Mooncraft v Redland Shire Council
[2005] QPEC 115
•9 December 2005
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Mooncraft v Redland Shire Council & Anor [2005] QPEC 115
PARTIES:
Mooncraft Pty Ltd ACN: 010898343
Appellant
v.
Redland Shire Council
Respondent
Lake Mona Pty Ltd
Co-respondent
FILE NO/S:
BD 1319 of 2005
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
District Court
DELIVERED ON:
9 December 2005
DELIVERED AT:
Brisbane
HEARING DATE:
29-31 August 2005
JUDGE:
Griffin SC DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
Appeal by submitter against conditional approval to allow an application for Material Change of Use – 50 place child care centre at Wellington Point – planning intent for co-location or adjacency with centres and other facilities – need for proposal – amenity impacts of proposal – whether proposal conflicts with planning instruments – consideration of draft planning scheme and Coty principle – whether sufficient planning grounds to approve proposal.
Cases cited:
Bundaberg City Council v Burnett Shire Council & Ors [2004] QPELR 459
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGERA 117
Westfield Management Ltd v Pine Rivers Shire Council & Anor (unreported, Planning and Environment Court, Britton SC DCJ, 14 November 2003, 1627/2003)
Burmah Fuels (Qld) Pty Ltd v Redland Shire Council (1995) QPLR 103
Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313 at 318
Bruigom v Council of the City of Rockhampton (1997) QPELR 418
Norris Clarke and O’Brien Pty Ltd v Brisbane City Council (1996) QPELR 262
Storey v Director of Planning and District Council of Yankalilla (1975) 11 SASR 227
Lewiac v Gold Coast City Council (1994) 83 LGERA 224 at 229
Yu Feng Pty Ltd v Maroochy Shire Council & Anor (1996) 92 LGERA 41
Kentbrock Pty Ltd v Gold Coast City Council (2003) QPELR 587
Isgro v Gold Coast City Council and Anor (2003) QPELR 414
Kentucky Fried Pty Ltd v Gantidis (1979) 140 CLR 675
Statutes cited:
Integrated Planning Act 1997
Local Government (Planning & Environment) Act 1990
COUNSEL:
Mr Paul Favell for The Appellant
Mr Stewart Ure for Respondent
Mr Ben Job for the Co-RespondentSOLICITORS:
Macfie Curlewis Spiro for the Appellant
Home Wilkinson Lowry for the Respondent
McCarthy Durie Ryan Neil Solicitors for the Co-respondent
APPEALTHE
This is an appeal by a submitter, Mooncraft Pty Ltd, pursuant to s4.1.28 of the Integrated Planning Act 1997 (“IPA”) against a conditional approval by the Redland Shire Council (The Council) to allow an application for Material Change of Use. The proposed development by the Co-respondent, Lake Mona Pty Ltd, of the subject site involves the construction of a 50 place child care centre. It is noted that the submitter is the owner of a nearby child care centre, described as ‘Wellington Point Child Care Centre and Wellington Point Day Care Centre’.
It is for the Co-respondent to establish that this appeal should be dismissed: s.4.1.50(2) IPA. The appeal is a hearing anew.
The subject land is allocated to the Residential A Zone pursuant to the Planning Scheme for the Council of the Shire of Redland and is contained in the preferred dominant land use designation “Specific Intent No.1” pursuant to the 1998 Strategic Plan.
The Redland Shire Council Planning Scheme is a transitional planning scheme so that the provisions of s.6.1.30 of the IPA apply.
Pursuant to the Local Government (Planning & Environment) Act of 1990 (“the Repealed Act”), the establishment of a child care on the land would have required an application for consent to be made to the Council.
Consequently, pursuant to s.6.1.30(3)(b) the application must be decided under s.4.13(5) and (5A) of the Repealed Act.
Section 4.13(5A) of the Repealed Act provides:
5A. The Local Government must refuse to approve the application if –
(a)the application conflicts with any relevant strategic plan or development control plan; and
(b)there are not sufficient planning grounds to justify approving the application, despite the conflict.
THE SUBJECT SITE AND PROPOSAL
The site that is the subject of this appeal is located at 1 Bayfields Avenue, Wellington Point and described as Lot 1 on SP 141240, Parish of Capalaba. The site is located in a Residential ‘A’ zone, has a total area of 2,411m2, and is a corner block fronting Bayfields Avenue and Marlborough Road.
The proposed 50 place (originally 75) child care centre is planned to be a single storey L-shaped building with a total floor area of 510m2, located behind a 13 metre landscaped setback from Marlborough Road. The building is to be located on the southern portion of the lot. The parking that is to be provided will be located on the western side of the building and will accommodate 19 vehicles. Access to the car park will be from the western end of the Marlborough Road frontage.
ISSUES IN THE APPEAL
The result of the conclave between the town planning experts is the ‘Expert’s Joint Statement on Planning Issues’ (Appendix E of exhibit 13 - the report of Mr Vann), from which the relevant issues in the appeal can be gleaned. These include:
1. the planning intent for co-location or adjacency with centres and other neighbourhood facilities;
2. the need for the proposal; and
3. the amenity impacts of the proposal.
RELEVANT PLANNING INSTRUMENTS
Three planning instruments of relevance include:
1. the 1998 Strategic Plan;
2. the 1988 Town Planning Scheme; and
3. the Town Planning Policy.
The 1998 Strategic Plan and 1988 Town Planning Scheme form part of the Redland Shire Council Transitional Planning Scheme. Accordingly s.6.1.30 of the IPA, relating to deciding applications, will apply.
1998 STRATEGIC PLAN
This Plan is a general document that sets out broad desired objectives for the development of an area. It should be noted that not every objective in the plan has to be met before the proposal of an applicant may be accepted and that interpretation of this document should involve a common sense approach. These principles are drawn from the decision of His Honour Senior Judge Skoien in Bundaberg City Council v Burnett Shire Council & Ors [2004] QPELR 459.
1988 TOWN PLANNING SCHEME
The Scheme is the source of land use rights, which flow from the zoning of the land.
DRAFT PLANNING SCHEMES.
When the current application is viewed in light of the draft planning scheme, the Coty principle must be applied. This principle derives from Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGERA 117 and states:
‘It is important, in the public interest, that whilst the respondent Council’s local scheme is under consideration this Court should, …, avoid, as far as possible, giving a judgement or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take’.
While there is no requirement of strict adherence by the Court to the draft scheme, there should be broad compliance so the granting of an application should not have a nullifying effect on the scheme.
THE ISSUE OF CONFLICT - PLANNING INTENT AND CO-LOCATION
In Westfield Management Ltd v Pine Rivers Shire Council & Anor,[1] Britton SC DCJ set out the principles relevant to the construction of planning schemes. His Honour said:
[1](unreported, Planning and Environment Court, Britton SC DCJ, 14 November 2003, 1627/2003)
(a)they should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v. Peter R Hughes & Partners Pty Ltd (1992) 1 Qd. R. 352 at 360; Yu Feng Pty Ltd v. Maroochy Shire Council (1996) 92 LGERA 41 at 73, 75, 78; Harburg Investments Pty Ltd v. Brisbane City Council (2000) QPELR 313 at 318;
(b)they should be construed as a whole (Luke v. Maroochy Shire Council & Anor (2003) QPELR 447);
(c)they should be construed in a way that best achieves their apparent purpose and objects (Luke v. Maroochy Shire Council & Anor (supra); Nordale Management Pty Ltd v. Maroochy Shire Council (1995) QPLR 368 at 370; Acts Interpretation Act 1954 s.14A);
(d)they should be construed in light of the prescription against prohibiting development contained in IPA (s.6.1.2(3));
(e)statements of intents or aims or objectives are intended to provide guidance for the tasks of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degee v. Brisbane City Council (1998) QPELR 287);
(f)a strategic plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v. Gold Coast City Council (1994) 83 LGERA 224 at 230);
(g)a strategic plan should be read broadly and not pedantically (Yu Feng Pty Ltd v. Maroochy Shire Council (supra));
(h)although planning schemes have the force of law they are not drawn with the precision of an Act of Parliament;
(i)a conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbon s Hotels Pty Ltd v. Logan City Council (1997) QPELR 208 at 212);
(j)implementation objectives must be read sensibly and in context. They are but a function of the principal objective. The purpose of the objective is better understood by reading all of the implementation objectives and understanding the strategy that is inherent (Jenkinson Pty Ltd v. Caloundra City Council (2002) QPELR 527 at 528).
In Harburg Investment pty ltd v Brisbane City Council Skoien SJDC made specific reference to a number of considerations in the interpretation of the planning instruments. His Honour said at paragraph 31
It is appropriate to set out some recorded judicial comments in relation to the application of statements planning documents, which include Strategic Plans:
(a)It is seldom appropriate in matters such as these to rely on any specific statement of intent or of aims or objectives in the planning documents as determinative. It is rare that an express imprimatur or injunction can be found in them for a particular proposal. Almost invariably a diligent search of the planning documents can unearth in such statements passages which appear to argue for or against the proposal but generally speaking it would be unwise to place too much weight on such a passage. The planning documents, while they are given the force of law by s.2.15(9) of the Local Government (Planning and Environment) Act 1990 (see now s.2.1.23 of IPA) are not drawn with the precision of Acts of Parliament and the statements of intent or of aims or of objectives are intended to provide guidance in the difficult task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular proposal should be approved or rejected. So such statements should be read broadly. Degee v Brisbane City Council (1998) QPELR 287 at 289.
(b)A Strategic Plan only sets out broad desired objectives and not every objective in the plan has to be met before the proposal of an applicant may be accepted (see Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224 at p.240); the interpretation of the Strategic Plan ought to involve a ‘common sense approach’ (see ZW Pty Ltd v Hughes & Partners Pty Ltd (1992) 1 Qd R 352 at p.360); in interpreting a Strategic Plan the document should not be read too narrowly; it should be read broadly rather than pedantically; and one should adopt a sensible practical approach (see Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 4 at p73, 75 and 78); to enliven the provisions of s.4.4(5A)(of the P & E Act) a conflict must be plainly identified and, in any event, such a conflict alone may not have the result of ruling out a particular proposal (by virtue of s.4.4(5A) (see Fitzgibbons Hotel Pty Ltd v Logan City Council (1997) QPELR 208 at p.212)”.
and further, per Robertson DCJ in Cornerstone Pty Ltd v Caloundra City Council & Anor (Appeal No 17 of 2003, 20 August 2003):
‘[34] In interpreting a planning scheme, the Court should take a common sense approach; and, the particular document should not be read too narrowly but, rather, broadly (rather than pedantically) and in a way which adopts a sensible, practical approach.
[35] These statements reflect long settled principle in relation to the judicial approach to planning schemes. In Pacific Seven v City of Sandringham (1982) VR 157 at 163 it was said:
‘Planning is a difficult exercise with flexibility an essential ingredient. Those entrusted with its implementation should bear in mind that neither individual or community interest is served by resource to exotic legalism. Whetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the ends of justice, and the expressed intention of the legislature in the field of planning. Whatever be the consequence of legal points which fall to be decided, every endeavour should be made to deal with the substance of an application for permission to use or develop land in a certain way with maximum expedition and fairness.’
It is also well established that when there is a conflict between the zoning of a site and the planning objectives and designation in a forward planning document (such as a strategic plan or DCP) it is the zone that ought to prevail as it is the zone (in transitional planning schemes) which determines development rights.”
The Appellant alleges a conflict exists articulated in paragraph 4.2.2 of the report of Mr Van, an expert called on behalf of the Appellant, in that there is requirement pursuant to the strategic plan that the proposed development be co-located or adjacent to the types of facilities mentioned in the community development strategy s.3.3(e); Economic Development strategy s.3.4(c) and in the policy EMPEO10 Child Care Centres – Location and Design criteria.[2]
[2] Exhibit 13
It is argued on behalf of the Appellant that the concept of co-location or adjacency of these facilities to similar types of non-residential facilities is a well established planning principle reflected in many planning documents, including the existing Redland’s strategic plan and draft IPA Planning Scheme.
The Appellant contends that the principles identified by Mr Van [see exhibit 13] concerning co-location are reflected in the content of the current strategic plan and underpin the relevant provisions of the draft planning scheme. It is argued that the strategic plan contains a number of strategies.
In Section 3.3 – Community Development – the following appears:
“This Strategic Plan includes goals to guide the development of discrete urban communities which are compact, distinct and diverse with a good balance and range of housing, employment and services; to achieve a strong sense of positive community identity through the development of local communities which are safe and livable and offer a diversity of use, prosperity, economic opportunity and ready access to services; and to develop an attractive urban setting for the Shire. This Plan recognises the connection between the physical form of land use of urban areas and these overall community health and quality of life issues. These goals will be achieved by: …
(e) focussing retail, commercial and community facilities at centres which maximise their accessibility to the Shire population through:
· promoting an appropriate hierarchy of centres based on level of service and function which provides for a range of activities in locations which are accessible to the population which they serve;
· encouraging the orderly development of Capalaba and Cleveland as the focus of higher-level business, government, entertainment and community activities and promoting accessibility to these centres by means of appropriate private and public transportation networks;
· ensuring co-location of local retail and community facilities in centres which maximise convenience and accessibility to their surrounding resident catchment areas;
· promoting opportunities for major recreation facilities and activities for the Shire’s youth (such as indoor sports centres, youth centres or leisure centres) particularly at the major centres of Capalaba and Cleveland, and a major sporting facility at the Pinklands Sporting Reserve;
· ensuring that local services and facilities can be readily accessed from residential areas by a range of transport modes, including walking and cycling; and
· providing for the establishment of appropriately located centres in the future planning of new and existing urban areas.”
Of a particular importance, it is argued, in the interpretation of this scheme is the use of the words “ensuring co-location of local retail and community facilities in centres which maximise convenience and access ability to their surrounding residents catchment areas.”
Much argument focused upon the use of the word “ensuring” suggesting an almost mandatory nature of co-location to facilitate focusing on community facilities at centres so as to maximise their accessibility to the shire population. It is argued the use of the words “these goals will be achieved by” is a direction as to how the goal can be achieved rather than a guide as to how the goal can be achieved.
It is argued on behalf of the Respondent Council that there is a fundamental misapprehension as to the argument advanced. The provisions of the policy it is said do not bear in any way upon a consideration of whether the proposal is in conflict with the strategic plan.
As to whether a conflict with the strategic plan does in fact exist, that conflict must be plainly identified. So much appears from the decision of Quirk DCJ in Burmah Fuels (Qld) Pty Ltd v Redland Shire Council[3] at page 106 B His Honour said:
“another area of conflict referred to by Mr Clarke related to the specific intent for this part of Birkdale which had been set out in clause 17 (2)(iv) which had already been referred to… it begins by identifying some uses which are considered “most suitable” and the first criteria by reference to which the suitability of the proposed use should be measured. While those criteria must be considered, it’s sees (sic) to me another thing entirely to assert that conflict between the proposal and this part of the development control plan has been demonstrated. To enliven the provisions of section 4.4(5A) conflict (as such) must be plainly identified. It must be added that such conflict alone is insufficient to rule out a particular proposal. The section offers to an applicant the opportunity to show “sufficient planning grounds to justify approving application despite the conflict.”
[3] (1995) QPLR 103
In my view there are no mandatory locational requirements in the strategic plan. The provisions relied upon by the Appellant appear within the section described as “strategies”. The preamble to section 3.3 – “Community Development” describes the provisions as “goals to guide the development”. Within the provision section 3.4 (c) the expression used is merely “encouraging district and local centres to act as the major focus…”
I have concluded that the provisions are not mandatory. In fact an examination of the urban residential provisions in section 4.2.1 of the strategic plan take the matter beyond doubt. Paragraph 6 of section 4.2.1 provides relevantly “whilst it is intended that residential uses will dominate, certain non-residential support facilities which provide local services to residents of an area may be contemplated in appropriate locations and subject to detailed development requirements which are designed to achieve a satisfactory form of development compatible with residential living. These facilities may include community support services such as local shopping development, medical centres, churches, child care centres, educational facilities and the like. These forms of development shall preferably be located together in associate with local shopping facilities or established non residential development and designed in such a way as to reduce the impact on the amenity of nearby residences.” (Emphasis added)
I am satisfied having regard to the evidence that the position of the childcare centre along Marlborough Road although located nearby to the primary school and church cannot be regarded as being either “adjacent” to or “co-located” with those facilities. I accept the evidence of Mr Van that they present a set of facilities “strung out” along the Marlborough Road area.
Having said that, however whatever the full of extent of meaning may be ascribed to “adjacent” or “co-location” there appears to be within that notion a necessary “clustering” of facilities together. The strategic plan clearly gives strong preference to such co-location but it is, as I have said, not imperative.
Furthermore in my view the positioning on Marlborough Road of the child care centre discloses that it is, by its location on a collector road in an area of Wellington Point where there is significant subdivision activity presently taking place and where there have been approximately 88 newly approved lots in close proximity to the subject land. The strategic plan has goals for “ready access to services” which maximise their accessibility to the shire and “which maximise convenience and accessibility to the surrounding resident areas” as disclosed by section 3.3. In the circumstances therefore whilst not co-located the position of the proposed child care centre achieves nonetheless the spirit of the strategic plan to a significant extent.
IS THE PROPOSAL IN CONFLICT WITH THE RELEVANT POLICY
A policy does not form part of a transitional planning scheme.[4] It’s role may however be evaluated from what was said by Brabazon QC DCJ in Bruigom v Council of the City of Rockhampton[5] His Honour noted:
[4] s2.1 P&E Act
[5] (1997) QPELR 418 at 423
“the status of a policy adopted by local authority set out in Professor Fogg’s books “Land Development Law in Queensland” at page 168-169. The position can be summarised this way:
(a) A policy which has been adopted by a local authority has no special status as a presumption standing against the success of an application for consent – it is merely one of a number of material considerations.
(b) The existence of a policy does not dispense with the necessity of considering each application on its merits.
(c) The policy is not binding on the authority or the court
(d) The policy may be revoked or modified as circumstances require
(e) Inconsistency in the part application of a policy may adversely affect the weight which otherwise ought to be given to the lawful policy of the local planning authority.”
A more flexible approach therefore is to be adopted in the application of a policy that in respect of provisions of a planning scheme itself or other statutory provisions. So much is clear from the terms as discussed by Quirk DCJ in Norris Clarke and O’Brien Pty Ltd v Brisbane City Council.[6]
[6] (1996) QPELR 262 at 264
The Policy of Philosophy may be defined from its expression in these terms “that newly proposed centres be sited in locations best suited to service the needs of the child and the local community to which will draw upon its services; while maintaining an acceptable level of amenity for neighbouring residential properties and not compromising the public and traffic safety in the immediate locality.”
During the hearing the Appellant argued in effect that it was a mandatory provision requiring proposed centres be located abutting community focal points within the neighbourhood unit. I am not satisfied that this argument is correct. The provision itself uses the word “adjacent” which in my view does not necessarily connote having a common boundary.[7] This broad meaning of adjacent has been applied in cases in a variety of jurisdictions.[8]
[7] see Macquarie Dictionary definition: “lying near, close or contiguous; adjoining; neighbouring”.
[8] See for example Mayor, Councillors and Citizens of the City of Wellington v The Mayor, Councillors and Burgesses of the Borough of Lower Hutt (1904) AC 773 at 775
Furthermore the objectives of the policy include the provisions of guidance “in the community interest” to the child care industry. The policy requires the Council to have regard to “locational” criteria as to the appropriateness of the particular child care centre site. That requirement “will have regard to” indicates in my view that the planning authority is required to take into account those relevant matters properly assess them but is not bound in some mandatory way to comply with them. Although the criteria indicate a preference in paragraph 3.1.1 that child care centres be located adjacent to community focal points a fair reading of the policy overall leads to the conclusion that there is a contemplation that child care centres may be established in other locations.
DRAFT SCHEME
Section 4.1.52(2)(a) (by which the Court may give such weight as it considers appropriate to a new planning scheme) does not have operation in circumstances such as the present where a draft scheme has not yet taken effect.
Whilst it is acknowledged that the “Coty principle”[9] has application, it does not elevate the draft scheme to a status whereby it is to be considered as if the draft had in fact commenced or if the application had been made under the draft scheme. Rather, the principle is that:
“It is important, in the public interest, that whilst the respondent Council’s local scheme is under consideration this Court should, … , avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take”.
[9] derived from Coty(England) Pty Ltd v Sydney City Council (1957) 2 LGERA 117
The principle has also been expressed to the effect that:
“… the Court, generally speaking, will not direct that a consent or approval be granted for a development that could well, because the proposed development would be at variance with that plan or scheme, have the effect of nullifying the inchoate plan or scheme, or of rendering the planner’s task substantially more difficult”.[10]
[10]Storey v Director of Planning and District Council of Yankalilla (1975) 11 SASR 227 at 232
It is important not to give too much weight to the principle.[11] The Court of Appeal has confirmed that:
“Coty established no more than that, when determining whether to approve or refuse a planning application, it is permissible, in appropriate cases, to take account of any provisions affecting the site which are included in a general planning scheme which is in the course of preparation; the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstances, including the stage to which the draft planning scheme has progressed, and usually will be only one of the factors to be considered, although in a particular case it might be decisive”.[12]
[11]Lewiac v Gold Coast City Council (1994) 83 LGERA 224 at 229
[12]Yu Feng Pty Ltd v Maroochy Shire Council & Anor (1996) 92 LGERA 41 at 62
Although Mr Van suggested that the draft scheme be enforced, the intent that he inferred from the existing planning instruments, and the agreement confirms that the proposal does not offend the Coty Principle. It is not a type of proposal to which Thomas J referred to in Lewiac with the potential to “sabotage” the implementation of the draft[13]
[13] see para ____ above
ARE THERE SUFFICIENT PLANNING GROUNDS TO APPROVE THE PROPOSAL?
I do not regard there to be any conflict in relation to the strategic plan however, should any conflict be found to exist, it is necessary to consider whether there are sufficient planning reasons to approve the proposal despite the conflict.
McLauchlan QC DCJ discussed this concept in Kentbrock Pty Ltd v Gold Coast City Council[14] His Honour said:
“to avoid a mandatory refusal of the application under section 4.4 (5A) there must be identified “sufficient planning grounds to justify approving the application despite the conflict.” Whether or not planning grounds are “sufficient” it is not something which it lends itself to logical demonstration but rather involve the formation of a judgement on the part of the decision maker in this case the local government…There is no definition of the expression planning grounds but some assistance with respect to its meaning can be gathered from the definition of “town planning” which is defined to include all matters necessary or expedient for securing the improvement, orderly development, health fullness, amenity, embellishment, convenience, conservation, or commercial advancement of an area or a part of an area.”
[14] (2003) QPELR 587 at 592
It is submitted by the Respondents that the proposal will provide much-needed child care places particularly in the younger age groups and with a modern facility conveniently located on a corner site on a collector road and served by a walkway from subdivisions further to the south. These, it is submitted, would be sufficient planning reasons to approve this proposal if there is any perceived conflict.
I will deal now with those questions separately from the question of conflict with the strategic plan
NEED
A useful discussion of this consideration is to be found in the judgement of Wilson SC DCJ in Isgro v Gold Coast City Council and Anor[15] In that case His Honour was considering the question of needs specifically related to a child care centre although need was in that case made directly relevant by certain provisions of the planning scheme:
[15] (2003) QPELR 414.
In Watts & Hughes Properties Pty Ltd v BCC (1998 QPELR 273 at 275 the Court said:
Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire. A thing is needed if its provision, taking all things into account, improves the physical well-being of the community (see Cut Price Stores Retailers v Caboolture Shire Council (1984) QPLR p.126 at 131). Need does not connote a pressing urgency but relates to the well-being of the community. A use would be needed if it would, on balance, improve the services and facilities available in a locality (see Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD p.58 at p.60).
Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community (Fitzgibbons Hotel Pty Ltd v Logan City Council (1997) QPLR 208 at 213; Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193 at 198C). Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met as all or is not being adequately met (Indooroopilly Golf Club v BCC (1982) QPLR 13 at 32-35, William McEwans Pty Ltd v BCC (1981) 1 QPLR 33 at 35).
The question whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors: Sempf v Gatton Shire Council (1997) QPELR 198, at 199-200; Arksmead Pty Ltd v Gold Coast City Council (1989) QPLR 322 at 330. Nor is the impact of a proposed development on existing like businesses a matter which is to be taken into account adversely to the proposed new facility unless, as Ms Scally noted in her report, the extent of competition will cause an overall adverse effect on the extent and adequacy of facilities available to the community: Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, at 687.
Any possible adverse effects on an existing business will only be relevant to the extent that there is a risk of a reduction in the level of services enjoyed by the community by depressing one provider, and not replacing it with another: Zieta No.59 Pty Ltd v Gold Coast City Council (1987) 2 Qd. R. 116, at 120; Whitehead v Hervey Bay City Council (1999) QPELR 131, at 132. Indeed, providing competition and choice can be a matter which also provides for a need, in the relevant sense: Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193, at 198.
The weight to be given to the question of need, in assessing the merits of an application, is not fixed. As Moynihan J said in Intrafield Pty Ltd v Redland Shire Council (2001) QCA 116, at para.[20]:
… Need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account.
In some instances public or community need for a service or facility may not be great, and other considerations may be of greater moment.
It is also relevant to have regard to the nature of the proposed development. In Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313, the Court said at 317:
(25)To state a truism, in assessing need when a development is being proposed, one must bear in mind the nature of that development. What is proposed here is not a specialised development such as a liquor barn, a hardware house, a hospital, a cinema complex or the like which attract custom from people with one specific purpose in mind. In such a case one would look more critically at the availability of like institutions elsewhere in reasonable proximity to the site. The benefit of more competition and choice would seldom justify having two liquor barns, two hardware warehouse, two hospitals or two cinema complexes cheek by jowl.
(26)However, less stringent tests would apply in a case such as this, where convenience retail centres are under consideration. Stress must be paid on the convenience to the likely patrons of those development. Some patrons will prefer to visit one centre rather than another for idiosyncratic reasons which may relate to such things as the perceived convenience of access, the “atmosphere” of the development, the range of goods and services available and the personalities of the people employed there. While the access to this site is not entirely convenient, many may prefer it to negotiating the heavy traffic likely to be encountered in the Aspley business centre; the “atmosphere” at the proposed centre is likely to be more relaxed than at the Hypermarket or other business centres (including the centre where the Harburg premises are); the range of goods and services to be offered at the Ecovale development are at this stage undefined, other than a convenience store, but it is likely that there will be a mix which will particularly suit and attract some patrons; friendships of greater or lesser degrees are likely to be struck up between patrons and those who work there. It is in this sense that convenience, and thus need, should be judged and in my view it is probably that a need will be filled by the establishment of this small convenience centre for many of those people who live in the catchment areas identified by Mr Abnett, the economic consultant who was called by Ecovale.
This Court has been prepared to find that a need exists, despite the presence of similar businesses in the locality. Generally speaking, however, those decisions have been confined to circumstances where the proposals were likely to provide benefit by way of a greater level of convenience to patrons: Harburg Investments (supra); Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143. At the other end of the spectrum are cases in which such facilities as new service station, or cinema complex would add to a consumer’s area of choice but not noticeably improve the wellbeing of the community, or improve the services and facilities available in a locality where existing businesses plainly met demand: Prime Group Properties Limited v Caloundra City Council [1995] QPLR 146, at 150; and, Queensland Investment Corporation v Toowoomba City Council [2000] QPELR 362.
As to the question of the weight to be ascribed to need here, while this is a development of a “special” kind with a specific purpose, suggesting the issue should be looked at fairly critically (as Skoien SJDC suggested in Harburg (supra)) the proper care of children, and the provision of adequate facilities for that purpose are of manifestly greater importance, and of a more critical kind for the wellbeing of an important group in the community (parents of young children), than such things as service stations, liquor barns, hardware houses and cinemas, or the like. On any view, the existence or otherwise of a latent unsatisfied demand for childcare facilities is a matter of greater significance to the community than, say, having to drive a few extra miles or minutes to fill a car with petrol, or reach a cinema complex. The presence of other existing child care centres in the area of the proposed development, and the competition it might provide to them, is to be considered in this light.
Relevantly, too, need is but one of a large number of issues Council is required to consider in an application of this kind and is not, on any view, paramount. In the context of this scheme, its proper position in the spectrum of matters of greater or lesser importance was fairly set out by Council’s own planner, Ms Scally, in the passage already transcribed at para.[14]: i.e. unless approval of the proposal is likely to have an obvious detrimental effect, need is a matter of relevance, but no great moment. Here, where the proposed development provides an important service to the community, is permissible in the area in which it is to be located, and is largely consonant with surrounding facilities, need is not a matter to which great weight should be given. In particular, it was not incumbent upon the applicant here to establish existing facilities were inadequate, or that approval might potentially impact upon them. Rather, it was only required to show that, in the existing marketplace there was still a reasonably apparent, discernible need for extra childcare places.
When a Council comes to consider issues of this kind, it is a relevant matter that nothing in the legislation suggests local authorities are intended, or required, to actively manage and oversee private enterprise in their areas, or assume a planning role which requires them to protect existing businesses from competition. There must, too, be some reasonable, practical limits to the quality and detail of information an applicant must adduce to satisfy a Council about the matters raised, here, under s.17.2.2.2, and .3. As Skoien DCJ recognised in so long ago as Cut Price Stores Retailers & Ors v Caboolture Shire Council (1984) QPLR 126 at 131, an obligation to provide information about the likely economic impact of a proposed development upon similar existing businesses could, strictly speaking, involve crippling amounts of time, and money. For these reasons need has never been defined, in this jurisdiction, as reflecting an economic imperative, or one which (by extension) requires an applicant to establish an overwhelming demand by means of very strong supporting evidence: Cut Price Stores Retailers (supra) at 131; Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58 at 60; William McEwans Pty Ltd v Brisbane City Council (1981) 2 APAD 165.
Within those parameters the central question is whether or not there is evidence of an existing, latent unsatisfied demand of the kind discussed in Queensland Investment Corporation (supra, at 373), and Arksmead Pty Ltd v Council of the City of the Gold Coast [2000] QPELR 285.
Like Intrafield (supra) at first instance, this case involved significant disagreement between the experts about that question. Much of the argument between them (Messrs Coughlin, and McCracken) was highly technical and did not, in the upshot, do more than show that attempts to measure demand for the services of childcare centres are necessarily based on uncertain information about which highly qualified and experienced experts might disagree. Of some assistance was the fact that consensus was reached about two relevant matters. First, those experts agreed that, in looking at available facilities, the parameters used by the Respondent in its further and better particulars (a radius of five kilometres) were too wide and attention should, rather, be paid to the Arundel/Parkwood area alone which effectively contained, within its boundaries, seven other centres (with another two just outside it). Second, attempts to measure latent demand are clouded both by the unreliability of statistical information and because that demand is, by its nature, concealed.
Cross-examination of both economic experts revealed some errors or uncertainties of calculation, or disputed interpretation of information from other sources and I was led to conclude that Mr Coughlin’s estimates of likely present and future demand might be too high but Mr McCracken’s were, conversely, unduly pessimistic about the scope of existing facilities to cater for demand either now, or in the future.
Three matters pointed quite strongly, in my view, to the conclusion that existing need was not being fully met, and a latent demand existed.
The first arose from an inspection of the site and the surrounding Arundel/Parkwood district. I saw areas within the obvious catchment area for the proposed centre where intensive, large-scale home construction is proceeding at the present time and, plainly, will proceed in the future. I accept the evidence of Mr Grummitt that large-scale future development is likely. It was very clear the area is continuing to grow quite rapidly, and it is far more probable than not that it will continue to do so in the future.
Secondly, the evidence showed that while no new childcare centre has opened in the surrounding area since 1995, the total population has risen from 4346 in 1991 to 11,196 in 1996, and 16,117 in 2001; and, continues to grow apace.
Third the evidence of those experts, and the three witnesses who operate existing centres, showed that while occupancy rates for different age groups (and most childcare centres measure vacancies by reference to quite precise age groups between babies of one day, and pre-schoolers of six year, usually divided into six, or seven categories) vary at different times throughout the year, demand in the centres conducted by the three lay witnesses has risen considerably with the passing years and occupancy is generally now well over 70 percent.
The weight of this evidence clearly showed that for families living in the area, or moving into it with young children wanting places at a centre, there could be no certainty that a vacancy would be found. Rather, those parents are likely to have to search through a number of centres, may well be compelled to go outside the area to find a suitable vacancy and, at best, might only find vacancies for some specific age categories on some particular days which may not, of course, suit their convenience. Certainly vacancies exist in some age categories in existing centres on some days, but on any view, present supply is limited, and uncertain. In the context of the ordinary meaning of the word “need” it is impossible to see why, in those circumstances, it cannot be said that there is both need, and present and likely future demand for more places, on more days.
Furthermore, it was said in Isgro v Gold Coast City Council and Anor:[16]
“The proper care of children and provision of adequate facilities for that purpose are of manifestly greater importance and of a more critical kind for the wellbeing of an important group in the community (parents and young children), then such things as service station, liquor barns, hardware houses and cinemas or the like. On any view, the existence or otherwise of a latent unsatisfied demand for child care facilities is a matter of greater significance to the community than, say, having to drive a few extra miles or minutes to fill a car with petrol or reach a cinema complex. The presence of other existing child care centres in the area of the proposed development, and the competition it might provide to them, is to be considered in this light”.
[16]2004 (QPELR 414).
To those statements of principle should be added the following statement by Stephen J in Kentucky Fried Pty Ltd v Gantidis (1979) 140 CLR 675 at 607:
“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.”
Furthermore, in this hearing the issue was raised as to whether the council should be regarded as “a licensing authority”. The matter was dealt with in Isgro[17] in the following way:
“When a council comes to consider issues of this kind, is a relevant matter that nothing in the legislation suggests local authorities are intended, or required, to actively manage and oversee private enterprise in their areas, or assume a planning role which requires them to protect existing businesses from competition.”
[17]Supra.
With these principles in mind I will set out in brief form some of the issues raised in relation to need, which in this appeal is the fundamental issue as to whether there exists, despite any such conflict, “sufficient planning reasons” for the centre to be approved in any event.
DISCUSSION OF EVIDENCE OF NEED
Two witnesses were called who gave expert evidence in relation to the question of need, Mr Owen for the Applicant and Mr Coghlin for the Appellant. Mr Coghlin adopted a smaller “trade area” than that adopted by Mr Owen. It was submitted on behalf of the Appellant that the court would have considerable concern about the evidence given by Owen, whose calculations were based primarily on a 2001 Australian Bureau of Statistics (“ABS”) census. Mr Coghlin’s methodology, it was submitted by the Appellant, should be accepted because it relied on more specific ABS statistics specifically related to Queensland, that is an ABS 2002 child care survey. Furthermore, that witness used, according to his evidence, data which was based upon Planning Information and Forecasting Unit (“PIFU”) material, which demonstrated a much different demand. The submission was made that the PIFU figures should be preferred because the data was based upon 2001 population projections for specific local government areas, a 2003 series of local government area of projections and a 2005 broad hectare study.[18] It was said when those figures were applied to table 4, supplied by Mr Owen, the significance was, as illustrated by the amendments that were made during the course of evidence given by Mr Coghlin, that the occupancy rate of relevant premises in 2006 is projected to be 56 per cent, rather than that in Mr Owen’s original projection of 81.2 per cent. These further issues are raised as relevant considerations by the Appellant:
[18]Exhibit 32.
·That the current demand surveyed by recent telephone polls ignores the fact that the ABC centre had a room with the capacity for 25 places which was closed (presumably because of lack of demand) and the coming into existence of a number of new places at the child care centre presently under construction at the time of hearing of the matter in Wellington Street, would provide 75 extra places.
·That the evidence demonstrates that there is presently an over-supply of licensed child care places and in that event, together with the other evidence, it is not possible to accept that there is a demonstrated latent, unsatisfied demand. On this issue the Appellant relies on the figures provided by Mr Coghlin for the 0-5 child range[19]. This is said to be so based upon either trade areas adopted by the two experts.
·In Coghlin’s report, conclusions relied upon by the Appellant are: the proliferation of child centres is recognised as an issue of critical importance, the trade areas adopted by either party are presently well served with existing child care centres and that there is no need for the subject proposal to meet current or forecast local demand. It is also argued that the site of the proposed child care centre does not fulfil a need in a local community, for there are a number of child care centres in the general vicinity of the site, each of which is located as to be able to serve the general area concerned.
[19]Exhibit 33, table C and Coghlin amendment to table 4 of Exhibit 5.
Much evidence was concerned with the collective licence capacity of the existing child care centres, which is 171 places in the main service area relied upon by the Appellant, out of which there were, at the time of trial, a total of only 158 operational places. The argument proceeded that when demand warranted, existing centres in the main service area have the potential to increase their capacity under existing licences.
Against the background of evidence which demonstrates substantial conflict in methodology and interpretation of statistical information, based as it was upon different criteria and statistical bases, the evidence established, in my view, for example, that with respect to quite young children, a parent wishing to find a vacancy for children or a group of children, including younger children, could not find such a vacancy because of the limited or non-existent places for quite young children.
In the same vein, telephone surveys were conducted at times close to the trial by witness Mr Owen and a Mr Doonar.[20] This evidence, which I accept, is topical and demonstrative of a patent need for places particularly for young children.
[20]Exhibit 5, paras 8 and 9, and table 2; Exhibit 35. See also Exhibits 15, 17, 18, 19 and 20
The following features may be extracted from Mr Coghlin’s evidence:[21]
(a)The best information at present is that the existing child care centres in the area are full;
(b)That significantly limits the ability of parents to place children to suit their needs;
(c)A number of parents will be looking to place more than one child in any particular centre;
(d)An important consideration is that a child care centre is an important service to the community;
(e)The proposed centre would provide competition and that such competition benefits the community;
[21]Transcript 262.50-264.60.
(f) The proposal will add to the community’s convenience;
(g)That even if a centre did close in the locality (an outcome which he did not predict in his report), that closure would be made good by the proposed centre.
Evidence was called in relation to the possible effects of the “prep year” on child care centres. Once again there was a divergence of opinion between the experts and Mr Kemp as to the ultimate effects of this. On the evidence, it is impossible to say that the pessimism reflected in Mr Coghlin’s evidence should be accepted, nor the increased demand expected by Mr Kemp and Mr Owen should be accepted.
Much of the evidence upon which the competing opinions were predicated was, to echo the words in Isgro, of a highly technical nature and did no more than show that attempts to measure demand for the services of child care centres are necessarily based on uncertain information about which highly qualified and experienced experts might disagree.
More compelling evidence, in my view, comes from a consideration of the present relatively high need for places, particularly in younger age groups, the telephone polls which were conducted close to the hearing of trial, the fact that the area is one, at time of trial, of considerable growth[22] and the role that child care centres play generally in providing for the needs of a community.
[22]Evidence relating to the relatively new housing estates in proximity to the centre.
In the event, I am satisfied the Co-respondent has demonstrated not a latent unsatisfied need, but a patent need for the child care centre as approved. I am further satisfied that there is not only a present need, but a likely future demand for places, particularly in the younger age groups, even taking into account the present child care centre under construction.
Amenity
The child care centre, according to the appropriate planning instrument, is a consent use in the residential A zone and its establishment must have been within the reasonable contemplation of residents. The proprietors of property to the west of the proposed site objected initially, but after certain arrangements were made with respect to carrying out works on those premises, objection was withdrawn. The arrangements included landscaping and other modifications to the premises to dilute the effects of the proposed centre located nextdoor to that residence.
The evidence contained in the acoustic report, Exhibit 6, suggests there will be no adverse effects in that regard. There are no other objections to the proposal on an amenity basis and, although there will no doubt be a change to the traffic arrangements brought about by the establishment of the centre in that position, and particularly, perhaps, of some parking of vehicles in Bayfields Avenue, on the whole of the evidence I am satisfied that those issues could properly be addressed, for example, by proper management from the centre itself in responding to any complaints. I am satisfied, on the whole of the evidence, that no issue of amenity of any consequence arises.
Conclusions
I am satisfied that it is no part of the relevant planning scheme that there is a requirement or intent, that child care centres must be located with or adjacent to centres or other neighbourhood facilities. The use of the word “preference” in the planning instrument indicates, in my view, no more than that it is desirable to do so. There is therefore, on the view I take, no “conflict” between the planning instrument and the proposed location of the subject child care centre.
I am independently satisfied that whether or not a conflict exists, there is, nonetheless, a clearly identified existing need for a child care centre, which is an invaluable and important community facility. That need presently exists and I regard the evidence as indicating a future need as well. This would, alone, justify a compelling planning ground for the establishment of such a centre, despite any conflict.
I do not regard any evidence as establishing that an amenity issue of any consequence exists in terms of the proposed centre.
I dismiss the appeal.
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