Maridahdi Early Childhood Community v Toowoomba Regional Council
[2012] QPEC 40
•5 June 2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Maridahdi Early Childhood Community v Toowoomba Regional Council & Ors [2012] QPEC 40
PARTIES:
MARIDAHDI EARLY CHILDHOOD COMMUNITY
(Appellant)V
TOOWOOMBA REGIONAL COUNCIL
(Respondent)And
DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(First co-respondent)And
GEOFFREY CASTLE, VICKI SCHWERIN, ANDREW WITHERS, PETER ROBINSON, IAIN GIBSON, MANUELA BERTOLDI AND ROY PODMORE
(Second co-respondents by election)FILE NO/S:
241 of 2010
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
5 June 2012
DELIVERED AT:
Brisbane
HEARING DATES:
8, 9 and 10 May 2012
JUDGE:
Dorney QC, DCJ
ORDERS:
1. The appeal is dismissed.
2. The decision appealed against is confirmed.
CATCHWORDS:
Appeal from refusal – application for material change of use to “educational establishment” – whether DEOs compromised – whether conflicts with planning scheme – planning need – whether “sufficient grounds” – traffic/amenity issues
Education (General Provisions) Act 2006 (Qld)
Integrated Planning Act 1997 (Qld) ss 3.2.1, 3.5.5, 3.5.14, 3.5.11(1), 4.1.50(1), 4.1.52(1), 4.1.52(2), 4.1.54(2)(a)
Sustainable Planning Act 2009 (Qld) ss 802(2), 819(5), 819(6)Arksmead Pty Ltd v Council of the City of Gold Coast [2001] 1 Qd R 347
Barnes & Cook v Southern Downs Regional Council [2011] QPELR 722
Broad v Brisbane City Council [1986] 2 Qd R 317
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Cut Price Stores Retailers Ltd v Caboolture Shire Council [1984] QPLR 126
Hervey Bay Council v BGM Projects Pty Ltd [2009] 1 Qd R 130
Isgro v Gold Coast City Council [2003] QPELR 414
Lewis v Townsville City Council [2012] QCA 99
Luke & Ors v Maroochy Shire Council [2003] QPELR 447
Morris Corporation Pty Ltd v Whitsunday Regional Council [2011] QPEC 129
Skateway Pty Ltd v Brisbane City Council & Anor [1980] QPLR 245; (1980) 1 APA 417
SLS Property Group Pty Ltd v Townsville City Council (2009) 175 LGERA 136
Webster v Caboolture Shire Council (2008) 167 LGERA 342; [2009] QPELR 455
Woolworths Limited v Maryborough City Council (No 2) [2006] 1 Qd R 273
Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306
COUNSEL:
N Loos for the Appellant
S Ure for the RespondentSOLICITORS:
Aden Lawyers for the Appellant
King & Company Solicitors for the Respondent
Introduction
This is an (applicant) appeal against the decision of the Toowoomba Regional Council (“TRC”) to refuse a development application by Maridahdi Early Childhood Community (“MECC”) for a material change of use to an “educational establishment”, being a primary school, on land described as Lot 1 on RP142232, located at 1 South Street, Rangeville in Toowoomba and being situated on the eastern escarpment of that City (“the Site”).
The first co-respondent took no active role in the trial. The second co-respondents by election, having relinquished legal representation, were self-represented at trial by the first of such co-respondents, Mr Geoffrey Castle.
MECC, bearing the onus of establishing that the appeal should be upheld [see s 4.1.50(1) of the Integrated Planning Act 1997 (Qld) (“IPA”)], has failed to discharge that onus for the reasons canvassed in this decision. Consequently, the appeal is dismissed and the decision appealed against is confirmed: see s 4.1.54(2)(a) of the IPA.
Statutory framework
The development application was lodged with the TRC on 16 December 2009, with the TRC issuing an acknowledgment notice dated 24 December 2009. At the time of the application, the IPA was in force. On 18 December 2009 the Sustainable Planning Act 2009 (Qld) (“SPA”) commenced.
On 15 September 2010 the TRC resolved to refuse the development application and on 30 September 2010 a decision notice to that effect was sent to MECC.
Because the development application was made under the repealed IPA, even though the TRC did not make a decision before the commencement of the SPA, the IPA continues to apply as if the SPA had not commenced “for dealing with and deciding” the development application: see s 802(2) of the SPA.
Accordingly, the Court must decide this appeal under the IPA as if the SPA had not commenced [ss 819(5) and 819(6) of the SPA], subject to any issue that utilises the SPA.
Section 4.1.52(1) of the IPA requires the appeal, which was filed 15 October 2010, to be by way of hearing anew.
By s 4.1.52(2)(a) of the IPA, the Court must decide the appeal based on the laws and policies applying when the development application was made, but may give weight to any new laws and policies the Court considers appropriate.
Because the development application requires impact assessment (being for a “not preferred” use), both s 3.5.5 and s 3.5.14 of the IPA apply. The first, relevantly, provides that the assessment manager must carry out the impact assessment only having regard to: the applicable codes; the common material; the planning scheme and any other relevant local planning instruments; and, if they are not identified in the planning scheme as being appropriately reflected in the planning scheme, State planning policies, or parts of State planning policies: see paragraphs (a), (b) and (c)(i) of s 3.5.5(2) of the IPA. Secondly, the assessment manager’s decision “must not”: “compromise” the achievement of the desired environmental outcomes for the planning scheme area; or “conflict with” the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict: see paragraphs (a) and (b) of s 3.5.14(2). By Schedule 10, the Dictionary, the term “grounds” is defined to mean “matters of public interest” and not to include personal circumstances of an applicant, owner or interested party. Section 3.5.11 of the IPA states that, in deciding the application, the assessment manager must, relevantly, approve all or “part of” the application; or approve all or “part of” the application subject to conditions decided by the assessment manager: see paragraphs (a) and (b) of s 3.5.11(1). That relevant extract has excluded the otherwise stated requirement to attach to such approval, in the exact form given by the concurrence agency, any concurrence agency conditions. The overall effect of the above provisions of the IPA is that the Court “stands in the shoes” of the assessment manager: see Barnes & Cook v Southern Downs Regional Council[1] at [20].
[1] [2011] QPELR 722.
The relevant planning instruments in this appeal are the Toowoomba City Council Planning Scheme 2003 (“2003 Scheme”) and the Toowoomba Regional Planning Scheme 2012 (“2012 Scheme”), the latter agreed to commence on 1 July 2012.
Proposed development
The proposed development is to establish, in 3 stages, a 200 student school at the Site. In terms of student numbers, the 3 stages would result in the following:
(a) Stage 1: 50 students and 4 full-time (equivalent) staff;
(b) Stage 2: 100 students and 8 full-time (equivalent) staff; and
(c) Stage 3: 200 students and 12 full-time (equivalent) staff.
The Site is 1.699 hectares (4.2 acres) in size and is generally rectangular in shape. On both the northern and eastern sides, the Site adjoins bushland that is part of the Picnic Point Reserve. On the southern side, the Site has a frontage to South Street and is 119 metres in length. On the western side, the Site adjoins existing detached dwellings.
The Site is improved by a State heritage listed premises, Geeumbi, which would be retained for use as a teaching facility. In addition, 3 further buildings would be constructed being:
(a) 1 multi-purpose learning centre; and
(b) 2 teaching “pods”.
The application also proposes the construction of a teardrop shaped car park linked to South Street by a new driveway access on the eastern extremity of the Site.
As for the immediately surrounding area, across South Street from the Site is Podmore Park. This is a private park. Further, no residences are visible from the Site, and the existing building and the proposed buildings also would not be visible from any existing residence on South Street.
As for the suburb of Rangeville, it is an area which contains predominantly detached residential dwellings. But it also contains the Rangeville State Primary School (located to the west of the Site) and, on Bowtell Street, the primary school which is currently operated by MECC. They could be accurately described as clustered.
It is incontestable that, even if all the proposed buildings were to be erected on the Site, they would occupy only a very limited part of the total area of it. It should also be noted that there is an existing tennis court and an established garden on the Site. As for the vegetation presently on the Site itself, a site plan demonstratively shows that the vast majority of the vegetation would be preserved and the only building which would be removed would be a double garage structure which is not a subject of the Queensland Heritage Register Entry.
It is not in issue that the frontage to South Street of the Site adjoins a classified “local access street”.
IDAS process
Concurrence agency responses were received from the Department of Transport and Main Roads on 24 February 2010 (with no conditions imposed) and from the Department of Environment and Resource Management on 10 March 2010 (with some conditions imposed).
On 24 March 2010, MECC responded to the TRC’s earlier information request of 3 February 2010 by letter of its consultants dated 3 February 2010.
The development application was publicly notified - twice, due to initial invalidity - and, counting both instances of public notification, there were 893 properly made submissions received by the TRC.
On 25 August 2010, officers of the TRC prepared a report recommending approval of the development application.
As noted earlier, the Council’s resolution to refuse the development application was notified to the MECC by a decision notice of 30 September 2010.
Planning Scheme
Under the 2003 Scheme the use which is defined as an “educational establishment” falls within the class of “community uses”. The Site is located within the Neighbourhood Residential Zone and, within that zone, is within the Escarpment
Residential Precinct.
Of direct relevance here is consideration of several Desired Environmental Outcomes (“DEOs”). Aspects of the relevant ones will be considered, in turn.
DEO 1 (Economic Development) is that Toowoomba is a regional centre with a diverse economic base that builds upon the city’s strengths in manufacturing, “education”, community and health services, retailing and commercial activity, and provides a wide range of regional and local employment opportunities.
DEO 1 is supported by Centres Strategy 2.2.1(8) which provides for clustering of non-residential uses (retail, commercial, “community” and recreational) - “apart from those that may require large areas of land such as churches” - into “community nodes” to encourage community identity and develop economic synergies “rather than disperse them throughout” residential areas, adding that the community nodes consist of the Centres identified in the Suburban Centres Zone along with the adjacent Suburban Centre Support Precincts.
DEO 2 (Liveability) is that Toowoomba has safe, distinctive and attractive urban areas in which residents have good access to open space, services and facilities, and employment, a range of housing options, and opportunities for social interaction. Among the Strategies supporting this DEO are 2.3.1(1) and 2.3.1(4). The former refers to allocating sufficient land and establishing reasonable development standards and densities to allow housing and lifestyle choice and to enable provision of affordable housing, being reflected in the provisions, relevantly, for the different residential zones, with the Neighbourhood Residential and Residential Conservation Zones identifying areas “preferred” for “predominantly” low density housing, such areas also supporting the city centre by their close proximity: see paragraph (a). The latter refers to improving the “amenity” of the “residential” and other areas of the city “by”: directing “non-residential” uses to the Centres, industrial areas and “specific residential precincts” where location aspects are either most suitable “for” such “uses” (for example, the tourist residential precinct) or where the locations are undesirable for residential activities because of amenity issues [paragraph (b)]; and establishing a “Road Hierarchy” to “minimise” the intrusion of through traffic into residential areas and to improve the accessibility and public safety of activity nodes [paragraph (c)].
DEO 3 (Infrastructure Provision) is a city in which the efficient, timely and environmentally acceptable provision and maintenance of engineering, “community” and transport “infrastructure” occur in ways that “meet community needs” and ensure the sustainable use of resources. Strategy 2.4.1(6), supporting that DEO, states that it is to ensure that the transport network is safe, accessible and convenient to use and achieves: minimal conflict, congestion and community severance; pedestrian, cycle and vehicle connectivity; high-capacity, secure freight movement; and maximum public transport opportunities.
DEO 4 (Natural Environment) is a city where: ecologically or visually important areas and remnant bushland are conserved or rehabilitated; the creeks and their ecological processes are conserved or restored; the impacts of land uses and development on water catchments are minimised; development is sensitive to the physical attributes and environmental capacity of the land; and high standards of water, acoustic and air quality are maintained. Strategy 2.5.1(6), supporting that DEO, refers to encouraging a reduction in private motor vehicle use and an increase in public transport use, walking and cycling to conserve energy and reduce environmental impacts “by”: “clustering non-residential activities”; ensuring that sub-divisions facilitate safe and convenient walking and cycling routes; ensuring that employment, recreation and “community facilities” are located in close proximity to residents’ homes; and facilitating increased residential densities near public transport routes, public open space and Centres.
With respect to the Neighbourhood Residential Zone, the Intent of the zone provides, relevantly, by Statement of Intent 4.6.1(1)(a)(i), that it is the development “primarily” of detached housing with the “predominant use” (amongst other ones irrelevant for present purposes) being houses on lots of greater than 500 m2 (subject to irrelevant exceptions). Statement of Intent 4.6.1(1)(f) provides that the actual intent is the establishment of “community uses” “only” where indicated in the “following” precinct intents [see sub-paragraph (i)]; or “as a preferred use” in a Structure Plan: see subparagraph (ii). There is no relevant structure plan here.
With respect to the Escarpment Residential Precinct – being a precinct within the Neighbourhood Residential Zone – the Intent, by paragraph 1(b), is for the provision of a “transition” between the general neighbourhood residential zoned land and the more environmentally sensitive land on the escarpment. There is no relevant indication in the “intent” for the establishment of any “community use”.
Within the General Development Code, potentially relevant Performance Criteria are P8, P9 and P14.
Within the Development Works Code, a potentially relevant Performance Criterion is P23.
Within the Parking, Transport and Servicing Code, potentially relevant Performance Criteria are P1, P5, P8, P9 and P12.
In Chapter 4, Part 1, which covers “Interpretation”: 4.1(5) states that a footnote, endnote or any other matter headed “Note(s)” is not part of the planning scheme; 4.5.2(2) states that, in the Zone Assessment Tables, impact assessable uses that are generally considered “inappropriate” and “not preferred” are indicated by an asterisk; and 4.5.2(3) states that uses designated “not preferred” are not prohibited in the applicable zone.
State government policy concerning education
Beginning in 2015, there may be a change in the State government policy that would cause Year 7 to move from primary school education to high school education. This is dealt with in the relevant White Paper (Exhibit 30) which refers to a proposed amendment to the Education (General Provisions) Act 2006 (Qld) to effect such a change. Such an amendment has not yet been made. The TRC argues that, post-election, there is no evidence that this remains government policy. While the TRC aruges that no weight should be given to the proposal, as a published White Paper it should not be ignored, although the determination of the application is primarily concerned with the present position.
The evidence given at trial by Mr Bradfield, the principal of the existing MECC primary school, is that there would be 25 fewer students than had been planned for, if Year 7 were to be lost. Nevertheless, MECC, in the written Outline of Submissions does not seek to amend what has been applied for – namely, approval of 200 student places after all 3 stages – contending that it would ultimately be a matter for MECC as to whether that full complement of students would be achieved or not. That approach, effectively, sidelines the issue of the White Paper consequences.
Accordingly, while it must be within the Court’s contemplation that it is possible that the primary school at the Site, if approved, would only have students to Year 6, in terms of the effect of the number of individuals, the proposal over the 3 Stages must be taken as an unchanged one (i.e. dealing with 50, 100 and 200 students, respectively).
Remaining issues in dispute
Although the Revised Reasons for Refusal assert many areas of dispute, following upon the Joint Expert Reports in various disciplines, as well as the evolution of issues during the hearing, the following issues remain in dispute:
(a) with respect to the 2003 Scheme, whether the approval of the development application would compromise the achievement of DEOs 1, 2, 3 or 4;
(b) if “no” to (a), with respect to the 2003 Scheme, what, if any, is the nature and extent of conflict that exists between that scheme and the development application;
(c) if “yes” to (b), whether there are sufficient grounds justifying a decision to approve the development application despite any such conflict;
(d) what weight is to be afforded to the 2012 Scheme and what is the effect of giving it such weight; and
(e) whether any, and what, traffic or amenity concerns warrant refusal of the development application.
There are no live issues concerning bushfire risks or general noise impacts given that MECC would accept the conditions suggested by the bushfire and acoustic experts if the court were otherwise to allow the appeal. In stating this, there are amenity aspects concerning traffic noise which will be dealt with in the discussion of traffic-generated amenity concerns.
2012 Scheme
Potentially relevant provisions of the Strategic Framework of the 2012 Scheme are:
(a) Section 3.2.1(3);
(b) Section 3.2.1(5);
(c) Section 3.2.1(8)(v);
(d) Section 3.2.1(9);
(e) Section 3.2.3.1(1);
(f) Section 3.2.3.1(3);
(g) Section 3.2.4.1(3);
(h) Section 3.4.8.1(4);
(i) Section 3.4.1(7); and
(j) Section 3.8.4.1(2).
In the 2012 Scheme’s provisions that deal with the Residential Living Zone – which would be applicable to the Site – an educational establishment would be a “consistent” use, rather than having the “not preferred” status it has under the 2003 Scheme, though its fuller terms will be examined later.
“Need” for proposed development
Although this essentially arises for discussion when conflict, if any, has been determined to exist, it is appropriate to discuss it at this stage because its existence, or otherwise, also provides a general informative background to the matters which will concern the Court here.
Carter QC DCJ in Skateway Pty Ltd v Brisbane City Council & Anor[2] and Skoien DCJ in Cut Price Stores Retailers Ltd v Caboolture Shire Council[3] (at 131), cumulatively, observed that “need” in planning terms is a relative concept and, although firstly a community need, is always subject to other considerations of the town planning kind, noting that “need” does not mean pressing need, critical need, widespread desire, or anything of that nature, since it connotes the idea that the physical wellbeing of the community (or some part of it) can be better and more conveniently served by providing the means of ensuring the provision of that facility. It must be noted that Carter QC DCJ, in reference to considerations of the town planning kind, included the consideration that the wellbeing of a community also depended “significantly” on an “acceptable” residential amenity.
[2] [1980] QPLR 245; (1980) 1 APA 417 (at 423-4).
[3] [1984] QPLR 126.
In terms of the approach of the authorities when assessing a need for a “community use”, while clearly subject to the application of the general principles, such a use must, as has been consistently recognised, have the effect that a latent unsatisfied demand for such a facility may well be a matter of greater significance to the community in question than those needs that are referrable to the obtaining of such things as petrol or reaching a cinema complex: see, for example, the observations of Wilson SC DCJ in Isgro v Gold Coast City Council[4] at 419. As addressed by Brabazon QC DCJ in Webster v Caboolture Shire Council[5], the need for a community use may be significant when considering amenity concerns, because sooner or later some part of the community “must make a sacrifice”, with the degree to which the amenity is harmed being compensated for by the possible proximity of the lawful use: at 369 [143]-[144]; 475 [143]-[144].
[4] [2003] QPELR 414.
[5] (2008) 167 LGERA 342; [2009] QPELR 455.
As both parties concede, there is some need for a private non-denominational primary school. But the authors of the Need JER, Mr Brown and Mr Perkins, respectively for the appellant and respondent, could not agree about the strength of that need. Nevertheless, they both agreed that the character of what MECC could provide was “highly specific” in that it represented “a highly differentiated school offering a clearly different approach to early learning and education”.
For his part, Mr Brown’s views were that:
· there is evidence that the need for non-denominational school places in Toowoomba will increase through to 2031 and that MECC presently conducts the only secular non-state primary school in Toowoomba;
· the differentiated nature of what is offered limits the extent to which other schools are substitutes;
· at least one other significant non-state school option in Toowoomba, Toowoomba Grammar School, only offers education for boys; and
· the school catchment for the MECC School would be based around the geographic location of the proposed school.
The last of those views is strongly contested by Mr Perkins. It is his view that the school catchment is not strongly correlated with the geographic location of the proposed school.
The differences between the views to a large extent revolve around the interpretation of Exhibit 18 (which is a map on which markings have been made of the residences of actual enrolled attendees of the school and of those on a waiting list).
The reason why Mr Perkins created Exhibit 18 was to seek to demonstrate that Figure 2 attached to the Need JER could be misleading without further explanation.
As with any statistics, it is possible to overstate the importance of what the statistics really show.
Even putting to one side the concessions in the cross-examination of Mr Perkins concerning the incorporation of kindergarten students into Exhibit 18 when he did not appreciate that such students did not attend a site that was in Rangeville, it does not seem productive to assert, as the MECC does, that a “majority” of currently enrolled students are resident in “Rangeville or one of the surrounding suburbs”, particularly when those surrounding suburbs constitute at least 25% of the total number of the City of Toowoomba’s suburbs. This is particularly so where the “majority” of students, even on those terms, is still only some 52.3%.
In dealing with the Neighbourhood Residential Zone, and the Escarpment Residential Precinct within it, the conclusion that can be reached with respect to the potential school catchment is that it is not significantly locally based. Thus, while an expansion of the existing MECC school to an additional premises at South Street might well benefit the general community of Toowoomba, the particular locality is not only on the geographical edge of the suburbs of the City of Toowoomba but also draws a significant proportion of both currently enrolled students and potential students from a scattered number of suburbs in Toowoomba, and even places outside it.
Accordingly, while I find that there is a need, in the planning sense of that term, the school is not - to use the words of the Outline of Submission of the TRC - “location dependent”.
This means that in utilising the need for such a community use, where amenity issues also arise, there is some significance lost on the needs side, at least when utilised as a potential factor to overcome amenity concerns.
“Compromise”
The quite recent Court of Appeal decision in Lewis v Townsville City Council[6] explores what a “compromise of the achievement” of desired environmental outcomes for a planning scheme area would involve. McMurdo P (with whom Muir JA and Douglas J agreed), made the following important points:
[6] [2012] QCA 99.
· the terms of s 3.5.14(2) make clear that the Legislature intended that decisions on development applications distinguish between, on the one hand, applications that compromise the achievement of relevant DEOs and must be refused and, on the other, developments which conflict with the planning scheme but where sufficient planning grounds may exist to justify the approval despite the conflict;
· while the terms “compromise” and “conflict” are not defined in the IPA, they are to be given their ordinary meaning in the context of the provision (which clearly contemplates that an application which compromises is more serious than one which conflicts);
· thus, in that context, compromise means “to endanger the integrity of” the DEOs (being a construction which is consistent with compromise being used synonymously with “threaten”);
· a development application which cannot exist together with the achievement of a DEO must compromise the DEO;
· it is trite to state that the compromise of significant strategies by which a DEO is to be achieved may amount to a compromise of the achievement of that DEO; and
· there was no reason to conclude that the judge at first instance there considered only whether some “strategies” to achieve those DEOs were compromised “rather than whether the achievement of those DEOs themselves were compromised”;
: at [52] – [58].
“Conflict”
In the Queensland Court of Appeal decision in Woolworths Limited v Maryborough City Council (No 2)[7] it was observed by Fryberg J that “conflict” in the context of s 3.5.14(2)(b) means to be at variance, or disagree with, describing a quality of a relationship between the decision and the scheme, implying “no particular impact” by the decision on the scheme: at 286 [23]. He added that a determination that there has been a breach requires the identification of the decision, the identification of some part (or parts) of a scheme with which the decision might be said to be in conflict, and a decision whether the former conflicts with the latter: also at 286 [23]. He also noted that this provision differed in several respects from provisions which may be regarded as its predecessors, where such differences mean that care must be used in applying cases decided under those earlier provisions when considering that provision: at 286 [24]. As to the question of justification, he held that it would require the identification of planning grounds which might justify the decision and the determination of their sufficiency to do so, with regard doubtless being had as to the nature and extent of the conflict: at 286 [25].
[7] [2006] 1 Qd R 273.
Construction of Planning Schemes
The document that constitutes each of the 2 planning schemes should not be read too narrowly but, rather, should be construed broadly rather than pedantically and with a sensible, practical approach: see, for instance, Yu Feng Pty Ltd v Maroochy Shire Council[8] at 340-342.
[8] [2000] 1 Qd R 306.
Also important is the comment by Wilson SC DCJ (as he then was) in Luke & Ors v Maroochy Shire Council[9], with attributed citation, that modern planning schemes are drawn with far less precision than statutes, and often express themselves in broad terms: at 457 [46].
[9] [2003] QPELR 447.
Compromise of the DEOs?
TRC has not put in issue the submission by MECC that there are no live issues about bushfire risk, or general noise impacts, subject to MECC accepting the conditions suggested by the two experts in the JER on those disciplines, if the court were otherwise to allow the appeal.
Additionally, TRC’s written submissions do not raise any arguments concerning a compromise of a DEOs 3 (Infrastructure Provision). Even so, I will canvass the arguments why MECC contends that no compromise is involved of it.
I will defer, for the time being, the submission by MECC that, if I do find a compromise of one, or more, of the contested DEOs, then the development application can be approved nonetheless because s 3.5.14(2)(a) purportedly operates independently of the statutory power given by s 4.1.52(2)(a).
DEO 1
It should be noted that DEO 1 (Economic Development) mentions education services in reference to the diverse economic base that Toowoomba has, with such services, among others, being the City’s “strengths”. Also, importantly, it refers to that economic base as providing “a wide range of regional and local employment opportunities”.
It is in such a context that the Centres Strategy 2.1.1(8) refers to clustering non-residential uses into “community nodes”. “Educational Establishment” is a “community use”: see the Definitions in Chapter 3, 3.2.4. Such clustering is to “encourage” community identity and develop economic synergies, rather than disperse such uses throughout residential areas. Other community uses include a childcare centre, a community club, a community facility (such as a library or community hall) and a licensed club. Further, the term “community nodes” is not defined, although this Strategy references what they “consist” of.
MECC’s argument is that the reference to the exception carved out for church use (requiring large areas of land) should apply equally to this proposal, noting that the Site is almost 1.7 hectares.
To the contrary, the TRC’s argument is that the proposal does not “require” a large area of land, particularly where it would merely utilise it since it would be available. Further, it argues that the development would lead to a more dispersed pattern of non-residential uses, adopting conclusions by Mr Perkins in his own report (Exhibit 17) that the site: is not contiguous with any other non-residential development; is located on the eastern fringe of Toowoomba’s urban settlement in the lowest density residential zone; is located in an area that is not planned to accommodate economic development; is not conveniently located with respect to access; and does not achieve the Intent of the Centres Strategy which is to “encourage community identity … rather than disperse (non-residential uses) throughout residential areas”.
First, the encouraging of community identity arises from general clustering into community nodes and not simply from dispersal of one or some non-residential uses. Secondly, there is a composite idea which both encourages community identity and develops economic synergies; and, in that composite way, favours non-dispersal. Here, where it can be seen that exceptions can exist, particularly where large areas of land are involved, it is difficult to see that DEO 1 is threatened in the relevant way by a community use that does not hinder the development of “economic” synergies and may, in fact, be argued to be an encouragement to community identity. That is not to conclude that some aspects of the factors relied upon by Mr Perkins might not be relevant to other issues.
In the end, I conclude that DEO 1 is not threatened.
DEO 2
This DEO covers Liveability.
It should be noted that to achieve the outcome of safe, distinctive and attractive urban areas, it seeks that residents of such areas have good access to, amongst other things, services and facilities. The strategies that are relied upon include establishing reasonable development densities to allow housing and lifestyle choice, which is reflected in the relevant Neighbourhood Residential Zone as identifying an area “preferred” for “predominantly” low density housing. The other strategy in issue is one of improving the “amenity” of “residential” and “other” areas of the City by:
· directing non-residential uses to, relevantly, the Centres and specific residential precincts where location aspects are either most suitable for such uses, or where the locations are undesirable for residential activities because of amenity issues; and
· establishing a road hierarchy to minimise the intrusion of through traffic into residential areas.
The relevant planning experts, Mr Bullen and Mr Perkins, respectively, expressed competing views in the Planning JER. As for traffic, again, there was disagreement between Mr Harris and Mr Holland.
Dealing, first, with the planning aspects, Strategy 2.3.1(1)(a) is directed towards liveability for the residents in urban areas. Where, therefore, it pays attention to housing, it is concerned with both a choice of housing and the provision of affordable housing: here, specifically, low density housing. It is therefore difficult to see that DEO 2, through Strategy 2.3.1(a), is threatened by the proposal which is not concerned per se with housing.
Strategy 2.3.1(4)(b) reflects more the aspect of the attractiveness of various urban areas in which there is to be good access to, amongst other things, services and facilities. As the terms of this part of the strategy make relatively clear, it is to “improve” the “amenity” of the relevant residential area. Although amenity is involved, the only aspect which appears to be relevant is whether there is a location aspect that is “undesirable” for residential activities “because” of amenity issues. Given that what we are concerned with here is a school, it is difficult to see how the level of such amenity issues, even here, gives rise to “undesirability” for residential “activities” so as to threaten liveability, especially where access to services and facilities is stressed.
Finally, concerning Strategy 2.3.1(4)(c), there can be little doubt that the road hierarchy has traction where it is clear that significant additional traffic will be introduced into the predominantly low density residential area and may have an effect which would not “improve” the amenity of it. Although this road hierarchy talks about “through” traffic, its generalised terms need no great broad interpretation to encompass an intrusion of external traffic into such a residential area.
Apart from the disagreement between Mr Harris and Mr Holland about the interpretation of what “through traffic” means, the wording is nonetheless apt to stress a minimisation rather than a prohibition. Although – as will be developed later – there are concerns about the level of traffic, and its effects, particularly amenity effects, I conclude that disconformity with Strategy 2.3.1(4)(c) is not sufficient to threaten the outcome of DEO 2.
Finally, since “notes” are not part of the 2003 Scheme, a reliance upon such a note [which appears at page (iii) of the Notes to Chapter 2], stating that “non-residential uses in residential areas should not introduce significant amounts of external pedestrian or vehicular traffic into the neighbourhood”, not only raises a problem of what “significant” means in that context but also appears to add nothing that does not already appear clear in the Strategy itself.
DEO 3
Since only MECC has made submissions on this DEO concerning Infrastructure Provision, I will be brief in discussing it.
As is abundantly obvious from the nature of the DEO, this deals with the provision of infrastructure. In particular, it refers to the provision of community infrastructure occurring in ways that meets community needs. As for the Strategy which becomes a factor, it relies upon “transport” infrastructure.
If one were to focus upon the relevant paragraphs (a) to (d), inclusive, of Strategy 2.4.1(6), then it might appear that some of those elements there are referable to the present development application. But taking a step back in order to ascertain what Strategy 2.4.1(6) is attempting to deal with, it refers to a safe, accessible, and convenient-to-use “transport network which “achieves” those factors.
I conclude that the contended factors are not relevant here. Accordingly, the achievement of DEO 3 is not threatened.
DEO 4
This outcome is directed towards the natural environment.
Taking DEO 4 at its word, it is difficult to see how this particular development application has relevance for the DEO. For instance, there is no suggestion that any specific aspect of the DEO itself is threatened.
Nevertheless, Strategy 2.5.1(6) is relied upon by the TRC.
The TRC’s submission is that the proposal involves the insertion of a non-residential use, not into a cluster, but into a Low Density Residential Area in a location that would require all additional traffic to drive through that Area to reach the Site on the eastern “fringe” of it, in circumstances where the proposal would rely almost entirely on vehicular traffic (quoting Mr Harris to the effect that the proposed school is “unlikely to generate many, if any, students walking or riding to school”).
MECC’s response is that, reading all of the DEOs together (where some expressly contemplate non-residential activities being located outside clusters), the mere fact of a location outside a cluster does not threaten the achievement of DEO 4.
As to the method of the arrival of students, MECC’s submission is that the proposed installation of a footpath on the northern side of South Street would encourage walking and cycling. Additionally, it is submitted that an effect of the proposed development on the Site would be to ensure that this community facility is located “in close proximity” to residents’ homes in Rangeville. Of course, that loses some impact when there would appear to be a comparatively minor proportion of the potential pupils within the specific catchment area constituted by the suburb of Rangeville.
With respect to this DEO, it is difficult to see how the “natural environment” is threatened by this proposed development. While there will not be any reduction in private motor vehicle use and, from the evidence led, not much of an increase in public transport use, it should be noted that those matters are sought to be “encouraged” for the purpose of conserving energy and reducing environmental impacts. Thus, overall, in my view, no threat has been established to this DEO.
Conflict with Planning Scheme provisions?
As analysed earlier, after identification of each variance, it is necessary to see whether there is an overall justification, given the nature and extent of the variances, grounded in sufficient, identified planning grounds.
MECC has contended that some of the asserted conflicts identified in the Revised Reasons for Refusal should not fall for consideration by the Court. In particular, it identifies within the Parking, Transport and Servicing Code, Performance Criteria P1, P5, P8, P9 and P12, other than those expressly dealt with by Mr Holland in his evidence. Since the TRC has not addressed those Performance Criteria in its written Submissions, I am content to conclude that that contention is correct. Accordingly, I will no longer consider that aspect.
Similarly, since the TRC has not seen it necessary to address the Performance Criteria P8, P9 and P14 in the General Development Code and Performance Criteria P23 in the Development Works Code, I can discern no basis that otherwise exists in the evidence which would require me to undertake an analysis of such Performance Criteria within their respective Codes.
Thus, left in the asserted areas of conflict are the Statements of Intent with respect to both the Neighbourhood Residential Zone and the Escarpment Residential Precinct. Both parties have met head on with respect to these issues. They will be dealt with now.
Alternative sites
Before canvassing the areas of conflict, it is necessary to deal, briefly, with the matter of an alternative site.
In the Need JER, Mr Perkins, called as a witness for the TRC, suggested a possible alternative site at the corner of Peak Street and Drayton Road, Harristown. At the request of the second co-respondents by election, that site was visited on a view undertaken by the Court on 8 May 2012.
Regarding the availability of that site for purchase, the co-respondents forwarded to the Court a document purporting to be signed by a co-owner of the relevant land that the land was for sale. Before considering what I should do with that document, I caused a communication to be sent to all parties seeking whether the proposed document should be admitted by consent. While the TRC had no objection, since MECC, though agreeing to it being received into evidence, argued that the relevant document should be given little weight, I have admitted it as an additional exhibit, subject to that consideration.
But even though it is in evidence, in considering the impact of other potential locations, I conclude, consistently with Durward SC DCJ in Morris Corporation Pty Ltd v Whitsunday Regional Council[10], that, at the end of the day, alternative sites are irrelevant because the appeal is about a development on the subject site and nowhere else: at [226]. I also agree with his further conclusion that it is not the function of this Court to determine whether other sites do or do not exist, to enquire whether they are any “better”, or to enquire, for instance, about the reasons a particular site was purchased for the development: also at [226]. Thus, its weight need not be determined. The problem that is otherwise confronted is that the same thorough exercise should be undertaken for every such site in the way done for this site. That, of course, might well prove not only expensive but neverending.
[10] [2011] QPEC 129.
Conflict concerning Statements of Intent
The two Statements of Intent have been outlined earlier.
The basis of TRC’s submission is: that the proposed development is squarely in conflict with the Intent of the Zone; that that conflict is a major one; and that “community uses” are to be established only where indicated in a Precinct Intent, or as a “preferred use” in a Structure Plan.
As the TRC observes, it is common ground that there is no Structure Plan referrable to the Site. Thus, as can be seen from an examination of the Zone’s Statement of Intent, in the context of this proceeding, it simply directs attention to the establishment of such a community use “only” where it is indicated in the relevant Precinct Intent.
Turning, then, to the sole relevant Precinct, the Escarpment Residential Precinct, its Intent, insofar as it addresses a community use at all, potentially falls to be triggered only by the provision dealing with a transition between the general neighbourhood residential zone land and the more environmentally-sensitive land on the escarpment. Despite the contentions of MECC to the contrary, this proposed development does not come within the concept of a “transition” as characterised by that relevant Intent, despite the arguments by Mr Bullen to the contrary. Even if its characterisation could include such a community use, I accept the contentions from the TRC that there would be an intensification of built form and activity which would exceed the kind of building otherwise within the Statement of Intent of the Zone; and, therefore, it could never, in fact, constitute a transition to the more environmentally sensitive land on the escarpment, it being a fair reading of the scheme that that Precinct is not to be developed as intensely as other Neighbourhood Residential Land outside that Precinct. Therefore, there is no applicable “Precinct Intent” either.
Accepting, then, there is a conflict, what is the nature and extent of it?
Mr Bullen, on behalf of the appellant, asserts in the Planning JER that the conflict is “not extreme”: see paragraphs [83], [84], [89] and [91].
It can be accepted that:
· of all the non-residential uses that could be introduced, this proposal is less intrusive than most, particularly since it is not a tavern or a cinema complex;
· the school would operate only on a limited number of hours, for a limited number of days of the week, and for a limited number of weeks of the year; and
· traffic would not flow to and from it at all times, but rather would be confined to drop off and pick up times only, which might well be comparatively brief.
Despite that, the significant issues are traffic and the impact (both generally and traffic-wise) on residential amenity and, less significantly, on residential character.
Because this conflicts’ dispute has many aspects, I will deal with each of them in separate sections.
Street traffic
As the evidence became clearer during the trial, Mr Holland, a traffic engineer called on behalf of TRC, outlined two significant differences between his views and that of the traffic engineer called by MECC, Mr Harris. Those differences were: the impact of traffic on South Street; and the implementation of the strategies put forward by MECC to manage on-site car parking (such as staggered start and finish times, and the shuttle bus).
It should be observed that the differences did not extend to the “workability” of South Street from a traffic operation perspective (namely, the ability of the surface to carry the number of vehicles expected) or the safety of the operation of South Street, even with the expected number of vehicles to be generated by the whole of the proposed development.
Starting from the agreed standard number of 300 vehicles per hour for a street such as South Street, both experts agreed that the peak would exceed that figure. The qualification expressed by Mr Harris was that the figure of 300 would not be exceeded at every peak hour. As to the actual number, the projection was necessarily statistical. Even so, since Mr Holland based his projection on traffic counts both to the east of the South Street/Rowbotham Street intersection and the east of the South Street/Roadway Crescent intersection, I am of the view that his projection is to be preferred.
As to the effect of an approval of Stages 1 and 2 only, it was the evidence of Mr Harris that that would reduce the traffic numbers by some 20%. There was no disagreement advanced by Mr Holland as to that figure. But such a reduction would lower both sets of figures (separately produced by Mr Holland and Mr Harris) to below that standard number of 300.
The other significant impact of the traffic was claimed by the TRC to be on residential amenity, notwithstanding that the noise generated by the additional traffic might comply with the road noise traffic criteria.
While there was some dispute about whether Mr Holland had the expertise to comment upon the impact of traffic on South Street in so far as it may have an impact on amenity, MECC correctly points out that Mr Holland was not able to isolate any particular aspect of amenity about which he was particularly concerned. Even so, even apart from Mr Holland’s views, it does concern this Court.
For the moment, the concentration is upon the impact of traffic noise and traffic presence on amenity. It is, of course, not to the point that the additional traffic which would be generated would comply with the accepted road noise traffic criteria if, as would be the case, there would be a significant increase in vehicular traffic along South Street to the subject site compared with that already being experienced. The concern is with the extent of that impact in this Zone and this Precinct.
As noted earlier, the school would operate on week days (with the limited exception of 1 or 2 Saturdays per term and then for 40 weeks of the year only). In addition, the operating hours of the school would be from 8.00am to 5.00pm, with limited exceptions of 2 evenings per term. In particular, after school traffic would only be noticeable to neighbours who were not at work during the day time, since it would occur during business hours.
The evidence of Mr Perkins, a Town Planner called by the TRC, was to the effect that the traffic increase would have a significant impact on residential amenity.
MECC contends that the amenity impact which will be caused by the increase in traffic twice a day on school days is of a limited nature. The basis relied upon is that the character, perception, or “feel” element of amenity does not apply to a school and the proposed use (limited only to drop off and pick up times on school days) means there will be little traffic generated at other times, in contrast to the use of a tavern or cinema complex (both of which would operate well into the night and most days of the year).
I have also had occasion to consider the evidence of the residents (Exhibit 19) in so far as they refer to traffic. The opposition is often expressed in terms of a “huge” increase, or of a hearing of every car passing, of every car door closing, and of every person talking. Some express concern about multiple shuttle bus runs twice per day or looking for, when reversing, school children on bikes or a “copious amount” of extra traffic. And yet others refer to exposure to motor car emissions.
While these are, undoubtedly, very strongly felt concerns, I do accept that, particularly if Stages 1 and 2 only proceed at this time, the anticipated disruption imagined will prove to be significantly overstated. Nevertheless, there is a genuine, rational concern about traffic effects. Before moving further, it becomes necessary to consider whether only part of the development application can be approved.
Approval of “part” only of Application
The Court of Appeal in SLS Property Group Pty Ltd v Townsville City Council[11] endorsed “part only” approvals where it is apparent that the separate parts are “not mutually dependent”: per Keane JA at 141 [13]. As he observed, when the evident possibility eventuates that, in conformity with s 3.5.11(1)(b) of the IPA, only an initial stage might be approved, what is then approved is not a changed application: at 141 [14].
[11] (2009) 175 LGERA 136.
With respect to the argument that deletion of aspects comprised in the other stage of the application may have affected members of the public who might have been minded to oppose the application were it not for the prospect of approval of that stage, Keane JA held that the argument assumes that members of the public who are interested in the application would not have appreciated the possibility that only one stage would be granted, with such an assumption doing little justice to the discernment of members of the public: at 141 [15].
Arising from that statement of principle, the first matter that is clear is that there is no mutual dependence between a combined Stage 1 and Stage 2, and Stage 3. Stage 3 can simply be excised from consideration if that is should be determined that that is the appropriate course to follow.
The real concern that I have in this case about Stage 3 is that the additional traffic associated with that stage would lead, by the implementation of it, to the likelihood of an unacceptable impact on the amenity of the residents of South Street – the general nature of which is discussed in more detail later. As earlier noted, the reduction in student numbers from 200 down to 100 would have an obvious positive impact on amenity considerations, which includes reducing the actual traffic numbers by some 20%.
Additionally, it is clear from the Traffic JER that both Mr Holland and Mr Harris agreed that the car park demand should be “reviewed” before either Stage 2 or Stage 3 was implemented, although Mr Holland, in cross-examination, conceded that it would be his expectation that if there were to be a problem, it would primarily occur at Stage 3, or prior to Stage 3. That concession raises a further major concern with Stage 3 that I find would, perhaps even of itself, deny a justification to permit approval of Stage 3 despite all identified conflicts.
Hence, I intend to proceed to consider the conflicts issues on the basis that Stage 3 will not be approved at this time should approval otherwise be determined.
Other traffic issues
The second aspect of the traffic concerns is on-site car parking.
The measures that have been proposed to manage car parking impacts include:
· a staggered start and finish time for classes in Stage 2 and Stage 3 of the proposed development;
· a shuttle bus between campuses for Stage 3 only; and
· the implementation of “kiss and go” car parks.
It must be recognised that the shuttle bus proposal contains an implicit commitment to continue to operate the Bowtell Street campus. It is also dependant on Stage 3 approval, which is excised from this further consideration.
I agree with the submission for MECC that, despite the scepticism of Mr Holland about the workability of the shuttle bus – which I will deal with next – there is no reason to conclude that the measures outlined could not be successfully implemented, particularly if each was imposed as a condition of the development approval with the effect that non-compliance would constitute a development offence.
Mr Holland’s concerns were with the assumption that of the 200 students to attend the proposed campus 45 of them would have siblings attending the Bowtell Street campus. Mr Bradfield, the principal of the school was not cross-examined about the underlying assumption. That assumption is set out in the individual report of Mr Harris (Exhibit 2) at page 23. During cross-examination of him, Mr Harris gave evidence that he had checked that estimate with MECC and the school’s administrators had raised no issue about it.
Consequently, I conclude that the shuttle bus connection is workable, even though on its face Mr Holland had intuitive concerns about it. It should be remarked that among Mr Holland’s concerns was a self report of his that he could not have got on with his own sister if she was to be in the same class as he. Not surprisingly, that has had little sway in the Court making its decision.
But since, as I have already foreshadowed, Stage 3 ought not proceed at present, then the concerns expressed by Mr Holland disappear from the present consideration. The only other traffic issue concerns the extent of roadside earthworks which would be required to provide an adequate sight line for the distance between the two proposed driveways. Given that Mr Harris measured and identified the sight line that would be applicable, I accept that only minor earthworks would be required to be done to achieve of that end. As for the associated concern about the loss of vegetation on the nature strip “footpath” between those two driveways, its removal, as contended for by MECC, might be beneficial since it has been identified in the Bushfire Management Plan as presenting a potential hazard. In any event, almost all vegetation has been removed in the existing residential frontages in South Street, at least to that point: see, for example, Exhibit 22. So eventual removal would seem to be an inevitable consequence of progress.
The last of the traffic concerns is the matter of an alternative means of access in the event of an emergency. This relies upon s 3.4 of Queensland Streets (Exhibit 24). Properly construed, “Connectivity” relates to vehicular access. Given that interpretation, it has still been submitted by MECC that:
· an alternative route for emergency access is merely stated to be “desirable”, rather than essential, or mandatory.
· whilst the potential route through Podmore Park is seemingly precluded for such use (see Exhibit 35), there would be alternative means of “pedestrian” access available from the Site to the north and then to the west; and
· despite the list of potential emergency situations identified by Mr Holland, the evidence of Mr Harris should be accepted that the most likely risk is from nearby bush fire and that would threaten from the east, leaving South Street as an appropriate means of emergency access.
The second of the submissions canvassed is unsustainable because the concern of the provision is with relevant emergency vehicles such as ambulances and fire and rescue vehicles, and various vehicles and equipment for situations arising from street or services repair. As for the other two matters raised, they do not really alleviate the concerns raised, because “desirable” is a serious matter and many risks may arise despite those most likely. Hence, connectivity concerns might well, if all other aspects were evenly balanced, lead to a conclusion of the absence of justification.
“Amenity”
Before considering the arguments presented concerning amenity, I intend to canvass, briefly, the relevant authorities concerning its meaning.
In dealing with individual perceptions constituting an element of amenity, Thomas J [with whom Connolly J and de Jersey J (as he then was) agreed] held, in Broad v Brisbane City Council[12] that it is inevitable that individual perceptions be received, and evaluated, in the course of ascertaining what the amenity is in a particular neighbourhood and what effect the relevant proposal will have upon it, because, although the ultimate enquiry is an objective one, there is a recognition that it involves wide-ranging and subtle criteria that may affect different individuals in different ways: at 319. The decision also noted that while some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood, others are more elusive, such as the standard or class of the neighbourhood and the reasonable expectations of the neighbourhood: at 320.
[12] [1986] 2 Qd R 317.
Later, in Arksmead Pty Ltd v Council of the City of Gold Coast[13], the Queensland Court of Appeal observed that the concept of amenity is wide and flexible, and intangible factors and subjective considerations may be relevant to a decision on the effect of a proposed use on the amenity of the area affected, making specific reference to Broad: at 355 [3].
[13] [2001] 1 Qd R 347.
Even later, in Luke, Wilson SC DCJ noted that, while the subjective views of residents should never be disregarded, the critical question is the weight to be given to them, noting the remark of de Jersey J in Broad that the court will ordinarily prefer views from residents “which find justification in specific, concrete and likely effects of the proposed development”: at 472 [136]. Further, he held that reasonable expectations are not the sole domain of local residents or, in particular, those who choose to object on the basis of them, especially where other residents have a contrary and perhaps equally strongly felt view in support: at 472 [140].
Community concerns (other than traffic)
The TRC has contended that the evidence of the residents (referred to earlier when considering traffic matters), especially those who live close to the Site, reveal very strongly felt concerns about the changes to the locality’s existing character and residential amenity if it should be that the proposed development is approved and implemented. Noting that reasonable expectations that residents have for their locality must derive primarily from the 2003 Scheme, it was further contended that it is clear in the present proceeding that this locality is “intended” to be an area of Low Density Residential Use without the intrusion of a non-residential use (such as an educational establishment).
Turning, first, to the expressed concerns of the local residents. I note that many, if not most, of the statements which are contained in Exhibit 19 express very strong concerns about the likely decrease in the value of their residential properties. This is, as contended for by MECC, not a proper planning consideration, rendering irrelevant Mr Bullen’s suggestion that any negative effect would be likely to be offset by the positive effect created by potential purchasers who wish to live near to a school. As for the other general amenity concerns expressed there, the recurring theme is one based upon expectation arising from the 2003 Scheme. The problem with that approach is that, simply, on a proper interpretation of that Scheme, the potential has always existed for an application such as this, despite any advice that may have been proffered by any adviser, whether that person be expert or non-expert concerning town planning issues. But the third aspect does have resonance with the principles concerning amenity just analysed. There can be little doubt that, at the present time, this particular area of Rangeville is a relatively peaceful neighbourhood which would be disturbed to some clearly discernible extent by the presence of a school, even one such as this.
Nevertheless, this is not, in any sense, a typical primary school. It is common ground between the relevant experts that the teaching style and the method of running the school differs quite markedly from what might be seen as typical. In particular, there was no evidence which cogently challenged the following “light” amenity impacts:
· the school would not operate a public announcement system, or permit teacher’s whistles or bells;
· there would be no competition-based noise-generating sporting activities, such noise being limited to ad hoc games organised by the children themselves;
· there would be an intention to utilise the peaceful surrounds to encourage calm play activities;
· the school would be visually unobtrusive, reusing an existing heritage building and adding a limited number of new buildings sympathetic to the surrounding environment (which would be invisible to neighbours to the west);
· the car park/turnaround area would not be visible to any existing neighbours; and
· the school would, as noted above, be operated for a limited number of days per year and a limited number of hours per day.
Merely using statistics to create an impression that, since the built school would exist every day of every year, amenity should be based upon a permanent and foreboding presence, both fails to appreciate what the notion of amenity entails and ignores the uncontested matters just addressed.
To the extent that the Court should take into account the properly made submissions received by the Council – which it must – as the accepted principles dictate, “reasonable” expectation is the test. Thus, the mere fact that, of the 893 submissions, there were only 212 in favour, while relevant, is somewhat boosted by an analysis that many of the submissions in opposition were pro forma (74%), or were from persons living outside Toowoomba including a number of people from outside Queensland (25%), and that the TRC received some telephone calls from people who had made submissions, apparently having not recalled making them. The summary by the TRC of the grounds in opposition for the most part reflect, where there is a proper basis to do so, the submissions by TRC here. Necessarily, sheer numbers cannot be the decisive factor, although the Court recognises the depth of the opposition.
Impact of 2012 Scheme
Section 4.1.52(2)(a) of the IPA, insofar as it refers to giving weight to any new laws and policies that the Court considers appropriate, is irrelevant here. As Hervey Bay Council v BGM Projects Pty Ltd[14] has held, this provision is triggered only when “new” laws and policies have been “made”: at 142 [37]. That must await 1 July 2012.
[14] [2009] 1 Qd R 130.
Nonetheless, an applicable principle is that derived from Coty (England) Pty Ltd v Sydney City Council[15]. Fitzgerald P in the Court of Appeal in Yu Feng Pty Ltd v Maroochy Shire Council stated that Coty establishes no more than that, when determining whether to approve or refuse a planning application, it is permissible, in appropriate cases, to take account of any provisions affecting the site which are included in a general planning scheme which is in the course of preparation, with weight to be accorded to either consistency or inconsistency depending upon the circumstances, including the stage to which the draft planning scheme has progressed; and, while it usually will be only one of the factors to be considered, in a particular case it might be decisive: at 62.
[15] (1957) 2 LGRA 117.
In deciding what weight to be given to a proposed planning scheme, Fryberg J in Hervey Bay Council remarked that it will necessarily fall to the Judge who hears the appeal to consider not only the state of the law and policy at the time the appeal is determined but also to weigh considerations of fairness to the appellant on the one hand against issues of public policy on the other in light of any evidence which may be led as to the intrinsic merits of the policy, including evidence about the history of the adoption of the policy sufficient to permit reliance upon the principle in Coty: at [38].
In this case, the 2012 Scheme has, as MECC contends, progressed a substantial distance along the statutory path to approval, now awaiting only formal commencement. I therefore agree – which is really not disputed by the respondent - that it is entitled to significant, but not overwhelming, weight.
The TRC has not put in contest the following submissions made by MECC, namely, that, concerning the Strategic Framework of the 2012 Scheme:
· it plans for significant growth in the region and in the City itself, with some of that growth arising from “emerging energy resources” within the TRC area (some of which were not referred to in the 2003 Scheme), citing ss 3.2.1(3), 3.2.1(5) and 3.2.1(8)(v);
· there is more accommodation of the notion of non-residential uses being located in residential areas, citing ss 3.2.1(9), 3.2.3.1(1), 3.2.3.1(3), 3.2.4.1(3) and 3.4.8.1(4); and
· unlike the DEOs in the 2003 Scheme, there is an express reference to (and therefore an acknowledgment of the importance of) the development of new “private” schools in Toowoomba, citing ss 3.4.1(7) and 3.8.4.1(2).
While the matters just canvassed do represent the contemporary thinking, strategically, and while it concerns a more modern Toowoomba than that for which the DEOs in the 2003 Scheme planned for, the significant weight that I give to the Strategic Framework in Part 3 of the 2012 Scheme is, necessarily, limited to those aspects about which there is present conflict.
There is nothing in guiding authority which would permit this Court to approve of the development application if it were to be otherwise found that any of the relevant DEOs was compromised. Accordingly – although it is unnecessary to decide it - I do not accept that any relevant application of s 4.1.52(1) could exclude, even if significant weight were to be given to the 2012 Scheme (as a Scheme that had been made), the DEOs in the 2003 Scheme. But, if I were to be wrong about that, then I do not accept that the weight that I could give to that Scheme is such that it would, in the application of the Coty principle, lead to that exclusionary affect. This is primarily because those particular sections in the Strategic Framework would not be sufficiently specific to enable such weight to be given so as to effect an operation of them independently of the effect of s 3.5.14(2)(a) of the IPA.
I do accept that the provisions with respect to the new Residential Living Zone, which is applicable to the Site, makes an Educational Establishment a “consistent” use rather than giving it the “not preferred” status it has under the 2003 Scheme. For this reason, I think it is appropriate to give significant weight to that aspect of the proposed Scheme, although limiting its effect to considering the existence, or not, of a justification on planning grounds to approve the development application despite all the identified conflicts.
“Sufficient” grounds
Besides the analysis already undertaken as to what the applicable principles are for the determination of conflict, it is appropriate to add that, under the SPA, the Chief Executive administering the SPA has published a Statutory Guideline (05/09) “Sufficient grounds for decisions that conflict with a relevant instrument”.
That Statutory Guideline was made pursuant to s 759(1)(a) of the SPA. It identifies some examples of what might constitute sufficient grounds. While the Statutory Guideline expressly states that the list is intended to be a guide only and is not intended to be exhaustive, considering that the term “grounds” is defined in Schedule 10 of the IPA (which is expressed in terms not materially different from the terms in the definition in the SPA), it is appropriate to pay heed at least to some of the identified sufficient grounds. They include:
· whether a “development instrument is out of date”, with an example being given of a particular planning scheme being due for review and not reflecting current planning trends and principles, such as design principles, methods for addressing climate change and demographic shifts; and
· whether the relevant instrument inadequately addresses development.
I am not particularly convinced about the first of those grounds, other than the generality of the view that the 2003 Scheme was due for review, and the fact that a primary school becomes a consistent use, though with important riders. But the second ground I find to be much more of appeal. There is no doubt that both Mr Brown, for MECC, and Mr Perkins, for the TRC, accepted that the 2003 Scheme made little provision for the establishment of new schools. Further, as has just been canvassed, the 2012 Scheme moves a school such as this to a more important position in the new Zoning arrangement. But, as further canvassed later, there are negative impacts from the riders imposed under this new Scheme.
In his individual report Mr Brown identified the fact that the 2003 Scheme did not provide obvious opportunities for the establishment of new schools anywhere in the city: see Exhibit 3 at paragraph [6.102]. For his part, Mr Perkins, in the Planning JER acknowledged difficulties in forward zoning of land for new schools and, in cross-examination, acknowledged that, of the 49 sites that the 2003 Scheme identified for schools, most, if not all, were already occupied by existing schools at the date that earlier Scheme commenced.
The Court’s position on “sufficient grounds”
There are 7 identified areas advanced by MECC as constituting sufficient grounds to approve the development application despite conflicts with the planning scheme. Even though the written submissions of MECC do not deal with all the 7 areas, since they were raised in evidence, I will deal with each of them, in turn, recognising the more detailed earlier discussion concerning them.
First, is there a need for the proposed development?
I accept that there is a relevant need for this private, non-denominational school, particularly because of the differentiated nature of what it offers. The additionally claimed benefit of the location of the two related school campuses being nearby to one another, thereby saving members of the public significant separate trips, is much less significant than the issue of choice. But the mere expression of a preference for a further campus close by would not constitute a relevant “ground” to the extent to which it simply reflected the personal circumstances of MECC, as original applicant.
For present balancing purposes, the significance of need is lessened because of the conclusions I have reached on it not being location dependent. Even so, it does provide a ground which still must be considered with others as to whether, overall, sufficient grounds are established.
Secondly, does the proposed development provide for conservation and sensitive reuse of a State Heritage Listed premises?
I accept the characterisation by TRC of this potential ground as being the absence of a negative impact. Hence, I do not consider it is an appropriate consideration for present purposes.
Thirdly, does the proposed development provide for the protection and ongoing retention of the natural and environmental values of the subject land?
Again, I accept the submission by the TRC that the absence of a negative impact on the landscape of such values of the subject land is not a positive planning ground.
Fourthly, does the proposed development facilitate an appropriate transition between residential and environmentally sensitive areas?
As I have also indicated above, this Site does not fit into the notion of a “transition”.
Hence, it will also be excluded from this consideration.
Fifthly, is the 2003 Scheme out of date and not fully and properly making provision for the future educational needs of the Toowoomba community?
The problem here for MECC is that the 2003 Scheme does provide for educational establishments in various Zones and within certain Precincts in certain Zones. It is, as also discussed, not a preferred use within this particular Zone and this particular Precinct covering its particular proposed positioning in South Street, Rangeville.
But it is not a prohibited use and, hence, is able to be the subject of a proper application for a material change of use.
Because of the imminent commencement of the 2012 Scheme, significant weight is to be given to the treatment of this proposed use in this area by the Strategic Framework provisions of that Scheme. The first obvious change is that the analogous Zone changes the potential use for such a school from a non-preferred one to a consistent one. But that change contains riders pursuant to Part 6.2 and Table 6.2.1:2(PO2) such as: “directly” supporting the day-to-day needs of the “immediate” residential community; being “located” on land with direct access to a road at, relevantly, at least the distributor level in the road hierarchy; and a recognition of the amenity impacts that an educational establishment can have on nearby residences (i.e. not to unduly detract from this amenity), as well as the necessity to be on an appropriate transport route.
There is, as already discussed, some positives and some negatives in those riders. There are the problems about the lack of immediacy in the need, about the land not being located with direct access to a road at the distributor level, and about the negative amenity impacts. Positively, evidence of an appropriate transport route comes from the Queensland Government Map of the Toowoomba/Highfields/Crows Nest bus network (Exhibit 33), though it raises some concerns about non-coincident timing.
In summary, the change is marginally negative overall for present purposes.
Sixthly, does the proposed development enhance the liveability of the locality?
While it is difficult to see that the requirement to construct an 8 metre wide road pavement will have a material adverse impact on the liveability of the locality and may enhance driveability on the street - if only because any loss of vegetation and the change to the existing streetscape are probably inevitable consequences of further development in the eastern end of South Street, Rangeville in any event (a conclusion that also applies to vegetation removal and potential earthworks in order to achieve adequate site distance from the access driveway) - there could be no doubt that liveability in the locality will be adversely affected by the not insignificant non-residential local traffic intruding into, even if not entirely through, all parts of the area for a significant majority of the year. In the end, it is a school whatever its particular virtues of relative solitude.
To the extent that the location of the school in this area impinges on liveability, I have already concluded that the wide catchment is not a notable feature for the local residential population, besides generating considerable vehicular traffic.
Seventhly, is the proposed development consistent with the reasonable amenity expectations of those residing in the surrounding residential area and would it adversely detract from the character of the locality?
My earlier discussion has highlighted the conclusion that the amenity concerns are quite significant, even though I have also concluded that concerns about removing vegetation are relatively marginal.
In summary, whilst I do consider that the school that could have been developed here would be a material addition to the educational opportunities offered to the general Toowoomba community, in the end, the abiding concern that I have is that, while a change of use is not presently prohibited, there are many significant indications contrary to its use from the 2003 Scheme itself and even within the more favourable, but still limited, 2012 Scheme. Even with a modified proposal (i.e. involving Stages 1 and 2 only), I conclude that there are not sufficient planning grounds which would justify the decision to approve the development proposal despite the conflicts identified for the reasons that I have surveyed.
Excusal from non-compliance
A late arising issue was whether there was non-compliance both by the omission from the application of the current Bowtell Street campus (i.e. Lot 6 on RP133692) (because of the shuttle bus connection proposed), and with s 3.2.1(7) of the IPA (because of the consequent non-display of public notification signs).
It has become unnecessary to canvass this issue. If a preliminary view were to be expressed, I would be inclined to excuse what I would have found to be non-compliance (by reason of the “new” land being subjected to a further use which would have local repercussions) for the reasons advanced in writing by the appellant.
Summary of conclusions
Because traffic and amenity concerns have been considered in the “conflicts” discussion, and because that has led to there being no further necessity to consider such disputed issues further, it is unnecessary to consider if such concerns would have warranted refusal in their own right.
Although this decision has been reached after much anxious consideration of the various balancing factors involved, I have concluded that there are insufficient grounds to justify the approval of the development application.
Hence, the appeal should be dismissed and the original decision confirmed.
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