McNamara-Healey Holdings Pty Ltd v Redland City Council

[2025] QPEC 23

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

McNamara-Healey Holdings Pty Ltd v Redland City Council & Ors [2025] QPEC 23

PARTIES:

McNamara-Healey Holdings Pty Ltd ACN 111439251
(Appellant)

v

Redland City Council
(Respondent)

&

Birkdale Childcare Centre Pty Ltd (trading as Perfect Start Birkdale and Perfect Start Mary Street) ACN 619496105

(First Co-Respondent by Election)

&

Louise Burroughs

(Second Co-Respondent by Election)

FILE NO/S:

2578/2024

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

22 October 2025

DELIVERED AT:

Brisbane

HEARING DATE:

25 – 27 August 2025, 26 September 2025

JUDGE:

Kent KC DCJ

ORDER:

The orders are that:

1.    The appeal is allowed.

2.    The Council’s decision is set aside.

3.    The development application is approved subject to reasonable and relevant conditions. The parties will be heard as to directions necessary to resolve the conditions.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking a development permit for material change of use for a childcare centre in Low-density residential zone – whether the proposed development is small scale – whether the proposed development is of a house-like scale – whether the proposed development is of a house compatible scale – whether the proposed development would give rise to unacceptable visual amenity impacts – whether there is a need for the proposed development – whether the proposed development should be approved in the exercise of the planning discretion

CASES:

Abeleda & Anor v Brisbane City Council [2020] 246 LGERA 90
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793
Griffith Capital Pty Ltd v Redland City Council [2022] QPEC 21
Isgro v Gold Coast City Council & Anor [2003] QPEC 2
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46
Parmac v Brisbane City Council [2018] QPEC 32

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309

LEGISLATION:

Planning Act 2016 (Qld), s 45, s 60
Planning Regulation 2017 (Qld)

Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 46

COUNSEL:

M J Batty KC and N A Batty for the Appellant
D Purcell for the Respondent

L Walker for the Co-Respondents by Election

SOLICITORS:

MacDonnells Law for the Appellant
Redland City Council Legal Service for the Respondent

HWL Ebsworth for the Co-Respondents by Election

Introduction

1. This appeal is against the respondent’s decision to refuse a development application for a development permit for a material change of use for a childcare centre (the development application) in respect of land at Birkdale Road, Birkdale (the land). The application was made in June 2023 and refused in September 2024.

2. The co-respondents by election operate other existing childcare centres in the local government area of the respondent. The opposition of those parties to the appeal is styled by the appellant as concerns with their own commercial interests. One rejoinder is that they, like the Council, are entitled to have the Planning Scheme, representing as it does the public interest, applied.

3. More broadly, the issues concerning those opposed to the appeal can be described as whether the proposed development:

   (a)is an appropriate use of the land, including whether it is appropriate in scale and character for the locality;

   (b)would give rise to unacceptable visual amenity impacts; and

   (c)fulfills a relevant need.

4. The land is located on Birkdale Road, a busy four-lane road, carrying approximately 24,000 vehicles per day with obvious existing impacts on the amenity of the area. There is an existing preliminary approval for building work for a dwelling of similar footprint, built form and visual amenity impacts to the proposed childcare centre building.

   The appellant’s case

5. The land is in the Low-density residential zone (LDRZ) and partly in the community facilities zone of Version 10 of the Redland City Plan 2018 (the Planning Scheme). It is also subject to several overlays. With this as context, the appellant argues that childcare facilities as a land use can have a legitimate place in residential areas.

6. The appellant also points to the apparent need in both a community and economic sense, for additional childcare centre places. There are no alternate sites in the catchment that could accommodate a childcare centre in a code assessable format, that is, any alternative proposal would be impact assessable as this one is.

7. Broadly, the appellant’s submission is that the proposal complies with the planning scheme and to the extent it may not, any such non-compliance is outweighed by the demonstrated need for an essential service, thus the appeal should succeed.

   Council’s response

8. The Council accepts that childcare centres can have a legitimate place outside of land zoned for such centres, such as in residential areas. This is acknowledged by the Planning Scheme; however it expressly imposes prescriptive and limiting criteria in determining such uses in residential areas. These matters are questions of fact and degree having regard to the relevant local context.

9. The Council submits that the Planning Scheme discourages and expressly precludes non-residential uses of the nature and scale proposed in residential zones, having regard to the local context; further, that the proposal has unacceptable amenity impacts. The nature of the non-compliance is such that the matters in support of the approval are not sufficient to justify the success of the appeal.

10. These contentions are summarised as:

    (a)the proposal would cut across a clear and deliberate planning strategy in the scheme (which embodies the public interest) that non-residential uses of this nature and scale do not occur in the LDRZ;

    (b)there are real and material amenity impacts which weigh against approval; and

    (c)to the extent there is any need for childcare places in the catchment, there is no need for a centre of this size offering 117 places. The basic proposition is that the proposal is too large and leads to over-development of the land inconsistent with the Scheme.

11. Council argues that such need as may exist for the childcare service does not render acceptable the nature and scale of the proposal in the local context. Rather, a balanced decision in the public interest would be refusal of the proposal. The co-respondents oppose the appeal on similar grounds.

    The site and the surrounding area

12. The site is broadly described above. It comprises four contiguous allotments with a combined area of 4,629m2, a frontage to Birkdale Road of 93m and a secondary parallel frontage to Carinyan Drive to the east. There is no (and as I understand, there is not planned to be any) direct connection between Birkdale Road and Carinyan Drive. The site slopes evenly from a high point of 19.25m AHD at the south-western corner to a low point of 15.35m AHD along its northernmost border. It is presently improved by two dwelling houses on the southern part of the site and is otherwise vacant.

13. Nearby developments include Birkdale Road, surrounding dwelling houses, a commercial flower farm diagonally opposite to the west and a nearby commercial centre.

14. Existing approvals for the land include a development permit to reconfigure two lots into six, which facilitates residential lots on the parts of the land not occupied by the childcare centre and the preliminary approval for a dwelling house, mentioned above.

    Relevant Principles

15. The development application is to be decided under the Planning Act 2016 (‘PA’) and the Planning and Environment Court Act 2016 (‘PECA’). Section 43 of PECA provides that the appeal is a hearing anew and the appellant bears the onus of establishing that the appeal should be allowed (s 45(1)). The Court is effectively in the place of the assessment manager (s 46(2)(a)).

16. The proposed development was impact assessable, thus, under sections 45(5) and 60 of the PA, assessment is to be carried out against the assessment benchmarks in the Planning Scheme; any matters prescribed by regulation; and regard may be had to other “relevant matters” other than a person’s personal circumstances, financial or otherwise (s 45(5)(b) PA).

17. The nature of the jurisdiction of this Court on appeal is a broad and flexible discretion where any non-compliance with the Planning Scheme has to be balanced against factors in favour of approval of the development; Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793 at [51]; Abeleda & Anor v Brisbane City Council [2020] 246 LGERA 90 at [53]; Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309.

18. Brown J (as her Honour then was) said in Trinity Park at [180]:

    “The process adopted by a decision-maker may now be one which involves balancing a number of factors to which consideration was permitted under s 45(5) of the Planning Act in making a decision under s 60(3) of the Planning Act where the factors in favour of approval have to be balanced with the factors in favour of refusal of the application. The weight that is given to each factor is a matter for the decision-maker.”

19. The planning scheme is important as an expression of the public interest; see e.g. Abeleda at [42]. However, underlining the broad and flexible nature of the discretion, blind adherence to a planning scheme is not appropriate and a degree of flexibility may sometimes better serve the public interest: see Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 at [18].

    The Issues – Economic Need

20. The respondent’s reasons for refusal included that there is no town planning, community, or economic need for the proposed development. It is now uncontroversial that there is a need for childcare centres, however the respondents collectively argue that such need as is identified is not sufficient, taking the relevant matters into account, to tip the balance in favour of approval of the application, where it competes in identified respects with the planning scheme. The Council argues that there is no identified need for a centre of the size proposed, that is, 117 places.

    Mr Duane

21. Exhibit 10 is the joint expert report as to economic need. Mr Duane, the economist retained on behalf of the appellant, said that there is a community and economic need for an additional childcare centre in the catchment area. He opines that there is a gap for a modern childcare facility in the area and an ongoing demand for childcare facilities throughout the entire catchment area. The proposal would add to diversity and choice of facilities given four of the existing seven childcare centres in the relevant area are operated by the co-respondents by election. His opinion is that the approval would result in a positive economic benefit to the local community, providing a modern childcare centre close to residents’ homes. This is particularly so given the age of the existing centres which is in the order of 15 years. Although the reference to age is a reasonable observation, in my view it does not have great weight. The centres presumably keep up with statutory standards – there is nothing in the evidence to indicate otherwise. Whilst the older ones may be limited in terms of overall size and room size compared with a modern facility, there is nothing to suggest they are not fit for purpose and will presumably remain so.

22. Mr Duane further points to the feature that existing childcare centres in the catchment area presently operate at over 80 per cent occupancy which reduces residents’ abilities to choose days for enrolment. There are waitlists for some centres. He acknowledges that demand will decline over time, however, says that the decline will be slow, and the occupancy levels nevertheless represent a constrained supply market. There do not appear to be other competing proposals within the catchment currently and as mentioned above, there are no available sites which would be code-assessable for the planned use.

    Mr Norling

23. Mr Norling is the economist who gave evidence on this issue on behalf of the Council. He concluded that there is moderate to strong level of community and economic need for additional childcare places within the Primary Sector (a smaller subset of the catchment to which he refers), but not at the scale proposed. He points to the existing seven centres in the relevant area being of a good standard, acknowledging that a new centre would offer a more modern facility with room dimensions designed for current staffing ratio requirements. He notes that the proposed site is not located close to a school which reduces its potential attractiveness. It is, however, on a major road which facilitates vehicular access for drop off and pick up of children. Six of the seven existing centres in the sector are located near schools.

24. Mr Norling pointed to projected declining demand for childcare centres in the primary and secondary sectors from 2026, attributable to minimal population growth and an ageing population resulting in a declining proportion of 0 – four-year-olds (this is a distinction from the evidence in the similar appeal of Griffith Capital Pty Ltd v Redland City Council [2022] QPEC 21, where there was rapid population growth; see [121]). He said that there is currently a gap in the market for about 60 places which increases to about 70 places in 2026. This is however projected to fall to about 31 places by 2046, which falls well short of the 117 places proposed.

    Mr Brown

25. Marcus Brown is the economist called by the co-respondents by election. He said that there is likely to be a short to medium term need for additional long term daycare places within the Birkdale – Thorneside catchment (as mentioned above, referred to by Mr Norling as the Primary Sector). However the need is, in his view, significantly less than the number of places proposed. Mr Brown also noted that the demand is expected to decline beyond 2026 and thus the declining outlook makes calculating a precise supportable number of places difficult. He acknowledges that the new centre would necessarily add to the number of centre options within the catchment area, however there are potential downsides to approving places over and above what is needed; further, such need as exists could be met by expansion of existing operators.

    Impact on present Centres?

26. As to its potential impact on the viability of childcare centres, Mr Duane says that such impacts will be spread across the variety of centres and not seriously reduce the opportunity for centres to continue in operation. Further, the number and ownership of childcare centres can change over time, and this occurs not infrequently. Major decisions will be made by existing and future operators having regard to the performance of various centres including size, refurbishments and other factors.

27. Mr Norling said that the proposal would push annual average occupancy rates below 70 per cent, which is problematic for some of the lower performing centres. However competition is likely to ensure that some operators will obtain higher than average occupancy rates.

28. The co-respondents argue that such need as exists could be met by a smaller development on the site, however the present application is the only one before the court, and in respect of which the court must reach what amounts to a binary choice of approval or non-approval. Nevertheless it is submitted that caution should be exercised in approving a development the size of which exceeds the demonstrated need.

29. Further, to the extent that economies of scale are said to be necessary to provide the quality of service proposed, the co-respondents submit this should not be accepted. In my view this is correct, however I do not understand this to be a proposition relied on by the appellant. Rather, it is said that given that the centre will be new and developed according to current standards, by an experienced operator with a proven record, it will be a high-quality offering; its quality is not dependent on its size.

30. The co-respondents urge the acceptance of the evidence of Mr Brown and Mr Norling over that of Mr Duane on the need issue. Submissions were made analysing differences in approach in data analysis and mathematical projections as well as some of the underlying assumptions, however the disputed conclusions really amount to differences in professional opinions, each set of opinions being reasonably reached on available material by appropriately qualified experts.

31. This is a nuanced debate, given that all the experts agree there is a need - the disagreement is as to the amount of the need, particularly over the medium to long term. The further into the future such projections attempt to quantify ongoing need for childcare places, the less precise, and reliable, the numbers become, in my view. Mr Brown seemed to acknowledge as much. This is not a criticism of any of the witnesses or their opinions, rather it is the nature of the task they are engaged in; over an extended projected period contingencies, foreseen and unforeseen, necessarily have the potential to affect calculations of future need. There is agreement as to a degree of need in at least the short to medium term. Overall I accept the evidence of Mr Duane on this issue; there is a significant need for childcare places which will likely decline over time, but nevertheless the market will remain constrained (absent the proposal).

    Conclusion as to need

32. In my view the evidence establishes that there is a significant economic and community need for a further childcare centre in the catchment, as Mr Duane opined. As far as it is possible to be confident about projections – all of the opinions as to which are no doubt firmly based and honestly held – into the future by up to two decades, I accept the opinion of Mr Duane that demand for childcare places will decline slowly and there will remain a somewhat constrained market. The development would enhance choice and competition as well as, for some users, convenience. Childcare is an essential service, and in my conclusion, there is significant and ongoing need for placements such as to support approval, subject to the other aspects of the exercise of the discretion, dealt with below. This is not, of itself, decisive; need is a significant issue but is not paramount (Griffith at [122], referring to Isgro v Gold Coast City Council & Anor [2003] QPEC 2 at [28]).

    Town Planning

    Mr Buckley

33. Town planning concerns were also in issue. It is common ground that childcare centres provide a community service function and can have a legitimate place outside of centre zoned land, such as residential zones. The Scheme supports childcare centres in the LDRZ where they are small scale developments which do not unduly detract from residential amenity or impact the function of a nearby centre. Childcare centres are a significant community asset; they contribute to the fabric of a community; parents and others make lasting social connections, including inter-family and personal relationships, and children often continue together to other levels of education. Childcare is also important to the economy, including promoting female workforce participation. Mr Buckley, the appellant’s town planning expert, noted these features as a positive starting point for the current assessment. I refer to the following assessment benchmarks, and relevant evidence and submissions.

    LDRZ Code Overall Outcome 6.2.1.2(2)(e)

34. Overall Outcome 2(e) provides five criteria for a proposed use to comply with the LDRZ Code, including being a community use, of small scale, not to significantly detract from residential amenity, not to compromise the role of a centre, and be on a collector or higher order road. The experts agree that the proposal meets the first, fourth and fifth of these. The principal argument in a town planning sense is its scale. The appellant argues that as to “small scale” relevant comments from Griffith apply:

    “…Whether a proposed childcare centre is small scale is a question of fact to be determined having regard to the built form and operating parameters of the proposed use and the context in which it sits in the locality…

    …It calls for consideration of the use, not simply its built form.” ([94] –[96])

    Scale

1. The size of the centre is contentious – the respondents say it is above average in size, both as to number of enrolments and the size and bulk of the building, and this is an important aspect which contradicts its characterisation as a small scale centre. Mr Buckley says in response that arbitrary limits are not appropriate. Where the proposal is on a busy road on the edge of an existing developed area, it will provide a point of difference in the market being modern and well equipped and it has no impact on local acoustic amenity. It does appear that childcare centres have had increasing numbers of enrolments approved over time. The existing preliminary approval for a similar residential building on the site is said to be relevant.

2. The respondent submits that the Planning Scheme generally seeks to locate such non-residential non-small scale uses in centres, not the LDRZ. Further the criteria in 2(e) are not met, particularly as to scale. The contextual features to which the appellant refers are said not to be determinative as to scale. The question is one of fact and degree, considering several relevant features. The Council argues that there are no houses of this size or scale in the immediate locality, but of course there is a preliminary approval for the house which could be constructed on the block, mentioned above. That approval is conceded by the respondent to be relevant, but I am urged to give it little weight. The approval is preliminary and does not presently authorise construction.

3. In any case the respondent submits that the use, when the childcare centre is in operation, will not be house-like or of house compatible scale when one considers the number of people and traffic movements and activities. The intensity of the use is relevant to scale in addition to built form, including such things as level of activity and traffic volume (Parmac v Brisbane City Council [2018] QPEC 32 at [43]). These matters fall in the context outlined above; the site’s frontage to busy Birkdale Road necessarily distinguishes it from the amenity concerns in a quiet residential street, for example.

4. The Council thus urges a finding that the proposal is not small scale, as in Griffith (which was nevertheless ultimately successful). It is also said that it is neither “house-like” or “house compatible”. There are no comparable sized houses in the immediate vicinity and the photomontages show a “greatly oversized built form”.

5. The co-respondent advances similar arguments including that the proposal should not be found to be small scale and it is inconsistent with the Scheme; further it is not house-like or house compatible for similar reasons. Reference is made to the evidence of Mr Mewing and his view of ‘house-like scale’ as contextualised to the local residential fabric.

6. The distinction is made from Griffith where the proposal was smaller; the appearance was of two separate houses; and the context included a college, said to be an intense use and distinct from the circumstances of this case. This has some force, but another distinction is that the traffic volume on the road to which the frontage is exposed in this case is far greater; this is relevant to amenity considerations. The proposal here was, again, argued not to be house-like or of house compatible scale: the GFA is large as is the site itself; its scale and form is not consistent with its residential context and there is a large hardstand area for a large number of car park spaces. It is also submitted, as by the respondent, that the existing preliminary approval for the dwelling is of little weight, particularly where the scale of it is inconsistent with the zone in the local area. Nevertheless, the fact of the preliminary approval remains.

   Amenity generally - appellant

7. The context includes the Birkdale Road environment, subject to the Transport Noise Corridor Overlay Map; the nearby flower farm; significant road and public transport infrastructure; the nearby local centre and a service station; and fast food and other commercial outlets. Also relevant are the features that the applicant owns lots around the perimeter of the proposal and the planned character of the land which permits potential future code assessable developments of larger size and more intensity than the present proposal. In these circumstances and the lack of identified unacceptable impacts such as noise, light, odour, overlooking, overshadowing or overbearing there is said to be no unacceptable impact on residential amenity and this criterion of OO2(e) is met.

8. The site’s frontage is to busy Birkdale Road – 24,000 vehicles per day, according to the Traffic Impact Assessment. It is separated from internal residential streets, thus “rat running” for vehicular drop off and pick up is not an issue.

   Amenity generally – respondent

9. The Council concedes, appropriately, that there are no relevant impacts as to noise, air quality or lighting. The concerns are with visual amenity and the intangible concept of character and amenity. It argues that consistently with Full Court authority, the concept of amenity can be wide and flexible, and include such things as residents’ subjective perceptions. This is no doubt correct, but the proposition did not assume a large role in the evidence. It also argues that the planning strategy includes a theme of protection of residential amenity, as borne out by the LDRZ Code, and that the proposal would detract from the existing amenity of the area, due, again, to the scale of the use as to its form and operation.

10. The built form was argued to be inconsistent with a low density streetscape character, in conjunction with operational aspects such as activity and traffic. Further, as to visual amenity, it was said to be visually dominant, inconsistent with the planning intent and non-compliant with PO33, PO37 and PO18 of the Landscape Code. However these concerns fall away if the overall outcomes of the LDRZ Code are met.

    Amenity – Co-Respondent

11. The co-respondent also criticises the adverse impacts of the proposal on amenity in the zone, referring to residents’ subjective perceptions, and visual amenity including dominance and overbearing. Reference is made to impacts on future residents of adjoining lots. However if the appellant does sell off the lots as vacant land, design of new dwellings thereon will be likely to make allowances for the local context including an important feature such as the proposal, once constructed, would represent.

12. Landscaping is also raised as an issue, although it seems likely that such concerns would be able to be addressed by conditions of, rather than refusal of approval.

    Visual Amenity

13. The planned building is said to have house-like characteristics – it is two storeys with appropriate house-like design elements, has site cover of below 50% (on a large site) and has appropriate landscaping, setbacks and presentation such as to blend into the streetscape; indeed Mr Buckley expressed the view that it would make a very positive contribution to the streetscape. Other plantings and orientation minimise impacts on neighbours. These features appear in the photomontages. The existing preliminary building approval for a house on the site which has a similar footprint, is said to be consistent with the house-like nature of the proposal. The respondents argue this was a tactical, coinciding application. That may be so, however no doubt it is intended to show that this scale of building, at least in terms of its footprint and bulk would not be out of place; the approval does so. This feature of the case, whilst not determinative, erodes the force of the respondents’ complaints as to visual amenity.

14. Thus, Mr Buckley does not consider the proposal to unduly detract from residential amenity. He also considers that there is a need for the proposal, although deferring to the need experts. Overall, the scale, amenity and character of the proposal are acceptable; it provides choice for the community; there is a need for childcare; the location on a busy road is desirable and it is likely to be suitable for parents. It aligns with the Scheme in his view. In particular, the context of the land offsets any concerns such as scale, thus on balance approval is appropriate. Community well-being, location, need, stand-alone setting, accessibility and comparative scale favour approval.

15. The respondents, conversely, point to such features as the large number of car parks (37 car parks; the hardstand parking area occupies 58% of the site); some aspects of the landscaping; the length of the building, which is said to be overwhelming; and its general bulk and visual dominance to conclude that the development would not be house-like and generally that it is of unacceptable scale.

    Overall Outcome 2(b)

16. Overall Outcome 2(b) of s 6.2.1.2 of the LDRZ Code concerns the existing streetscape and its maintenance. The appellant argues the proposal is of a low-density streetscape character and will maintain the existing character. This is in the important context of busy Birkdale Road, the nearby neighbourhood centre, the flower farm and other nearby features including a service station and retail outlets. It is quite different from a site which would be located internally in a residential area; Birkdale Road is a high-order road with heavy traffic, quite different from a residential street. Mr Buckley opined that it would make a positive contribution to the streetscape.

17. This is again contested by the respondents. They refer to the evidence of Mr Curtis, who said in the Joint Experts Report as to Visual Amenity that the development did not maintain the streetscape character; also Mr Mewing, who described it as discordant with the local residential character and setting.

    Overall Outcome 2(g)

18. Overall outcome 2(g) requires that buildings be of a house-like scale. This is said by the appellant to be satisfied where the existing preliminary approval is for a similar building which while large, is of comparable size and scale to others in the local government area (albeit not nearby). In this way the proposed centre is said to be as compatible with the setting as the approved dwelling, and its size is unremarkable given the size of the land. Site cover is acceptable as are landscaping, setbacks and house-like design elements. There are of course differences in traffic and amenity, such as noise, between the proposed use and a dwelling, nevertheless the appellant argues that the proposal is of house-like scale. This is said to bear some similarity to the proposal in Griffith, which was ultimately successful, in the same Local Government Area.

19. The respondents resist this conclusion, essentially for the reasons outlined in [49] and [51] above.

    Purpose

20. The Scheme sets out the purpose of the LDRZ Code, relevantly, to provide for residential areas with a high level of amenity and characterised by dwelling houses on a range of lot sizes which achieve a general sense of openness and low-density streetscapes. As outlined above, the existing amenity of the locality is impacted by nearby commercial activities, as well as the vehicular traffic and road infrastructure of Birkdale Road. The appellant argues that the proposal’s design is consistent with a sense of openness and the current streetscape; does not adversely impact amenity or character of the LDRZ as a whole; and thus the purpose of the Code is not in conflict with the proposal.

    S 3.4.1.8(4) of the Strategic Framework

21. The strategic framework is high in the assessment benchmark hierarchy and prevails, for example, over zone codes. This sub-section, concerned as section 3.4 is with the theme of economic development, provides for non-residential uses to only occur in residential zones where they are for a community purpose, are stand-alone and small scale, do not significantly detract from residential amenity and do not compromise the role of any centre. The appellant argues that for the reasons set out above, these criteria are met. The respondents argue to the contrary, particularly as to whether the proposal can be described as small scale, again as canvassed above.

    Conclusion as to town planning

22. Overall my conclusion as to the identified controversial planning issues is that they do not, individually or collectively, amount to sufficient reason to refuse the application. Rather, in the context of identified need, the proposal is in my conclusion house-like and house compatible, in its setting which includes the busy road, the flower farm and the nearby centre and other commercial uses. This conclusion is also assisted by the existing preliminary approval for construction of a dwelling with the same footprint on the land, a feature which was apparently not present in Griffith.

23. As to whether the proposal is small scale, the respondents make the point that it is, quite simply, large. It caters for 117 childcare places requiring 22 staff and 37 car park spaces. It is a large building on a large lot, much larger than the surrounding houses. Moreover, the use is relevant, and the proposed use necessarily involves a significant degree of activity in an otherwise residential setting. I am indebted to the analysis of this issue in Griffith, particularly at [86]-[101]. It is true that Birkdale Road is much busier than the road which the development in Griffith fronted, and thus amenity must be assessed in this context. However this does not amount to a decisive factor in my conclusion. I accept that, as was said in Griffith, whether a proposed non-residential use is small scale or not is a factual conclusion upon which reasonable minds may differ, and there is no bright line dividing the categories. However the features of this proposal mentioned above simply do not, in my conclusion, permit a finding of small scale. Thus I do not find that it is small scale, however, as in Griffith, several assessment benchmarks are met. It is for a community purpose; is stand-alone; is on a collector or higher order road; will not, in my conclusion, unduly detract from residential amenity; will not impact the function of a nearby centre and is of a house-like and house compatible scale. The compliance with assessment benchmarks is substantial but not full. This raises the exercise of the planning discretion.

    Other Relevant Matters- s45(5)(b) PA

24. The appellant argued in respect of the relevant matters impacting the exercise of the planning discretion that on balance, these favour approval. Need is present as discussed above. The proposal would deliver a modern, well-designed childcare centre – an essential service – conducted by an operator with a proven record in the industry and will provide choice of services to the local community. It would be large, but not impermissibly so, and the existing preliminary approval for a dwelling of the same size is relevant to the questions of scale and amenity. It is on a collector or higher order road. There are no demonstrated unacceptable impacts. The matters favouring approval are said to be weighty enough to carry the day even where a degree of non-compliance with the Scheme exists in that the proposal is not small scale.

25. This is contested by the respondents, who argue that there is no demonstrated need for a facility of the proposal’s size; it cannot be conditioned to resolve the identified non-compliances with the Scheme; and the relevant matters raised as favouring approval do not remedy the fundamental non-compliance. The argument is that there is a non-compliance with the Scheme which also has an underlying policy and intent against such uses in the LDRZ, and thus refusal is warranted.

    Conclusion

26. Griffith is an important and helpful decision in this matter. It involved a childcare centre which was large, although not as large as this proposal. The context included a busy college, but the road frontage traffic was not as intense as this case. The need was somewhat greater than the present case. The development application, although found to not be small scale, was nevertheless approved on balance in the exercise of the planning discretion. That decision has both similarities to and differences from the present, and every appeal of this kind rises and falls on its own merits. Nevertheless I have found many aspects of the reasoning in Griffith helpful.

27. In my conclusion this application ought be approved. There is a demonstrated need. The non-compliance with the Scheme, in the finding that the proposal is not small-scale, is outweighed, on balance, by the substantial compliance with the other assessment benchmarks. This is particularly so in the context of the location and setting of the proposed development, traversed in some detail in this judgement. I do not accept that there would be unacceptable impacts on amenity and the existing preliminary approval has relevance to size, bulk and whether the building would overlook or be overbearing in relation to neighbouring dwellings. The matters supporting approval have more force than the objections raised by the respondents.

28. The orders are that the appeal will be allowed, the Council’s decision set aside, and the development application approved subject to reasonable and relevant conditions. I will hear the parties as to appropriate directions to resolve the question of conditions.