Mater Health Services North Queensland Ltd v Townsville City Council & Ors
[2019] QPEC 45
•8 October 2019
PLANNING AND ENVIRONMENT COURT OF
QUEENSLAND
CITATION: Mater Health Services North Queensland Ltd v Townsville City Council & Ors [2019] QPEC 45 PARTIES: MATER HEALTH SERVICES NORTH QUEENSLAND
LIMITED
(ACN 094 529 263)(appellant) v TOWNSVILLE CITY COUNCIL (respondent) and LAUTARET PTY LTD
(ACN 165 504 512)(co-respondent) and CHIEF EXECUTIVE, DEPARTMENT OF STATE
DEVELOPMENT, MANUFACTURING,
INFRASTRUCTURE AND PLANNING(co-respondent by election) FILE NO/S: 13 of 2018 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING
COURT:Planning and Environment Court, Cairns DELIVERED ON: 8 October 2019 DELIVERED AT: Cairns HEARING DATE: 5, 6, 7, 8, 9, 12, 13, 14, 15, 16 and 23 November 2018;
further written submissions delivered 28, 30 November, and
4, 11 December 2018.JUDGE: Fantin DCJ ORDERS: The proceeding is adjourned for review to 9am 11
October 2019.CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – submitter appeal against approval of a development application for a material change of use – proposed 22 bed private hospital with associated health care services on site including heritage building – where council approved the application – whether the proposed development is for uses contemplated by the planning scheme in this location – whether it is consistent with the centres hierarchy – whether it would have unacceptable impacts on heritage and character – whether it would have unacceptable visual impacts – whether there is a need for the proposed development – whether the development would have unacceptable impacts on Mater’s existing hospital facilities
and future redevelopment – whether in the exercise of the discretion the proposed development should be approved LEGISLATION: Integrated Planning Act 1997 (Qld)
Planning Act 2016 (Qld) s 3, s 5, s 43, s 45, s 59, s 60, s 61, s
229, s 311
Planning and Environment Court Act 2016 (Qld) s 43, s 45,
s 47
Planning Regulation 2017 (Qld) s 30, s 31
Queensland Heritage Act 1992 (Qld)
Sustainable Planning Act 2009 (Qld) s 326CASES: Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, approved
Bell v Brisbane City Council [2017] QPEC 26
Bell v Brisbane City Council (2018) 230 LGERA 374Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPELR 1102 Brookside Estate Pty Ltd v Brisbane City Council & Anor [2019] QPEC 33
Brown v Brisbane City Council & Anor [2005] QPELR 629
Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA
132Cut Price Stores Retailers Ltd v Caboolture Shire Council [1984] QPLR 126 H A Bachrach Pty Ltd & Ors v Council of the Shire of Caboolture & Anor (1992) 80 LGERA 230
Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231
LGERA 253, approvedJesmond Hospital Pty Ltd v Strathfield Municipal Council (1970) 19 LGRA 347
Kentucky Fried Chicken Pty Ltd v Gantidis & Anor (1979)
140 CLR 675
Mackay v Brisbane City Council [1992] QPLR 65Mirani Solar Farm Pty Ltd v Mackay Regional Council & Anor [2018] QPELR 1158
Peach v Brisbane City Council & Anor [2019] QPEC 41Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Roosterland Pty Ltd v Brisbane City Council [1986] QPLR
515
Rowley v Caloundra City Council [2009] QPELR 393Salmar Holdings Pty Ltd v Hornsby Shire Council & Anor (1971) 23 LGRA 14 Sempf v Gatton Shire Council (1997) QPELR 198 Smout v Brisbane City Council [2019] QPEC 10
Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R
306Westfield Management Ltd v Pine Rivers Shire Council & Anor [2004] QPELR 337 Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82 COUNSEL: C L Hughes QC and A Skoien for the appellant
B Job QC for the respondent
D R Gore QC and M Batty for the co-respondentSOLICITORS: Emanate Legal for the appellant
Keir Steele for the respondent
Wilson Ryan Grose for the co-respondent
TABLE OF CONTENTS
OVERVIEW .................................................................................................................................... 5
THE PROPOSED DEVELOPMENT ........................................................................................... 6
THE ASSESSMENT REGIME ..................................................................................................... 8
IS THE PROPOSED DEVELOPMENT APPROPRIATELY LOCATED? ........................... 13
What are the relevant locational requirements for hospital services and facilities, and are
hospital services and facilities confined to specialised centres? ............................................ 18
Does location of the proposed development on the land compromise the intended role or
successful functioning of centres? .......................................................................................... 21
The Mixed Use Zone Code...................................................................................................... 22
Specialised Centre Zone Code ................................................................................................ 24Conclusion on whether Fulham Road medical precinct “will continue to be the focus of private acute medical services in the Townsville region” and whether the proposed
development will “compromise the intended role or successful functioning of centres”?..... 37
What uses are contemplated in this location, and does TCP support the location of the proposed development on the land? ....................................................................................... 38
WILL THE PROPOSED DEVELOPMENT HAVE UNACCEPTABLE IMPACTS ON
HERITAGE AND CHARACTER? ............................................................................................. 38
THE HERITAGE PLACE ................................................................................................................. 38
The heritage place and its statement of significance .............................................................. 41
Works proposed to the heritage place .................................................................................... 42
Design of the new hospital building ....................................................................................... 44Conclusion on impacts on the heritage place ......................................................................... 47
CHARACTER DWELLING AT 2A LAMINGTON ROAD .................................................................... 47
IS THE PROPOSED DEVELOPMENT APPROPRIATELY DESIGNED?.......................... 49
Impacts on character and streetscape .................................................................................... 50
Height ..................................................................................................................................... 53
Transitioning in height and scale ........................................................................................... 55
Contribution to streetscape .................................................................................................... 56
Built form ................................................................................................................................ 57Conclusion on whether the proposed development is appropriately designed....................... 58
OTHER MISCELLANEOUS ISSUES ........................................................................................ 58
CONCLUSION REGARDING ASSESSMENT OF PROPOSED DEVELOPMENT
AGAINST THE ASSESSMENT BENCHMARKS .................................................................... 59
ANY OTHER RELEVANT MATTER UNDER S 45(5)(B) PA ................................................ 59
IS THERE A NEED FOR THE PROPOSED DEVELOPMENT? ............................................................... 60
WILL THE PROPOSED DEVELOPMENT HAVE UNACCEPTABLE IMPACTS ON MATER’S EXISTING
FACILITIES AND REDEVELOPMENT AND THE RANGE OF HEALTH CARE SERVICES PROVIDED? ... 64
OTHER “RELEVANT MATTERS” THAT JUSTIFY APPROVAL .......................................................... 65
CONCLUSION ON “RELEVANT MATTERS” .................................................................................... 67
| CONCLUSION .............................................................................................................................. | 68 |
APPENDIX A ................................................................................................................................ 69
Overview
Planning appeals involving heritage buildings or new hospitals are relatively uncommon. This one involves both.
During the great depression of the 1930s, the Queensland government embarked on an ambitious program to build grand institutional school buildings throughout the State. The program served the dual purposes of reinforcing the importance of education in the fledging State and creating a make work scheme for unemployed men in the interwar period.
As part of that program, in 1939 a vast three storey red brick building was built on Ingham Road in Townsville, a busy thoroughfare for travellers entering the city from the west. The school is an enormous institutional building, 73 metres long, 20 metres
wide at its three projections and three storeys high (‘the heritage building’).[1] Some
[1] Ex 55.
idea of its scale may be gleaned from the photographs in Appendix A. It dominates the Ingham Road frontage of the site. A set of memorial gates was built to commemorate students and staff who had lost their lives in World War I.
For about 70 years, the building functioned as a school and then an education centre. In 1998 it was entered on the Queensland heritage register. In about 2009 it ceased being used. For the last decade, the heritage building has remained vacant. In 2014
the State sold the land to the co-respondent (‘Lautaret’), which also acquired land to
the east and west.
In conjunction with a group of local medical specialists, Lautaret now wants to develop a small private hospital of 22 overnight beds and associated uses on land that includes the heritage building. It proposes to retain, restore and reuse the heritage building, construct a new hospital building connected to the heritage building by a glazed pedestrian bridge, and demolish or remove a house at the rear.
The respondent (‘council’) approved Lautaret’s development application subject to
conditions, as did the relevant State department as concurrence agency with
jurisdiction for development on a State heritage place.
Townsville has only one public hospital (‘the Townsville hospital’) and one private hospital. For decades, the appellant (‘Mater’) has enjoyed a monopoly as the only
private provider of overnight private hospital services.[2]
[2] The Townsville hospital also provides overnight hospital services to private patients.
Mater made a submission opposing Lautaret’s proposed development and appealed
against the approval of its development application.
For the reasons that follow, I have decided that Lautaret’s development application
should be approved subject to conditions.
The land comprises six lots with a total area of approximately 7,992m2, including a
closed portion of Wilson Street (‘the land’). It is generally rectangular in shape but
its eastern end tapers diagonally upwards to a point, like the prow of a ship.[3] The land is on the northern side of Ingham Road, a busy arterial road running east-west, and Sturt Street. It fronts a major signalised intersection with a railway level crossing on the southern side.
[3] See Appendix A.The land’s dominant frontage of about 100 metres is to Ingham Road to the south.
The next most prominent frontage is about 68 metres to Sturt Street, to the south east.
It has minor frontages to O’Brien and Wilson Streets to the north east and a very small
frontage, by virtue of a battle axe access, to Lamington Road to the north west.
The land is improved by the heritage building, and a dwelling house (the latter to be demolished or removed). The balance of the land is vacant.
The heritage building is an attractive landmark in an otherwise unattractive local visual catchment. Ingham Road and Sturt Street here are cluttered with vehicle dominated commercial uses, advertising signage, parked cars on vacant lots, and other disparate uses, all with negligible site landscaping.[4]
[4] Eg. see Ex 29 Figures 1-7; Ex 8 Figures 1, 2, 4, 10, 11.More broadly, the land is located in a mixed use area which includes residential, community facilities, commercial, retail and lower impact industrial uses. Immediately to the rear of the land to the north is the current State primary school. The proposed development would be separated from the nearest school building, a large shed or multi-purpose facility, by more than 30 metres. Beyond the school is an area of residential development extending to the lower slopes of Castle Hill. To the east across Sturt Street are multiple outdoor car sales yards, as well as service station, retail, commercial and short-term residential uses. About 250 metres to the east is the entrance to the operational Townsville Railway Station. To the south across Ingham Road and the railway corridor are various community uses including an educational centre and a church, as well as a commercial building. Further south is significant vacant land, as well as residential uses and the Castling Street Heritage Centre. To the west of the land are various small-scale retail, commercial and lower impact industrial uses.
The main issues raised by the parties concerned whether the proposed development is for uses contemplated by the planning scheme in this location, is consistent with the centres hierarchy, would have unacceptable impacts on heritage and character, and would have unacceptable visual impacts. Further, whether there is a need for the proposed development, and whether the development would have unacceptable
impacts on Mater’s existing hospital facility and its plans for future redevelopment.
The proposed development
Mr Griffin gave evidence for the developer. He explained that it had been involved in other heritage developments in Brisbane. After Lautaret acquired the land, he was approached by a group of Townsville doctors (two orthopaedic surgeons, a cardiologist and a urologist) seeking to build an alternative efficient private health services provider in Townsville. The doctors incorporated an operating entity and it secured a Queensland Health Licence in 2017.
The development application for the proposed development seeks a development permit for a material change of use for a 22 bed hospital, health care services, a food and drink outlet and a pharmacy, and a preliminary approval for building works (demolition of a dwelling within the Character Residential zone).
The proposed development comprises three main components. In summary:
1. retention and refurbishment of, and extension to, the existing heritage building on the western part of the land. The exterior of the heritage building will remain largely unchanged, save for a glazed pedestrian bridge connecting the heritage building to a new building. There will be some modification to internal fit-out, respecting the existing
partitions and concertina doors which remain from the school’s operational
period. The internal fit-out will include a lift to meet equitable access requirements, consulting, treatment and testing rooms, staff education and research rooms, staff dining and lounge areas, pathology department, pharmacy, administration, café, back of house facilities and an area for mechanical plant. The balance of the former school site is largely intended to be used for parking, vehicle circulation and landscaping;
2. construction of a new five storey hospital building (plus rooftop plant) to the east of the heritage building.
It will include 22 overnight beds, at least four operating theatres and associated facilities, intensive, inpatient and coronary care units, a cardiac catheter laboratory and cardiology unit, sterilisation department, recovery area, holding bays, day units, a day theatre/procedure room, admissions and administration area, waiting rooms, entry foyer, food services, ambulance bay and radiology unit. The medical specialities that will be the initial focus of the hospital are urology, maxillofacial, interventionist cardiology and orthopaedics.
3. demolition of a dwelling within a Character Residential zone.
This dwelling is not visible from Ingham Road, the dominant frontage, save for parts of its roof. The dwelling is currently accessed via a battle axe driveway from Lamington Road at the rear of the site. The driveway is burdened by an easement servicing the abutting dwelling, which will be amalgamated into the remaining dwelling house by a future development application.
It is not proposed to stage the development. The site cover will be approximately 35.5% of the land. The total gross floor area of both buildings is approximately 9,071m2. The heritage building is currently set back at least 25 to 27 metres from the Ingham Road frontage and 24.5 metres from the western boundary. The new building will have a setback from Sturt Street starting at 23 to 27 metres but tapering down to
the boundary itself.[5] It will be built to the boundary on its northern frontage to O’Brien
[5] Ex 55.Street. There is a 5 metre separation between the new building and the heritage building, over which the glazed pedestrian link is built.
There will be 104 car parking spaces. The primary access will be from Ingham Road, near the western boundary, with secondary access from Wilson Street.
The assessment regime
Under the relevant planning scheme, Townsville City Plan 2014 (‘TCP’), the land is:
1. in the Strategic Framework, within the Urban Area, and abutting the Core Public and Active Transport Corridor; 2. subject to overlays, including the Cultural Heritage Overlay; 3. within the Mixed Use zone, save for a small lot in the north western corner (where the dwelling house is located) within the Character Residential zone. The part of Wilson Street which was closed is taken to be included in the Mixed Use zone.[6] [6] TCP s 1.3.4(1)(a).
The application required referral to the Department of Infrastructure, Local Government and Planning State Assessment and Referral Agency as a concurrence agency for public passenger transport, railways and Queensland heritage place.
The site of the heritage building is a listed place under the Queensland Heritage Act
1992 (‘the Heritage Act’). As a result, the development application also had to be assessed under the Queensland Heritage Place State Code Version 1.10 (‘the State Heritage Code’).
It was common ground that the appeal must be decided in accordance with the statutory framework in the Planning and Environment Court Act 2016 (Qld) (‘PECA’) and the Planning Act 2016 (Qld) (‘PA’).[7] In deciding the appeal, the court
[7] The appeal was filed on 31 January 2018, after the commencement of the PA. The applicable regime is that
must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the council with directions the court considers appropriate.[8]
[8] PECA s 47.
The appeal is by way of hearing anew.[9] Lautaret has the onus of establishing that the appeal should be dismissed.[10] The court is to determine the appeal standing in the shoes of the assessment manager and on the law applicable at the date of the proceeding.[11]
[9] PECA s 43.
[10] PECA s 45.
[11] Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231 LGERA 253, 277 [93].
The development application was impact assessable. It was publicly notified twice. There were ten properly made submissions: two from Mater, five opposing or raising concerns about the development, and two supporting the development.
The submissions opposing the development, apart from Mater’s, were from residents
in the locality. One of those was from persons associated with the town planning firm engaged by Mater to prepare its own application for preliminary approval for its redevelopment. It raised concerns about conflicts with the planning scheme, the scale and bulk of the new building, impacts on amenity, traffic and need. The other submissions raised concerns about traffic, noise and light, access, amenity, the scale of the new building, visual impact and need. To the extent that at least one of those submissions raised issues which were not proper town planning grounds,[12] I have disregarded those.
[12] Eg. see Ex 2 Appeal Book p 622.
The submissions supporting approval of the development were from a nearby car dealership and an architectural firm. They referred to the desirability of using the heritage building which had lain dormant for so long, the adaptive reuse of the heritage building, the limited impact of the new development on the heritage building, the merits of the new building, the creation of jobs, the provision of healthcare facilities, the activation of the site, and the provision of a quality architectural solution to this gateway site.
Impact assessment is an assessment that:
(a) must be carried out: (i) against the assessment benchmarks in a categorising instrument for the development (the TCP and the State Heritage Code)[13], to the extent relevant;[14] and
[13] Because the development is for a material change of use on, and adjoining, a Queensland Heritage Place:
[14] See also PR s 30(1), (3).
(ii) having regard to any matters prescribed by regulation, to the extent they are relevant; and
(b) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[15]
[15] PA s 59, s 45(5).
[emphasis added]
Subject to s 62[16], the assessment manager, after carrying out the impact assessment, must decide (a) to approve all or part of the application, or (b) to approve all or part of the application, but impose development conditions on the approval, or (c) to refuse the application.[17]
[16] Which does not apply to this appeal.
[17] PA s 60(3).
During final addresses Lautaret raised for the first time an argument about the proper construction of s 45(5) PA. It submitted that s 45(5)(b) was only engaged or enlivened if the court found non-compliance with the assessment benchmarks in s 45(5)(a), and if the proposed development complied with the assessment benchmarks, the court was not permitted to have regard to any other relevant matter under s 45(5)(b).
On the plain words of the section, it was an unattractive argument.
Because the point was raised late and not addressed in any list of issues or written submissions, I directed the parties to provide supplementary written submissions with respect to the proper construction of s 45(5).
Mater and the council joined in rejecting Lautaret’s construction of s 45(5).
Mater argued[18] that s 45(5), properly construed, entitled the assessment manager to
[18] Supplementary Written Submissions on behalf of the Appellant 28 November 2018; Supplementary Written
assess against, or have regard to, “any other relevant matter” irrespective of whether
there is non-compliance with the assessment benchmarks in s 45(5)(a). It said that this construction was consistent with the plain and unambiguous words of the section, was consistent with other provisions of the PA setting out the different approaches to code assessment and impact assessment, and was confirmed by the Explanatory Notes
to the Planning Bill 2015 (Qld). It said that the use of the word “other” in s 45(5)(b)
supports that construction because it reflects the fact that the matters in s 45(5)(a) are
also “relevant matters” for the assessment of the application. It pointed out that there
are no words of limitation in s 45(5)(b) that impose some condition precedent to the
consideration of “any other relevant matter”, when the legislature could easily have
included them if it had intended that. It pointed to the approach to code assessment in s 45(3) and 45(4), which expressly limits the considerations for code assessment to the mandatory provisions identified. It also relied upon the fact that there is no requirement in s 60 PA mandating approval of a development if it complies with all the assessment benchmarks.
The council agreed with Mater’s construction of s 45(5).[19] It also pointed to other
[19] Respondent’s Submissions in relation to the application of s 45(5) Planning Act 2016 30 November 2018.
matters that supported the conclusion that s 45(5)(b) was not qualified in the way suggested by Lautaret. One was that the examples of relevant matters given in s
45(5)(b) include “whether assessment benchmarks or other prescribed matters were
based on material errors”. That example could potentially apply where a development
application did comply with the assessment benchmarks. Another was that Lautaret’s
construction would create tension with the obligation under s 45(5)(a)(ii) to have regard to matters prescribed under regulation, which includes, for example, the common material,[20] which includes properly made submissions.[21]
[20] PR s 31(1)(g).
[21] PR sch 24 (definition of ‘common material’).
Council also submitted that it would be “an exceptional case for a proposal which
complied with assessment benchmarks to be refused on the basis of relevant
matters”[22] and that this was not such a case.[22] Respondent’s Submissions in relation to the application of s 45(5) Planning Act 2016 30 November 2018
In reply, Lautaret no longer advanced the submission that s 45(5)(b) was only engaged
if there is non-compliance with an assessment benchmark.[23] It agreed with council’s
[23] Supplementary Outline of Submissions on behalf of the Co-respondent 4 December 2018 [32]-[34].
submission that it would be an exceptional case for an otherwise compliant proposal
to be refused on the basis of relevant matters.[24][24] Supplementary Outline of Submissions on behalf of the Co-respondent 4 December 2018 [34].
Thus, it was ultimately common ground that s 45(5)(b) will be engaged even if the proposed development complies with all the assessment benchmarks. That is, the
assessment manager retains a discretion under s 45(5)(b) to consider “any other
relevant matter”. I agree with that construction.
Ashvan Investments Unit Trust v Brisbane City Council[25] was decided after submissions were received in this appeal. In that case, Williamson QC DCJ embarked upon a considered analysis of how impact assessable development applications under the PA are to be decided.[26] I respectfully agree with his analysis. The position ultimately reached by the parties in this appeal after supplementary written submissions is broadly consistent with that analysis.
[25] [2019] QPEC 16.[26] Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16 [41]-[86]. Ashvan was cited withSection 60(3) confers a power to exercise a broad planning discretion. It can be distinguished from the provision conferring power to decide a code assessable application, which requires the assessment manager to approve the application to the extent the development complies with all of the assessment benchmarks for the development.[27] The exercise of the discretion in s 60(3) is not constrained or mandated by the existence of compliance, or non-compliance, with the assessment benchmarks. It requires an assessment of the merits of the proposal against the planning scheme, and other relevant considerations, to reach a balanced decision in the public interest.[28]
[27] PA s 60(2)(a).
[28] Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16 [50], [54].
The discretion must be exercised based on the assessment carried out under s 45 of the PA. Non-compliance with an assessment benchmark will not automatically warrant refusal of a development application.
Assessment benchmarks are the matters that an assessment manager must assess
assessable development against.[29] They do not include a matter of a person’s opinion, or a person’s circumstances (financial or otherwise), or for code assessment, a
[29] PA s 43(1)(c).
strategic outcome, or a matter prescribed by regulation.[30] Examples of an assessment benchmark will include a code, a standard, or an expression of the intent for a zone or precinct. The Act does not otherwise seek to define or constrain what an assessment benchmark is.
[30] PA s 43(2).
Conformity with the planning scheme is, prima facie, in the public interest.[31] A decision maker must take a planning scheme to be an expression of the public interest in terms of land use.[32]
[31] Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 [47]; Bell v Brisbane City Council (2018)
[32] Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 [67].
The decision making function for impact assessment must be performed in a way that advances the purpose of the Act.[33]
[33] PA s 5(1). Notably, when carrying out code assessment, s 5(1) does not apply to the assessment manager: s
Despite the applicable statutory regime being the PECA and PA, the list of disputed issues in this appeal was framed by reference to the language of the previous statutory regime, referring to conflicts with the planning scheme and whether there were matters said to justify approval despite the conflicts.[34] Mater identified more than 80 provisions of TCP and the State Heritage Code that it contended that the proposed development conflicted with.[35]
[34] Ex 15; see Sustainable Planning Act 2009 (Qld) s 326.
[35] Ex 15; Outline of Submissions on behalf of the Co-Respondent 21 November 2018 [3].
The parties were directed to provide a single list of the disputed issues requiring determination in the appeal. They did not do so before or during the hearing. During addresses Lautaret and council provided an updated list of issues as agreed between those two parties. Mater provided its own updated list of issues which continued to identify a large number of provisions.[36]
[36] Amended Attachment A and Attachment B to the Written Submissions on Behalf of the Appellant 21
This had a number of consequences. The initial framing of issues using the language
of an inapplicable statutory regime, referring to “conflicts” and “grounds”, had the
potential to lead the Court into error by inviting the Court to ask and answer the wrong
questions. This approach persisted even in Mater’s written submissions delivered at
the end of the hearing.[37]
[37] Written Submissions on Behalf of the Appellant 21 November 2018, final paragraph [4.4].
The hearing was prolonged by some evidence of questionable relevance and utility. Reliance on a multitude of scheme provisions without any real attempt to differentiate their relative importance meant the hearing and written submissions were protracted. In that context, I endorse the remarks of other judges of this court about the need to bring a more forensic approach to defining disputed issues.[38]
[38] Mirani Solar Farm Pty Ltd v Mackay Regional Council & Anor [2018] QPELR 1158, 1166-1167 [31]-[33]
In summary, Mater’s position is that the proposed development does not comply with
the assessment benchmarks in both TCP and the State Heritage Code, and that the development application should be refused on that basis.[39] It further argues that because the appeal involves the important issue of planning for, and the provision of, a range of crucial health services for the benefit of the community, the Court could refuse the development application if warranted by the adverse impact upon existing
[39] Supplementary Written Submissions in Reply on behalf of the Appellant 11 December 2018 [2.8].
and planned health facilities, as a “relevant matter”, irrespective of whether there is
non-compliance with any of the provisions of the TCP or the State Heritage Code.[40] As to the latter argument, this court has recognised that, ordinarily, one would need strong reasons for refusing an application, which on its face, was consistent with adopted planning controls.[41]
[40] Supplementary Written Submissions in Reply on behalf of the Appellant 11 December 2018 [2.9].
[41] Mackay v Brisbane City Council [1992] QPLR 65, 67.
The council and Lautaret continue to support approval of the proposed development. They say that there are no relevant matters which would warrant refusal of the proposed development, and that the public interest would be considerably advanced by its approval.
Here, the relevant assessment benchmarks require evaluation of whether the proposed development:
(a) is appropriately located; (b) is appropriately designed; and (c) would have unacceptable impacts on heritage and character, and unacceptable visual impacts. [42] [42] By final addresses, the issues had narrowed somewhat. Mater no longer contended that the traffic
It is important to bear in mind that there is no mandated fetter on the exercise of the
court’s broad planning discretion because of non-compliance with the relevant
assessment benchmarks. The assessment may also be carried out against, or having
regard to, any other relevant matter.
Both Lautaret and Mater point to other matters said to be relevant to contend that the development application should be approved or refused, including whether:
(a) there is a need for the proposed development; and (b) there will be unacceptable impacts on Mater’s existing facilities and its planned and approved redevelopment of them.
The co-respondent by election, Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning, was excused from active participation in the hearing.
Is the proposed development appropriately located?
Mater focuses on the hospital component of the proposed development. That is unsurprising given that the balance of the proposed uses are code assessable. In the
mixed use zone, “health care services” (defined as premises for medical, paramedical,
alternative therapies and general health care and treatment of persons that involves
no overnight accommodation)[43], “shop” (pharmacy) and “food and drink outlet” are
[43] TCP Schedule 1 Definition, Table SC1.1.2 Use definitions.
all code assessable uses. It is only the hospital component of the proposed
development which is impact assessable.
In summary, Mater submits that:
1.
the proposed development does not comply with the locational requirements of the TCP for hospital services and facilities;
2. hospital services and facilities should be located in “specialised centres”, consistent with the hierarchy of centres established by the TCP;
3. the land does not form part of a “specialised centre”;
4. the purpose of the hierarchy of centres is to ensure that centres provide their desired function and that the efficient and effective performance of that function is protected; and
5. there is no support in the TCP for the location of the proposed development on the land.
There is no express statement in the TCP indicating that a new hospital should not or cannot be developed on the land. Mater relies upon a number of provisions for context and, in effect, asks the Court to draw inferences from those provisions that a new hospital is not intended on the land.
That requires consideration of the following questions. What are the locational requirements for hospital facilities and services in TCP, and are hospital services and facilities confined to specialised centres? Does the location of the proposed development on the land compromise the intended role or successful functioning of centres in TCP? What uses are contemplated in this location? Does TCP support the location of the proposed development on the land?
Before turning to those questions, there are some administrative provisions and broad statements of intent that are relevant.
When development is proposed on premises included in more than one zone or overlay (as is the case here), the level of assessment is the highest level for each aspect of the development under each of the applicable zones or overlays.[44] Where development is proposed on premises partly affected by an overlay, the level of assessment for the overlay only relates to that part of the premises affected by the overlay.[45] Where development is proposed on premises partly affected by an overlay, the assessment criteria for the overlay only relate to the part of the premises affected by the overlay.[46]
[44] TCP s 5.3.2(4).[45] TCP s 5.3.2(5).
[46] TCP s 8.1(6).
In terms of assessment against the codes, development that complies with:
1. the purpose and overall outcomes of the code, complies with the code; and 2. the performance or acceptable outcomes, complies with the purpose and overall outcomes of the code.[47] [47] TCP s 5.3.3(4)(c).
That applies to impact assessment.[48]
[48] Bell v Brisbane City Council [2017] QPEC 26 [27]. Whilst that was the subject of challenge in the Court
The Strategic Framework contains some broad statements of intent that are relevant.
Townsville is the largest city in Queensland outside the south-east, and its population of around 190,000 in 2011 is set to grow to between 270,000 and 300,000 people by 2031.[49] It is the major economic and service centre for North Queensland and provides the highest order community and commercial services for the region
[49] TCP s 3.2.1. 50 TCP s 3.2.1.
“including health … facilities which serve the whole of North and North West
Queensland. … it enjoys a diverse economic base, with strong projected growth.”50
Townsville is intended to continue to evolve as the second capital of Queensland, and
the largest city in northern Australia. A range of factors contribute to the city’s
increasing significance, and its enhanced role is reflected in significant growth in the
economy and population.[51][51] TCP s.3.2.2.
Its diverse and healthy economy is driven by population growth and by its regional position as the capital of North Queensland.[52] Growth is anticipated in a range of industries, and specifically in health and professional services. Indeed, further economic growth in those areas and other sectors is not only anticipated, it is “required to maintain quality of life for the city’s residents”.[53]
[52] TCP s.3.2.6.
[53] TCP s.3.2.6.
It is also intended that the city will become more compact and efficient, led by intensified development in and around the CBD.[54] The subject land is close to the CBD.
[54] TCP s.3.3.1(2).
The Strategic Framework’s Theme, “Shaping Townsville” relevantly states that:
1. “The city is structured around a network of activity centres, ranging from the principal centre (CBD) to small neighbourhood centres. These activity centres are focal points for the city and its community, and they accommodate the majority of future employment, community and commercial activities …”;[55] and
[55] TCP s 3.3.1(8).
2. “A hierarchy of activity centres exists to ensure that the scale and form of
development is appropriate to the location, and that the centre plays an appropriate role within the wider city. The hierarchy contributes to an efficient, well-functioning and accessible city. While the scale and form of activity centres varies, all activity centres are founded on a mix of land uses,
and are supported by residential areas that enhance each centre’s viability.”[56]
[56] TCP s.3.3.1(9).
[emphasis added]
The Strategic Framework contains Specific Outcomes for activity centres. Under the
heading “Nature of centres” it states that “a broad range of uses are [sic] encouraged
at activity centres, appropriate to the identified hierarchy, to support vibrancy,
community life and health and economic development and competition”[57] [emphasis
[57] TCP s 3.3.4.1(1).
added]. An activity centre contains a mix of uses and is multi-functional.[58]
[58] TCP s 3.3.4.1(2).However these statements about the breadth and mix of uses in activity centres must
be read in the context of later statements, which make it clear that “specialised centres” are different to other activity centres. As their name suggests, they
incorporate activities with a specific and limited function, rather than a mix of uses.[59]
[59] TCP s 3.3.4.1(28).The general principles of statutory construction apply to the construction of planning schemes.[60] The TCP must be read as a whole, examining the provision in its context, and construing the instrument on the prima facie basis that its provisions are intended to give effect to harmonious goals[61] and in a way that best achieves their apparent purpose and objects. Planning schemes are to be construed broadly rather than pedantically or narrowly, and with a sensible, practical, approach.[62] The opinion of a town planner upon a question of construction of a planning scheme is irrelevant and inadmissible.[63]
[60] Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82, 94-95 [52]-[56].
[61] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382.
[62] Westfield Management Ltd v Pine Rivers Shire Council & Anor [2004] QPELR 337, 342 [18]; Rowley v
[63] H A Bachrach Pty Ltd & Ors v Council of the Shire of Caboolture & Anor (1992) 80 LGERA 230, 235;
The TCP adopts a hierarchy for activity centres. The purpose of the hierarchy is to ensure optimum access to employment, services and facilities across the city to support the efficient provision of infrastructure and to optimise public investment.[64]
[64] TCP s 3.3.4.1(3).
The TCP’s hierarchy is made up of:
(a) the principal centre (CBD); (b) major centres; (c) district centres; (d) local centres; (e) neighbourhood centres; and (f) specialised centres. [65] [65] TCP s 3.3.4.1(4).
The ordinary meaning of “hierarchy” is a system of things in a graded order, in which
members are ranked according to relative status or authority. Notwithstanding the structure of the above provision, the description of the respective centres that follows it makes it clear that specialised centres are different from the other centres. It was largely common ground amongst the town planning experts that the inclusion of specialised centres is not a common feature of planning schemes.
Although specialised centres are at the bottom of the list comprising the hierarchy, they cannot be said to be less important than those centres immediately above them, such as district, local or neighbourhood centres. Specialised centres are clearly within the network of activity centres in TCP. But because specialised centres necessarily have their own specific and limited function, their position at the bottom of the
hierarchy does not, in my view, connote least importance. I accept Mater’s
submission that the hierarchy in this context describes a grouping of activity centres, with the location of specialised centres at the bottom of the list reflecting the difficulty in locating this type of centre within a traditional hierarchy of centres.
I also accept Lauteret’s submission that the important point, from an interpretation
point of view, is that the hierarchy provisions, whether at a generalised level in the Strategic Framework, or at a more specific level in a zone code, essentially have a traditional hierarchy, with an emphasis on retail, in mind. However the centres provisions clearly recognise the very important role that the specialised centres play within Townsville. The town planning experts all accepted the importance of the specialised centres.
The Strategic Plan provisions describing the principal centre (CBD)[66], the major centres[67], and the district centres[68], in particular, emphasise the breadth and mix of uses contemplated in those centres. There are also other provisions that emphasise that activity centres contain a mix of land uses and are to be multi-functional.[69]
[66] TCP s 3.3.4.1(8)-(11).[67] TCP s 3.3.4.1(14)-(17).
[68] TCP s 3.3.4.1(20).
[69] TCP s 3.3.4.1(1), (2).
Significantly, the provisions are explicit about where certain uses are, or are not, to be located or their preferred location. There are many examples of this. Any additional department store in Townsville is to be located in the principal centre (CBD) and not in any other centre.[70] Major strategic facilities such as a sports stadium are to be located adjacent to the city centre, and preferred locations are expressly identified.[71] A new department store is not to be located within any of the existing or future major centres.[72] Development of retail and office activities is to occur within the identified activity centres and mixed use areas. These activities are not to locate in an out-of-centre location, except where specifically intended in a particular zone or precinct.[73] Showrooms and retail-based hardware stores are to be located within identified activity centres or mixed use areas.[74] In the latter provisions, the TCP deals with activity centres and mixed use areas equally.
[70] TCP s 3.3.4.1(12).
[71] TCP s 3.3.4.1(13).
[72] TCP s 3.3.4.1(19).
[73] TCP s 3.3.4.1(6).
[74] TCP s 3.3.4.1(7).
Thus, where the Strategic Plan seeks to discourage the establishment of an activity in a centre, it is explicit and prescriptive about that. This is important because there is no similar provision to the effect that hospitals and medical services must only be located in specialised centres. It would have been very simple for the drafters of the scheme to include a similar statement that new hospitals are not to be located outside of any existing medical precinct, but they did not do so. The council submits that the absence of any such expression of intent is telling. I agree with that submission. There is also no express statement of intent about where new hospital services are to be located.
In contrast to other centres, specialised centres incorporate major nodes of activity with a specific and limited function.[75] Specialised centres are intended to support and not to undermine other activity centres within the hierarchy.[76] Given the very different functions undertaken in specialised centres (described below), in my view, this provision is directed towards ensuring the retail components of specialised centres, if any, do not undermine other activity centres.
[75] TCP s 3.3.4.1(28).
[76] TCP s 3.3.4.1(28). 77 TCP s 3.3.4.1(29).
Specialised centres recognise the “special regional business roles” of Townsville
Airport, Lavarack Barracks, the Port of Townsville, Domain Central, Fulham Road medical precinct, Bayswater Road medical precinct and James Cook University-
Townsville Hospital precinct.77 “These centres do not incorporate the breadth and
depth of activities of other activity centres, but instead provide specific higher order, regional and national functions catering for a specific market or technological role
and provide significant employment.”[78]
[78] TCP s 3.3.4.1(29).
That the specialised centres have a specific and limited function is highlighted by the nature and function of each centre and the fact that four of the seven specialised centres (the airport, barracks, port and university) are government owned and do not fall within the regulatory jurisdiction of TCP at all.[79] Nonetheless, the scheme recognises the importance of their functions through its zoning.
[79] TCP s 3.3.4.1(30)-(32).What are the relevant locational requirements for hospital services and facilities, and are hospital services and facilities confined to specialised centres?
There are three specialised centres which are medical precincts: Fulham Road medical precinct, Bayswater Road medical precinct and James Cook University- Townsville Hospital precinct. Their designation recognises the fact that they already contain significant existing hospital and medical uses.
Mater’s facilities are located in two of those centres: the Fulham Road and Bayswater
medical precincts. Before turning to the provisions for those specialised centres, it is useful to provide an overview of the existing hospital facilities in each of the specialised centres.
Mater’s Chief Executive Officer, Mr Wyvill, gave evidence of Mater’s operations.
Mater is a not-for-profit religious and charitable organisation. It operates a Catholic facility. It provides private hospital facilities and associated health services at Fulham Road (also known as Pimlico) and Bayswater Road (also known as Hyde Park). Mater operates full secondary and tertiary medical services at its hospitals including intensive care facilities at Fulham Road, and offers full radiology, pathology and pharmacy services.
At Fulham Road (Pimlico), Mater operates an acute medical and surgical facility with 167 overnight beds, eight operating theatres and an emergency department which operates from to 7am to 11pm. It includes units for cardiothoracic, endoscopy, children, sleep studies, coronary care and day procedures. It has a cardiac catheter laboratory, a level 6 intensive care unit (the highest level) and a medical patient care unit. It has a wellness centre for treatment of post-traumatic stress disorder. It has units for orthopaedic, neurosurgical and surgical patient care. It is a tertiary teaching hospital, in partnership with James Cook University, offering clinical placements.
At Bayswater (Hyde Park), Mater operates a further 34 overnight beds. Its services there include units for women, day surgery, renal and an operating room suite.
In addition, Mater’s facilities include relatives’ accommodation units at Fulham
Road, and approximately 30 medical consulting suites for medical practitioners.
In summary, across both of its locations, Mater has:
1. 201 licensed overnight hospital beds; 2. more than 300 accredited visiting medical practitioners; 3. more than 950 staff including resident medical officers, nursing, allied health, support and executive management; and 4. more than 50 volunteers.
Mater’s facilities at Fulham Road were first established in 1945. It is now undertaking
a program of modernisation, redevelopment and expansion. In 2017, Mater obtained a preliminary approval for redevelopment of its facilities. The redevelopment
described in the “Mater Master Plan” is to occur in multiple stages. Ultimately it is
intended to include new three, four and six storey buildings, additional medical suites for specialists, a four storey carpark, new surgical facilities, and maternity ward of 33 new beds. It increases surgical capacity to 12 operating theatres, as well as providing new day surgery facilities and bed capacity. It involves transferring maternity services from Bayswater Road to Fulham Road, and renovating Fulham Road facilities.
Works for the first stage, Stage 1(a), have commenced and are expected to be completed in 2020. That stage involves a new wing providing four additional operating theatres, radiology and day hospital. None of the other stages has commenced. Some stages are in the planning phases. Stage 4 (the final stage) will provide an additional 120 overnight beds. Completion of the Master Plan is estimated for 2045 but there is no reference to that timing in the development approval. By that time, Mater will operate a total of 354 overnight beds.
Mater is not the only operator of medical services in those precincts, but it is the major operator.
The Townsville hospital is located adjacent to James Cook University in the eponymous James Cook University-Townsville Hospital precinct, which is remote from the CBD.
The TCP recognises these existing hospital facilities in three specialised centre designations. I summarise the description of each in the Strategic Plan.
The Fulham Road Medical Precinct “will continue to be the focus of private acute
medical services in the Townsville region. It accommodates medical facilities, including the hospital and medical centres catering for allied and specialist medical services. It also contains residential uses providing short-term accommodation particularly to meet demand generated by the primary medical uses in the precinct,
and aged care and retirement living and respite care”[80] [emphasis added]. Thus the Fulham Road medical precinct includes, but is not confined to, Mater’s hospital and
[80] TCP s 3.3.4.1(34). See Overall Outcome s 6.3.6.2(4)(a).medical facilities.
The Bayswater Road medical precinct “accommodates a broad range of medical and
associated service, and a mix of medical-oriented and low and medium density residential uses, in a vibrant, mixed use urban village with a strong sense of place and
civic identity.”[81]
[81] TCP s 3.3.4.1(35).The James Cook University-Townsville Hospital precinct “evolves into a world-class
knowledge community with a focus on the tropics and sustainability. The centre becomes a mixed use environment, integrating the existing institutions and forming
an integral part of Townsville, with strong links to the CBD. … The land use mix,
and scale of development in the James Cook University-Townsville Hospital centre reflects the role of the centre in the city. Its focus is as a knowledge community based on the university, hospital and research and technology activities. Other land uses which benefit and enhance the knowledge community occur, including employment,
residential and retail.”[82]
[82] TCP s 3.3.4.1(36).The town planning expert for Mater, Mr Vann, relied upon those provisions to opine that hospitals are only specifically envisaged or anticipated in these three specialised centres, and that locating a hospital other than in one of the specialised centres which refers to a hospital necessarily involves non-compliance with the assessment benchmarks. Mater submitted to the same effect.
I cannot accept that construction. The three specialised centres (Fulham Road Medical Precinct, Bayswater Road medical precinct, and James Cook University- Townsville Hospital precinct) already have hospitals and medical facilities in them. The scheme recognises the existence of the current hospitals and medical facilities by their designation as identified specialised centres. Although Fulham Road medical
precinct “will continue to be the focus of private acute medical services in the Townsville region” [emphasis added], the scheme does not, either expressly or
impliedly, preclude hospitals outside that precinct or the other medical precincts.
The scheme does not (either in the Strategic Plan or other provisions) strictly prescribe locational requirements for new hospital uses, for example by mapping their intended location. Nor does it state that they cannot be located within a mixed use area or the mixed use zone, where the land is located.
With respect to the Fulham Road Medical Precinct, the Strategic Plan states that it
“will continue to be the focus of private acute medical services in the Townsville
region.” The ordinary meaning of “focus”, relevantly here, is a central point of
attraction, attention or activity. Synonyms in this context might be the focal point or
point of convergence. Describing the Fulham Road medical precinct as “the focus”
does not, of itself, preclude the establishment of activities or facilities outside that precinct, so long as the precinct remains the focus, or central point, of those activities. Relevantly here, it does not exclude private acute medical services occurring outside that precinct.
Although hospitals and medical services are recognised and encouraged in those three precincts, there is nothing in the plain words of the relevant provisions that prevents hospitals and medical services being established elsewhere. It follows that establishing the proposed new hospital and its related medical services outside those precincts would not result in non-compliance with those provisions of TCP unless it
prevented the Fulham Road medical precinct from continuing to be “the focus of
private acute medical services in the Townsville region”.
That provision relates to the Fulham Road precinct as a whole, and is not confined to
Mater’s operations. The “focus” relates to private acute medical services, and is not
limited to Mater’s hospital. The elusive nature of the expression “the focus” renders
it more difficult for Mater to contend that any plainly identified non-compliance with
that provision arises.
It requires consideration of the evidence of what impact approval of the proposed development will have on the facilities in the precinct, which is dealt with below.
While “mixed use areas” are not included in the centres listed in the hierarchy, other
provisions in the Strategic Framework and Mixed Use Zone Code support the construction that mixed uses areas are treated by the TCP as another form of centre. It was undisputed (and Mater accepted) that mixed use areas include land in the mixed use zone, in which part of the land is located.
In the Strategic Framework, the Specific Outcomes for activity centres includes a section on mixed use areas.[83] In that context, mixed use areas are included as activity
[83] TCP s 3.3.4.1(39)-(40).centres. Mixed use areas “contain a mix of uses including medium density housing
(where compatible with the local amenity), convenience retail and small-scale offices and showrooms, community and service industry uses which do not compromise
the intended role or successful functioning of centres”[84] [emphasis added].
[84] TCP s 3.3.4.1(40).Does location of the proposed development on the land compromise the intended role or successful functioning of centres?
Lautaret’s primary submission on this point is that the reference to not compromising the intended role or successful functioning of “centres” in this provision must be taken
to be referring to centres in the hierarchy which have a retail function (that is, the other five centres in the hierarchy), and does not include specialised centres. Therefore the provision is not enlivened. In the alternative, it submits that even if
“centres” here includes specialised centres, the proposed development does not
compromise their intended role or functioning.
Mr Hughes QC in oral submissions agreed that “centres” in this provision means
commercial centres. He confirmed that Mater did not rely upon this provision to allege non-compliance with the scheme. He submitted that there was no support in the words of that provision for a five storey hospital to be constructed in a mixed use zone. Mater points to the purpose of the centres hierarchy, which is to ensure optimum access to employment, services and facilities across the city, including public transport, to support the efficient provision of infrastructure and to optimise public investment. [85] Mater submits that this purpose applies to specialised centres as well, and not just retail centres.
[85] TCP s 3.3.4.1(3). 86 TCP s 6.3.7.2(1).
In my view the preferable construction of “centres” in specific outcome 3.3.4.1(40)
is that it is not intended to include specialised centres. Provisions of the Mixed Use
Zone Code also support that construction.The Mixed Use Zone Code
The Purpose of the Mixed Use Zone Code starts with a broad statement: “The purpose
of the Mixed use zone code is to provide for a mixture of development that may include service industry, business, retail, residential, tourist accommodation and associated services and low impact industrial uses”86 [emphasis added]. Thus the
mixed use zone anticipates a very broad range of uses.
It then descends to specificity about which centres are not to be compromised: “The
particular purpose of the code is to guide a range of activities … which do not
compromise the principal centre (CBD), district or major centres”[87] [emphasis
[87] TCP s 6.3.7.2(2).
added].
The purpose of the zone will be achieved through the overall outcomes. The overall outcomes confirm that the mandate not to compromise the functioning of centres is
directed to protecting retail based centres: “Mixed use areas do not compromise the
intended role or successful functioning of other centres. They do not contain full
line supermarkets, discount department stores or department stores.”[88]
[88] TCP s 6.3.7.2(3)(b).
[emphasis added].
The criteria for assessment in the Mixed Use Zone Code support this construction.
Performance outcome PO5 states “The type and scale of retail and other
commercial development does not compromise the intended role or successful
functioning of other centres”[89] [emphasis added].
[89] TCP s 6.3.7.3, Table 6.3.7.3, PO5.No acceptable outcome is nominated for that performance outcome. But the Editor’s
Note states that applicants should have regard to Economic impact assessment planning scheme policy SC6.5 for guidance on how to demonstrate compliance with this performance outcome. That planning scheme policy states that an economic impact assessment report may be required to demonstrate compliance with TCP
particularly for “significant in-centre or out-of-centre development of a commercial
nature”. The planning scheme policy is directed towards retail impacts from
commercial development and does not on its face apply to the proposed development of a hospital. It also supports the construction that mixed use areas are part of the network of centres.
It was accepted by all the town planners, including Mr Vann for Mater, that
development on the land in the mixed use zone cannot be described as “out-of-centre development” because in the TCP mixed use areas are treated as centres and are part
of the activity centres network.
The reference to “other” centres in the purpose of the mixed use zone and the criteria
for assessment above are superfluous unless the drafter intended that a mixed use area be treated as a form of centre. These provisions are directed towards not compromising the intended role of other centres with a retail focus. They are not directed towards the proposed development of a hospital.
The overall outcomes of the Mixed Use Zone Code are specific or explicit about uses which are clearly not intended in the zone: full line supermarkets, discount department stores or department stores. Those uses, self-evidently, are uses which
have the potential to compromise the “intended role or successful functioning” of the
types of centres expressly referred to in the purpose. That is, the principal centre
(CBD), district or major centres. It is telling that there is no equivalent “prohibition”
on hospitals, nor any hint in the Mixed Use Zone Code or elsewhere that the mixed use zone may not contain a hospital. The TCP is directive about where retail may be located but it gives no equivalent direction with respect to a new hospital.
The overall outcomes also state:
“Unless otherwise stated for a particular precinct, the areas in this zone evolve to
contain a wider mix of medium density residential uses as well as dining, convenience shops and speciality retailing, small-scale office uses, professional services and
service and low impact industries.”[90]
[90] TCP s 6.3.7.2(3)(c).A mixture of development, including but not limited to business and professional services, is expressly contemplated. There is no express, or implied, intent that precludes or discourages hospitals in the mixed use zone.
In conclusion, when construing the statement in the Strategic Framework that mixed
use areas “contain a mix of uses … which do not compromise the intended role or
successful functioning of centres”[91], the better argument is that the reference to
[91] TCP s 3.3.4.1(40).
centres there is a reference to retail based centres. It does not apply to the specialised
centres.
If I am wrong about that and “centres” in specific outcome s 3.3.4.1(40) includes
specialised centres, it is necessary to consider what their intended role or functioning
is.
The intended role of Fulham Road medical precinct is to be the focus of private acute medical services in the Townsville region, accommodating medical facilities, including the hospital and medical centres catering for allied and specialist medical services, and residential uses, aged care, retirement living and respite care.
The intended role of Bayswater Road medical precinct is to accommodate a broad range of medical and associated services, and a mix of medical-oriented and low and medium density residential uses, in a vibrant, mixed use urban village with a strong sense of place and civic identity.
The intended role of James Cook University-Townsville Hospital precinct is to evolve into a world-class knowledge community with a focus on the tropics and sustainability.
When construing the meaning of “compromise” in the context of desired environment
outcomes in the former planning legislation[92] this court said that for development to
[92] Integrated Planning Act 1997 (Qld) s 3.5.14(2) required that development not compromise achievement of
compromise “it must be of such a nature it will clearly threaten, imperil or endanger the planning outcome which is sought”.[93] Compromise connotes more than mere
[93] Brown v Brisbane City Council [2005] QPELR 629, 631 [9].
impact. By analogy, some guidance may be found in the statements that centres
(including specialised centres) are intended to support and not “undermine” other
activity centres within the hierarchy.[94]
[94] TCP s 3.3.4.1(28). See also s 3.3.4.1(14).
There is no development metric, such as gross floor area, height or otherwise, which suggests that the proposed development is unacceptable in the mixed use area and in the mixed use zone. Mater does not point to any such indicator that would suggest that the proposed development would compromise the hierarchy of centres.
The Strategic Framework actively encourages competition, promoting a broad range
of uses at activity centre, “appropriate to the identified hierarchy, to support vibrancy,
community life and health and economic development and competition”.[95] While the
[95] TCP s 3.3.4.1(1).
Strategic Framework suggests that much of the growth anticipated will be accommodated in key productive precincts including the James Cook University- Townsville Hospital precinct,[96] it does not state that all of the growth will occur at that facility. This should be read with statement that the network of activity centres
[96] TCP s 3.2.6.
will accommodate “the majority” (but not all) of future employment, community and
commercial activities. Thus mixed use areas and the mixed use zone play a role in
that network.[97] Similarly, while Fulham Road medical precinct is to continue as “the focus” of private acute medical services, it is not the sole provider nor is it intended
[97] TCP s 3.3.1(8).
to be.[98]
[98] TCP s 3.3.4.1(34).
Specialised Centre Zone Code
Mater also relies upon parts of the purpose and overall outcomes of the Specialised Centre Zone Code to contend that the development is inappropriate. However, that code does not apply to development on the land. The Specialised Centre Zone Code applies to development where the code is identified as applicable in a table of
assessment,[99] which is not the case here. An Editor’s Note in the Specialised Centre
[99] TCP s 6.3.6.1.
Zone Code[100] states that while the scheme does not regulate land within some of these
[100] TCP s 6.3.6.2(3)(a).sites, this code is intended to give direction to development “within or in the vicinity of” the nominated sites. The subject land is neither within, nor in the vicinity of, the
sites.
The Note corresponds with the purpose of that code, which is to provide for one or more specialised uses. This can be contrasted with the mix of uses contemplated in other centres. The particular purpose of the Specialised Centre Zone Code is to recognise the role and function of each of the specialised centres and guide development within each centre, and to protect each centre from encroachment by development which may impact on that role and function.[101] In my view, the
[101] TCP s 6.3.6.2(2).protection from “encroachment” has in mind development within or in the vicinity of
the centre intruding into, invading or usurping, the centre’s territory and role. This
construction is supported by other overall outcomes, referred to below.
None of these provisions uses language that is intended to preclude the possibility of the development of a private hospital elsewhere in the city. The purpose of the Specialised Centre Zone Code does not contain any express statement of intention to protect specialised centres from competition elsewhere. The code deals with what happens on land within, and in the vicinity of, the specialised centres.
The purpose of the code will be achieved through its overall outcomes.[102]
[102] TCP s 6.3.6.2(1).
Overall outcome (a) states: “The zone accommodates large public, commercial or
institutional facilities which are significant to the economic and social well-being of Townsville but are not appropriately included in other zones. These centres include Domain Central, the James Cook University-Townsville Hospital precinct, Lavarack
Barracks, Townsville Airport, Port of Townsville and major medical precincts.”[103]
[103] TCP s 6.3.6.2(3)(a).
[emphasis added].
The use of the adjectives “large” and “major” here also supports the construction that
a minor or small hospital or medical facilities may be established outside the three
medical related precincts.
Overall outcome (d) states “development supports and is compatible with the
primary focus for the centre. The specialised centre retains its dominant function and new development does not prejudice its ongoing operation or significantly impact on
the amenity of nearby sensitive uses”[104] [emphasis added].
[104] TCP s 6.3.6.2(3)(d).
Overall outcome (f) contemplates that “specialised centres grow in a consolidated
way that makes efficient use of the zoned area. Development near the boundaries of specialised centres is located and designed to minimise impacts on sensitive land uses
in other zones.”[105]
[105] TCP s 6.3.6.2(3)(f).
Overall outcome (g) states “development surrounding a specialised centre does not
impact on the continued functioning and expansion of the centre for its intended
primary purpose”[106] [emphasis added].
[106] TCP s 6.3.6.2(3)(g).
This is reinforced by the performance outcomes for both the Fulham Road medical precinct[107] and the Bayswater Road medical precinct.[108]
[107] See TCP Table 6.3.6.3 PO21, PO22.
[108] See TCP Table 6.3.6.3 PO31, PO32.In my view, these provisions are directed to development within, or in the vicinity of, the specialised centre in question. Therefore they do not apply to the proposed development. Nonetheless, for completeness I have set out some of the relevant provisions to the extent they could conceivably be relevant when construing the TCP as a whole.
There are additional overall outcomes for particular precincts. The particular overall
outcomes for the Fulham Road medical precinct echo those in the Strategic Plan: “(a)
the precinct continues to be the focus for private acute medical services in the Townsville region; (b) the continued efficient and effective operation of the hospital is protected; (c) the precinct accommodates medical centres, medical officers and health care services, research and technology industries, accommodation and other activities that support or are otherwise allied to the hospital activities; (d) the hospital
has the highest scale and intensity of any use within the precinct.”[109] [emphasis
[109] TCP s 6.3.6.2(4) Fulham Road medical precinct.added].
The particular overall outcomes for the Bayswater Road medical precinct include “(a)
the continued efficient and effective operation of the hospital is protected; (b) the hospital has the highest scale and intensity of any use within the precinct; (c) the precinct accommodates medical centres, medical officers and health care services, research and technology industries, accommodation and other activities that support
or are otherwise allied to the hospital activities.”[110]
[110] TCP s 6.3.6.2(4) Bayswater Road medical precinct.
There are also particular overall outcomes for the James Cook University-Townsville Hospital precinct. However, the appeal was not conducted on the basis that these were relevant.
Mater’s case focussed on the impacts of the proposed development on Mater’s
facilities in the Fulham Road medical precinct. That is unsurprising given that Fulham
Road houses most of Mater’s facilities. In the Bayswater Road medical precinct,
Mater operates only 34 overnight beds (one third more than is proposed by Lautaret
in its new hospital) and Mater’s own redevelopment plans involve transferring its
maternity services from Bayswater Road to Fulham Road.
Reference to the Fulham Road medical precinct continuing to be “the focus” for
private acute medical services admits of the possibility of other facilities elsewhere.
The existence of two other medical precincts reinforces this construction.
If the primacy of the Fulham Road medical precinct as the focus of “private acute medical services” were threatened, that would constitute non-compliance with this
assessment benchmark. However the evidence does not establish that. For the reasons explained below, I find that the proposed development will not prevent or compromise the achievement of those outcomes.
“Acute medical services” is not defined. The uses Hospital and Health Care Services
are separately defined.[111]
[111] TCP Schedule 1 Definitions.
Mater points to the fact that a hospital is code assessable in the Fulham Road medical precinct but impact assessable in the mixed use zone, in support of its argument that hospitals are only contemplated in the three specialised centres which have a medical focus. But the mere fact that a hospital is impact assessable does not mean it cannot be located in the mixed use zone. It simply must be assessed against the whole of the planning scheme. The TCP does not designate a hospital in the mixed use zone as impact inconsistent development, or prohibited development.
Will Fulham Road medical precinct continue to be the focus of private acute medical services in the Townsville region? Is the continued efficient and effective operation of the hospital protected? Will the proposed development compromise the intended role or successful functioning of centres (relevantly Fulham Road medical precinct
and Bayswater Road medical precinct)?[112]
[112] In Mater’s Amended Attachment A, Schedule of Specific Submissions on particular issues and planning
These questions are interrelated. The nature of the services proposed to be provided in the new hospital, and their impact on the range of services provided by the Mater, and on the relevant centres, is considered below.
An assessment benchmark does not include a matter of a person’s circumstances,
financial or otherwise. That means that when considering the evidence of the impact
of the proposed development on Mater’s facilities, matters of private economics, such
as the mere threat of competition or the impact on Mater’s profitability, are not of
themselves relevant.
Unfortunately, a good deal of the evidence of the financial and commercial experts, Mr Henderson on behalf of Lautaret and Mr Palassis on behalf of Mater, was directed
to those issues. I repeat and rely upon my observations below in the section on “need”,
including the authorities there referred to. Evidence of financial impacts on Mater is relevant only insofar as it relates to the questions the planning scheme poses, if at all. Those questions are directed to impacts on health services, not matters of private economics or purely financial impacts. For example, whether there will be a reduction in private acute medical services, whether Fulham Road medical precinct will no longer be the focus of those services, and whether its intended role or successful functioning will be compromised. One must keep returning to the actual words of the planning scheme.
Some of the evidence of the hospital demand experts, Dr Hardes for Mater and Mr Henderson for Lautaret, was relevant to these questions. Even if there is a financial impact on the Mater, whether private acute medical services or the operation of the hospital will be adversely affected, if at all, will depend on a number of factors. For example, the extent of growth in, and demand for, private hospital services in that area which might mitigate any loss of revenue.
I have considered all of the evidence but will refer only to that which is relevant, or particularly emphasised in submissions. So far as possible, I avoid express reference to evidence which was confidential or the subject of Fielder Gillespie orders.
It is important to bear in mind the relatively small scale and limited specialisation of the proposed new hospital: only 22 overnight beds, four operating theatres initially, units for intensive, inpatient and coronary care, a cardiac catheter laboratory and cardiology unit, and only four initial medical specialities (urology, maxillofacial, interventionist cardiology and orthopaedics).
This can be contrasted with the scale of Mater’s current operations across both its
locations, the majority of which are concentrated at Fulham Road: 201 overnight beds, approximately 1,300 staff or volunteers; eight operating theatres with an additional four under construction; the range of other facilities on offer; and a significantly greater annual turnover as disclosed in its financial reports.
In terms of overnight bed numbers, the new 22 bed hospital comprises only 10% of
Mater’s total private overnight beds. After completion of Stage 4 of Mater’s
redevelopment, it will comprise only 6% of Mater’s total overnight beds. On Mr Henderson’s evidence, the new 22 bed hospital represents only about 2% of total
public and private hospital beds in Townsville (which number over 1,000); 10% of all private hospital beds and 3.5% of all private/chargeable private separations in its third year of operation.
Notwithstanding the modest scale and limited focus of the proposed development,
Mater submits that its approval will not only have an impact, but “a devastating
impact upon the capacity of Mater to provide a full range of private hospital, surgical, medical and allied treatment and facilities for the benefit of the Townsville region as a whole.”[113] It further submits that the proposed development would adversely affect
[113] Written submissions on behalf of the Appellant 21 November 2018 [4.3].the continued operation, and “threaten” the approved redevelopment, of Mater’s
facilities.
Mater submits that its ongoing capacity to provide a full range of secondary and tertiary hospital services, including intensive care, for the Townsville regional community is a matter of public interest and if the proposed development is approved, those services will be reduced.
The hospital demand experts, Dr Hardes for Mater and Mr Henderson on behalf of Lautaret, agreed broadly on the data but disagreed on the conclusions to be drawn from it. A number of matters were agreed. Although Mater is the only private provider of overnight hospital services in Townsville, many private patients declare their private health insurance and elect to be treated as private patients at the public hospital, the Townsville Hospital, rather than at the Mater. It is not uncommon in regional areas to see larger numbers of private patients attending public hospitals for surgical and medical treatment. However the proportion of private patients in Townsville who utilise the public hospital is very high. It is substantially (about 43%) greater than the State average.
“Relevant matters” relied upon by the parties for the purpose of s 45(5)(b) were:
1. Whether there was a need for the proposed development; 2. Whether the proposed development would have unacceptable impacts on Mater’s existing facilities and redevelopment and the range of health care
services provided to the public by Mater; and
3. Other matters identified below.
Is there a need for the proposed development?
A great deal of time was taken up at the hearing with evidence from experts about whether there was a need for the proposed development. Need also occupied a
significant part of Mater’s submissions. In the end, that evidence and those
submissions were (for the reasons below) of questionable, or at best limited, utility.
Mater submitted that:
1. “Lautaret has failed to demonstrate any public or community need for any new private hospital services in Townsville, let alone any need for the proposed development to be located on the subject land. Indeed, the evidence reveals that there is no need for any new private hospital facilities in Townsville, but rather the proposed development will inevitably have impacts
upon the range of services Mater provides to the community.”;[167]
2. “There is no demonstrated need for the Proposed Development, as the existing
hospitals in the Specialised Centres have capacity to provide the relevant services currently and for the foreseeable future, particularly with already approved redevelopment.”;[168] and
3. “In light of the evidence, there is no community need for additional hospital
and healthcare services in the Townsville region and the Proposed Development would not add to the range of additional hospital and healthcare
services in the Townsville region.”[169]
[167] Written Submissions on Behalf of the Appellant 21 November 2018 [1.27(g)] – [1.27(h)]. See also [3.8],
[168] Amended Attachment A: Schedule of Specific Submissions on Particular Issues and Planning Provisions
[169] Amended Attachment A: Schedule of Specific Submissions on Particular Issues and Planning Provisions
There are two problems with these submissions. First, Lautaret was not required to
demonstrate need as part of the development’s compliance with the assessment
benchmarks. Second, to the extent need may be relevant at all, it is not some general need for new or additional private hospital services in the Townsville region but rather whether there is a need for the proposed development on the land.
No relevant provision of TCP expressly requires a need to be demonstrated for the proposed development, including a new hospital, on the land.
Mater’s submissions on this issue refer to s 3.3.4.1(28) of the Strategic Framework,
but that provision does not refer to need. Whether there is a need for the proposed development is not relevant to assessing compliance with the assessment benchmarks. Need for the proposed development, particularly a new hospital, is not expressly called up or required in any of the relevant assessment benchmarks. That may be contrasted with provisions of the scheme that do require a need to be demonstrated
for other forms of development. For example, new major strategic facilities “which
may be needed” are to be located in specific areas.[170] New neighbourhood centres
may establish “where need can be demonstrated”.[171]
[170] TCP s 3.3.4.1(13).
[171] TCP s 3.3.4.1(27).
Thus, in this appeal for this proposed use, the issue of need only arises in the context
of the discretion to consider “any other relevant matter” under s 45(5)(b).
In those circumstances, a demonstrated need for the proposed development would be a relevant matter the court may take into account in the exercise of the discretion under s 45(5)(b), which would favour approval. But if the proposed development complies with the assessment benchmarks, an absence of need would not be fatal, or even significant.
Put another way, Lautaret does not have to demonstrate that there is a need for the proposed development. But if it can, that militates in favour of approval. To the extent Mater may have conducted some of its case on the basis that Lautaret was required to demonstrate a need for the proposed development, that was wrong.
Before turning to the evidence of need, it is useful to bear in mind some general principles about need in a planning context. The question, whether need is shown to exist, is to be decided from the perspective of a community and not that of an applicant, commercial competitor or particular objector.[172] Nor is the impact of a
proposed development on existing like businesses such as Mater’s a matter which is
to be taken into account adversely to the proposed new facility unless the extent of competition will cause an overall adverse effect on the extent and adequacy of facilities available to the community.[173] A use is needed if it would, on balance, improve services and facilities available in a locality.[174] In planning terms, need is a
relative concept “not connoting present urgency” but rather relating to the “general
well-being of the community”.[175] A thing is needed if its provision, taking all things into account, improves the physical well-being of the community”.[176][172] Sempf v Gatton Shire Council & Anor (1997) QPELR 198, 198-200.
[173] Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675, 687.
[174] Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515, 517.
[175] Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515, 517.
[176] Cut Price Stores Retailers Ltd v Caboolture Shire Council [1984] QPLR 126, 131.
Lautaret contends that in considering whether there is a need for a new hospital, the bar should not be set too high because the provision of good quality health care is an essential matter. It relied on authority to the effect that a hospital, whether run for profit or not, is not an activity which could ordinarily be described as a commercial or trading activity.[177] In Salmar Holdings Pty Ltd v Hornsby Shire Council Mason
JA (as his Honour then was) described a hospital as “an activity of such intrinsic
worth and merit and so beneficial to the community that in common with other objects
it has always been regarded in law as a charitable object.”[178] In Jesmond Hospital
Pty Ltd v Strathfield Municipal Council[179], in approving the expansion of a
convalescent home, Hardie J stated that “there is a strong public interest in those
facilities being modernized and improved”.
[177] Salmar Holdings Pty Ltd v Hornsby Shire Council (1971) 23 LGRA 14.
[178] (1971) 23 LGRA 14, 25
[179] (1970) 19 LGRA 347, 351.Mater submits that this cuts both ways: that the bar for assessing adverse impact on an existing hospital should also be low, and that there is strong public interest in
Mater’s existing facilities being modernised and improved. I accept the second of
those contentions but not the first. There is no warrant to imply such a test when the TCP expressly prescribes what the bar is for assessing impact on existing medical
facilities. The planning scheme requires that development does not “compromise the intended role or successful functioning of centres” and that the Fulham Road medical
precinct “continues to be the focus for private acute medical services in the Townsville region” and “the continued efficient and effective operation of the hospital is protected”. Those are the tests that must be applied.
I refer to my reasons above with respect to the evidence of the hospital demand experts. In summary, the addition of another choice in the provision of overnight private hospital services in Townsville is a benefit to the community. The public Townsville hospital is at or near capacity and is experiencing very significant demand from private patients. That an extremely high proportion of private patients in Townsville are choosing to be treated at the public hospital rather than the Mater, is
not in the community’s interests as a whole. There will be continuing organic growth
in Townsville in the private hospital market, which cannot or will not be accommodated at the Mater. Within the new few years, there will be a substantial shortfall in the number of private overnight beds available to accommodate the demand. The shortfall will far exceed the 22 new beds that the proposed development would supply.
The economic need experts, Mr Ganly for Lautaret and Mr Duane for Mater, involved consideration of need at a high level. They agreed on a number of matters which are relevant to hospital demand in Townsville. For the relevant catchment, the population is to increase by almost 80,000 people, or 33%, between 2018 and 2036. A significant ageing of that population is anticipated. The share of the population older than 70 years is the only age group that will increase in population share. That age group is forecast to increase at a rate far higher than the overall population growth. An ageing population has important implications for hospital bed demand, as admission rates increase significantly for older Australians. The rate at which people within the region present to hospital increases significantly once people reach the age of 60. By the age of 70 years, the presentation rate is more than three times the total population average.
The public sector hospital bed provision rate in Townsville (of 3.64 beds per 1,000 people) is significantly higher than the Queensland average of 2.48. On the other hand, the private sector overnight hospital bed provision rate (of 1.09 beds per 1,000 people) is significantly lower than the Queensland average of 1.42. Whilst there was debate between the experts as to whether a comparison with the rest of Queensland average for a location such as Townsville was inappropriate, Mr Ganly considered that applying the most relevant metric, the Townsville catchment was clearly undersupplied with just 0.84 beds per 1,000 people compared with the Queensland average of 1.29.
Mr Ganly observed that as Townsville is the largest regional centre in Queensland. its size and status, and its distance from Southeast Queensland, means that its residents and medical practitioners have the right to expect that facilities are provided at a level which is at or above typical Queensland rates.
Mr Ganly said that there was a currently a significant undersupply of acute private overnight hospital beds. Even with approval of the proposed development, there would be a significant undersupply of beds: 135 beds in 2021, growing to 235 beds by 2036. He agreed that the proposed development would provide competition within the Townsville market. Competition benefits manifest in many forms, of which price (for patients and practitioners) is just one component. Other examples he gave were reduced waiting list times and access to new custom built facilities with modern equipment. His evidence was that approval of the proposed development would result in the creation and support of a significant number of new high value jobs in the health sector, one of the fastest growing employment sectors.
To the extent that there were differences between them, I preferred the evidence of
Mr Ganly to Mater’s economic need expert, Mr Duane.
Mr Duane applied a different analysis (involving the “rest of Queensland” average).
On that basis he concluded that there was a limited need, if any. Mr Duane said that there is no objective reason why the provision of acute overnight private hospital beds needed to be the same as the Queensland average and that any need or demand can be catered for by the existing preliminary approval of the Mater.
Mr Duane appeared of the opinion that major regional centres such as Townsville ought to be provided with acute overnight hospital beds at a lesser rate than the Queensland average. The hospital demand experts did not agree with such an assessment. Dr Hardes agreed that residents from large regional cities, such as Cairns and Townsville, ought to expect the same quality and level of services from hospitals as residents from South-East Queensland.
Mr Duane nevertheless identified an undersupply of 21 beds currently, increasing to 98 beds by 2036. For the reasons set out elsewhere, in my view reliance on the
Mater’s preliminary approval to meet that supply is misplaced. Even if eventually
implemented, the preliminary approval would not see the delivery of further beds to
the private hospital market for many years and potentially decades.
I am therefore satisfied that there is a need for the proposed development. Even if there were non-compliance with the assessment benchmarks, in my view, that need
and the other “relevant matters” referred to would be sufficiently compelling to
warrant approval of the proposed development.
Mater sought to downplay the community benefit of the new hospital by emphasising
that “importantly, the proposed hospital is to be a private hospital, run by specialist
surgeons to facilitate their limited specialised surgical procedures (rather than providing a full suite of surgical, medical and allied hospital facilities).”[180] It
reinforced this point in oral submissions.
[180] Written Submissions on behalf of the Appellant 21 November 2018 [1.2].However it is important to bear in mind that the Court is considering the acceptability of the proposal before it, rather than choosing between that and some hypothetical proposal offering similar or greater advantages to this proposal and perhaps in a different location.
Even if there is an impact on Mater’s delivery of health care services in the short to
medium term, the benefits associated with the new hospital in the proposed
development will go some way to making good some of those effects.
Townsville is identified as the major economic and service centre for North Queensland and provides the highest order community and commercial services for the region, including health facilities which serve the whole of north and northwest Queensland.[181] In those circumstances, the provision of state of the art health facilities to Townsville would, in principle, be in the public interest and a positive community outcome.
[181] TCP s 3.2.1.In conclusion, there is a planning need for the proposed development and the
community’s interests would be well served by approval of it.
Will the proposed development have unacceptable impacts on Mater’s existing
facilities and redevelopment and the range of health care services provided?
An assessment benchmark does not include a matter of a person’s circumstances,
financial or otherwise. Similarly, a person’s personal circumstances, financial or
otherwise, are not a “relevant matter” for the purposes of s 45(5)(b).
In considering the question of relevant considerations in the context of a broadly expressed planning scheme provision in Kentucky Fried Chicken Pty Ltd v Gantidis & Anor, Barwick CJ said:
“… economic competition feared or expected from a proposed use is not a planning
consideration within the terms of the planning ordinance governing this matter. …
Restraint or prevention of economic competition is not, in my opinion, part of the
orderly and proper planning of the zone to which cl. 7(2) refers.” [182]
Stephen J also said:
“… the significant word, quite vital to the nature of the submission … is ‘facilities’.
If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to
existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town
planning consideration.”183 [emphasis added].
[182] (1979) 140 CLR 675 at 681. 183 (1979) 140 CLR 675 at 687.
Therefore, the mere threat of competition to Mater, or a threat to Mater’s profitability,
is not a relevant matter for the purposes of s 45(5)(b). The economic impacts on
Mater, in that narrow sense, are not relevant.
However, if the hospital and medical facilities and services presently enjoyed by the community are put in jeopardy by the proposed development, and the resultant community detriment will not be made good by the proposed development, that would be a relevant matter for the purposes of s 45(5)(b).
Mater submits that its ongoing capacity to provide a full range of secondary and tertiary hospital services, including intensive care, for the Townsville regional community is a matter of public interest and if the proposed development is approved, those services will be reduced.
Council submits that even on Mater’s own evidence, there is nothing more than the
possibility of some reduction in services, that any reduction (if it did occur) would not be long term, and those services would be available elsewhere, either at the proposed development or at the Townsville Hospital. Finally it submits that even if such impacts were established, they would be substantially outweighed by the other considerable benefits associated with the proposed development.
I have already summarised earlier the evidence about the impact the proposed
development is likely to have on the Mater’s services and facilities.
For the reasons explained earlier, I am not satisfied that the hospital and medical facilities and services presently enjoyed by the community will be put in jeopardy by the proposed development. Nor am I satisfied that there will be a resultant overall adverse effect on the extent and adequacy of the hospital and medical facilities and services available to the community, if the proposed development proceeds.
Other “relevant matters” that justify approval
There are a number of additional relevant matters that support approval of the proposed development.
This Court on appeal, in deciding a development application, is performing a decision making function under the PA. This function must be performed in a way that advances the purpose of the Act.[184]
[184] PA s 5(1).
Relevantly, the purpose of the Act is “to establish an efficient, effective, transparent,
integrated, coordinated, and accountable system of land use planning (planning), development assessment and related matters that facilitates the achievement of
ecological sustainability”.[185] “Ecological sustainability” is a balance that integrates,
relevantly here, economic development and the maintenance of the cultural, economic, physical and social wellbeing of people and communities.186[185] PA s 3(1). 186 PA s 3(2).
Achieving economic development “includes achieving diverse, efficient, resilient and
strong economies, including local, regional and State economies, that allow communities to meet their needs but do not compromise the ability of future
generations to meet their needs.”[187] Maintaining “the cultural, economic, physical and
social wellbeing of people and communities includes”, relevantly, “creating and
maintaining well-serviced, healthy, prosperous, liveable and resilient communities
with affordable, efficient, safe and sustainable development” and “conserving or
enhancing places of special aesthetic, architectural, cultural, historic, scientific, social
or spiritual significance”.[188]
[187] PA s 3(3)(b).
[188] PA s 3(3)(c)(i), (ii).
Advancing the purpose of the Act will include, relevantly:
[189] PA s 5(2)(e).
[190] PA s 5(2)(g).
[191] PA s 5(2)(h).
1. conserving places of cultural heritage significance;[189] and 2. encouraging investment, economic resilience and economic diversity;[190] and 3. supplying infrastructure in a coordinated, efficient and orderly way.[191]
The proposed development conserves and enhances a place of cultural heritage significance. The heritage building will be reactivated, repaired and maintained as part of the development, after years of disuse, with little or no public access. This is a particularly compelling factor in favour of approval of the proposed development. Without the proposed development, the heritage building is likely to remain unused and to deteriorate, as it has for many years.
I accept Mr Buckley’s opinion that the community interest is advanced significantly
when planning authorities give an economic life to heritage buildings. He said that, in its simplest form, this is a direct and practical way that one generation passes on to the other, without economic burden, something of cultural and community significance. Intergenerational equity underpins the notion of sustainability, which is a foundation of modern planning and environmental legislation. Mr Vann agreed that it provided the heritage building with another use, and an economic opportunity to protect an asset which has been deemed to be of community value. Both Mr Perkins and Mr Vann agreed that adaptive re-use of the heritage building for medical purposes had merit.
The proposed development facilitates and encourages investment into new health facilities and services. Mr Vann also agreed that a project that achieved the re-use of a heritage building, at the same time as providing state of the art hospital care and other related medical facilities involved two positives from a planning perspective. He confirmed that the provision of state of the art health facilities to a regional city such as Townsville would, in principle, be a positive public community outcome. Mr Ganly observed that there are few more critical needs for a modern society than proper, accessible and cost effective health care.
Dr McEwen, an orthopaedic surgeon and one of the local medical specialists proposing the development, gave evidence about how the new hospital was intended
to operate. In contrast to Mater’s facilities, it is intended to be wholly digital. That
has advantages both for clinicians and patients. It avoids transcription errors in terms of medication, has operational efficiencies both for the hospital as a whole and individual practitioners, and improves the overall patient experience during their stay. A further advantage from a management point of view is associated with data analytics and the capacity to use the digital systems to maximise efficiency. He said that digitalisation was one of the key things that the Department of Health wanted to see in obtaining a licence. Dr McEwen doubted whether they would have been successful in their licence application without it.
Dr McEwen’s evidence was that the proposed new hospital would operate differently
to the Mater and represent a totally different patient and clinician experience, in part because of the digital platform. The new hospital would also incorporate robotic surgery, which particularly lends itself to orthopaedic procedures. Those
opportunities are not currently available at Mater’s facilities.
Dr McEwen fairly acknowledged that there would initially be some transfer of patients from the Mater to the new hospital. In terms of the medium and longer term impacts, he pointed to the projected growth in the area. The Mater would need to be adaptive and innovative, but they would pick up the lost revenue. He considered that, given the growth projected in the region for both hospitals, having two really good hospitals in town would be a positive outcome.
[403] The proposed development supplies hospital and associated health services infrastructure in an efficient and orderly way. It meets a current and future need for health services which will promote the physical and social wellbeing of the people and communities it serves. It will assist in creating and maintaining a well-serviced, healthy community.
To the extent the proposed development achieves those things and thereby advances the purpose of the PA, those are also relevant matters that favour its approval.
Conclusion on “relevant matters”
In conclusion, there are a number of “relevant matters” pursuant to s 45(5)(b) that
support approval of the proposed development:
1. There is a need for the proposed development; 2.
It facilitates the protection of a place of cultural heritage, in the form of conservation and re-use of the magnificent heritage building which has been vacant and unused for many years;
3.
It facilitates and encourages investment into new health facilities and provides for anticipated growth in health and professional services;
4. It encourages economic resilience and economic diversity; 5.
It improves the relationship between buildings and the street, and provides an improved visual amenity along Ingham Road and Sturt Street; and
6.
It provides more intensified development close to the principal centre (CBD) and supplies health infrastructure in a coordinated, efficient and orderly way.
In doing so, it also advances the purposes of the Act.
Conclusion
The proposal has substantial merit. It is for a well designed building to accommodate a development of a kind and at a location which is generally consistent with the relevant planning provisions. It would facilitate the restoration and adaptive reuse of a significant heritage building. It would deliver greater access to health services to the people of regional Queensland. It would result in increased competition, choice and convenience, in the provision of hospital services for the Townsville region. It would provide a needed, state of the art medical facility in an appropriate location.
There are no relevant matters which warrant refusal. There are a number of relevant matters that strongly support approval. Indeed, the public interest would be considerably advanced by approval of the proposed development.
The proposed development should be approved subject to conditions. I will hear from the parties as to orders effecting these reasons and conditions of approval.
Appendix A
| Ex 32 p10 |
Ex 55
| Ex 24 p10 |
in the PA: see s 229, s 311; Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231 LGERA 253.
Planning Regulation 2017 (‘PR’) sch 10, Development Assessment, pt 8, Heritage places.
Submissions in Reply on behalf of the Appellant 11 December 2018.
[3], [10].
approval by Jones DCJ in Brookside Estate Pty Ltd v Brisbane City Council & Anor [2019] QPEC 33 [15]- [25]. See also Smout v Brisbane City Council [2019] QPEC 10 [50], [51], [54] and Peach v Brisbane City Council & Anor [2019] QPEC 41 [38]-[40].
230 LGERA 374, 392 [70].
45(4).
November 2018.
per Jones DCJ; Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPELR 1102, 1111 [48] per Williamson QC DCJ; Peach v Brisbane City Council & Anor [2019] QPEC 41 [67]- [69] per Williamson QC DCJ.
engineering impacts warranted refusal of the development application.
of Appeal, the Court was unpersuaded that the criticism was justified: Bell v Brisbane City Council (2018)
230 LGERA 374, 387 [50].
Caloundra City Council [2009] QPELR 393, 398-399 [18].
applied in Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 326.
Desired Environmental Outcomes.
provisions accompanying the Appellant’s Written Submissions 21 November 2018, Mater confined its
submission about non-compliance with this provision to the impact on Fulham Road medical precinct and
Bayswater Road medical precinct.
agreed.
advised by Mr Hughes QC during addresses on 23 November 2018; Amended Attachment A to Appellant’s
written submissions 21 November 2018.
gateway precinct (d).
advised by Mr Hughes QC during addresses on 23 November 2018.
[3.42].
Accompanying the Appellant’s Written Submissions 21 November 2018, p 14, “Need”.
Accompanying the Appellant’s Written Submissions 21 November 2018, pp 18-19.
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