likely prospects of the school does not satisfy me that its future is assured. While the economic projections produced by Mr Sheppard (exhibit 26) are at first sight quite impressive, on examination it is clear that the estimated building costs and the likely student numbers are more hopeful than real. No actual quotes have been obtained for the proposed buildings. I do not regard the “rule of thumb” figures apparently applied by the Federal and State Governments as being intended as actual building costs. Then it is the fact that the actual number of students of the school has dwindled over the past few years and I was shown no actual applications for boarding places by intending students nor even expressions of interest. On the evidence placed before me I consider it is a matter of some doubt that the school will prosper to the extent that, even with grants from Commonwealth and State, the necessary building and running costs can be met.
But on the other hand the evidence of Mr. Sheppard that the boarding component of the school is vital to the school’s economic health seems to me to be probably accurate. And the preparation of exhibit 26 (while I cannot accept the figures as accurate) as well as the other documentation which has been tendered, shows me that the appellant is trying to run the school in a businesslike way. The Council is prepared to allow a school which has a boarding component in it. The effect of the Council’s proposed condition 1 would be to stifle any chance the school has of even modest expansion into boarding for so long a period (five years) as very probably to put the entire venture at risk of collapse.
In my view it would be reasonable to permit the school to press on with its plans, but with its more conservative approach to the first proposed stage, that is no more than three accommodation units within three years. One of those should be the residence of the resident caretaker or resident teacher and naturally any children of that person would also reside there. The other two accommodation units should be restricted to a small number of resident students and staff. I note that on the evidence, even at the end of ten years a maximum of only thirty students and fifteen staff (Mr. Sheppard said it would probably be only ten) are proposed to be living on site. In the light of that, a total of ten students (inclusive of any children of the resident caretaker/teacher) and three staff (inclusive of the resident caretaker/teacher) seems to me to be reasonable. The parties are now agreed that the age of students can range from four to nineteen.
I would substitute the following condition 1:
“1.The use hereby permitted shall be an Educational Establishment to a maximum of one hundred and fifty (150) students of between the ages of four and nineteen years, on the following further condition that until the expiration of three (3) years from this date:-

(a)no more than three accommodation units (including a residence for a resident teacher/caretaker) shall be erected on the site;

(b)no more than ten bona fide students of the school (including any student children of the resident teacher/caretaker) and no more than three bona fide school staff (including the resident teacher/caretaker) with any family of the staff member shall reside on the site;

(c)no person shall reside in any building on the site until a certificate of classification for that building to permit its use as one of the accommodation units has been duly issued;

(d)Until the issue of a certificate of classification for the use of an accommodation unit (being the residence of the residential teacher/caretaker) the permit now in existence for the occupation by that person of one caravan on the site will continue but on the issue of the certificate the permit will lapse.”

That, I think, gives the appellant a reasonable opportunity to establish a boarding school and to seek to demonstrate its economic potential. If it has one, the concerns of the Council should be sufficiently allayed and the school’s growth can continue. If, on the other hand, at the end of three years the economic future of the school has been demonstrated to be hopeless, or even doubtful, it is unlikely that the appellant will be in a position to advance the boarding aspect further. The then existing accommodation units could, I expect, be used as general school buildings. If the appellant is forced out of business, the number of buildings on the site will have been kept to a minimum.
The description of students and staff as “bona fide” gives what protection can feasibly be given to prevent the site being used for lodgers generally. That puts an onus on the Council to police the site to some extent but no more than it has to in respect of any land in its shire. Then the reference to certificates of compliance to some extent duplicates another condition (14(b)) but I think it does no harm to emphasise an important matter.

Second Disputed Condition

The second disputed condition is 14(c) which is:-
“(c)The applicant shall lodge a bond of $50,000 prior to the issue of the Town Planning Consent Permit to ensure compliance with these conditions of approval. Such shall be maintained for not less than 5 years after the completion of the last building stage.”

Again the argument is not that the condition is irrelevant (see P & E Act, s.4.13(6)) but that it is unreasonable.

It is conceded all round that this is an unusual condition for a use of this type which is generally to be found in uses such as extractive industries in which the land may have to be made good again. Of course it is objected to by the appellant as an unusual and unreasonable burden. Initially Mr. Sheppard said that it would, if it applied, cause the appellant to walk away from the project but by the time of addresses he did not say it was impossible to meet, merely onerous and unreasonable.
Mr. Tabulo justified the imposition of the bond as being to ensure that the appellant pressed ahead with the construction of the various buildings and if necessary to give the Council the wherewithal to complete, to demolish, or to remove buildings. Lastly it provide funds to remedy faulty waste disposal should that ever eventuate and should the appellant fail to remedy it.
Even though the appellant has been less than scrupulous in the past in the adherence to schedules, to permits and conditions, I would be loath to predict failure of the type Mr Tabulo predicated on the part of the school as more than a mere possibility. Most projects such as this commence without councils requiring bonds. I think it is likely that the school will not reach the full potential that the appellant expects but in that event the likely result is that it will continue at a reduced level using fewer buildings. That is, it may never reach stage 3 or even stage 2. But in that event I expect that the erected buildings would still be used. If the worst occurs and the appellant is ejected, or vacates, there is always the possibility of an appropriate lawful use for the site which would make use of the buildings. If not, it is possible that the buildings could be removed without cost to the owner of the donor site or the Council. So I conclude that Mr. Tabulo’s first two concerns are not real enough to call for a bond.
The conditions which the Council would apply to the consent use are set out in exhibit 24. Condition 7 (drainage) and 10 (effluent disposal) are carefully framed and set out in detail what must be done to satisfy the appropriate authorities. See also condition 14(b) which is:-
“(b)The use of the site as proposed in stages for the approved purpose shall not be commenced until all conditions of approval have been complied with to the satisfaction of the Manager, Environment Development & Local Laws.”

The Council has not argued that those conditions are insufficient so the only real risk is that the appellant will not use or maintain the systems properly. But I see no basis on which to regard that even as a real possibility. The fact that on other occasions others have constructed or maintained such systems poorly and the Council has had to spend money to fix the problem does not seem to me to be to the point.
I thus regard condition 14(c) as unreasonable and delete it.
Conclusion
A new condition 1 as set out in paragraph 18 should be substituted. Should the parties agree to vary it to accommodate practicalities to which I have not adverted, they are at liberty to do so. I delete condition 14(c). Condition 3, which sets out the stages of development, will have to be modified to reflect the new condition 1.
Costs
Mr. Ure asked for the costs of the adjourned hearing on 19 August. My power to award costs are in s.7.6 of the P&E Act:-
The adjournment was granted on 6 August during the address of Mr Sheppard and was sought by him at my suggestion in order to put before me something in the nature of financial returns to show that the school project was more than mere “pie in the sky”. On the resumption of the appeal on 19 August that was done and while, as I have said, the figures are rather questionable, they did satisfy me that a businesslike approach was being attempted.
Mr Ure’s submission was that the economics of the school was always relevant and evidence of it should have been put before me on 6 August. The failure to do so was a default in procedural requirements (s.7.6(1A)(c)). I do not consider that s.7.6(1A)(d), which deals with the “surprise” factor, applies because, had the Council been surprised by the new material, it could have applied for an adjournment to meet the surprise. It did not do so.
Mr Sheppard should have had the financial evidence, which was material to the appeal, available on 6 August. However I must bear in mind that he is a layman, and appeared as agent for the appellant, Section 7.5(4) expressly permits the appearance of agents. This Court has traditionally been receptive to their appearance. It is obvious that some latitude must be extended to lay agents and it would be contrary to common sense to expect them to have the grasp of the laws of evidence and court procedure expected of a lawyer. Finally, I am influenced by the fact that it was I who suggested the calling of the further evidence which necessitated the adjournment.
I decline to make an order for costs.