Sunbay Pty Ltd v Crows Nest Shire Council

[2002] QPEC 84

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Sunbay Pty Ltd  v Crows Nest Shire Council [2002] QPEC 084

PARTIES:

SUNBAY PTY LTD
Appellant 

and

CROWS NEST SHIRE COUNCIL
Respondent 

FILE NO/S:

4551/2001

DIVISION:

Planning & Environment Court

PROCEEDING:

Appeal 

ORIGINATING COURT:

Brisbane

DELIVERED ON:

25 November 2002.

DELIVERED AT:

Maroochydore

HEARING DATES:

27, 28 and 29 May 2002

JUDGE:

Alan Wilson SC DCJ

ORDER:

Appeal upheld, with conditions of approval to be resolved

CATCHWORDS:

PLANNING & ENVIRONMENT – application for material change of use for a childcare centre at Crows Nest – application refused by respondent – appeal from that decision – whether proposed childcare centre likely to cause unacceptable traffic problems and congestion – whether significant loss of amenity would be caused to occupiers of nearby residential properties – whether proposed development contrary to respondent’s Planning Scheme

Cases considered:

Broad v BCC & Baptist Union of Australia [1986] 2 Qd R 317

Drivetype Pty Ltd v Council of the Shire of Caboolture (1995) QPLR 141

Smith v Gold Coast City Council (1975) QPLR 170
Ward v Townsville City Council (1994) QPLR 30

COUNSEL:

Mr B G Cronin for the appellant
Mr S Ure for the respondent  

SOLICITORS:

Chan Lawyers for the appellant 
Mark Tranter for the respondent 

1. The appellant brings this appeal against the respondent Council’s decision to refuse its application for a development permit for a material change of use which would permit the construction and operation of a childcare centre at Lot 4 Diosma Drive, Highfields, Crows Nest.  The appeal is brought under the Integrated Planning Act 1997 (IPA), s 4.1.27.  The issues in the appeal involve the respondent’s grounds for refusal, namely: that the proposal is unacceptable from a traffic planning aspect; that it would have an unacceptable impact on the amenity of the Diosma Drive residential estate; and that it is contrary to sound town planning principles and the Strategic Plan for Crows Nest Shire reflected in its Development Control Plan No. 1 (DCP1).

The Application

1. The application was lodged with Council in June 2001.  The appeal book (Exhibit 2) shows that the respondent’s staff recommended approval of the application subject to various conditions including, relevantly, provision of off-street car parking facilities for all staff, residents and visitors.  Notwithstanding that recommendation, the respondent Council assessed and refused the application on 16 August 2001, providing the following reasons:

(a)        traffic problems and congestion in the vicinity of the proposed development;

(b)        loss of amenity to people on adjoining or nearby residential blocks.

By order of this Court 1 March 2001 the issues in dispute in this appeal were identified as those grounds of refusal, and the grounds of appeal in the notice of appeal which, in fact, addressed those two issues.  The third issue emerged, ultimately, in the form of an argument that development east of the New England Highway was contrary to the DCP strategy.  The appellant did not complain that it was surprised by that issue.

The Land, and the Locality

1. The land the subject of the application contains 2,604m², and is located at the beginning of Diosma Drive close to the point where it intersects with Borghardt Road.  It is rectangular in shape, relatively flat, vacant, and grassed, with some scattered large trees.  Diosma Drive provides access to a discrete residential estate comprising 54 allotments containing, presently, 27 houses.  The land is adjacent to, and on the eastern side of the New England Highway, but separated from it by a 20-metre Council-controlled buffer strip. The highway runs generally north-south.

1. Diosma Drive is, effectively, a cul-de-sac.  There is an exit to the north onto Reis Road but that road is, itself, narrow and for a significant distance unsealed.  The residential enclave in Diosma Drive is, essentially, a relatively quiet rural/residential area, containing no commercial uses. 

1. The land is adjoined by a vacant allotment to the north-east, the parkland/buffer strip abutting the New England Highway to the north-west, Diosma Drive to the south-east and, to the south-west, a Council depot/water treatment plant facing Borghardt Road at, effectively, the intersection of that road and Diosma Drive.  About 50 metres from the land, across Borghardt Road, is the Highfield State School with a current enrolment of about 650 pre-school, and primary school children.  This part of Borghardt Road contains a 50-bay car park used to drop off and pick up children from the school.

1. An inspection of the site and other parts of the Highfield area showed it has undergone significant, fairly recent growth as, apparently, a commuter suburb for the provincial city of Toowoomba.  The greater part of the development is on the opposite, western side of the New England Highway, which is quite a busy road.  DCP1 (discussed later) generally aims for greater development on the western side, and less to the eastern side which is comprised, effectively, of the Great Dividing Range escarpment, and its environs.

The Proposal

1. The proposal involves construction of an architect-designed building (particularised at Exhibit 2, pp 1-39) which I am satisfied blends acceptably, in an aesthetic sense, into the surrounding residential locale.  It is comprised of a dedicated centre intended to provide child care for 74 children with all associated facilities including, in particular, parking bays and provision for off-street drop off and pick up of children.  It is well shielded from the Council depot and, on the opposite boundary (the north-east, towards the residential allotments in Diosma Drive) would contain a 1.8m sound attenuating fence.  Set backs of the proposed structure on the north-east and south-west boundaries are 3.5m and 6.5m respectively and, according to the proposal, would be well buffered with dense planting to minimise disturbance to neighbouring properties.

1. The proposed centre would operate between 7am and 6pm each weekday, 50 weeks per year.  The appellant provides, I accept, “full day” care only and will not take children for lesser periods.

Relevant Planning Legislation

1. The respondent’s Planning Scheme is a transitional one.  The application, for a material change of use in respect of the subject land, would previously have been made under s 4.13(5) of the Local Government (Planning & Environment) Act 1990 but is now, since IPA, to be decided under s 6.1.30 of that Act.  The effect is, essentially, circumlocutory because IPA s 6.1.30(3) refers the decision maker back to the former legislation.  In any event, the appellant bears the onus of proof.

1. The respondent’s current Strategic Plan shows the subject allotment having a Preferred Dominant Land Use of “rural residential” defined, in the Scheme as:

…Those areas of the Shire suitable for residential living close to urban areas, but on larger allotments, in localities where the use does not conflict with traditional rural uses, or create restrictions on the potential to expand urban areas.

The Zoning Map in the Planning Scheme shows the subject allotment as Residential “B”, a zone described in Part 3, Section 3.2 (Intent of Zones) as:

…intended to provided areas for low density residential uses on larger than normal residential allotments adjacent to established urban areas.  The minimum allotment size is 2,500m² with an average size of 3,000m².  All the normal urban services (except sewerage) are required to serve each allotment.  Under certain circumstances other uses considered compatible with residential use may be permissible.

1. DCP1 shows this area designated as low density residential.  The respondent’s town planner Mr Poole said, and I accept, that upon rezoning this Residential “B” category land will permit uses which are subject to the provisions of ss 1.6 and 1.7 of the Strategic Plan which provide, relevantly:

1.6.1.7              The existence of topographically attractive features including slopes, bush or timber, creek, views, aspects etc within or surrounding the proposed development site and the need to preserve these features will be considered by Council when assessing rezoning applications.

…

1.7.1.2              Administrative and community uses will be encouraged to establish in these areas having regard to the requirements of the population catchment areas of each urban area.

1. The Scheme does not contain any specific planning policies or special requirements concerning childcare centres, and there is no zone or code which covers the provision of them.  Mr Poole and the appellant’s town planner, Mr Arnold, disagreed whether a childcare centre is, under this Scheme, a “permissible” use (Mr Poole, Exhibit 9, para 5.2(c)) or a “consent” use (Mr Arnold, Exhibit 5, para 6.3.1).  The Table (set out at Exhibit 5, appendix B) makes it tolerably clear Mr Arnold is correct.  In truth, the dispute concerned the relevance of (or, if relevant, the weight to be given to) clause 1.7.1.2 of the Scheme – a matter discussed later, in connection with the third issue.

Traffic

1. Both the town planners addressed this issue and each party called an engineer with specific expertise on the topic: Mr Rytenskild for the appellant, and Mr Brennan for the respondent.  The former is a special traffic engineer, whereas Mr Brennan is a municipal engineer with responsibilities for traffic, particularly residential traffic, as part of his municipal responsibilities. 

1. The adjoining State School faces the New England Highway and, to the north, Borghardt Road.  Only two roads provide access to the school, which has a current enrolment of 650 (both pre-school, and school age children) although, as its principal Mr Williamson said, that may double in the future.  In addition to the 50-bay car park situated on Borghardt Road, there are another three car parks containing, in total, 70 spaces, on the western side of the New England Highway which, I accept, will eventually be widened by the Queensland Department of Main Roads to four lanes, at which time those car parks will disappear.  Both Mr Williamson and a resident, Mrs Dionysius, described the current traffic regime pertaining at the Borghardt Road/Diosma Drive intersection drop-off area as “chaotic”.  Those traffic problems are, I accept, exacerbated by activities at the water treatment plant involving some 90 water truck trips per day and, because of the current configuration of Borghardt Road, those trucks are required to perform a U-turn in a clockwise direction around the car parking island, returning west and then crossing to the northern side of that road to park parallel to the facility. 

1. Mr Rytenskild estimated that the proposed childcare centre would generate, conservatively, 315 vehicle trips per day.  He also conducted, however, a survey at a centre of comparable size and discovered it only generated 204 trips and, I accept, his assessment of 315 represents a “worst-case” scenario.  Mr Brennan estimated 420 trips per day but in so doing made what, I find, are particular over-estimates concerning the number of journeys by staff members, and parents delivering and collecting children.  The appellant intends providing, I accept, a shuttle bus which will reduce the number of journeys by parents; and, it conducts only full day care centres, with the same result.  Each expert agreed that residential allotments in Diosma Drive would, individually, generate about 10 vehicle trips per day and, in light of the remaining vacant allotments in that street, a significant increase in the future use of it over its whole length may be anticipated.  The childcare centre will, in that context, generate nothing more than an increase in traffic at the extreme southern end of Diosma Drive.

1. The second area of dispute concerned appropriate car parking at the centre.  Under the Planning Scheme a minimum of nine car parks is required, i.e. one for each employee.  The applicant’s original plan nominated 12 and the amended plan, Exhibit 3, showed an increase to 18 with a possible extension to 22.  I am satisfied this increased number, combined with a requirement that all patrons of the centre disembark from vehicle on site, will reduce the risk of congestion at the entrance to Diosma Drive.  This conclusion is supported by Mr Rytenskild’s analysis of the “spread” of traffic movements (Exhibits 4, and 4A) which show that at centres of this kind peak hours are approximate, but not identical to school hours, particularly in the afternoon, reducing the risk of simultaneous congestion.

1. The next issue concerns the existing traffic congestion and problems in Borghardt Road.  Mr Brennan said, and I accept, that traffic to the present pre-school is 380 trips per day, and the average daily traffic count is 685 vehicles per day in Borghardt Road between the New England Highway, and Diosma Drive (Exhibit 8, paras 2.5.1, 2.5.2).  The current proposal would increase that by some number less than 315, but spread over hours in, for example, the afternoon between 3.45pm and 5.15pm, i.e. beyond the normal school and pre-school hours.  Despite the description of traffic conditions in Borghardt Road as chaotic there have not, to the witnesses’ knowledge, been any accidents and, generally speaking, the most serious congestion is over a short space of time around 3.30pm.  It is obvious some of the causes of these problems can and should have been corrected some time ago by measures like the removal of an electricity pole, and the provision of appropriate traffic devices to ensure more orderly parking. The appellant signified a willingness to contribute to the cost of appropriate works to alleviate these problems.

1. The possible exacerbation of these difficulties in Borghardt Road by the removal of car parks on the western side of the New England Highway is a matter of concern, but has no immediate impact.  The widening of the highway is not within the present Main Roads Department five-year program.  Should it occur, both that Department, and the Department of Education would need to consider other measures for the safety of school children.  Mr Williamson conceded, firstly, that his concerns would exist whether or not approval was granted for this centre; and, secondly, that if better and more organised parking arrangements were made in Borghardt Road resolving present problems, he would have no objection to it.  It would not be appropriate or just to visit the appellant with adverse findings on this issue because of these, presently, remote risks. 

1. I am satisfied the proposed childcare centre will not create significant traffic problems in Diosma Drive itself, and any which might occur can be prevented, or reduced to an acceptable level, with more off-street parking and a system requiring the delivery and collection of children within the centre itself. The present problems in Borghardt Road may be slightly exacerbated by the journeys patrons of the centre make, but those problems are primarily generated by the school, and the water treatment plant, and the appellant’s proposal ought not be prohibited because of them. Rather, a condition ought to be attached to approval which requires the appellant to contribute to the cost of mitigating them.

Loss of Amenity

1. The respondent’s principle concerns touching loss of amenity for residents of Diosma Drive were those arising from traffic movements, and noise from the centre.  It is legitimate to take into account the subjective concerns of residents: Broad v BCC & Baptist Union of Australia [1986] 2 Qd R 317 a 326 per de Jersey J. Centres of this kind do not ordinarily, however, have a significant impact on the amenity of a residential environment: Smith v Gold Coast City Council (1975) QPLR 170; Ward v Townsville City Council (1994) QPLR 30, per Quirk DCJ at 32. As the Council’s own officers were, at first instance, apparently prepared to accept, the limited impact of a centre of this kind on adjoining residents must to be weighed against the community benefit associated with it. The resident to the immediate north of the proposed centre, in Diosma Drive, did not lodge an objection and the complaint of Mr Atkinson, at no. 48 was, with respect, exaggerated. In truth there was no evidence to show that noise from children at the centre would in any way affect the amenity of him, or his family.

1. So far as traffic, and the noise generated by vehicles arriving and departing is concerned I am satisfied, for the reasons set out earlier, that vehicle movement will be spread over a significant period and its affects can be satisfactorily mitigated by the provision of an appropriate number of car spaces, and a requirement for delivery and pick-up of the children on-site.  As to traffic movement on ordinary principles, as Mr Poole accepted, the eventual occupation of all 54 lots in Diosma Drive could be expected to generate 540 vehicle movements per day, and the current proposal would increase that by a figure of less than 315 (and, in large part, limited to one end of the street) which is not, in my view, sufficient to justify the assertion that this will lift traffic movements to an unacceptable level or generate significant problems at the intersection with Borghardt Road.

The Planning Issue

1. DCP1 is a forward planning document intended to guide development in the Highfield area.  As both it, and a view of the area showed, major development is occurring on the western, rather than the eastern side of the New England Highway: Exhibit 9, and the aerial photograph, Exhibit 17.  Mr Poole contended, and I accept, that the principal catchment area for the proposed centre would be on the western side of the highway, with the consequence that it would contravene the provisions of clause 1.7.1.2.  I accept that clause contains a fundamental principle of the Planning Scheme and one which, in its tenor, might be construed to stand against this proposal: Drivetype Pty Ltd v Council of the Shire of Caboolture (1995) QPLR 141, at 143.

1. It is to be remembered, however, that the clause is not clearly prohibitive but speaks only of “encouraging” community centres of this kind “having regard to the requirements of the population catchment areas of each urban area”; and, as the Highfields area has developed, the contention that approval would involve a poor strategic decision, contrary to sound planning principles does not sit comfortably with a number of existing, and apparently well-established aspects of the locale observed during an inspection of the area.

1. First, longitudinal commercial development already exists along the New England Highway in the vicinity, and traffic from the western side of the highway to and from those premises and, importantly, the school, and the safety of pupils, is well catered for by traffic lights, flashing lights, a reduced speed limit, and a lollypop pedestrian controller.  While Mr Poole was of the view the school could be relocated and that would sit much more comfortably with the strategy of the DCP, he had to agree the proposal would come up against considerable inertia, and had no confidence it would occur. I was not persuaded it was probable, or even likely, in the foreseeable future; and, I was satisfied appropriate traffic measures presently exist, and will continue to be provided, for the proper use of parents and children attending the school and pre-school who reside on the western side.

1. Secondly, the proposed centre shares obvious similarities with the pre-school, and school.  The only real difference arises in connection with the ages of the children who will attend each, and the commercial element associated with the centre.  Both are, however, essentially child-care/educational establishments and, as Mr Arnold said and I accept, the existing location of the school and pre-school means the proposed centre would be consistent with other land uses in the immediate locality, and there are obvious advantages in co-location. Schools and child-care centres are facilities which community members would reasonably desire be in close proximity, because of the their obvious similarity, and the potential to share amenities and benefits like slower speed limits, and the greater care motorists will take in their vicinity; and, of course, the opportunity it provides for parents with children of varying ages to limit the number of journeys they must make to deliver and collect their children from these institutions. I am satisfied there is a community benefit in placing a childcare centre adjacent and in proximity to the school and pre-school. It is not, to my mind, logical to contend that centres of this kind should be prevented from locating in areas with similar amenities. In its terms, s 1.7.1.2 is not prohibitive of the appellant’s proposal and, for the reasons given, ought not be construed to that effect.

Conclusion

1. In my view the conclusion reached by Council staff at first instance was correct, and the application should have been approved.  It is appropriate to signify my intention to allow the appeal, but to adjourn the matter for the parties to consider the resolution of conditions touching the number of car parks; requirement for on-site disembarkation and collection of children; and, contribution by the appellant to the improvement of traffic conditions in Borghardt Road, on the lines set out in para 17(a) of the appellant’s written submissions.

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