Salsabil Charitable Organisation Pty Ltd v Gold Coast City Council & Anors
[2016] QPEC 17
•6 April 2016
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Salsabil Charitable Organisation Pty Ltd v Gold Coast City Council & Anors [2016] QPEC 17
PARTIES:
SALSABIL CHARITABLE ORGANISATION PTY LTD ACN 166 628 324
(Appellant)
v
GOLD COST CITY COUNCIL
(Respondent)
and
CURRUMBIN RESIDENTIAL AND LIGHT INDUSTRY SAFETY COMMITTEE INC.
(First Co-Respondent by Election)
and
LISA ALANA BATTYE
(Second Co-Respondent by Election)
FILE NO/S:
4130/14
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court at Brisbane
DELIVERED ON:
6 April 2016
DELIVERED AT:
Brisbane
HEARING DATE:
15 – 18 and 26 February 2016
JUDGE:
Everson DCJ
ORDER:
Appeal Dismissed
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL –Development Application for Material Change of Use for a Place of Worship – Site located in established light industrial area.
CONFLICT – Conflict with planning scheme – Grounds – Whether strong planning need for the proposed development justifies approval notwithstanding conflict – weight to be given to new planning scheme introduced after development application lodged.
ISSUES FOR DETERMINATION – Planning need – Traffic and parking – Amenity
Sustainable Planning Act 2009 ss 314, 324, 326, 495, sch 3
Alex Gow Pty Ltd v Redland Shire Council [2009] QPELR 116
Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347
Lockyer Valley Regional Council v Westlink Pty Ltd [2003] 2 Qd R 302
Weightman v Gold Coast City Council [2003] 2 Qd R 441
COUNSEL:
M. Williamson for the Appellant.
S. Ure for the Respondent.
M. Batty for the First & Second Co- Respondents by Election.
SOLICITORS:
Gantt Legal for the Appellant.
Norton Rose Fulbright for the Respondent.
Thynne Macartney Lawyers for the First & Second Co-Respondents by Election.
Introduction
This is an appeal against the decision of the respondent to refuse a Development Application for Material Change of Use (Impact Assessment) for a Place of Worship on land described as Lot 137 on RP 174895 and Lot 138 on RP 174860 situate at 14 Villiers Drive and 3 Coghill Drive Currumbin Waters (“the site”).
The Place of Worship proposed by the appellant is a mosque.
The site and surrounding locality
The site is located in an existing established light industrial area. It is at the eastern extremity of an industrial estate abutting a drainage reserve which separates the industrial estate from a residential estate further to the east. The site has an area of 4768 m2 and has frontage to both Villiers Drive and Coghill Drive. Villiers Drive is, in effect, a cul de sac terminating at the eastern extremity of the site. A pedestrian footbridge connects the end of Villiers Drive to the adjoining residential area across the drainage reserve.[1] The Pacific Motorway lies to the east of this residential estate.
[1]Ex 6, para 2.1.
Although light industry type uses predominate within this industrial estate, a range of non-industrial uses are also present. These other uses include a Place of Worship and a Childcare centre located at 10 Villiers Drive and the Currumbin Special School located on the opposite side of Villiers Drive 150 meters to the west of the site. A number of the surrounding industrial properties are also used for low level and ancillary commercial activities including take away food premises, indoor recreation uses and charitable retail establishments.[2]
[2]Ibid, para 2.2.
The proposed development
On the site are two adjoining large industrial buildings which are variously described in the evidence in the singular as “an existing industrial building”[3] or the plural as “the existing buildings”.[4] Nothing turns on this as the proposal involves the reuse of all of the built area on the site which has a gross floor area (“GFA”) of approximately 2513 m2.[5] No external modifications of any significance are proposed, only internal partitions.[6] As currently proposed the mosque will have a congregational area for the male congregation of 427 m2, a social reception area of 217 m2 and an internal car park area of 431 m2.[7] The balance of the built area will be used for amenities and as a social and recreation area which also provides on-site car parking during times of peak demand.[8] Only 92 car parking spaces are proposed to be provided on-site.[9]
[3]Ibid, para 2.1.5.
[4]Ex 4, p 1.
[5]Ex 6, para 3.1.2.
[6]Ibid, para 2.1.5.
[7]Ex 23.
[8]Ex 2 vol 1, p 130, Ex 4, p 3.
[9]Ex 25.
Although the appellant offers a number of conditions designed to limit the impacts of the proposed development,[10] it is not prepared to cap the number of worshipers who can attend the premises for religious observances. Evidence about the proposed use and its likely impacts was given by Mr Abdul, who was President of the Islamic Society of the Gold Coast between 2004 and 2007. Although there are five ritual prayers daily, Friday is the ‘holy day’ for the Muslim faith in the same way as Saturday is the holy day for the Jewish faith and Sunday is the holy day for most Christian denominations. The Muslim faith is built on the discipline of worship with the Friday midday prayers being the one compulsory worship time. If a Muslim misses three consecutive Friday midday prayers for no valid reason, they are considered to have renounced the Muslim faith by not fulfilling their religious obligations.[11]
[10]Ex 26, para 20.
[11]Ex 11, paras 19 – 23.
Currently there is only one mosque serving the Gold Coast Muslim community which is at Arundel, approximately a 40 kilometre drive from the site.[12] The Arundel Mosque is now overcrowded and inadequate to serve the existing Gold Coast Muslim population.[13] Based on his observations of the increase in numbers of worshipers at Friday prayers at the Arundel mosque, Mr Abdul estimates the proposed mosque will accommodate 650 people for the compulsory Friday prayers in 10 to 15 years’ time.[14] Within the Friday prayers are obligatory prayers which last for upwards of seven minutes between approximately 1:00pm and 1:30pm.[15] These are the essential prayers for the faithful and Mr Abdul estimates that 20 to 30 percent of attendees will only come for these prayers.[16] Because most of the people attending Friday prayers (the vast majority of whom are men) will need to be able to do so within their lunch hour, it is important that a new mosque is located as close as possible to places of employment.[17]
[12]Ibid, para 7.
[13]Ibid, para 9.
[14]T2 – 72 ll 25 – 45, T2 – 83 ll 5- 35.
[15]T2 – 73 ll 5 – 10.
[16]T2 – 77 ll 30 – 40.
[17]T2 – 73 ll 5 -10.
It is the impact of as many as 650 worshipers attending the proposed mosque during a 20 minute peak period between 1:00pm and 2:00pm on Fridays which will create an extreme demand for off-site parking for a short period of time. It is this prospective parking demand between 1:00pm and 2:00 pm on Fridays which allegedly creates potential conflicts, which are the focus of this appeal. In order to address these conflicts both the traffic engineer called by the appellant, Mr Camilleri and the town planner called by the appellant, Mr Grummitt proposed a cap of a maximum of 340 worshipers.[18] The appellant, to its credit, rejects a cap. Mr Abdul eloquently explained the reasons for these as being that worship is about the relationship between a person and their creator and that it was not appropriate to turn people away and tell them they could not worship.[19] Mr Abdul candidly conceded during cross-examination that the number of prospective worshipers could conceivably grow beyond 650.[20]
[18]Ex 4, p 4 and ex 6, para 5.7.26.
[19]T2 – 78 ll 40 – 46, – 79 ll 1 – 5.
[20]T2 – 83 ll 10 – 25.
The appellant submits that a condition that the proposed development be generally in accordance with the current plans which nominate a congregation area with a GFA of 427 m2 would effectively limit the number of worshipers and therefore the impacts of the proposed development in terms of parking demand for Friday prayers, however having regard to the position of the appellant about accommodating everyone who comes to worship and evidence of how this is sometimes achieved at other mosques in south east Queensland[21], such a condition would clearly not have this effect. In any event I am of the view that a condition seeking to limit the numbers of worshipers at any time would not only be inappropriate given the deeply personal commitment of each worshiper to their religious observance, but also very difficult to enforce.
[21]T3 – 46 ll 15 – 25, T4 – 113 – 114.
The statutory assessment regime
The statutory framework for the hearing and determination of the appeal is pursuant to the Sustainable Planning Act 2009 (“SPA”). As the development application was for impact assessable development it is to be assessed pursuant to s 314 of SPA and decided pursuant to s 324 and s 326 of SPA. Section 326 provides that the decision must not conflict with a “relevant instrument” unless “there are sufficient grounds to justify the decision despite the conflict”. A “relevant instrument” includes “a planning scheme”.[22] As a consequence of s 495 of SPA, the appeal is by way of hearing anew and the court:
“must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate….”[23].
As the development application giving rise to this appeal was considered to be properly made by the respondent on or about 6 March 2013, the court must decide the appeal based on the Gold Coast Planning Scheme 2003 (“the 2003 Planning Scheme”).[24] A new planning scheme, City Plan 2016, has now been adopted by the respondent and commenced on 2 February 2016 (“the 2016 Planning Scheme”).[25] Accordingly the court can give any weight to the 2016 Planning Scheme it considers appropriate pursuant to s 495(2) of SPA.
[22]S 326(2) and s 314(2)(g).
[23]S 495(2)(a).
[24]Ex 6, para 3.2.1.
[25]Ex 14, para 46.
The relevant planning controls
Pursuant to the 2003 Planning Scheme the site was located in the Industry 2 (Low Impact) Domain.[26] A Place of Worship is contemplated within this Domain and listed in the Table of Development as being impact assessable.[27]
[26]Ex 2, vol 1, p 11.
[27]Ex 12, p 183.
In the 2016 Planning Scheme the site is located within the Low Impact Industry Zone.[28] Again a Place of Worship is contemplated within this zone and subject to impact assessment.[29]
[28]Ex 2, vol 1, p 11 and Ex 14, para 47.
[29]Ex 2, vol 1, p 24.
The disputed issues in this appeal
The disputed issues have narrowed considerably since the appeal was instituted. Essentially they now relate to the need for a new mosque at the southern end of the Gold Coast and the likely impacts of the proposed development, specifically amenity impacts as a consequence of increased traffic and parking demands during Friday prayers.
The respondent identifies a number of issues in the appeal with greater particularity.[30] Firstly the respondent asserts that there will be unacceptable impacts on the industrial estate and adjoining residential area as a consequence of the overflow parking during peak times due to the scale of the proposed development and the significant shortage of on-site car parks. The respondent also alleges conflicts with a number of provisions of the 2003 Planning Scheme which seek to promote business activity and protect residential amenity. In the former category it nominates DEO Econ. 1 which seeks, inter alia the “provision of an efficient land use pattern that is conducive to business activity” and asserts that overflow parking into the industrial area is not conducive to business activity.[31] A number of provisions are also identified which seek to protect residential amenity in general terms, DEO Econ. 2[32] and DEO Soc.5.[33] The Planning Intent for the Industry Land Use Theme is also nominated, however this provision addresses industrial development which the proposed mosque is not.[34] Similarly the Intent for the Industry 2 (Low Impact) Domain again speaks in terms of industrial activities and seeks that any adverse impacts be contained almost wholly within site boundaries. Activities relating to a mosque are not industrial activities.
[30]Ex 27, para 26.
[31]Ex 12, p 6.
[32]Ibid p 7.
[33]Ibid p 15.
[34]Ibid pp 81, 100.
The respondent then identifies specific provisions of the 2003 Planning Scheme with which it asserts the proposed development is in conflict. Various alleged conflicts with the Performance Criteria (“PC’s”) for certain Codes are listed. The significance of this is explained in Part 7, Division 1 Chapter 2, paragraph 4.0 of the 2003 Planning Scheme:
“Development proposals must comply with the Performance Criteria to meet the objectives of the Planning Scheme and to ensure that the DEO’s are not compromised.
…
It is desirable that impact assessable development comply with the Acceptable Solutions to ensure that each Performance Criterion is met. However, impact assessable development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant Performance Criterion, to Council’s stratification.”[35]
[35]Ibid pp 211-212.
PC13 of the Industry 2 (Low Impact) Domain Place Code states that the proposed use must not detract from the amenity of the local area having regard to the impact of, relevantly, hours of operation and traffic. The first and second co-respondents by election also nominate PC14 which immediately follows and which is in almost identical terms.[36] PC24 of the same Code is also nominated by the respondent. It is in the following terms:
“The traffic and parking generated by the proposed industry on the surrounding road network must not result in unacceptable impacts on adjacent land and local road users.”[37]
This Performance Criterion is similar to those listed above however it talks in terms of “industry” and the proposed use does not fall within the definition of “industry” in the 2003 Planning Scheme.[38]
[36]Ibid p 193.
[37]Ibid p 195.
[38]Ibid p 100.
Finally in the 2003 Planning Scheme the respondent identifies a conflict with PC16 of the Car Parking, Access and Transport Integration Code which states:
“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. Car parking design contributes to delivering development with a built form that is robust and flexible, allowing adaption or redevelopment over time to a variety of uses, increased densities or increased employment intensity.”
The corresponding Acceptable Solution, AS 16.1 allows for car parking to be provided in accordance with a nominated table. In this table for a Place of Worship the corresponding minimum number of car parking spaces to be provided is “10 spaces per 100 m2 of GFA (one space per 10m2 of GFA)”.[39] It is uncontroversial that the proposed development does not comply with this Acceptable Solution. Applying the GFA of the built area of the site of 2513 m2 results in a requirement of 251 car parking spaces.
[39]Ibid p 225.
Although not specifically raised by the respondent, two other parts of the Car Parking Access and Transport Integration Code are nominated by the appellant as being relevant to the issue of conflict with the 2003 Planning Scheme.[40] Firstly there is PC23 which states car parking “must be provided to meet the car parking needs of the development. If it cannot be provided on-site, alternative arrangements may be proposed.” Corresponding Acceptable Solutions relevantly include a monetary contribution towards “provision of improved on street car parking… in the vicinity of the development.” The other relevant provision is paragraph 5.0 which permits the minimum number of car spaces to be reduced where it can be demonstrated that less provision is justified having regard to, inter alia, “car spaces that are available on nearby land and suitable roads”, “the existing development on the site” and “the proposed hours of operation of the development or use.”
[40]Ex 26, paras 40 – 44.
The respondent also identifies conflict with a number of provisions of the 2016 Planning Scheme. Firstly the respondent asserts conflict with a number of general provisions which seek to protect residential amenity in circumstances where residential neighbourhoods adjoin industrial areas. In this regard it is alleged that there is a conflict with Specific Outcome (8) of the Industry Business Areas element of the Strategic Framework which provides that low impact industry areas can be adjacent to residential neighbourhoods to act as a buffer to high impact industry areas. It is alleged that the proposed use will conflict with this provision because of overflow car parking in the adjacent residential neighbourhood.[41] Similar conflicts because of overflow parking are alleged with the purpose of the Low Impact Industry Zone Code[42] and the purpose of the Industrial Design Code.[43]
[41]Ex 12, Part B p 4.
[42]Ibid p 8.
[43]Ibid p 12.
Thereafter the respondent alleges conflicts with more specific provisions of the 2016 Planning Scheme. These operate in the same way as in the 2003 Planning Scheme although the nomenclature is slightly different. Conflicts with various Performance Outcomes[44] in various Codes are identified. In this regard it asserts a conflict with PO2 of the General Development Provisions Code. This poorly worded provision states that the proposed development “prevents loss of amenity” having regard to, inter alia “traffic”.[45] Conflict with PO12 of the same Code is alleged. Relevantly this states that development is designed to “complement the character and address any impacts on the amenity and environment of the local area.”[46] In each instance it is alleged that the conflicts arise as a consequence of overflow parking. Finally it is alleged that there is conflict with PO1 of the Transport Code which states that development “provides off-street car parking to accommodate for the parking demand.”[47] In the accompanying Acceptable Outcome, below the applicable tables, it is stated:
“Where off-street car parking cannot be reasonably provided, Council may consider improvements to active and public transport to offset the shortfall in car parking spaces.”
This suggests some flexibility is open to a developer in certain circumstances in addressing this requirement, however as noted below this scenario is not relevant to the proposed development.[48]
[44]Performance Outcomes (“PO’s”) is the term used in place of PC’s and corresponding Acceptance Outcomes (AO’s) are used in place of AS’s.
[45]Ex 12, Part B p 21.
[46]Ibid p 24.
[47]Ibid p 29.
[48]At para 32
The respondent further asserts that the proposed use is not consistent with the reasonable expectations of nearby residents or the owners or operators of businesses in the surrounding industrial estate as a consequence of the overflow parking that will be generated by the proposed development.
The respondent also asserts that it is not able to satisfactorily control the scale and impacts of the proposed development through conditions that are capable of being properly monitored, supervised or enforced.
Conversely the appellant asserts that, while it is necessary to consider the nature and extent of any conflict with the 2003 Planning Scheme, it is also necessary to consider whether there are sufficient grounds which justify a decision to approve the development application notwithstanding any conflict.[49] In this regard the primary ground for consideration is planning need.
[49]Ex 26, para 62.
Planning need
Evidence of planning need was given by Mr McCracken who undertook a number of analyses of relevant population statistics for the region. In the 2011 Census the resident population of the local government area administered by the respondent was 494,501 people with 4033, or about 0.8% identifying Islam as their religious affiliation.[50] Mr McCracken then analysed three Statistical Areas which he believed were of particular relevance to the need for a mosque at the site to serve the Islamic population of the southern Gold Coast and also northern New South Wales. When he added the northern New South Wales population who identified Islam as their religious affiliation in the 2011 Census, the number of people in the relevant area identified by him was 527.[51]
[50]Ex 8, para 9.
[51]Ibid paras 12 - 15.
The respondent called a social planner, Ms Elliott who also undertook a statistical analysis based on the 2011 Census of the Muslim population of the Gold Coast. She noted that it had increased at a rate of 52.5% since 2006.[52] In his evidence in chief Mr McCracken confirmed that this represented an annual increase of 8.8%.[53] Mr McCracken noted the Arundel mosque, which was the only mosque presently serving the Islamic population of the Gold Coast, was a driving distance of 36.6 kilometres from the site.[54] He noted that an approved, but as yet an undeveloped, mosque at Worongary was unlikely to have any more than a minor role in catering for the future growth of the Islamic population in terms of their need for an additional mosque. This is because it was limited to a maximum number of 40 worshipers at any one time.[55] Mr McCracken concluded that the establishment of the proposed mosque would meet a clear community need.[56] Ms Elliott disagreed, stating that she was of the view that a “pressing need” did not appear to be evident in the southern part of the Gold Coast local government area.[57] However in the joint expert report on social planning Ms Elliott agreed with Professor Dunn who was called by the appellant that:
“Provision of community facilities including places of worship should aim to provide equitable access for diverse communities, and that the proposed use is likely to contribute to the wellbeing of Muslim community members who would worship there.”[58]
[52]Ex 13 para 23.
[53]T2 – 23 ll 30 – 45.
[54]Ex 8, para 21.
[55]Ibid para 24.
[56]Ibid para 34.
[57]Ex 13, para 26.
[58]Ex 7, para 51.
Each of the town planners who gave evidence, Mr Grummitt, Mr Schomburgk and Mr Buckley all acknowledged a community need for the proposed development.[59] I accept the evidence of Mr McCracken as to the extent of and likely increase in the Muslim population on the Gold Coast and on the southern Gold Coast in particular. I accept that there is a clear community need for the proposed development.
[59]Ex 10 para 5.5.1, T4 – 84 ll 5 – 30, T4 – 107 ll 15 – 20.
Traffic and parking
Two traffic engineers gave evidence, Mr Camilleri was called on behalf of the appellant and Mr Beard gave evidence on behalf of the respondent. Considerable analysis of the parking availability in the industrial estate where the site is situated was undertaken by both experts and two joint reports were produced after they met and discussed the data that had been collected.[60] In the first joint report Mr Camilleri stated that parking demands could be managed without creating an adverse impact by the use of park attendants both inside and outside of the site, a car pooling system with a co-ordinator appointed to manage the process, the use of two 22 seat shuttle buses and a cap on the maximum number of worshipers for Friday prayers.[61]
[60]Ex 4 and Ex 5.
[61]Ex 4, p 4.
As noted above the appellant, to its credit rejects a cap on the maximum number of worshipers. The use of a car parking attendant outside the premises to try and discourage worshipers from parking in the adjacent residential estate and accessing the proposed development by the pedestrian walkway over the drainage reserve appears both undesirable and unenforceable. A car pooling system is also incapable of being enforced. The attempt to significantly reduce off-site parking demand through the use of two shuttle buses does not appear likely to be an effective means of significantly reducing the peak demand for parking given the evidence of Mr Abdul that most of the attendees at Friday prayers will be men who need to carry out their religious observances within their lunch hour. I accept the evidence of Mr Beard that the proposed buses will have limited utility given the time constraints of many worshipers.[62] Two buses covering a set route with designated pick up and set down areas will not be an attractive option to a man with such a time constraint.
[62]T4 – 7 ll 5 – 25.
In their second joint report Mr Camilleri and Mr Beard analysed the parking demand at the Arundel mosque and reached broad agreement, allowing for the use of public transport, that the parking demand was in the order of 0.55 to 0.59 spaces per person.[63] An analysis of on-street parking availability in the industrial estate where the site is located also resulted in agreement that there was a spare capacity of 124 car park spaces.[64] It was therefore disappointing that Mr Camilleri in the course of preparing his individual report[65] undertook further surveys on Friday 29 January 2016 and Friday 5 February 2016 after the conclusion of the expert meetings and without notice to Mr Beard. This appears contrary to s 30(3)(b) of the Planning and Environment Court Rules 2010. Leave was never sought from me to lead evidence of the new surveys however when I raised the issue with the parties Mr Ure, on behalf of the respondent stated that they would “deal with it as best we can”.[66] In respect of this particular evidence Mr Beard stated:
“But doing an isolated count of the Friday and comparing that to annual average conditions is simply nonsense. It doesn’t work. It’s not convincing, because there are too many other facts that come into account. But if we’d done that survey, and if we’d discussed it in the joint report…. But I wasn’t given that chance. So I’m pretty cranky about that. That’s not the way the joint reporting process is supposed to work.”[67]
I accept not only Mr Beard’s criticism of the manner in which the surveys were undertaken but also their limitations in terms of statistical relevance.
[63]Ex 5, p 5.
[64]Ibid p 7.
[65]Ex 9.
[66]T3 – 19 ll 10 – 15.
[67]T4 – 28 ll 10 – 16.
Another issue which arose in the course of the hearing was the extent to which I should take into account the capacity of the appellant to undertake additional work in the road reserve which the traffic engineers estimate could create between 40 and 47 extra parking spaces in Villiers Drive in the vicinity of the site.[68] In order to do this the appellant must make an application pursuant to s 75 of the Local Government Act 2009 (“LGA”). I accept that the appropriate approach to a prospective application in this regard is as set out in Walker v Noosa Shire Council.[69] As Thomas J (as he then was) observed: -
“With the exceptions I have already mentioned (illegality or obvious futility) it may be said that in general it is desirable that such applications be considered on their merits one at a time, and without undue speculation on the fate of other necessary applications.”[70]
[68]Ex 15, p 19.
[69][1983] 2 Qd R 86.
[70]Ibid at 90.
On the facts before me it is clear that extra parking can be found in Villiers Drive without affecting the capacity of the carriageway or the safety of it. Should the proposed development be approved, it is likely that the respondent would wish this extra parking to be provided. In this regard I prefer the evidence of Mr Beard that only 40 extra car parks can be created when considerations with respect to vehicle manoeuvrability, particularly for large articulated vehicles, are taken into account.[71]
[71]Ex 15, p 6, T4 – 4, 4 -6.
A lot of time was taken endeavouring to calculate the traffic and parking implications of the proposed development having regard to the likely number of worshippers for Friday prayers. This occurred in the context of the appellant anticipating 650 worshipers in 10 to 15 years. I accept without reservation the evidence of Mr Buckley, the planner called by the first and second co-respondents by election, that the assessment of likely impacts of the proposed development must be undertaken in the context of an assessment of maximum impacts. Relevantly he said:
“…, you have to make some assumption about the end situation. To just use some of the land use types, shopping – you have got to assume they trade. You can’t assume they’re going to run a bad business. With industrial development, you assume they are going to be let. With residential development you assume people are going to live there and it’s quite typical…. in an estate that it builds up over time. But ultimately, all the intersections and all the traffic controls, etcetera, that are put in there anticipate the full capacity.”[72]
In my view it is therefore appropriate to assess prospective parking demands for Friday prayers on the basis of a maximum occupancy as nominated by the applicant of 650 people.[73] Although the analysis of parking demand by the traffic engineers assumes that 17% of prospective worshipers will either walk to Friday prayers or arrive by public transport, this appears to be a generous allowance where the only public transport servicing the site at the relevant time is an hourly bus service in each direction along Currumbin Creek Road, the nearest bus stops being approximately 500 metres from the site.[74] The attractiveness of the site in terms of accessibility is because of the proximity of the Pacific Motorway and its connectivity with the surrounding road network. Its suitability in this regard is largely therefore confined to prospective worshipers who can arrive other than by public transport. It is not part of the proposal of the appellant to contribute to an upgrading of the public transport network in the vicinity of the site.
[72]T4 – 106 ll 30 – 40.
[73]Mr Abdul did concede however this number could be exceeded: para [8] above.
[74]Ex 15, p 9, T3-26 ll 5-25.
Concerns about increased traffic and overflow parking in both the industrial estate and the adjoining residential estate are expressed in numerous statements of lay witnesses who either own homes or operate businesses in the vicinity of the site.[75] The concerns of business operators extend to the need to be able to conveniently and effectively manoeuvre large delivery vehicles in and out of properties within the industrial estate and concerns that overflow parking would impact on the operations of their businesses.
[75]Ex 17.
Overall I prefer the traffic engineering evidence of Mr Beard to that of Mr Camilleri and accept that with a design occupancy of 650 worshipers during Friday prayers, the proposed development would require 201 on-street parking spaces, assuming the respondent ultimately permits extra parking spaces to be created within the road reserve in the immediate vicinity of the site.[76]
[76]Ex 25.
The planning evidence
Each of the planners who gave evidence expressed the view that the need for the proposed development was not a site specific need.[77] As Mr Schomburgk stated “there has been no demonstration of need for this particular use on this particular site….”[78]
[77]T4 – 75 ll 1-10, Ex 6, para 5.8.2 and Ex 16, para 25.
[78]Ex 14, para 49.
For each of the planners the appropriateness of the proposed use related to its scale and consequential impacts.[79] In the joint experts’ report Mr Buckley observed:
[79]T4 – 75 ll 10-15.
“Historically, (reflecting the social makeup of society in the history of Australia) regular worship predominately occurred on a Sunday where the traffic and available parking context was more favourable for any church not to have impacts on neighbours and local amenity and the movement of vehicles. Where churches co-located with allied denominational schools the opportunity for spill off-street parking was readily available.”[80]
[80]Ex 6, para 5.1.18.
In his report Mr Schomburgk expressed a similar view in the following terms:
“A place of worship that had its peak activity on weekends or at night could be acceptable in an industrial area, where the peak industrial activities did not coincide with the place of worship.”[81]
Mr Schomburgk concluded, inter alia:
“This proposal is simply too big for this site and this location. It has the potential to create off-site impacts that are significant and unreasonable.”
[81]Ex 14, para 16.
Mr Buckley and Mr Schomburgk both expressed the view that any proposed conditions designed to marshal worshipers to minimise off-site impacts from the proposed development would not be effective. Mr Schomburgk stated:
“Measures suggested by the Appellant to mitigate those impacts are problematic from a policing and enforcement aspect, and are so complex as to warrant dismissal from a particular implementation point of view. In particular, the need to limit worship numbers is impracticable for a religious prayer activity.”[82]
[82]Ex 14, para 55.
Mr Buckley expressed his concerns in the following way:
“The scale of operation proposed, and the convoluted arrangements for marshalling worshipers and controlling numbers, combine to suggest strongly to me that this proposal is unsuited to this site. In short, the need should be meet elsewhere.”[83]
The proposed development is either impact assessable or code assessable in another six Domains pursuant to the 2003 Planning Scheme. It is either impact assessable or code assessable in another six Zones pursuant to the 2016 Planning Scheme.[84]
[83]Ex 16, para 25.
[84]Ex 12A.
Conflict and grounds
I must consider the nature and extent of conflict with the 2003 Planning Scheme and, in the event of conflict, whether there are sufficient grounds which justify a decision to approve the development application notwithstanding the conflict. The term “grounds” is defined in Schedule 3 of SPA as:
“1. Grounds means matters of public interest.
2. Grounds does not include the personal circumstances of an applicant, owner or interested party.”
In Lockyer Valley Regional Council v Westlink Pty Ltd[85] the Court of Appeal indorsed the three stage test which had previously been pronounced in Weightman v Gold Coast City Council[86] which requires the Court to:
“1. examine the nature and extent of the conflict;
2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”[87]
This test now applies with the term “grounds” as defined above being substituted for the former term “planning grounds”. As Holmes JA observed in Westlink, the importance of the ground “must depend on what it is, not where it falls in the three-step approach in Weightman.”[88]
[85][2003] 2 Qd R 302.
[86][2003] 2 Qd R 441.
[87]Westlink, op cit at [18].
[88]Ibid at [21].
Although a Place of Worship is a use which is contemplated for the site, it is impact assessable.[89] There is a clear theme running through the planning strategy in the 2003 Planning Scheme that business activity is to be promoted but amenity, including residential amenity, is to be protected.[90] This is consistent with the proposed development being contemplated for the site providing its impacts can be appropriately managed. The particular conflicts alleged by the respondent and the first and second co-respondents by election relate to the likelihood of significant overflow parking in the adjoining industrial estate and residential estate during Friday prayers. In terms of the likelihood of overflow parking in the residential estate, each of the town planners who gave evidence was of the view that this was inappropriate given residential expectations[91]. As Mr Schomburgk put it:
“This intrusion into the residential area is beyond the reasonable expectations of residents, and is an intrusion caused by the scale of, and lack of onsite parking by, the proposal.”[92]
[89]See para [11] above.
[90]DEO Econ. 1, DEO Econ.2 and DEO Soc.5.
[91]T4 – 77 ll 35 – 40, T4 – 106 ll 1-6.
[92]Ex 14, para 31.
As noted above it is alleged that overflow parking in the industrial estate during Friday prayers will interfere with the operation of neighbouring businesses. In his report Mr Camilleri concluded:
“I do acknowledge that the peak demand will result in the on-street parking operating at close to capacity, however I do not believe this creates an adverse impact due to the nature of the businesses in this area. Industrial businesses do not generate high turnover parking, therefore utilising all the spaces available at 1:30pm on a Friday will not create any inconvenience.”[93]
I do not accept this view. It is not consistent with the unchallenged evidence of many of the owners and operators of these businesses.[94] As Mr Schomburgk stated: “I have never seen a development that is so significantly reliant on on-street parking”.[95] On the evidence before me I am satisfied that the significant demand for overflow parking as assessed by Mr Beard will occur in both the industrial estate and in conveniently located parts of the neighbouring residential estate, particularly in the vicinity of the nearby footbridge.
[93]Ex 9, para 44.
[94]Ex 17.
[95]Ex 14, para 19.
The appellant submits that overflow parking will be of a relatively short duration during working hours on a Friday afternoon.[96] It is further submitted that it will not interrupt sleep and it will not create any unacceptable noise, or hard amenity impacts.[97]
[96]Ex 26, para 156.
[97]Ibid, para 143.
The broad strategies of promoting business activity and protecting amenity identified above are given effect by the relevant Codes and their Performance Criteria. The prospective impacts in both the industrial estate and the adjoining residential estate of an overflow parking demand of 241 spaces in my view detract from the amenity of the local area and this is in conflict with PC13 of the Industry 2 (Low Impact) Domain Place Code. Furthermore, failure to provide sufficient car parking spaces represents significant conflict with PC16 of the Car Parking, Access and Transport Integration Code. There is also significant conflict with PC23 of this Code as car parking is not provided to meet the car parking needs of the proposed development. The lack of on-street car parking in the vicinity of the site is such that the Acceptable Solutions are not relevant. There is no basis for a greater reduction in the minimum number of car spaces in excess of the 40 car spaces allowed for in the Villiers Drive road reserve having regard to the considerations in para 5.0 of this Code.[98] This is because of the extent of the demand for off-street car parking and the fact that although the period of the demand is relatively brief (up to one and a half hours), it occurs at a time when businesses are still operating in the adjoining industrial estate and is on a scale which will in all likelihood disrupt their operations. In short, prospective demand for off-site car parking during Friday prayers represents a real and significant conflict with the relevant provisions of the 2003 Planning Scheme which are designed to restrict impacts of this type.
[98]See para [31] above.
The appellant lists a number of grounds to overcome conflicts with the 2003 Planning Scheme.[99] The primary ground relied upon is that there is a “town planning and community need” for the proposed development to service the Islamic community at the southern end of the Gold Coast, that the site is conveniently located to service this community and that there are social and planning benefits in providing such a community facility, which will also include social and educational components. It is also submitted that the proposed development involves the reuse of an existing building which allows the built form to integrate into its surrounds in a visual sense. I accept without reservation that the planning need for the proposed development, with its attendant community benefits, is relevant to the conflicts with the 2003 Planning Scheme identified above. As for the reuse of an existing building as a ground relevant to this conflict, in my view this is essentially a neutral issue.
[99]Ex 26, para 181.
In assessing whether the conflict can be justified on the grounds of planning need for the proposed development where there are significant conflicts with planning scheme provisions designed to protect amenity, the decision of Arksmead Pty Ltd v Gold Coast City Council[100] is instructive. The Court of Appeal stated:
“…if it is decided that the proposed development would have a detrimental effect on the amenity of the area in question, the judge must then decide whether, notwithstanding the detrimental effect upon the amenity of the area, there has been shown to be a need for the proposed use which would render the effect on the amenity of the area justifiable.”[101]
[100][2001] 1 Qd R 347.
[101]Ibid at 357.
The decision of Wilson SC DCJ (as he then was) in Alex Gow Pty Ltd v Redland Shire Council[102]is also instructive in the context of a development application for a funeral parlour in a residential area. Relevantly, His Honour stated:
“But while the evidence was persuasive that there is a need for a funeral home in Redland Shire, that need cannot be shown to have an immediate link or connection with this particular parcel. When, as here, the planning schemes do provide for the proposed use in other categories in the Shire planning scheme and amenity impacts are apparent it cannot be said that need, as a planning ground, is compelling.”[103]
[102][2009] QPELR 116.
[103]Ibid at [33].
There is a strong town planning need for the proposed development which will bring with it notable community benefits. However, the off-site parking demand, which I accept on the evidence of Mr Beard is likely to amount to demand for 201 car spaces for approximately one and a half hours at lunch time on Fridays, will result in significant impacts on the amenity of both the industrial estate and the adjoining residential area. This will occur in circumstances where each of the planners who gave evidence were of the view that parking in the residential estate for this purpose is inappropriate and where the parking demand will greatly exceed the available parking spaces in the industrial estate.[104] I am of the view that the need for the proposed development is not sufficient to justify approving the proposed development, notwithstanding the conflicts with the specific provisions of the 2003 Planning Scheme designed to limit off-street parking and preserve the amenity of both the industrial estate and the adjoining residential area. The conflicts are even more magnified when it is considered that the demand for parking would occur during business hours when occupiers of premises in the industrial estate are attempting to conduct their businesses. In circumstances where the 2003 Planning Scheme provides for the proposed development in numerous Domains, it cannot be said that the need for the proposed development is sufficiently compelling to overcome these conflicts.
[104]Ex 25 & Ex 5, para 3.3.3.
As stated earlier the reuse of the existing building is not a ground which comes close to justifying approving the proposed development notwithstanding these conflicts.
The 2016 planning scheme
The 2016 Planning Scheme has only just come into force and represents the latest planning intent of the respondent. The 2003 Planning Scheme is obviously very dated and in my view the 2016 Planning Scheme should be given significant weight.
So far as the issues in this appeal are concerned, the strategies evident in the 2016 Planning Scheme which address the need to protect amenity are similar to those evident in 2003 Planning Scheme. If anything however the requirement in PO1 of the Transport Code which requires development to provide off-street car parking to accommodate anticipated parking demand is stronger than the equivalent provisions in PC16 of the Car Parking, Access and Transport Integration Code in the 2003 Planning Scheme. As such the conflicts identified above from off-site parking demand are even greater pursuant to the 2016 Planning Scheme.
The amenity impacts of the off-site parking demand that would be occasioned by the proposed development are clearly contrary to the reasonable expectations of nearby residents and the owners and operators of businesses in the surrounding industrial estate that legitimately arise pursuant to both the 2003 Planning Scheme and the 2016 Planning Scheme that they would not be subjected to impacts of this type on this scale.
Conclusion
Although there is a clear and demonstrable need for the proposed development, it is simply too big for the site. There would be a massive demand for off-site car parking during Friday prayers. The peak demand for off-street parking would occur during business hours in circumstances where the site is located within an industrial estate. This would interfere with the operations of these businesses in a major way with the demand for off-site parking generated by the proposed development exceeding all of the available parking spaces at this time. It is likely that overflow parking will also have a significant detrimental impact on the amenity of the adjoining residential estate. This results in conflicts with specific planning scheme provisions designed to preserve amenity by restricting the impact of overflow parking. The planning need for the proposed development is insufficient on balance to justify approving the proposed development notwithstanding these conflicts.
Order
The appeal is dismissed.
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