Retirement Properties of Australia Pty Ltd v Maroochy Shire Council
[2008] QPEC 61
•2 September 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Retirement Properties of Australia Pty Ltd v Maroochy Shire Council & Anor [2008] QPEC 61
PARTIES:
RETIREMENT PROPERTIES OF AUSTRALIA PTY LTD
Appellant
v
MAROOCHY SHIRE COUNCIL
Respondent
and
DAVID BROWN
Co-Respondent
FILE NO:
160 of 2007
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
2 September 2008
DELIVERED AT:
Maroochydore
HEARING DATE:
10 – 12, 16, 17 and 19 June 2008
JUDGE:
Judge K.S. Dodds DCJ
ORDER:
The appeal is dismissed
CATCHWORDS:
PLANNING – PLANNING LAW – impact assessable development – where conflict with the planning scheme – need – whether sufficient grounds to justify approval
Integrated Planning Act 1997 (Qld) s 3.5.5, s 3.5.14, s 4.1.50(1), s 4.1.52
Cases cited:
Australian Capital Holdings P/L & Ors v Mackay City
Council; Australian Capital Holdings P/L v Mackay CityCouncil & Ors [2008] QCA 157
Bell v Noosa Shire Council [1983] QPLR 311
Broad v Brisbane City Council & The Baptist Union of Queensland [1986] 2 Qd R 317
Cut Price Stores Retailers Pty Ltd v Caboolture Shire
Council [1984] QPLR 126
Degee & Anor v Brisbane City Council & Anor [1998] QPELR 287
Feldham v Esk Shire Council [1989] QPLR 91
Grosser v Council of the City of Gold Coast (2001) 117 LGRA 153
Kotku Education and Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267
Rio Pioneer Gravel Co Pty Ltd v Warringah Shire Council (1969) 17 LGRA 153
Skateway Pty Ltd v Brisbane City Council & Ors [1980] QPLR 245
Weightman v Gold Coast City Council & Anor (2002) 121 LGERA 161
Westfield Management Limited v Pine Rivers Shire Council [2004] QPELR 337
William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33
Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273
COUNSEL:
G Gibson QC with M Williamson for the appellant
C Hughes QC with S Holland for the respondent
S Fynes-Clinton for the co-respondent
SOLICITORS:
IPA Law Planning Lawyers for the appellant
Sunshine Coast Regional Council Legal Services for the respondent
Anderssen Lawyers for the first co-respondent
[1] This is an appeal against refusal by the respondent of an application for a development permit (material change of use) for a residential care facility at 11 Lynd Court, Buderim.
[2] The appeal is by way of “rehearing anew”.[1] The appellant must demonstrate the appeal should be upheld.[2]
[1]Integrated Planning Act 1997 (Qld) section 4.1.52.
[2]Integrated Planning Act 1997 (Qld) section 4.1.50(1).
The subject land (the land) and its environs
[3] The land, Lot 200 SP 152215 has an area of 2.13 hectares with a 33 metre frontage to the western end of a small cul de sac, Lynd Court. For present purposes Lynd Court may be regarded as orientated east west. It is classified as an access place under Maroochy Plan 2000 (MP2000) providing access to nine residential lots, 1 larger lot of 3401m² and the land. Road reserve width is 15.5 metres. Pavement width is 6 metres to gutters on each side. There are no formed footpaths. It leads off Nandewar Drive (classified as a neighbourhood collector under MP2000) which in turn provides access to Dixon Road, a long road, part of the main street system. There are four car parking spaces in the middle of the turning area at the end of Lynd Court. There is a bus route along a small portion of Dixon Road remote from the land.
[4] The land may be described as level. It is traversed by two ephemeral watercourses (drainage paths), the larger flowing southerly adjacent to the eastern boundary of the land and the other entering the land in the north west part and flowing south easterly. There is a dam on the smaller of the two resulting in a ponded water body in roughly the centre of the land. The two watercourses meet towards the south east part of the land and then proceed into neighbouring property. Some of the lower lying parts of the land are flood prone. Other parts of the land, between the two watercourses and the south western part, are elevated. These are cleared of vegetation. The eastern part of the land is vegetated.
[5] Generally to the east of the land is suburban residential development known as Timberlake Estate. Lynd Court is part of this. Development in this area is modern with a high standard of detached housing. To the north of the land is a 2.853 hectare well vegetated lot developed with a bed and breakfast facility. To the west and south of the land is rural residential development which includes Barleycorn Avenue. The co-respondent is a resident of Barleycorn Avenue. Barleycorn Avenue is orientated northwest, southeast and is to the southwest of the land. The rear part of the co-respondent’s eastern boundary is common with part of the western boundary of the land.
The proposal (as amended)
[6] The proposal, as amended, is for a residential care facility for both low care and high care elderly persons. Accommodation for 120 persons in 107 rooms is proposed. The accommodation is to be provided in two buildings, each of two stories, located on the elevated flat, mainly cleared parts of the land and connected by an elevated, covered walkway at ground floor level. The buildings generally do not exceed 8.5 metres in height and contain variations in façade and roof treatment. Gross ground floor area of buildings is 3413m². Car parking for visitors and staff consists of 34 spaces adjacent to the southern boundary of the land, towards its western end. There is an area for ambulance parking adjacent to the entrance foyer to the southern most of the two buildings and next to it, immediately to the north of the car park for visitors and staff and adjacent to the kitchen and administration areas, an area described as service yard where relevant commercial vehicles can load and unload. Most of the existing vegetation is to be retained (70%). The existing ponded water body is to be reshaped as a feature and also for stormwater management. The service yard, apart from the entrance to it, is to be surrounded by an acoustic barrier – 2.4 metres high. The staff and visitor car park is to have an acoustic barrier 3 metres high along its western boundary and its southern boundary from car parking spaces 23 to 16, reducing to 2 metres for the remainder of its southern boundary. Entry to the land is to be from Lynd Court. The entrance road is to proceed south from the end of the Lynd Court cul de sac, parallel and adjacent to the eastern boundary of the land and the western boundary of Lot 160 Lynd Court, then turn west, travel parallel and adjacent to the southern boundary of the land and cross the watercourse which exits at the southeast part of the land. An acoustic barrier is to be provided between the north-south portion of the entrance road between it and Lot 160 Lynd Court, either 3.6 metres high at the western boundary of Lot 160, or 4.1 metres high at the eastern edge of the entrance road. Part of the barrier is to comprise mounding. Landscaping planting is to occur across the land, as agreed between landscape experts for the parties to address visual amenity.
Public notification
[7] The application was impact assessable. It was and is to be assessed having regard to the matters set out in section 3.5.5 of the Integrated Planning Act 1997 (Qld) (IPA). 213 properly made submissions were received by the respondent all expressing opposition to the proposal. The vast majority of them were from residents at Timberlake Estate. Some were from the rural residential area to the west and south of the land, including Barleycorn Avenue. The submissions focussed generally (relevantly) on clearing and native vegetation, the quiet residential environment as a reason to locate there, the roads system with narrow streets designed for a residential area, increase in traffic both staff and commercial vehicles for the proposal, increase in traffic noise, danger to children from increased non-residential traffic, inappropriateness of locating the facility in this entirely residential area.
The refusal
[8] Five reasons were given by the respondent. They were:
1. Conflict with the precinct intent, the scale of the proposed development was incompatible with the existing scale and character of premises in its environs; detached house residential;
2. Conflict with the landscaping and built form in that new premises in established residential areas should be compatible with the scale and character of premises in its environs; detached house residential;
3. Inconsistency with performance criteria P1 of the code for retirement villages and residential care facilities. The proposed development was not located close to or have convenient access to public transport (or alternatively private transport facilities);
4. Likely impact on residential amenity within the surrounding area due to increase of service vehicles accessing the proposed development through the existing residential street network;
5. Inconsistency with performance criteria P1 of the code for transport, traffic and parking, in that the proposal did not provide convenient connections to major transport interchanges, stations or stops in accordance with planning scheme policy number 6, transport traffic and parking.
Further particulars were sought and provided.
[9] The co-respondent pursuant to directions by the court also advanced particulars of reasons why the application should be refused. The particulars raised flooding from rain events as an additional matter.
The appeal
[10] Experts in a number of fields retained by the parties conferred both before and during the hearing of the appeal. Agreement between experts was reached regarding landscaping and planting, noise and light management, traffic generation, flooding in rain events. Some disagreement remained, for instance, traffic noise during night time, the desirability of a 3.6 or 4.1 metre high acoustic barrier and its effectiveness, the flood design level for the access road, traffic and amenity. There was no resolution between the town planning experts retained by the parties.
[11] At the conclusion of hearing the appeal, the major areas of contention remaining were:
1. The nature of the use; lack of support in and conflict with the planning scheme;
2. Effect on amenity of the residential environs;
3. Whether there was shown to be town planning and community need for the proposed development.
4. Whether grounds were demonstrated and were sufficient to overcome any conflict with the scheme.
The Planning Scheme (MP2000)
[12] Because of the evidence presented it is necessary and useful to discuss MP2000.
[13] The strategic plan provides the broad strategic measures relating to land use across the Shire.
[14] The land has a preferred dominant land use of urban in the strategic plan i.e. it is “suitable for residential premises of varying densities but allows at specific sites for retail, commercial, community services and general industrial activities, required to serve the day to day needs of local communities and which are of a scale appropriate to those needs”.[3]
[3] MP2000 volume 2 section 3.4.1.
[15] Objectives for the urban designation include:
§ recognition that single detached dwellings will remain the predominant form of housing but “consideration needs to be given to the particular and changing demographic and economic characteristics of the Shire. This will be achieved by adopting residential standards which encourage diversity of housing types and housing mix which meet community expectations;”[4]
[4] MP2000 volume 2 section 3.5.2.
§ “To enhance the Amenity of Existing Proposed Residential Areas. Appropriate lot reconfiguration design and land use planning contribute towards the wellbeing of residents and the broader community. This can be achieved by ensuring reasonable accessibility to services, improving safety for motorists, pedestrians, cyclists and the community generally---
Implementation
1. Council will have regard to the following criteria for applicable applications in the urban areas and Permissible Areas for Rural Residential shown on the Strategic Plan Map:
The desired character of the Planning Area and Precinct in which the site is located;
---
The adequacy of existing and proposed roads to cope with the level of traffic and street parking likely to be generated.
---
The design and operational characteristics of the proposal which ensure its compatibility with the primarily residential nature of development in these designations---”.[5]
[5] MP2000 volume 2 section 3.5.5.
[16] Desired Environmental Outcomes (DEO’s) in the planning scheme relate to Shire wide issues.[6] It is intended that along with the Strategic Implementation measures and more detailed measures in Sections 3 to 20 of Volume 2 of MP2000, they be used as assessment criteria for the preparation and assessment of applications for impact assessable development.[7]They include:
[6] MP 2000 volume 2 section 2.1.
[7] MP 2000 volume 2 section 1.
In DEO number 2
“---attractive and safe local communities provided with quality lifestyle choices and amenity for all people (including --- aged people and people with disabilities) with each community---having convenient access to a diversity of housing, shopping and other business services, community and recreation facilities”.[8]
[8] MP 2000 volume 2 section 2.3.
Strategic implementation measures for this DEO include:
“(a) integrated land use and transport planning to promote distinctive but interrelated local communities offering desirable places to live, work, shop, recreate;
---
(c) separation and management of potentially conflicting land uses;
(d) consolidate residential forms around centres so as to optimise support for public transport and employment, community and commercial services;
(e) provide for a diverse choice and mix of housing styles with housing design to be responsive to local character--- and community needs”.
In DEO number 4
“Residential, visitor and business communities serviced by an efficient, safe, convenient and attractive transport network achieving:
§ Pedestrian, cycle and vehicle integration and connectivity;
§ ----
§ Ease of movement within and between the communities----
§ employment areas--- [9]
[9] MP 2000 volume 2 section 205 outcome 4.
Strategic implementation measures for this DEO include:
“(a) support land use and development strategies which serve to reduce private vehicle dependency and which integrate with transport planning strategies;
(b) create a nexus between appropriate land use and transport planning through the implementation of the Shire road hierarchy;
---
(i) ensure safe and convenient access is provided within new development for all members of the community”.
In DEO number 5
“Community---services and facilities provided in a timely way and maintained so that:
---
the--- diverse and changing needs of the whole community (including--- the aged and people with disabilities) are met”. [10]
Strategic implementation measures for this DEO include:
“(c) Facilitate the development of premises such as--- retirement villages and residential care facilities at suitable locations which can meet community needs and demands”.[11]
[10] MP 2000 volume 2 section 2.6.
[11] MP 2000 volume 2 section 2.6.2(c).
[17] Residential uses are defined in the planning scheme and include “Retirement Village” and “Residential Care Facilities”. Each are separately defined. “Retirement Village” means “the use of premises for residential accommodation by (exclusively or primarily) elderly or retired persons and where:
(a) managed care and/or services is provided to residents of the premises;
(b)---”.
“Residential Care Facility” is defined to mean “the use of premises providing personal care or nursing care (or both) to persons resident on the site. The term includes ancillary communal facilities, kitchen, cooking facility and the provision of on-site medical services---”.[12]
[12] MP 2000 volume 1 section 3.3(1).
[18] Figure 3.1 in Volume 1, section 3.3(1) a diagram illustrating the nesting of residential uses depicts Retirement Village and Residential Care Facility as multi-unit uses, nested with Caravan Parks and Integrated Tourist Facility.
[19] It was common ground between the parties that the occupants of a Residential Care Facility typically were less independent and mobile than occupants of a Retirement Village, occupants of the former at best usually requiring some assistance to leave the facility.
[20] The Shire is divided into planning areas, and in each planning area, into precincts. Impact assessable development is assessed “against the statement of desired local character (made up of the Location and Role, Vision Statement and Key Character Elements) for the Planning Area and the Statement of Desired Precinct Character for the individual precinct in which the development is situated which are set out in Volume 3---the detailed local planning provisions in Volume 3 are intended to be based upon and reflective of the general principles in the Strategic Plan. However it is the Planning Area Provisions in Volume 3 which represents Council’s specific planning intent for the relevant localities”.[13]
[13] MP 2000 volume 1 section 2.2(4) & (5).
[21] The land is in Planning Area 6. The key role of the planning area is “to accommodate a range of individual and discrete residential neighbourhoods in attractive settings”.[14] The vision statement articulates that it is intended the “predominant development form within the planning area will be houses set within generous landscaped grounds. Alternative housing forms may occur in suitable locations where respecting the areas environmental and landscape values and being within the areas infrastructure capacity”.[15] Key character elements include:
[14] MP 2000 volume 3 section 3.6.1.
[15] MP 2000 volume 3 section 3.6.2.
“(1) location of uses and activities -
(a) The predominant development form within this planning area will be low density residential development which will occur on large greenfield sites like Wises Farm to the north and on smaller infill sites on and around Buderim Mountain.
(b) Medium density housing may be developed in a small number of specific locations where it can be demonstrated that there will be no adverse impact upon the character of the local area”.[16]
[16] MP 2000 volume 3 section 3.6.3.
“(2) ‘Design intent’ includes:
(b) New development will reflect the physical characteristics of the land on which it is located and will protect remnant vegetation--- creek and drainage lines. The extent to which development achieves protection of the natural values of a site will be the overriding consideration in assessment of development applications.
(c) ----
(d) In established residential areas new buildings should be consistent with the scale and density of existing development”. [17]
[17] MP2000 volume 3 section 3.6.3.
[22] In Volume 3, section 1.2 explains that each individual precinct describes the unique character of a particular locality within the planning area, that the precinct class of a precinct identifies a general intent for individual precincts which are similar in nature throughout the Shire and the precinct class intent should be read in conjunction with the relevant Planning Area and specific Precinct description when an application for development requires impact assessment.
[23] The land is in Precinct 13 Lower Slopes Residential of Planning Area 6. The Precinct Class is Neighbourhood Residential.[18] Neighbourhood Residential precincts “recognise existing low density residential areas throughout the Shire which comprise predominately detached houses”. They are “intended to provide for development for low density urban town and village residential purposes and for compatible purposes which directly service residents in the locality---. While an overall average density of around 8 to 9 dwellings per hectare is envisaged, pockets of higher density (9 to 12 dwellings per hectare) residential development may be located within easy walking distance of shopping, public transport and/or school facilities and/or close to major public open space--- Council supports opportunities to widen the range of housing choices available throughout the Shire. A mix of housing types and densities that enables people to find suitable accommodation throughout all stages of their lives at appropriate locations will be encouraged”.[19]
[18] MP2000 volume 3 section 3.6.4(13).
[19] MP2000 volume 3 section 2.22.
[24] Neither Residential Care Facility or Retirement Village appears in the Table of Development Assessment for the Neighbourhood Residential Precinct Class. Nor, with one exception, do either of them appear in any of the Tables of Development Assessment for material change of use in any of the other residential precinct classes.[20] Both are impact assessable. The exception is the mixed housing precinct class where retirement village appears for particular locations. The general statement of intent for the mixed housing precinct class indicates an intent “to accommodate a wide range of housing forms at low to medium densities to offer housing choices to meet the needs of their respective communities---a variety of accommodation should be provided in environments that offer high amenity for existing and future residents. It is envisaged that housing forms would include traditional houses, group, courtyard and cottage houses, dual occupancy dwellings, multiple dwellings and retirement villages. The mix of housing types and densities that may be appropriate in the respective precincts will be influenced by the location and character of the precincts and market preferences for particular forms of accommodation”.[21]
[20] MP2000 volume 1 table 4.2.
[21] MP2000 volume 3 section 2.2(3).
[25] The statement of precinct intent for Precinct 13 indicates an intent for development to be “predominately--- low density detached housing. The overall form of existing development is typical of contemporary suburban residential areas. In some areas, grid or modified grid street patterns predominate, while in others there is proliferation of culs de sac---
Any infill development should be compatible with the scale and siting of existing housing whilst ensuring that mature vegetation is retained”.
“Preferred and Acceptable Uses” are “those referred to in the Table of Development Assessment (refer Volume 1) for the Neighbourhood Residential Precinct Class--
The following uses may be considered consistent with the intent and desired character of this precinct where appropriately located, sited and designed:
§ Display home
§ Retirement village”.
“Landscape and Built Form” provides that “New premises in established residential areas should be compatible with the scale and character of premises in its environs”.[22]
[22] MP2000 volume 3 section 3.6.4(13).
[26] Volume 4 of MP2000 contains the codes for particular development. They are performance based. Their application is explained in Volume 4, section 1.1 and 1.2. The purpose intended to be achieved by a code or elements of a code is set out, with performance criteria and acceptable measures relating to the performance criteria. Statement/s of purpose express the planning intent. Performance criteria set out the outcomes to be achieved in satisfying a stated purpose. Where in respect of particular development, not all performance criteria are relevant, those not relevant are not required to be met. Where in respect of particular development not all relevant performance criteria can be met, nonetheless, the development may be approved if there are sufficient planning grounds to justify approval having regard to the purpose of the code. Acceptable measures are the respondent’s preferred means of meeting relevant performance criteria for assessable development. They “provide an opportunity for streamlining approval processes while achieving the criteria and stated purpose. However other ways of achieving the performance criteria of an applicable code may be proposed by applicants”.[23] “Where acceptable measures are not used the applicant must satisfy council that the alternative measures satisfactorily meet the performance criteria in keeping with the purpose of the code and code element”.[24]
[23] MP 2000 volume 4 section 1.2(4)(b)(ii).
[24] MP 2000 volume 4 section 1.2(4)(e).
Code for Retirement Villages and Residential Care Facilities
[27] The purpose of this code is identified as “to provide for development and use of retirement villages and residential care facilities at suitable locations which provide for:
§ the changing level of independence and care needed for people over time;
§ attractive, comfortable, safe and secure living environments;
§ a need for older people to have access to accommodation within the general area in which they have established vital social linkages;
§ convenient accessibility to every day commercial services, public transport and social activities;
§ visual compatibility with the desired character of the locality in which the premises are situated;
§ unacceptable environmental and amenity impacts on surrounding premises to be avoided or mitigated;
§ development and use to be within the infrastructure capacity of the locality;
§ to ensure that the design of such accommodation is of a human scale, is in harmony with the surrounding area and not institutional in character so that as far as possible, a “homely” living environment is produced”.[25]
[25] MP 2000 volume 4 section 4.10.
Element 1 is “Site Locality”. Its purpose is to “provide for retirement villages and residential care facilities at locations which are easily accessible to commercial and community facilities and are within easy walking distances to public transport facilities” and “to ensure the construction of retirement villages and residential care facilities respects physical site constraints and is in keeping with desired character, amenity and infrastructure capacity of the locality”.
Performance Criteria for this element includes:
“P1 – Premises must be located in an area that is consistent with the desired precinct character (as described in volume 3) in which it is situated and have close and convenient access to:
§ everyday commercial facilities
§ community facilities
§ public transport (or alternative private transport) facilities”.
Acceptable Measures to satisfy the Performance Criteria are that these facilities are located:
§ on any site whether a Centre Precinct, Mixed Housing Precinct, or Multi-storey Residential Precinct;
§ in master planned communities where (the facilities) are located in accordance with an approved Local Area Structure Plan;
§ in Neighbourhood Residential and (hilltop) Residential Precincts where located on sites which adjoin land in a Mixed Housing or Multi-storey Residential Precinct or are wholly or mainly either 400 metres of a Centre Precinct.
Element 2 is “Site Size and Density”. Its purpose is to provide for these facilities to be sited on lots which meet user requirements, allow the design of pleasant, attractive and energy efficient living and recreation environments, respect the amenity of the surrounding area and maintain the intended role and desired character of the precinct in which they are situated. Performance Criteria for this element includes:
“P2 – The number of dwelling units and/or Residential care beds developed on the site must be consistent with the desired character of the precinct in which it is situated---”
Acceptable Measures A2.2 provides that for Residential Care Facilities the number of beds on the site does not exceed: the preferred maximum density stated for the precinct in which the site is situated or where a preferred maximum density is not stated, a Dwelling Unit Factor of 500.
Element 4 is “Building Siting and Design”. Its purpose is to achieve buildings of a “character appropriate to the locality particularly in meeting requirements for accessibility, privacy and daylight by residents of the premises and of adjacent premises---”. Performance Criteria P2 deals with parking, loading and unloading and manoeuvring areas. Performance Criteria P3 deals with accessibility for emergency vehicles.
Element 6 is “Acoustic Environment Amenity”. Its purpose is to ensure “an appropriate acoustic environment is maintained within the site and on nearby land without significantly detracting from visual amenity, preferred character, liveability or safety of the locality. Performance Criteria seek to minimise the exposure of dwellings and land beyond the site to noise generated by the use and that noise attenuation measures be compatible with the local streetscape. Acceptable measures provide that “development and use achieve compliance with the noise limits specified for the relevant noise types as identified in Table 3.1 of Planning Scheme Policy No. 7 – Acoustic Environment Assessment”.
In some elements of the code and their performance criteria, Acceptable Measures differ for each of the uses, for instance, Element 2, site size and density, referred to above. Acceptable Measure A2.1 deals with dwelling density for Retirement Villages whereas A2.2 (see above) deals with dwelling density for a residential care facility. See also Element 4 – Building Siting and Design, Performance Criteria P4 Acceptable Measure A4.1; Performance Criteria P5, Acceptable Measures A5.1, A5.2; Performance Criteria P6 Acceptable Measures A6.1 and A6.2 Element 5, Safety and Security, Performance Criteria P2 Acceptable Measures A2,2, A2.3.
Code for Transport, Traffic and Parking
[28] A purpose of this Code (amongst other things) is to:
“(a) ensure that development achieves movement networks for vehicles, public transport, pedestrians and cyclists that are integrated, efficient, legible, cost-effective, environmentally acceptable and maximise potential for trip making by walking, cycling or public transport rather than by private car;
(b) achieve safety for all road users particularly for the most vulnerable (children, pedestrians and cyclists) taking account of society’s reasonable expectations;
---
(d) ensure that development does not unreasonably compromise the capacity and legibility of the road and street system or diminish the amenity of nearby land uses.”
---
[29] Element 1 “Transport Systems” Performance Criteria P1 provides “Development is designed to encourage travel by public transport, walking and cycling rather than by private car.”
[30] “Acceptable Measures A1.1” provides “Development provides a system of integrated pedestrian and bikeway networks that achieve convenient connections to major public transport interchanges, stations, or stops in accordance with the planning and design objectives outlined in Planning Scheme Policy No. 6 Transport, Traffic and Parking”.
[31] Planning Scheme Policy No. 6 Transport, Traffic and Parking deals with a number of matters. The relevant parts according to the respondent were Part 3.2 – Public Transport and Part 4.2.2 – Neighbourhood Collector Streets, demonstrating the proposed developments remoteness from public transport. Part 3.2, amongst other things deals with provision of bus routes. Guidelines include that public transport routes must be “planned concurrently with land use to ideally achieve an integration of higher density residential uses and key activity centres with public transport nodes” and that bus routes “are planned and located within 300-400 metres walking distance to 90% of establishments in urban areas---”. Part 4.2.2 “Neighbourhood Collector Streets” (Nandewar Drive, for instance) their purpose, use and traffic capacity; they are suitable only for “occasional use by buses such as infrequent school bus services”.
Conflict with the Planning Scheme
[32] As has often been observed planning schemes typically are not drafted with the precision that may be expected from the parliamentary draftsman in Acts of Parliament. Passages can often be found therein which may appear to offer support to a proposal whereas others appear not to support the proposal. See for instance Degee & Anor v Brisbane City Council & Anor [1998] QPELR 287 per Skoien SDCJ. When construing a planning scheme they should be construed as a whole, broadly with a sensible practical approach and in a way that best achieves their apparent purpose and objects: Westfield Management Limited v Pine Rivers Shire Council & [2004] QPELR 337, Britton DCJ and the other cases referred to therein. Kotku Education and Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267 per Wilson SC DCJ.
[33] Three town planning witnesses gave evidence at the appeal, Mr Schomburgk in the appellant’s case, Mr Brown in the respondent’s case and Mr Challoner in the case for the co-respondent. Prior to the hearing they met. They appear to have agreed on the town planning issues which may be relevant to the appeal but not about their resolution.
[34] A plank of the appellant’s case was that so far as Residential Care Facilities were concerned, the Planning Scheme was deficient; it made inadequate provision to address a need for Residential Care Facilities in the Shire (particularly in the Buderim area). The code for Retirement Villages and Residential Care Facilities was insensitive to the differing nature of the two uses, that is, while the users of each were older people, residential care facility occupants were usually older and almost invariably less or non-ambulatory. The Purpose and Performance Criteria P1 of Element 1 Site Location was pointless for residential care facility residents. This pointed up the inadequacy of the planning scheme insofar as it related to residential care facilities. The deficiency contributed to provisions of the Planning Scheme which the respondent and co-respondent relied upon in opposition, deserving less weight than might otherwise have been due. Evidentiary support for this approach came from Mr Schomburgk, and from Mr Underwood an aged care consultant who gave evidence in the case for the appellant.
[35] Mr Schomburgk was critical of the planning scheme in the way he considered it failed to make adequate provision for residential care facilities in the shire. The use was not described as a preferred or an acceptable use in any precinct or planning area although it was an essential facility in communities. Throughout the shire it was an impact assessable use. This was despite implementation measure (c) in DEO 5 to “facilitate the development of--- residential care facilities at suitable locations which can meet community needs and demands” and despite the intent for the neighbourhood residential precinct class that “council supports opportunities to widen the range of housing choices available throughout the shire. A mix of housing types and densities that enable people to find suitable accommodation for all stages of their life at appropriate locations will be encouraged”. “Retirement Village” was mentioned in Precinct 13 (according to Mr Schomburgk as a “preferred and acceptable use”) as potentially consistent with intent and desired character of the Precinct but a retirement village would have far greater off-site impacts than a residential care facility because of the greater level of independence of the occupants. Moreover there was no site (at this point in time) within Precinct 13 which could ever satisfy the Performance Criteria of the Code for Retirement Villages and Residential Care Facilities with respect to location. Mr Brown agreed with this, although he named two retirement villages and residential care facilities which were operational in Precinct 13. Mr Schomburgk considered that applying the same locality criteria to the two uses, involved a failure to distinguish between the user characteristics of each use. Each was likely to have different potential impacts on its surrounding locality. It was because of these perceived shortcomings in the Planning Scheme, he considered the proposal raised no conflict with the Planning Scheme and even if it did, the weight to be attributed to the scheme in balancing it against an established need for Residential Care Facilities in the locality was not sufficient to tip the balance to refusal of the proposal.
[36] Both Mr Brown and Mr Challoner in their evidence considered the use of the land for a Residential Care Facility found no support in the Planning Scheme and was in conflict with it. In summary that was because:
§ although it was a residential use, it was institutional in nature;
§ it was located at the end of a short cul de sac within a network of residential streets containing detached dwellings;
§ its location was remote from public transport and commercial or community facilities or a mixed housing precinct;
§ it was inconsistent with the intent of Precinct 13.
[37] Planning Schemes such as MP2000 come to life against a background of existing development. Over their life they must respond to continuing development within their area of influence. MP2000 acknowledges need for the type of use proposed here. Its approach is that because of the nature of the use (and of retirement villages) and their potential impacts, suitability of location is an important consideration.
[38] The proposal addresses some of the locational aspirations in the purpose of the Code for Retirement Villages and Residential Care Facilities and not others. For instance it addresses a need for facilities at suitable locations to provide accommodation for older people whose level of independence may require care, accommodation which provides safe, comfortable, attractive living environments within the general area in which they have social linkages. It does not have convenient accessibility to every day communal services, public transport and social activities. Mr Schomburgk would regard this as not relevant for the proposed use. It will have amenity impacts (see below) on surrounding premises. It is not in a location which provides visual compatibility with the desired character of the locality in which the premises are situated. It is not in harmony with the surrounding area. These are sought to be alleviated by extensive landscaping. It is in conflict with Element 1 Site Locality in that the location is not easily accessible to commercial and community facilities nor within easy walking distance to public transport. Its remoteness from public transport results also in an incompatibility with purposes of the Code for Transport, Traffic and Parking. It is not consistent with the desired precinct character.
[39] I do not consider the scheme fails to address a need for residential care facilities. It recognises that the nature of the use (and of retirement village) will have impacts requiring assessment of the appropriateness of location. The code for the uses provides for locational requirements and other matters to be considered and if relevant, addressed. Other elements of the code indicate different acceptable measures for the different uses.
[40] It is no doubt correct that the residents of each use have different user characteristics. Many if not most of the residents of a retirement village are out and about like the residents of a suburban area, while many if not most of the residents of a residential care facility will be more akin to residents of a hospice. It does not necessarily follow that providing the same locational requirements about proximity to everyday commercial facilities, community facilities and public transport (or alternative private transport) facilities is an irrelevance.
[41] There seem to me to be sound planning reasons for these requirements consistent with ensuring both these facilities are appropriately located. There is the longer term aspiration of encouraging and facilitating reduction of use of private transport and encouraging use of public transport. There is the location of these uses and their contribution to traffic into areas where or adjacent to where there exists a busier traffic regime and away from areas when there is minimal non residential traffic. There is the consideration of users of the facilities (those who wish and are able to do so) and of staff and visitors having proximity to public transport and commercial facilities. The two uses at times coexist either together or adjacent. Examples exist in the Sunshine Coast region; to mention a few, Kawana Blue Care, Immanuel Gardens, the appellant also operates two; Regis Lakeside co-located with Hibiscus Oasis Retirement Village and Allora Lodge co-located with Allora Gardens Retirement Village.
[42] I consider the approach of Mr Brown and Mr Challoner correct. There is reference to provision of this sort of facility at the strategic level. Even at this broad level there is reference to amenity of existing residential areas, the desired character of the planning area and precincts, suitability of location. When the provisions of the MP2000 for Planning Area 6 and Precinct 13 are considered there is no real support for the proposal, to the contrary. The reader sees that the predominant development form is low density residential in detached houses with medium density housing in a small number of specific locations where it can be demonstrated that there will be no adverse impact upon the character of the local area; in established residential areas new buildings to be consistent with the scale and density of existing development; as a neighbourhood residential precinct class area, development is existing low density residential comprising predominantly detached houses; in Precinct 13 the overall form of existing development is typical of contemporary suburban residential areas. Any infill development should be compatible with the scale and siting of existing housing; new premises in established residential areas should be compatible with the scale and character of premises in its environs; conflict with the Code for Retirement Villages and Residential Care Facilities.
[43] In the Shire there exist a number of residential care facilities. Many pre-date MP2000. By and large, in terms of location regarding public transport and commercial centres they accord with the location indications for the uses in MP2000. Those mentioned above are some examples. It emerged during the hearing of the appeal that the respondent in January 2008 approved another proposal by the appellant for residential care facility on the northern side of the base of the Buderim plateau and a short distance outside Precinct 13. It also generally accords with the locational indications in MP2000.
[44] The respondent is the planning authority for the Shire. Its planning scheme was adopted after wide community exposure and consultation. This court sitting on appeal about a specific proposal is not the planning authority and except for some limited exceptions there can be no justification for ignoring the local authorities planning strategies.[26] See also most recently, discussion about this in the decision of the Court of Appeal in Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157.
[26]Grosser v Council of the City of Gold Coast (2001) 117 LGRA 153 per White J.
[45] Conflict with the Planning Scheme will result in the appeal being dismissed unless there are sufficient matters of public interest to justify approval of the proposal despite the conflict. That is because a decision to allow the appeal and approve the application as amended must not conflict with the planning scheme unless there are sufficient grounds to justify the decision.[27] The approach to this balancing process was described in Weightman v Gold Coast City Council & Anor (2002) 121 LGERA 161 and adapted to IPA in Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273 at 286 per Fryberg J. The nature and extent of conflict must be considered. Then there is required a determination whether there are matters of public interest, relevant to the aspects of the proposal in conflict with the planning scheme and whether the conflict may be justified on those grounds. Finally there is required a determination whether those matters of public interest in favour of the proposal on balance are sufficient to justify a decision approving of the proposal despite the conflict. More recently in Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157 Muir JA with whom the other members of the court agreed, described the process as identifying the grounds which may justify approval, assessment of the role and importance to the planning scheme of the provisions which would be infringed should the proposal be approved, the adverse consequences, if any, which might flow from such infringement and the competing merits and weight of the grounds relied on to justify approval.
[27]Integrated Planning Act 1997 (Qld) section 3.5.14, Schedule 10 Dictionary.
[46] The matter of public interest advanced by the appellant is that of a need for residential care facilities generally and particularly in the vicinity of Buderim. Before addressing that I should touch upon other matters which were the subject of evidence.
Traffic and Noise & Light
[47] Ms Fairman the national manager of major projects for the Regis Group and consequently for the appellant said in evidence that it may be expected there would be no more than 28 staff on the premises on shift at any given time over a 24 hour period. Some staff will commence and cease shifts in the night time period (between 10pm and 7am).
Traffic
[48] The traffic engineering experts retained by the appellant and the respondent, after joint meetings reached agreement about some matters, but not others. Relevantly they agreed that assuming 120 beds, the additional traffic likely to be generated by the proposal on streets giving access to the land may be regarded as 180 vehicle movements per day (VPD). This of itself did not produce an unacceptable total volume of traffic on the local street network. The nature of that additional traffic was likely to be commercial traffic associated with the use, emergency vehicles, staff and visitors traffic. They expressed different views about the appropriateness of introducing that sort of additional non residential traffic into this residential area and its streets, particularly Lynd Court. Mr McClurg who gave evidence in the case for the respondent considered the type of traffic and the increased frequency thereof would be noticeable and greater than would be reasonably expected in Lynd Court. Mr Williams who gave evidence in the appellant’s case did not agree.
Noise & light
[49] Experts in this field retained by the appellant and co-respondent met. They agreed light, noise and odours resulting from the proposed development could be addressed by conditioning an approval. The acoustic barriers to address plant and equipment noise, vehicle noise on site from staff vehicles throughout the 24 hour shifts, commercial vehicles and ambulance vehicles, staff noise at shift changeovers, appear in the description of the amended proposals set out above. The high acoustic barrier proposed between the access driveway and Lot 160 Lynd Court is proposed to address noise generated by assumed slow moving traffic on the access road particularly in the night time period at the lower level of the house on Lot 160. It limits increase above the acoustic environment to 3dB(A). At the façade of the upper level bedroom of the residence on that lot the increase will be greater, up to 6 according to Mr King (the expert retained by the appellant) and possibly 8.5 according to Ms Richardson (the expert retained by the co-respondent). While they agreed about the amount of additional traffic the proposed use would generate, compared to, for instance, a 10, 12 or some higher number block subdivision on the land, they did not agree about its effect on amenity in access streets, particularly Lynd Court. They agreed each traffic movement would produce a single event Lmax noise level of about 69.5dB at the façade of Lynd Court residences and allowing for mitigation, an internal level of about 45dB. Planning Scheme Policy No. 7 Acoustic Environment Assessment provides a guide about when sleep disturbance from traffic will occur; exceeding 10 to 15 traffic noise events in the night time period between Lmax 45-50dB(A).[28] Ms Richardson considered 37 staff vehicle movements at staff change times during the night time period would result in sleep disturbance from traffic related noise which does not presently occur and would not occur if the land were developed for detached house lots. Mr King considered that the character of the noise should be considered, that is from low speed traffic similar to existing motor vehicle traffic in the street. Whilst acknowledging there would be a greater number of vehicle movements in the night time period resulting from the proposal, it should be considered a reasonable expectation of residents living on a public road that traffic movements could occur over a 24 hour period. Therefore any impact upon existing amenity to residents could not be considered unacceptable.
[28] MP 2000 Code for Retirement Villages and Residential Care Facilities Element 6 Acoustic Environment Amenity, Performance Criteria P1 and P2. Paragraph 3.2.2.
Flooding
[50] There is a potential for flood waters to overtop the access road where it crosses the watercourse which departs the land at its southern boundary.
[51] An engineer retained by the appellant and an engineer retained by the co-respondent agreed about the level of overtopping and its duration resulting from design rain events. The only area of disagreement in the end was whether the access road should be designed for a 1 in 100 year Average Recurrence Interval (ARI) flood immunity (the co-respondent’s engineer, Mr Johnson) or a 1 in 10 ARI combined with design 1 in 100 years trafficability (the appellant’s engineer, Mr Thompson).
[52] Mr Johnson’s opinion was informed by the fact that the development was to house elderly, frail and infirm people. He considered the road could be designed to the 1 in 100 ARI practicably and economically and therefore it should be. Mr Thompson’s opinion was informed by the respondent’s design requirements, the level and duration of overtopping in a 1 in 100 ARI event and that if residents had to leave the site in any overtopping event, they would be likely to do so by vehicle.
[53] The respondent and co-respondent did not contend the application should be refused because of the access road flood design. Nor do I regard the area of disagreement as something which should contribute to a refusal of the application, although it may be remarked Mr Johnson’s opinion that if a 1 in 100 ARI design is achievable practicably and economically then it should be done, appears to have some merit.
Amenity
[54] There was discussion in the evidence about effects upon amenity from the proposed use and all that went with it. Potential effects included visual impacts, resulting from the buildings and traffic areas, from light spill, noise from service vehicles, ambulances, plant and equipment, staff working shifts over 24 hours, odour omissions, traffic noise during the night time period, headlight glare from departing staff traffic in the night time period, from an increase of traffic, vehicles of staff, visitors both personal and medical and allied professionals, commercial vehicles, ambulance vehicles.
[55] These potential effects were addressed by experts in various fields. As already mentioned light spill and odour omissions can be adequately addressed by conditions. Commercial traffic generated by the proposal can be conditioned to visit the site only between the hours of 7am and 6pm. Visual impacts from buildings and traffic areas were addressed by landscape planting agreed to by the experts in this field retained by the parties and could be conditioned. It was said the development provided an opportunity for conditioning to achieve a better visual impact from landscape planning than could be achieved if the land were reconfigured into conventional suburban lots. Noise from the use and from traffic accessing and exiting the use can be addressed by the proposed acoustic barriers which could also be the subject of landscape planting.
[56] Allowing for the above, nonetheless I consider the development proposed would have adverse amenity impacts. While headlight glare into dwellings opposite the exit from staff vehicles exiting the land in the night time period, will probably not occur (based on Mr King’s experiments with a four wheel drive vehicle), there will in all probability be an awareness of headlight light and of vehicle noise from staff vehicles during the night time. There is a potential for sleep disturbance which does not exist at present. There will be some deterioration of the night time acoustic environment at the upper floor level of Lot 160 Lynd Court. There will be extensive acoustic fencing apparent to surrounding residents which otherwise would not exist. Policy No. 7 Acoustic Environment Assessment, paragraph 5(d) indicates that the use of stand alone noise barriers is the respondent’s least preferred noise attenuation treatment. Mr King acknowledged that high acoustic barriers like those agreed on were uncommon in this particular area of Buderim although not uncommon where dwellings were located adjacent to main roads. Mr Challoner considered barriers of these heights atypical for a residential locality such as Lynd Court. There will be an increase in passenger vehicle use of the road both in the day and in the night time as staff arrive and depart for their shifts and from occupants’ visitors and from medical and allied professionals. There will be an increase in commercial vehicle traffic during the daytime period, commercial vehicle traffic associated with the use. There will be the introduction of non-residential traffic to this residential area where the reality and perception at present is of a quiet, safe residential area where children are regarded as able to play on the street, where most traffic “belongs” to the residents and the residents “belong” to most traffic. None of these changes in themselves will be overly large but may be regarded as cumulative in effect.
[57] Consideration of amenity is not in the abstract. It is in part informed by the planning controls applying in the area and by the notion of reasonableness.[29] What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectations of other landholders in the vicinity in the light of the applicable planning scheme. In this regard Mr Schomburgk acknowledged that other landholders in the vicinity of the land reading the Planning Scheme would not conceive the land being developed for a residential care facility.
[29]Bell v Noosa Shire Council [1983] QPLR 311; Feldham v Esk Shire Council [1989] QPLR 91.
[58] “Knowing the use to which a particular site is or may be put may effect one’s perception of amenity---it may in a particular case embrace not only the effect of a place on the senses, but also a resident’s subjective perception of his locality” per de Jersey J (as he then was) in Broad v Brisbane City Council & The Baptist Union of Queensland [1986] 2 Qd R 317 at 326. His Honour also observed that in determining “the likely effect of the proposed development on the amenity of a neighbourhood the local government court is clearly entitled to have regard to the views of residents of the area---such a subjective view need not necessarily be disregarded. Very often of course, evidence of such a view would be afforded little, if any, weight”.[30]
[30]Broad v Brisbane City Council & The Baptist Union of Queensland [1986] 2 Qd R 317 at 325.
[59] In the final analysis the resolution about the effect on amenity is an objective one, “an injury to the amenity must be determined according to the standards of the comfort and enjoyment which are to be expected by ordinary people of plain sober and simple notions not effected by special sensitivity or eccentricity” Rio Pioneer Gravel Co Pty Ltd v Warringah Shire Council (1969) 17 LGRA 153 at 168 incorporated with approval by Thomas J in what he said in Broad. His Honour went on to say at 319-320 “the ultimate enquiry is an objective one at the same time recognising that it involves wide-ranging and subtle criteria that may effect different individuals in different ways---the wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible, such as traffic generation, noise, nuisance, appearance and even the way of life of the neighbourhood. Other concepts are more illusive such as the standard or class of the neighbourhood and the reasonable expectation of the neighbourhood. The creation of an institution within a neighbourhood is, in my view, capable of altering its character in a greater respect that can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce”. Connolly J agreed with the reasons of both de Jersey and Thomas JJ.
[60] Amenity has been discussed in a number of cases in this court. There is nothing to be gained by setting out further passages from judgments. In their various formulations they conform with what I have set out from Broad.
[61] Three residents of Lynd Court gave evidence by way of written statement.[31] None were cross-examined. A number of concerns were expressed about establishment of the proposed use on the land. The use was proposed at the end of a relatively narrow, suburban cul de sac in a quiet, high quality suburban area. The traffic generated by it would include commercial vehicles, vehicles transporting health professionals, staff and visitors. None of this traffic would be traffic of residents. The surrounding streets were residential streets for the houses in the estate and their occupants. Children presently walked, rode and played on the streets; they and their parents confident that the bulk of the traffic was that of residents who drive in a manner to accommodate activity as it is in their neighbourhood. There was concern about overflow parking seen as inevitably occurring because of the number of car parking spaces proposed for the development, the number of staff for shifts and visitors of residents. Lynd Court was a small, relatively narrow street where, if cars were parked on each side of the road, there was little room for traffic to pass between them
[31] Exhibits 23, 24 and 28.
Need
[62] Need for a facility in a community may be a town planning consideration. If there is a demonstrated need then its provision may be a matter of public interest requiring consideration in the balancing process earlier referred to. It is a relative concept to be accorded weight depending on all the circumstances. It relates to the provision of a facility providing for or contributing to, the general wellbeing of a community;[32] a demand or need that is not provided for or inadequately provided for.[33]
[32] Skateway Pty Ltd v Brisbane City Council & Ors [1980] QPLR 245; Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126.
[33] William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33.
[63] An important aspect of the appellant’s evidence was directed to showing that the need for more residential care facilities was acute and such that the proposal as amended and appropriately conditioned should be approved, that is, that on balance it overrode any adverse effects there may be to amenity and, if there were found to be conflicts with the planning scheme, it nonetheless justified approval of the proposal.
[64] The evidence about this need came from Mr James Underwood who, it may be accepted, is an experienced consultant in the area of aged care. All town planning witnesses were agreed a residential aged care facility was an essential community facility.
[65] The application before this court is for approval of development in which Commonwealth Government approval of aged care places may be housed. Before completed development may be utilised by a provider of care to provide government subsidised care, it must gain approval for beds in an aged care approvals round (a round).
[66] The Australian Government, through the provisions of the Aged Care Act 1997 (Cth) adopts a needs-based planning framework to achieve an equitable distribution of residential community and aged care places within and between aged care planning regions. It has a target ratio of 44 high care place, 44 low care places and 25 community aged care places per 1000 of population aged 70 years and over (the benchmark). Care places are allocated to particular aged care planning regions on a needs basis in a round. In a round Commonwealth approvals are allocated across the whole of a planning region but may be weighted to applicant providers for a particular local area in the planning region.
[67] Mr Underwood demonstrated the growth and projected growth of aged care numbers in Buderim in 2006 and for 2011, 2016 and 2021. The trend is for Buderim to outstrip the Sunshine Coast in general and elsewhere in Queensland and Australia. It may be accepted that there is an increasing demand for residential aged care places on the Sunshine Coast and that the Buderim statistical local area (SLA) has the largest number of persons aged 70+, 80+ and 85+ of any SLA of the Sunshine Coast planning region. It may be accepted there is a growing number of persons in the Buderim SLA who will qualify for Government subsidised residential aged care. Based on the 2006 data, using the Government benchmarks, there is a shortage of operational and conditionally approved places in Buderim for persons aged 70 and over. In short, Mr Underwood’s evidence was that there was growing need for Commonwealth Government approval of residential care facilities for both high and low care places in the whole of the Commonwealth Government’s Sunshine Coast Planning Region, and Buderim in particular. In Exhibit 12, his written report, he said that this would have been considered by the Australian Government in allocating new places for Buderim.
[68] Mr Underwood expressed the view that residential aged care places should be available close to where people have lived to assist in maintaining links to friends and family and to familiar health care professionals. Enquiries he made he said, demonstrated that residents in the area were having to go to places many kilometres removed from where they had lived. He considered there was a compelling need for the proposal at Lynd Court to be built in the immediate future. Enquires had revealed that all residential aged care facilities in Buderim and adjoining areas were full.
[69] As indicated above, Commonwealth approvals are allocated across the whole planning area but may be weighted to applicant providers for a particular local area. This did not occur for the Buderim area in the 2007 round. In the 2004 round, the appellant succeeded in gaining provisional approval for 30 high care and 30 low care places out of 225 made available. In the most recent 2007 round in which 365 places were allocated for the entire Sunshine Coast aged care planning region, there were 13 applications by providers of care places of which 7 were successful. The appellant was an applicant but was unsuccessful.
[70] The 60 places approved to the appellant in the 2004 round are conditionally approved places. Recently, in January 2008 an application by the appellant to the respondent for development approval of a proposed residential aged care facility at Main Road, Kuluin near the base of Buderim on its northern side was conditionally approved by the respondent for 116 beds. Subject to resolving dispute about conditions, the appellant’s 60 presently conditionally approved places may be taken up in that facility.
[71] The focus here is on whether this proposal for this development on this land should proceed in light of conflict with the planning scheme and impact on the amenity of the surrounding areas, whether the public interest in responding to an increasing demand for residential care facilities particularly to Commonwealth Government funded applicants is sufficient on balance to justify approval of this development despite the conflicts and the amenity impacts I have identified.
[72] It is no doubt ideal for aged persons needing Commonwealth subsidised care in a residential care facility to be able to access the care in close proximity to where they lived. It is not imperative. The planning scheme provisions with which the proposal conflicts are a part of the scheme which deals with the location of land uses, a central part of any scheme. A deal of work has been done to address requirements of the scheme in an attempt to ameliorate the impacts of placing the proposed development in this residential and rural residential area. Residential care facilities already operate in Buderim and the surrounding area two of which, Regis Lakeside and Regis Allora, are in reasonable proximity to Buderim and are operated by the appellant. Another is conditionally approved. Others also exist elsewhere in the respondent’s planning area and the Commonwealth’s Sunshine Coast Planning Region. By and large they are located in localities consistent with the scheme requirements. I accept that they presently operate at capacity. Opportunities exist for such facilities to be approved elsewhere; the recent approval of the appellant’s proposal at the base of Buderim on its northern side is an example.
[73] I am not persuaded the appellant has shown that need for residential care facilities in the respondent’s local government area and in the region of Buderim in particular, on balance justifies approving this development.
[74] The adverse effects on the amenity of the surrounding residential area both contribute to the conflict and independently add weight to the decision that the appellant has not shown the appeal should be upheld.
[75] The appeal is dismissed. The refusal of the application will stand.
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