Sunbay v Beaudesert Shire Council
[2003] QPEC 21
•6 June 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Sunbay v Beaudesert Shire Council [2003] QPEC 021
PARTIES:
SUNBAY PTY LTD
Appellantv
BEAUDESERT SHIRE COUNCIL
RespondentFILE NO:
Appeal No. 4404 of 2001
PROCEEDING:
Appeal
DELIVERED ON:
6 June 2003
DELIVERED AT:
Brisbane
HEARING DATES:
20-22 May 2003
JUDGE:
Judge Brabazon QC
ORDER:
Appeal dismissed
CATCHWORDS:
LOCAL GOVERNMENT – TOWN PLANNING – appeal - material change of use – child care centre – Strategic Plan image objectives - conflict with DCP - need
Integrated Planning Act 1997(Qld) s4.1.50, s6.1.30, s6.1.2
Local Government (Planning and Environment) Act 1990 (Qld) s4.13(5A)
Weightman v. Gold Coast City Council (2002) QCA 234
Stradbroke Island Management Organisation Inc & Ors v. Redland Shire Council & Ors (2002) QCA 277
Arksmead Pty Ltd v. Council of the City of Gold Coast (2000) QPELR 285
COUNSEL:
Mr B Cronin for the appellant
Mr T Trotter for the respondent
SOLICITORS:
Chan Lawyers for the appellant
Corrs Chambers Westgarth for the respondent
The Appeal
On 8 May 2001 the appellant, Sunbay Pty Ltd made a development application to the Beaudesert Shire Council. It requested a material change of use of the land at 39-41 Johanna Street, Jimboomba so that it might construct and operate a child care centre on that land.
On 7 August 2001 the Council refused the application. The grounds of refusal were “site access, conflict with existing residential uses and contrary to the intent of the Northern Areas DCP”.
Sunbay now appeals to this court against that decision.
The onus is on Sunbay, to show that the appeal should upheld. See the Integrated Planning Act1997 (Qld) (IPA) s 4.1.50.
IPA provides for an appeal on the merits, to this court. The court now assumes the Council’s decision making role. The appeal is by way of a fresh hearing, to be decided on the evidence before the court.
The court is not a planning authority. That is the role of the Council. The court’s duty is to apply the law, and the Shire’s planning scheme, to the evidence in the appeal.
The Statutory Framework
The Beaudesert Shire has a transitional planning scheme, since the introduction of IPA. Under the repealed Local Government (Planning and Environment)Act 1990 (Qld) (the P&E Act) this would have been an application for a consent use. See s 4.12(1) of the P&E Act. That provision still provides the decision making framework in this case – see the transitional provisions of IPA, at s 6.1.30.
As it is an application for consent to use land, the discretionary considerations set out in the planning scheme will apply. See pp 164-165 of the scheme.
The power of the local government, (and of this court), is to approve such an application, to approve it subject to conditions, or to refuse it.
In such applications, a significant statutory requirement is to be found in s 4.13(5A) of the P&E Act:
“The local government must refuse to approve the application if –
(a)the application conflicts with any relevant strategic plan or development control plan; and
(b)there are not sufficient planning grounds to justify approving the application despite the conflict.”
If the facts require the application of that provision, then it also applies to this court.
Under the repealed Act, certain uses of land were often prohibited by planning schemes. Section 6.1.2(3) of IPA provides that:
“A prohibited use in a former planning scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.”
Two recent decisions of the Queensland Court of Appeal make clear the duty of a local authority and this court where s 4.13(5A) is applicable. See Weightman v Gold Coast City Council(2002) 121 LGERA 161 (2002) QCA 234; and Stradbroke Island Management Organisation Inc& Ors v Redland Shire Council & Ors (2002) QCA 277.
In the first decision, the effect of a conflict between an application and the strategic plan or the development control plan was explained. It was put this way:
“In order to determine whether or not there are sufficient planning grounds to justify approving the application, despite the conflict, the decision maker should:
(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; and
(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.”
The Court of Appeal also made it clear that the language of s 4.13(5A) is mandatory. That is, if there is a conflict, and there are insufficient planning grounds to justify the application, it must be refused. That is a mandatory obligation. There is no discretion to approve the application.
The Issues
The lengthy notice of appeal summarised the grounds of appeal this way:
“The use of the site as a child care centre is consistent with the range of uses in the immediate locality and is consistent with the intent of the DCP. Appropriate site access is available. The existing character of the immediate area will not be altered. The use is social infrastructure, for which there is an identified need within the Jimboomba area, and the use cannot be located within the Jimboomba Urban Area. The issues upon which the application was refused are not sufficient to warrant the refusal of the application, and it is appropriate that the application be granted subject to reasonable conditions for the implementation of the proposed use. The decision of the Council is unreasonable and unfair.”
At the hearing, the issues mentioned by counsel can be summarised this way:
the existing visual character of the land;
the impacts of the proposal – especially appearance and noise;
the volume of traffic, and any traffic hazards;
any conflicts with the strategic plan or the development control plan;
the weight to be given to objections;
need
planning issues.
The Land
The subject land is a 4000 square metres vacant allotment with a frontage to Johanna Street. It is rectangular in shape, with the frontage being 40 metres wide. It is 100 metres in length. It is gently sloping.
The next block of land to the north is also vacant. There are then three houses on the northern side of the vacant lot. There are two houses on the southern side of the subject land. That is, there are seven blocks of the same size along the 280 metres of Johanna Street that run from its intersection with Cusack Lane to the south, until it reaches open areas of land to the north.
The land is not part of the centre of Jimboomba, but it is close to it. Immediately across Johanna Street from the land is the oval of the state primary school. Further to the south, and next to the oval, is a public swimming pool, the ambulance station, the fire station, and a large, modern police station. The shopping centre is then immediately to the south of those public facilities. Its southern boundary is along Cusack Lane.
The land is part of a roughly square area that is zoned Low Density Residential, in the Table of Zones. There are about 50 allotments in that entire area. Along Cusack Lane to the south of this land, and on the same side of Johanna Street, there is an attractive park which includes two heritage buildings. One is a small wooden church, and the other an old CWA hall presently being restored.
Johanna Street runs roughly north south. At the southern end there is the T intersection with Cusack Land. If one stands at that intersection and looks slightly west of north, one sees first the park, then the heritage buildings, then a street, and then the seven allotments of which this allotment is the third. If one looks slightly east of north, one sees the shopping centre, the police station, the fire station, the ambulance station, the swimming pool and then the primary school lands. Further to the west are the bulk of the properties in the Residential Low Density Zone.
The above description is illustrated by the aerial photograph (Ex 1 Fig 7)
The Development Proposal
The plan is to build a child care centre catering for up to 74 children between the ages of six months and three years. It is intended that eight children be in the baby group. The centre would be open from 7 am to 6 pm, on Monday to Friday. It would not be open on public holidays.
The total floor area of the single storey building is 487 square metres. That is the size of a large house. There are 14 carparking spaces to be provided between the front boundary and the entrance to the building. The operation of the child care centre will require eight staff members to be on site. The entry and exit points are separate, at each side of the front boundary.
It is expected that there will be a sign on the front boundary, about two metres by one metre. There will probably be a front fence, such as one made of brick piers with thin aluminium rails between them. The perspective drawings show that there will be landscaping around the front car park area, and down each side boundary. There will be a 1.8 metre wooden acoustic fence down each side boundary, and across the land towards the rear boundary.
Originally, the application proposed that the building would be placed lengthwise down the block – that is, with its narrowest end facing the street. Before the appeal came on for hearing, amended plans showed the building rotated by 96 degrees, and slightly altered. Its length now faces the street.
The area of the facade facing the street is now 210 square metres – it was previously 100 square metres.
There is no plan for lighting in the parking area.
The building has a number of features in common with typical houses. For example there is a pitched roof of colorbond sheeting. The building is one storey, with a maximum roof height of 6.7 metres. However, the treatment of the facade, the raised central area of the roof which allows for ventilation, the parking area at the front, and the likely signage indicate a commercial purpose.
It is proposed that the pavement of Johanna Street be widened to provide for two turning lanes in front of the land, in addition to the present two lanes.
The Planning Scheme
The intent of the Residential Low Density zone is as follows:
“This zone allows for large residential allotments ranging from 2,500m² to 5,900m²
In addition to providing for dwelling houses, this zone also allows for duplex dwellings (with Council consent) where such approved would not, in Council’s opinion, be likely to result in an undesirably high population density in the immediate locality, or be likely to give rise to waste water disposal problems.
The provisions of many urban services is not economical in this zone. However, where practical, reticulated water is to be provided.”
The table of development for the Residential Low Density zone provides some indication of the type of development which is intended for this zone. The prohibited uses are many. Uses having a commercial flavour are, in the main, prohibited. Consent uses include veterinary surgery (not hospital), minor public utilities, homestay tourist accommodation, cottage tourist facility, child care centre and aquaculture. All are limited in size, and likely to have a low impact.
It was submitted for the Council that residents could reasonably expect that a deal of caution would be exercised in allowing any of the consent uses to be established, particularly, one which carried serious amenity impacts. Overall, it is not possible to take much from the table of zones. Perhaps it can simply be said that “child care centre” is in a better position than almost all other uses which are now taken to be contrary to the intent of the zone.
The Strategic Plan
The Strategic Plan Map shows that this land is described as Rural Residential. The map also shows that the indicative urban centre is to the south east of this land. It was common ground at the hearing that this land had not become part of the urban centre.
Several provisions of the Strategic Plan were mentioned in submissions.
“3.2.1. Shire Image ---
The common perceptions which are significant, and form the basis of a coherent image, which it is sought to retain and consolidate are:
...
(b)Rural residential living environment, especially in the northern part of the shire ...”
Shire Image Objective 1 is to identify, maintain and enhance elements which constitute and contribute to the Shire’s image. An aspect of implementation, is that “the impact of development proposals on the Shire Image must be taken into account, in dealing with all development applications.”
Para 3.2.6 Shire Image Objective 5 “ is to maintain the intrinsic ‘country’ character of the towns in the shire. Its implementation says:
“(d)Development and expansion of urban centres and Jimboomba, Logan Village, Greenbank and Flagstone will be encouraged to proceed in a manner that conveys the image of a country town, rather than modern suburban character”.
At para 3.2.2, Environmental Objective No. 3 is as follows:
“To promote a high standard of amenity in residential and rural-residential areas; in particular to promote the qualities of quietness, safety, country atmosphere, visual attractiveness, privacy and clean air.”
Section 4 of the Strategic Plan deals with preferred dominant land uses. The intent of the urban centre is described at para 4.4.1:
“Urban centres shown on Strategic Plan Map 4 are the locations where it is intended that a wide range of businesses, industries, shopping facilities, community services and facilities and recreation facilities and services will be concentrated; these centres are intended to provide services to the Shire’s population conveniently and also to provide local employment and promote community identities. .... It is the urban centres designated on Map 4 that are intended to be the major focus of retailing, business and community service development ... the black squares shown on the Strategic Plan Map are not intended to designate accurately the extent of centre development; that will be determined through more detailed planning in development control plans and/or through the development control process.”
Central Urban Centre Objectives follow in para 4.4.2:
“(a)Other than in another local centre or minor convenience centre so designated on a development control plan, and then only to a degree consistent with that plan, council will generally only approve development for ... commercial premises, professional and consulting services, refreshment services and other commercial and retailing development, in urban centres shown on Strategic Plan Map 4.
...
(i)Facilities such as churches and private schools, and others that attract people, provide employment and/or provide a community service, will be encouraged to locate in close proximity to urban centres.” (relied upon by Sunbay)
Urban Centre Objective 6, in para 4.4.7, is to “minimise commercial ribbon development”. Para (b) states:
“In urban centres, development control plans will limit the extent of commercial development along the Mount Lindsay Highway and other major roads, so the commercial development is in a complex central location, and does not extend upon the length of the road.”
(Johanna Street is a “major road”)
In para 4.4.8 Urban Centre Objective 7 is to “promote a country town” character in the urban centres of the shire.
In para 4.6.2, Rural Residential Objective 1 is to “conserve the rural and natural qualities of the shire, in rural residential areas.” In particular, see para (c):
“Rural residential development abutting major roads should be designed to maintain the rural and/or natural appearance of the area proposed to be developed, to the maximum practical degree, so as to conserve the impression of that character when driving through the area.”
Rural Residential Objective 2 is to “conserve the intrinsic character of existing rural residential areas, especially where the character is coherent, established and of a high quality.”
An aspect of Rural Residential Objective 5 in para 4.6.6, was particularly relied upon by Sunbay:
“To promote convenience of the population to services and employment opportunities ...
(d)The development of institutional land uses, such as educational establishments and major recreational land uses, may be approved in rural residential areas where:
(i)appropriate environmental and amenity standards are met;
(ii)road access is satisfactory;
(iii)the development is consistent with Shire Image Objectives and fits into the landscape;
(iv)the development is satisfactorily located, in terms of its accessibility for employees, provisioning, and students/patrons.”
Para 4.6.8, dealing with Rural Residential Objective 7, was also relied upon by Sunbay. The objective is “to promote a high standard of design safety and amenity in rural residential areas.” Para (c) says that:
“In order to protect the amenity of existing planned rural residential areas, in considering development proposals in or near existing or planned rural residential areas, the Council will take into account:
(i)whether noise, ... will be likely to affect the pleasantness and/or safety of nearby rural residential areas, ... and the likely effectiveness of measures (including, but not limited to, buffering and restrictions on hours of operations) that are proposed to eliminate or reduce detrimental effects;
(ii)whether the proposal (including a road proposal) would introduce or significantly introduce traffic levels on any rural residential streets;
(ii)whether proposed buildings, structures, and/or other visible aspects of the development would be compatible with the existing or prospective scale and character of nearby rural residential areas, and the effectiveness of the proposed design and landscaping of the development, and/or of an intervening buffer area, in reducing any adverse potential visual impact.”
(Some mention was made of s 5, Residential Strategy, but it seems to have no impact in the present case).
Overall, the Strategic Plan is consistent with the Table of Zones – it does allow for the possibility of development such as a child care centre in rural residential areas. Care has to be taken about several things – the impact of noise, the hours of operation, traffic levels, the impact on the character of the residential area, and the preservation of the rural residential living environment. In considering that impact on character, the Shire Image Objectives have to be taken into account. They stress the promotion of the country town character.
The Strategic Plan stresses the significance of containing commercial and business uses in centres such as Jimboomba. Consistently with that aim, the possibility of ribbon development along major roads, such as Johanna Street, is to be discouraged.
The Development Control Plan
It is important to note that DCP No 2 covers a large part of the northern areas of the shire. The Jimboomba district is roughly in the middle of that DCP 2 area. See para 1.1 of DCP 2, at p 122 and the plan, “Northern Area DCP - Zoning Data to 1995”. That large area of the plan must not be confused with the much smaller areas covered by the detailed DCP maps created for each urban centre, including Jimboomba. Those particular maps were created because, as para 1.4 says “the role of this development control plan is to address the planning for those centres”. Though that is the aim of the DCP, to control development in a centre may necessarily have a corresponding impact on the land outside that centre.
Child care centres are included within the definition of three terms used in DCP 2:
Commercial uses – means child care centre, commercial premises, funeral establishment, hotel, indoor entertainment, machinery or vehicle showroom, road freight depot, service industry, veterinary hospital; and
Mixed uses – means at Jimboomba mixed uses are residential, community and commercial uses as per section 3.1.1.
Community uses – means areas to be used for the provision of social infrastructure, which may include police stations, ambulance stations, fire brigade stations, kindergartens, libraries, community buildings, halls, churches, health centres, schools, tertiary education facilities, pre schools, child care centres, parks, carparking, consulting rooms and cultural facilities. (emphasis added)
Para 2.1 says that the objective of urban centres is to “ensure the orderly development of urban centres offering a sound community base to provide shopping, business, community service, employment and recreation facilities.”
In implementing that objective, para 1.5 is significant – “growth of local employment opportunities in urban centres is to be encouraged through concentration of non-residential uses including industries in urban centres.”
Para 2.4 deals with retail and business uses. The objective is to plan for a retail and business core for each urban centre based on the adopted trade areas. Para 2.4.1 then baldly states, “retail and commercial uses are to be located in urban centres”.
Para 2.4.4 says that certain land has been approved for retail and commercial development, and that additional such development is not envisaged. However, such additional development might be possible:
“2.4.5 It is not envisaged that additional retail and commercial development beyond that provided for in the DCP will be needed. Any application for such development shall, to Council satisfaction, demonstrate how the development, if approved, would comply with the provisions of this DCP ...”
Para 2.5 deals with “social infrastructure”. The definition of social infrastructure, para 2.5.5, clearly enough includes a child care centre. With that in mind, the following provisions are relevant:
“2.5.1 The study area is intended to be well serviced with an appropriate range of social infrastructure, .... which are equitably distributed, accessible to the population they serve and which meet the needs and priorities of individual communities.
2.5.2 Appropriate location of services and facilities is intended by the identification of land and suitable locations.
2.5.6 The developers of areas within which such infrastructure is required or is to be located have a responsibility to liase with Council and the appropriate range of agencies to ensure the allocation of land suitable for such purposes and the development of appropriate facilities and having regard to the following:·...
·... preferred location in relation to centres, residential areas, open space or other ...
·...”
2.5.7 The Council may require a Community Facilities Plan to be prepared as part of a development proposal for a large development.”
Indeed, land suitable for social infrastructure is identified in para 3.1.1, in this way:
“Social Infrastructure
For the life of this DCP all social infrastructure to service the Mount Lindsay Highway catchment is to be located in Jimboomba. Provision has been made to locate future social infrastructure between the primary school site and the future overpass. ...”Mixed Uses
A range of uses is envisaged for the area shown as Mixed Use. These are retail, commercial and community uses. ...”
The reference to land “between the primary school site and the future overpass” is a reference to land on the eastern side of Johanna Street, and to the north east of the subject land. It seems to be co-extensive with the area shown as Mixed Use on the Zoning Map.
Clear requirements with regard to retail and commercial uses are also noted, at p. 125. They provide that
“[t]he centre is to be capped at the present approved retail level. Additional commercial spaces to be provided in commercial buildings and not in store front retail units. The preferred scales provided for supermarkets, specialty shops, and commercial uses (2,500 square metres) are set out. The retail and commercial area is to be located adjacent to Cusack Lane”
This DCP was gazetted in June 1999. There was no evidence, as to whether the preferred scale of commercial development, of 2,500 square metres, has been reached.
The impact of the DCP guidelines is clear. Commercial uses, which include child care centres, are to be located in the urban centre. If not, they are to be in a special social infrastructure area which is nominated. There is no support for the location of a child care centre on the subject land.
It is clear that there is a conflict with the DCP. This child care centre is proposed for land that is neither in the urban centre, nor approved for social infrastructure.
Any conflict with the Strategic Plan is not so clear. It is necessary to consider some aspects of the proposed development.
Traffic
During the hearing there was an issue about the safety of those who would be leaving the centre by making a right hand turn on to Johanna Street, to proceed towards Cusack Lane. There is a crest in Joanna Street to the north of the land. From a traffic engineering point of view, it is important that drivers proceeding south along Johanna Street, and approaching the child care centre, on their right, should have a sufficient view of those vehicles which leave the centre and make a right hand turn in front of the approaching driver. The accepted minimum Australian standard is that the oncoming driver should have the first sight of the turning vehicle no less than 105m away. Slower reaction times are expected of drivers in such rural areas, because their attention is not so constantly directed to the movement of other vehicles. That is why Mr Holland maintained his opposition to the use of this site for a child care centre. He did explain that the problem would disappear if the grade of the pavement at the crest were lowered, so that there was not such a barrier to visibility.
Sunbay now accepts that such a re-grading should be made a condition of any approval. That being so, the safety issue disappears. It is assumed that the Council would agree, and that it is otherwise acceptable. That would then leave the consideration of the road widening which is proposed.
Presently, Johanna Street has one lane in each direction. It is proposed that the carriageway be widened to four lanes, so that two turning lanes are introduced. See Ex 2A. Traffic coming from the south will have a turning lane on the far left, and will turn left directly into the entrance. Traffic coming from the north will have a turning lane in the centre of the road, also to enter the centre. The result is, as the above plan shows, that through traffic going north will have to swing to its left to avoid a head-on collision with a vehicle whose driver wishes to turn right into the centre. As Mr Holland explained, that is an undesirable situation, especially in dark and rainy conditions. He thought that the danger could be lessened by having longer tapers, so that drivers did not have to deviate so suddenly from their paths. The tapers would extend about 90m from each side of the child care centre. That is to say, for a driver travelling north, the taper would start right at the corner of Grandview Road, which is roughly 90m from the land. Sunbay is prepared to accept those suggestions.
There are Main Roads plans to upgrade Johanna Street as part of a general upgrade of the major traffic systems affecting Jimboomba, and the Brisbane-Beenleigh Road which runs through the centre of the town. At the moment, about 2,600 vehicles pass this land each day. When the road is upgraded, at an uncertain time thought to be by 2015, the volume is projected to reach some 6,000 vehicles a day. However, provided the grade of the pavement at the crest is lowered, that does not present an undesirable obstacle to traffic entering and leaving this centre.
The more immediate impact of the road widening proposal is a visual one. It will show to motorists on Johanna Street that the building on this land is used for a commercial purpose, rather than a residential purpose. It would add to the commercial rather than domestic appearance of the centre.
The increase in traffic movements on the land should also be noted. A typical family living in their own house would generate about 10 traffic movements a day. Judging by comparable child care centres, about 170-200 traffic movements can be predicted for this centre. Movements will be greatest in the early morning and late afternoon. There will be no activity on the weekends.
Noise
Sunbay has been conscious of the need to try to limit the noise generated by the child care centre. It is now likely that the activities inside the building would not cause any undue annoyance. Particular efforts have been made to shield neighbours on each side, to the north and south, from noise. The windows facing those two sides will be sealed. Those rooms will be air conditioned. The rest of the building will be cooled by fresh air entering the open doors and windows, particularly to the west.
There will be some noise associated with the car park. However, no complaint seems to have been made about that. Rather, attention was paid to the outdoor areas in the back garden, to the west of the building. The plans show that the garden at the rear will be used as a play area for the children. Such an area is subject to minimum standards imposed by regulations. They have been met, in this case. They include low level play equipment, and the provision of some covered and shaded areas. Children will be brought out in groups from the building for outdoor recreation. They will also have the benefit of the rear verandah though it might be noted that it faces the western sun.
The principal measure to control noise in the rear play area is to have it surrounded by a wooden acoustic fence. The architect’s plan shows that the fence cuts off about one half of the available space in the backyard. There is a simple explanation for that. Until shortly before the matter went to Council, a caretaker’s residence was proposed at the rear of the land. That proposal was then abandoned. There is no reason why the play area might not be of any shape, extending to the rear boundary, so long as it contains the minimum areas demanded by the regulations.
The present plan provides for a 3m wide landscape buffer area along each side boundary. There is no reason why that might not be widened, and the play area lengthened towards the rear boundary. That would provide a better chance of attenuation of any noise, from the point of view of the neighbours on each side.
There was a good deal of technical debate about the predicted amount of noise in the open area, between the experts, Mr Kamst and Mrs Donovan. Their different methodologies need not be resolved here. Rather, attention needs to be focussed on the practical outcomes from the point of view of the neighbours.
The impact of the proposal has to be considered against the present situation. The front of the land, and the front of neighbouring properties, can be described as quiet, even though there are some noise sources. The most obvious is the noise of passing traffic. To that must be added the rather variable level of noise from across the road, coming from the school and the swimming pool. Overall, the front gardens of the houses in Johanna Street can be described as fairly quiet. There is less noise at the rear of the houses, because they act as barriers, and the distance from the road is greater.
It should be accepted that activities and shouts of children in the outdoor area will produce noticeable and sometimes intrusive levels of noise as Mr Kamst says. Of course, it must be recognised that private residences with families can also produce a good deal of noise, particularly in the evenings and during the weekends. Here, the outdoor noise would be generated between 7.00 am and 6.00 pm on weekdays. The important thing is that it would be a constant and different kind of noise unlike the usual domestic noise from neighbours.
Need
The Notice of Appeal raised “an identified need” as an issue. Counsel for Sunbay, at the beginning of the hearing, said that need was an issue.
Sunbay did not call any witnesses to give primary evidence about the need for a child care centre in Jimboomba. However, two reports to Council were tendered without objection, and they do contain references to the question of need. The first is the impact assessment report in relation to this application, considered by Council on 7 August 2001. See pp 25-31 of the Appeal Book. The report said this:-
“The Department of Families has assisted the proposal and believes that there is a need for additional child care facilities in the Beaudesert and Jimboomba area, particularly for children aged between 18 months old to three years old …
The applicant and the Department of Families have indicated that need exists for another child care centre in the Jimboomba area, particularly a centre that caters for toddlers. This issue (ie the existence of two existing child care centres) does not warrant the refusal of the application.
Need – the applicant has indicated that the two existing centres in the locality are at full capacity and that additional need exists for the further provision of child care, particularly for toddlers. The Department of Families supports the use and has indicated that there is a need for additional child care facilities in the Beaudesert and Jimboomba area.
Summary and Conclusion … the use is considered to be social infrastructure that is required within the Jimboomba area. …”
Despite the recommendation of Council’s officers, that the proposal be accepted, Council rejected it on the three grounds. Those grounds do not include an absence of need.
An unrelated application for a material change of use, to build another child care centre, was approved by Council on 1 April 2003. The application concerned land at 59-103 Johanna Street. That is a relatively large block of land, of 11.39 hectares, immediately to the north of the row of seven 400m blocks, of which the subject site is the third. The land is zoned Rural. On the DCP2 Land Use Map, it is described as Urban Residential land. The application was approved by Council for a centre containing up to 74 children.
A Planning and Development Committee Report had this to say about the question of need:
“A copy of the application was referred to the Department of Families for comment. Their advice is as follows –
‘Generally the Department supports the need for the proposed development of a childcare centre in Jimboomba ...’
Need - The applicant has carried out an assessment of existing childcare centres in the locality and the number of children each centre is licensed to accommodate. Only two centres operate in the Jimboomba area. The Department of Families has advised the applicant that the total number of children in 2002 in the Statistical Local Area of Beaudesert Shire Council (Balance of Brisbane Statistical Division) aged 0-4 years old is 2,081. If 50 per cent of these children were to require child care places, a substantial gap of over 1,700 places would exist.
Summary and Conclusion – while not being entirely consistent with the preferred dominant land use identified in the DCP, the proposed use provides a vital ancillary support service to the community ...”
There was a suggestion by Mr Schomburgk at the hearing, that the figure of 1,700 was a mistake, and that the correct figure was 360 places. There was no objection to that correction. In his evidence, Mr Schomburgk agreed that there was a need for at least another childcare centre in the locality. See transcript 220-223.
There is no mention of need in the list of matters that have to be considered in relation to an application for town planning consent. See the planning scheme, pp 164-165. Nor is need mentioned, relevantly, in any of the provisions of the scheme. However, it is now accepted that it may be considered in the context of an application for consent – see the decision of the Court of Appeal in Arksmead Pty Ltd v Council of the City of Gold Coast (2000) QPELR 285.
Need is an elusive concept, and it seems likely that some aspects of it have yet to be definitively explained. However, in this case, it can be seen that the above references are to some actual need, rather than the theoretical need which a community may be assumed to have for many facilities, including childcare centres.
In the absence of any contrary evidence, and because the Council did not nominate the absence of need as a ground of refusal, it may be accepted that there is presently an actual need for a further childcare centre in Jimboomba.
Available Land
The unavailability of land was also in issue at the hearing. As the Notice of Appeal asserted, “The use cannot be located within the Jimboomba Urban Area”. At the beginning of the hearing, there was no separate mention of the shortage of land as a separate issue. However, it could have been included in the general topic of planning issues.
The first report, mentioned above, also deals with the question of available land for a childcare centre. It says this:
“Although the proposal is located at adjoining residential properties, the use cannot be suitably located within the Jimboomba Urban Centre ...
The proposed use should be located within the community area of the Urban Centre. However, no land is currently available for use within this area and generally only industrial land is available within the Urban Centre. ....”
The second report, of March 2003, also mentions the availability of land:
“Jimboomba Urban Centre – for the purposes of the DCP, a childcare centre falls within two definitions, those being “commercial uses” and “community uses”. Commercial uses are to be located in the urban centres while community uses are to occur in those areas identified for those purposes. Anecdotal evidence suggests there is not sufficient land available in either of these areas for the proposed use. While the use is not entirely consistent with the subject lands current Urban Residential classification, it will provide a valuable and ancillary support facility to such areas.”
Mr Schomburgk was in favour of allowing the development. However, his reports do not mention the unavailability of urban land as a factor in favour of that conclusion. The report of March 2003 was tendered while Mr Schomburgk was giving evidence in chief. That is when he referred to the “anecdotal evidence” mentioned above. He was asked if the assertions in the report accorded what he had ascertained in his inspections of the area. He replied:
“Yes it does I mean I have done a drive around that area on two occasions now and it would seem land is either already developed or is – there is no evidence that land is available for sale for other uses”.
When cross examined, Mr Schomburgk reiterated his view at Transcript page 262, lines l-10: “... apparently events have overtaken (the DCP) because it seems that there is not available land in those designations to place this childcare centre and there is a need for a childcare centre ...”
Mr Schomburgk then went on to say that he did not know about the availability or otherwise of the land described as “the poultry farm”. That land is the area zoned for mixed uses.
The Town Planner called on behalf of Council, Mr Venn, had made some inquiries about the poultry farm land. In effect, while the immediate future of that land was rather uncertain, he thought that there might be an opportunity to establish a childcare centre on it. See T 282-284. The Council’s restrictions on enlarging the area of commercial use of 2,500 square metres were not dealt with. Mr Venn’s report mentions significant areas of land which he says, are more appropriate for a child care centre. See paras. 3.4.6 to 3.4.23 which do not support a conclusion, that there is no other suitable land in the more appropriate urban centre or Mixed Use Zone.
It may be, as Mr Schomburgk said, that there was no land immediately available for sale. That would not be enough to justify an immediate departure from the aims of DCP 2.
The slight and inconsistent nature of the evidence means that no conclusion can be reached about the unavailability of land in the urban centre or in the Mixed Use Zone. If anything, the evidence shows that land would be available for a child care centre in a more appropriate area.
The Objections
Following public notification of this application, submissions opposing its approval were received from the owners of five nearby houses, mostly in Johanna Street. Three of the objectors were called to give evidence – Mr Griffiths, Mrs Powell and Mrs Medhurst. While the details of the objections differed, the themes were rather similar. All objected to the presence of a childcare centre in a residential area. They had chosen to live in that area because of its quietness and its rural nature. They expected that growth would not see a change to their expectations. A childcare centre, and its noise, would be contrary to those expectations.
Character of the Neighbourhood
Johanna Street is, in Jimboomba terms, a major road. It divides the Residential Low Density subdivision of 50 or so properties from the distinctly different uses to the east. It was suggested that the amenity of the Johanna Street house properties was lower than those in the interior of the subdivision, because of the street and the presence of the school grounds across the road. It is true that the road is the source of some traffic noise, which is likely to increase. There are occasionally noises from the school grounds, the pool, the ambulance station and the fire station. However, there is no reason to doubt the evidence of those who live in Johanna Street, to the effect that they do not take much notice of those things, and regard the area as a quiet one. There may be some attraction in having the largely vacant spaces across the road, especially during the evening and on weekends.
Johanna Street does act as a distinct dividing line between the residential uses to the west and those other uses to the east. It is going too far to say that the subject land is partly degraded because of that. Rather, the land is on the edge of an almost entirely intact residential area.
As the planners report, the surrounding dwellings range from modest to impressive. The gardens range from sparse to luxuriant. Overall, the subdivision presents the appearance of a quiet and tidy park residential area of good quality.
The introduction of the childcare centre will change the character in its immediate area. That can be taken to be the strip of seven houses along part of Johanna Street. The signage, the widened pavement in front, the turning arrows on the road, the parking area in the front of the building, the coming and going of families and vehicles throughout the weekdays, some exterior noise of a distinctive kind, and the appearance of a building that does not give the impression of a private residence, mean that the character of the area would be definitely changed.
It also follows that the amenity, at least of the neighbours, would be affected. The different noises, the increased traffic, and the very presence of the childcare centre, would mean a reduction in their amenity. It is true that some neighbours may appreciate the quietness of the weekends and public holidays. Overall, the amenity of the area would be diminished, in both practical and emotional ways.
There is also likely to be a reduction in amenity for a wider circle of neighbours. That is, their sense of a residential place would be diminished by the presence of a commercial use nearby.
Conclusions
The evidence of the town planners, Messrs Schomburgk and Venn, was most helpful in drawing attention to many relevant considerations. Mr Schomburgk was inclined to minimise the impact of DCP2 when, in truth, that was a difficult exercise. Overall, the conclusions of Mr Venn should be accepted, as being more consonant with the impact of the strategic plan and DCP2. It might also be noted that neither Mr Schomburgk nor the author of the reports to Council made any mention of the mandatory requirements of the P & E Act set out above.
The conflict with the DCP has already been made clear – this development should be in the urban centre, or an infrastructure area, rather than in this residential area.
It should also be found that there is conflict with the strategic plan’s objective of conserving the intrinsic character of an existing rural residential area. In particular, see Rural Residential Objective 2. See also para 4.6.8, Rural Residential Objective 7 – this building would not be compatible with the existing scale and character of the nearby rural residential area, despite the attempts to soften its impact with landscaping. There is also the possibility of ribbon development, though that is not a major factor.
It has not been demonstrated that there are “sufficient grounds” in favour of the development, notwithstanding the conflicts. That is particularly so in the case of conflicts with DCP2. There is a need for a childcare centre, but it has not been demonstrated that it cannot be placed in due course in some other, appropriately zoned area. The reasonable expectations of other residents should also be taken into account. There are nothing like sufficient planning grounds to overcome the conflicts.
The decision of Council was correct. The appeal must be refused.
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