Queensland Injectors Health Network v. Gold Coast City Council; Lan George Pty Ltd v Gold Coast City Council
[2009] QPEC 28
•29 April 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Queensland Injectors Health Network v Gold Coast City Council; Lan George Pty Ltd v Gold Coast City Council [2009] QPEC 28 PARTIES: Queensland Injectors Health Network
(Applicant)
v
Gold Coast City Council
(Respondent)Lan George Pty Ltd
(Applicant)
v
Gold Coast City Council
(Respondent)FILE Nos: 3020 of 2007; 1060 of 2007 DIVISION: Planning and Environment Court PROCEEDING: Appeal against refusal of application for development approval;
Appeal against enforcement notice for development offence.ORIGINATING COURT: Planning and Environment Court at Southport DELIVERED ON: 29 April 2009 DELIVERED AT: Brisbane HEARING DATE: 23 & 24 April 2009 JUDGE: Kingham DCJ ORDER: 1. Appeal No 3020 of 2007 allowed.
2. Further hearing adjourned to 22 May 2009 to allow the parties to prepare final orders in both Appeals which give effect to these reasons.
CATCHWORDS: PLANNING AND ENVIRONMENT– PLANNING SCHEMES AND INSTRUMENTS – Where application for material change of use was refused by respondent – whether requirements of planning scheme for car parking spaces met – whether sufficient grounds to justify approval despite conflict, if any
Integrated Planning Act 1997 (Qld), s3.5.13, s4.5.3(a), Schedule 10
Central Equity v GCCC [2007] QEPLR 356, followed.
Grosser v Gold City Council [2001] QCA 423, applied
Kentbrock Pty Ltd v Gold Coast City Council [2003] QPEC 020, referred to.
Palyaris v Gold Coast City Council [2003] QPEC 056, referred to.
Village Fair Toowoomba Pty Ltd v Toowoomba City Council (1998) QPELR 524, referred to.Weightman v Gold Coast City Council & Anor [2002] QPEC
2, referred to.
COUNSEL: Mr Ure for the appellants
Mr Morzone for the respondentSOLICITORS: DLA Phillips Fox for the appellants
McDonald Balanda & Associates for the respondent
[1] Queensland Injectors Health Network (QuIHN) is a non-profit non-government organisation that provides health and education services to Queensland’s illicit drug users. The state and federal governments fund it to provide services, in part, to implement the Queensland HIV, Hepatitis and Sexually Transmissible Infections Strategy 2005-2011 and the National Illicit Drugs Strategy. A key aspect of its operations is QuIHN’s Harm Reduction Services, primarily its Needle and Syringe Program. QuIHN promotes the health and wellbeing of current users and offers programs to support those who wish to reduce or cease their use of illicit substances.
[2] QuIHN has operated at the Gold Coast for more than 10 years. In November 2006 it moved from premises in Miami to the premises it now occupies: 12/89 West Burleigh Rd, Burleigh Waters, located within a complex of commercial, retail and light industrial uses.
[3] It applied for development approval for a material change of use of the premises for the purpose of a Medical Centre (Injector Health Clinic) in December 2006. In March 2007, the Gold Coast City Council (GCCC) issued an enforcement notice to QuIHN’s landlord, Lan George Pty Ltd (Lan George), alleging the use by QuIHN of the premises for that purpose without prior approval constituted a development offence, contrary to s4.5.3(a) of the Integrated Planning Act 1997 (Qld) (IPA). In September 2007, GCCC refused QuIHN’s application.
[4] Related appeals are before the court; one by QuIHN against the refusal of its development application and the other by Lan George against the enforcement notice. The hearing concerned only the former, consensus having been reached that the fate of the latter would be determined by the outcome of the former. The parties agree there will be no utility in continuing the enforcement proceedings if QuIHN’s appeal is successful as the use will then be authorised.
[5] GCCC refused the development application for reasons largely referrable to concerns about the potential impact of the operation on residential amenity. John Venn, the town planner engaged by GCCC on the appeal, reported they could be adequately addressed if his recommendations were adopted. In his opinion, the grounds relied upon by GCCC would not justify refusal of the application. David Perkins, the town planner engaged by QuIHN, agreed. GCCC approached the hearing consistently with the expert’s joint conclusion.
[6] It seems to me that Mr Venn has recommended measures appropriately directed to ameliorating GCCC’s understandable concern about the potential use by intravenous drug users of an adjacent park, with consequent degradation of the amenity of its residential neighbourhood. As there was no contest about conditions before me, these reasons do not give further consideration to the issue of amenity. If successful in its appeal, QuIHN asks that it be afforded the opportunity to settle with GCCC agreed conditions of approval. If there is any contest about their terms, orders can be made after hearing further from the parties.
[7] In the course of conferencing, a matter of contention not raised in GCCC’s grounds for refusal emerged: whether the requirements of the planning scheme in relation to car parking are fulfilled. The hearing concerned that sole issue.
[8] The application is code assessable. Two codes which apply to the application specify performance criteria for the provision of car parks: The Car Parking, Access and Transport Integration Constraint Code – Performance Criterion 16[1] and the Burleigh LAP Place Code – Performance Criterion 26.[2] They are directed to providing adequate car parking to meet the demand generated by the proposed activity. Each nominates Acceptable Solutions which specify formulas for calculating the number of spaces which would be deemed to be adequate.
[1] Gold Coast Planning Scheme Part 7 Division 3 Chapter 4 (the Car Parking Code).
[2] Gold Coast Planning Scheme Part 6 Division 2 Chapter 5.
[9] The court must allow the appeal if satisfied the proposal complies with the Acceptable Solutions. If the court concludes it does not, the proposal must be assessed against the Performance Criteria themselves. If satisfied they will be met, whether with our without conditions being imposed, the court must, likewise, uphold the appeal. If the court concludes the Performance Criteria cannot be met, it must consider whether there are sufficient grounds to justify approval despite the conflict.[3]
[3]Integrated Planning Act 1997 (Qld), s3.5.13, Central Equity v GCCC [2007] QEPLR 356.
[10] QuIHN contended the car parking requirements are met and, if not, there are sufficient grounds to justify approval despite any conflict. GCCC argued the requirements are not met but did not seriously press an argument that there were insufficient grounds to justify the grant.
[11] The applicable Performance Criteria and their corresponding Acceptable Solutions follow:
| Car Parking, Access and Transport Integration Code | |||||||
| Provision of car parking spaces PC 16 Sufficient car parking spaces must be provided to meet the car parking needs of the development. The number of car parking spaces provided must be consistent with the practical opportunities available for shared car parking provision and the operation of alternative transport modes to private motor vehicles. | AS 16.1 Car parking is provided in accordance with the number of spaces required for the specific use listed in the table to Acceptable Solution AS 16.1. | ||||||
| Table to Acceptable Solution AS 16.1
| |||||||
| Burleigh LAP Place Code | |||||||
| Car Parking Provisions PS 26 Car parking and access requirements must ensure that the vehicular and pedestrian needs associated with the development are adequately accommodated. | AS 26.1.4 In precincts 4*, 5, 6 & 7: at least 80 % of the standard car parking requirement from Constraint Code 4 – Car Parking, Access and Transport Integration. * the subject site is located in precinct 4 | ||||||
Are the Acceptable Solutions complied with?
[12] While there was initial dispute about the approach to be adopted in applying the formulae prescribed by the two Acceptable Solutions, QuIHN was content for the court to adopt the calculation methodology contended for by GCCC. That involved establishing the GFA for the premises, applying the formula of 1 space per 20 m² GFA prescribed by the table to AS 16.1; rounding up the figure thereby produced and then, applying AS 26.1.4, reducing the figure to 80%.
[13] Although there was a discrepancy in calculations of the GFA by the parties’ consultants, applying that methodology there was no material difference. GCCC conceded the court could act on the assumption the GFA was 170 m.² Adopting the agreed approach, the minimum number of spaces is 8. [4] So much was agreed between the parties.
[4] Applying AS 16.1 - 8.5 rounded up to 9. Applying AS 26.1.4 - 7.2, rounded up to 8.
[14] QuIHN argued the acceptable solution is 6, having regard to cl 5 of the Car Parking Code, which allows the minimum number of spaces to be reduced having regard to any one or more of a list of matters specified.
[15] The matters relied upon by QuIHN are:
(a) The extent which the development is serviced by public transport. The site is well serviced by public transport. Some 21% of those clients surveyed by QuIHN over a 1 week period in October 2008 arrived by public transport (bus), by foot or bicycle. Although QuIHN provides services on a regional basis and the routes which pass the site are fairly described as local, they do hub to Burleigh Heads which, it was not disputed, provides a regional hub for bus services.
(c) The car spaces that are available on nearby land and suitable roads. Further parking is available along Burleigh Rd for the entire road frontage between and beyond the two vehicle entry points to the centre. That is a relevant factor.
Whilst QuIHN contended it was not necessary to rely on this potentiality, Lan George, who also owns land adjoining the centre, has offered to provide access and to lease a portion of that land to the extent required to establish 3 further spaces at the rear of the premises. They are not currently available. I accept GCCC’s submission they should not be considered in this exercise.
(h) The proposed hours of operation with the development or use. This factor recognises peak car parking demands will occur at different times depending on the type of use. It is reasonable not to waste resources on unnecessary provision of on site car parking.[5] Mr Rytenskild, QuIHN’s traffic engineer, noted group meetings during business hours generated demand not comfortably accommodated by the centre’s common pool of parking spaces. QuIHN proposes to hold future group meetings outside periods of peak demand.
[5]Weightman v Gold Coast City Council & Anor [2002] QPEC 2 at [18]; Village Fair Toowoomba Pty Ltd v
Toowoomba City Council (1998) QPELR 524 at 526.
(m) The parking spaces are to be individually allocated to tenancies or consolidated into a common area available to all tenants and to visitors.
There are 89 spaces available in the centre’s shared car park. There is capacity for a further small car park to be delineated in front of unit 12. Some spaces are signed as relating to particular tenancies, including 3 signed for QuIHN. However, no car spaces are exclusively assigned by the Body Corporate.
Assuming there is a notional allocation of spaces based on the parking requirements for self assessable uses for a centre in this precinct of the Burleigh Local Area Plan, the centre should have a capacity of between 72 and 89 spaces and a surplus of between 17 spaces and nil, depending on the mix of uses. [6] If QuIHN has a nominal allocation of between 3 and 4 spaces any further car parking requirement should be able to be accommodated by a notional surplus in the common pool.
The mix of uses on the site can be taken into account.[7] In assessing the minimum requirement of AS 16.1, it is reasonable to assume a mix of self assessable uses. That reflects the current position. On a notional basis, there is, then, a surplus.
That assumption is born out by surveys undertaken by Mr Rytenskild. The surveys indicate the common pool exceeds actual demand, if QuIHN’s group meetings are not held during peak periods. There was excess capacity most of the time surveyed.[8] Adjusting for an unusual peak on one morning[9] the car park was fully occupied during only three 15 minute blocks over the 4 days of survey.
[6] They are one space per 40 m² GFA for light industry or service industry uses and for showroom or warehouse uses of one space per 50 m² of GFA.[6] The centre’s GFA is 3556 m².
[7]Car Parking Code, cl 5(k).
[8] During his last inspection of the site (at 2pm Thursday 21 April 2009) Mr Rytenskild counted 39 vacant car parking spaces. Mr Beard did not undertake his own surveys and did not contest Mr Rytenskild’s.
[9] On one of those days, QuIHN hosted a Drug and Alcohol Inter-Agency meeting attended by somewhere
between 10 and 15 people, generating an unusual further demand. Mr Rytenskild said his survey figures
(Appendix B to his report of 20 April 2009) should be reduced by 10 for the period of the meeting (9.30 to
12.30) on that day (16 October 2008).
[16] In my view, the confluence of cl 5 factors justifies a reduction in the order of 20%. GCCC queried whether cl 5 qualified the minimum requirement specified by AS 16.1 or was a factor to be considered when assessing the proposal against the Performance Criteria. The language used in the introductions to both the table to AS 16.1 and to Cl 5 seems to me to put it beyond doubt. Both refer to the minimum number of spaces. The table allocates a formula by reference to category of use. Cl 5 indicates how that minimum number may be reduced by consideration of specified factors.
[17] That begs the further question which arises from the successive application of the two Acceptable Solutions: Is a reduction pursuant to cl 5 applied to the figure produced by AS 16.1 before or after it is reduced to 80% through the agency of AS 26.1.4. Consistent with the calculation methodology agreed between the parties, the better view is the cl 5 reduction should be effected before AS 26.1.4 is applied. That results in an acceptable solution of 7 spaces.[10] If the cl 5 reduction is applied after AS 26.1.4 is applied, the acceptable solution is 6 spaces.[11] In the scheme of things the difference is minimal. In my view, the Acceptable Solutions are complied with if 7 car parking spaces are available to the proposed use.
[10] Applying AS 16.1 - 8.5 rounded up to 9, reduced by cl 5 at 20% - 7.2 spaces rounded up to 8. Applying AS 26.1.4 - 6.4 spaces rounded up to 7.
[11] If a reduction by cl 5 is made after AS 26.1.4 is applied - 5.76 rounded up to 6.
[18] GCCC argued the Acceptable Solutions can only be complied with if QuIHN has the exclusive use of the minimum number of car parking spaces required. It was common ground that the Body Corporate is not willing (and perhaps is not able) to allocate any spaces for the exclusive use of any tenant.
[19] QuIHN rejected the notion the spaces must be exclusively allocated. The Acceptable Solutions do not expressly impose that requirement. I see little warrant for reading it into them. PC 16 specifically contemplates that it may be met with reference to the practical opportunities available for shared car parking spaces. Cl 5(m) of the Car Parking Code provides the minimum number of car parking spaces may be reduced having regard to “the parking spaces …consolidated into a common area available to all tenants and to visitors”.
[20] There is both a notional and actual surplus of car parking for the centre if QuIHN adopts its intended approach to group meetings. I am satisfied 7 car parking spaces are available within the centre for QuIHN’s staff and clients.
Are the Performance Criteria met with or without conditions?
[21] If I am wrong in the interpretation and application of the Acceptable Solutions, the requirements of the Performance Criteria are met. The evidence of QuIHN’s operations; the actual demand for and availability of car parking at the centre and in the immediate vicinity, and the proximity of public transport currently used by a sizeable minority of QuIHN’s clients, satisfies me there is adequate provision for car parking.
[22] There is no contest that QuIHN’s operations will generate significantly less demand than would a standard medical practice of equivalent size. It could be expected that such a practice would involve a number of practitioners consulting patients at the same time, whilst others waited service.
[23] That is quite different to QuIHN’s operations. It has only one medical consultation room, one individual counselling room and, on a periodic basis, a large room is used for staff training and group therapy and education. The remainder of the premises is devoted to reception, administration, storage and staff room and facilities. On a typical day some 5 or 6 clients attend for individual counselling or consultation. Their appointments are spaced and tend to generate demand for up to one parking space. Other clients, approximately 20 people a day, utilise the Needle and Syringe Program. The peak period for such visits is between 8 and 10am and these clients typically attend for only a few minutes.
[24] Mr Beard, the traffic engineer engaged by GCCC, agreed with Mr Rytenskild’s assessment that QuIHN’s operations generate a demand for 6 car parking spaces, if the demand for group meetings is not included QuIHN does not seek approval for a standard medical practice and will agree to a condition that group meetings are held outside business hours. On that basis, I am satisfied the Performance Criteria are met and neither an additional small car space nor the proposed spaces to the rear are necessary.
Are there grounds to justify approval despite any conflict with car parking requirements?
[25] An application which conflicts with planning scheme requirements may be approved if there are sufficient grounds to justify approval, despite the conflict.[12] The grounds must be matters of public interest, not the personal circumstances of the applicant, owner or interested party.[13] The assessment is a relative one which necessarily involves weighing the nature and scale of the conflict against the grounds which favour approval.[14]
[12]Integrated Planning Act 1997 (Qld), s3.5.13.
[13] Ibid Sch 10 definition of grounds.
[14]Grosser v Gold City Council [2001] QCA 423 at [50]; Kentbrock Pty Ltd v Gold Coast City
Council [2003] QPEC 020 at [32]; Palyaris v Gold Coast City Council [2003] QPEC 056 at [37].
[26] If I am wrong in concluding the Performance Criteria are met, the evidence given both Mr Beard and Mr Rytenskild demonstrates any conflict is minimal. Evidence of the demand generated by the service, the number of car parks available in and near the centre, its proximity to public transport, and QuIHN’s intention to hold group meetings outside business hours, indicates it is unlikely QuIHN’s operations will generate substantial parking problems. Indeed that was the conclusion reached by Mr Beard.
[27] QuIHN’s operation provides an important public service in giving practical effect to aspects of state and national government policy on the vexed subject of illicit substance use and associated public health problems. QuIHN chose these premises having regard to the affordability and availability of alternative premises; access to public transport; available public amenities and infrastructure suitable for service delivery nearby the site (e.g. local Council sharps disposal facilities and drug treatment and prevention services) and local population demographics. These factors justify approval despite a minor conflict with car parking requirements.
Conclusion
[28] The appeal is allowed. The further hearing is adjourned to 22 May 2009 in Brisbane, to allow the parties to prepare final orders in both appeals which give effect to these reasons.
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