Uniting Church in Australia Property Trust (Blue Care) v Brisbane City Council
[2008] QPEC 40
•7 July 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Uniting Church in Australia Property Trust (Blue Care) v Brisbane City Council & Anor [2008] QPEC 40
PARTIES:
THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) TRADING AS BLUE CARE
AppellantV
BRISBANE CITY COUNCIL
RespondentAnd
BARRY WILSON
Co-respondent by electionFILE NO/S:
BD 1968 of 2006
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, at Brisbane
DELIVERED ON:
7 July 2008
DELIVERED AT:
Brisbane
HEARING DATE:
16 and 17 June 2008; written submissions received up to 23 June 2008
JUDGE:
Alan Wilson SC, DCJ
ORDER:
1 Appeal allowed
2 Adjourn appeal for further review at 9:15am on 29 July 2008
CATCHWORDS:
PLANNING – PLANNING LAW – PLANNING SCHEMES – CONSTRUCTION OF PLANNING SCHEMES – CONFLICT – proposed accommodation for aged persons, and associated facilities – land reserved for community purposes, for education – proposal for development by private charity – whether conflict with planning scheme – degree of conflict
Integrated Planning Act 1997, s 3.5.5 and 3.5.14.
Brisbane City Plan 2000Cases considered:
Chelmer Bowls Pty Ltd v Brisbane City Council [2006] QPELR 611, at 615
Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 7.
Weightman v Gold Coast City Council [2003] 2 Qd R 441; Woolworths Limited v Maryborough City Council [2006] 1 Qd R 273;
COUNSEL:
M Hinson SC and N Kefford for appellant
W L Cochrane for respondent Council
Co-respondent in personSOLICITORS:
Deacons Lawyers
Brisbane City Legal Practice
Co-respondent unrepresented
The Uniting Church, through its charitable arm Blue Care, wishes to construct aged care accommodation and associated facilities on a parcel of residual bushland at Carina. By the time of the hearing Council had come to accept the development could proceed, subject to conditions about which it and Blue Care largely agreed. Mr Wilson, a local resident, had exercised his rights as a submitter and elected to join the appeal. He maintained his opposition to the development at the hearing.
The land[1] is at 413-455 Richmond Road, Carina and contains just over 4 hectares. It is vacant and heavily vegetated and, as a physical inspection at the beginning of the hearing showed, undulates substantially from a low point in a gully in the south-west to higher areas in the south east. The site also slopes generally upwards from Richmond Road which is the major local road, and the primary entry point for the proposed development.
[1]The parcel is comprised of lots 1 and 2 on RP125607, and lot 439 on SL3002
The site is relatively close to major transport arteries: Richmond Road runs, at its eastern end, into Creek Road (the major north-south arterial road connection) which intersects with Wynnum Road to the north, and Old Cleveland Road to the South. At the Creek and Wynnum Roads junction is the very large Cannon Hill shopping centre, a major community focal point. Otherwise, the area contains low density and medium density residential development, a large area of undeveloped land on the other side of Creek Road and, further away to the east, the Minnippi Parklands. West of Creek Road the district is largely low density suburban development with local shopping centres. The general area also contains a TAFE at Seven Hills, schools and parkland, and some medium density residential development near Morningside railway station.
In its final form the proposed development incorporates two integrated aged care accommodation buildings, each three storeys in height, with some medical and support services and an administration building containing, in total, 128 beds. Three other buildings (two of three storeys, and one of four) will contain 22 serviced apartments. Another 14 buildings varying between one, three and four storeys will contain 76 independent living units. In addition there is a three storey building intended to contain some healthcare services including Blue Nurses, physiotherapy, podiatry, x-ray imaging, a chemist and medical practitioners and a childcare facility.
Despite the scale of the development, the size of the parcel (and what impressed as thoughtful design and layout) means more than half of the site will nevertheless remain as undisturbed vegetation, or contain new ‘soft’ landscaping. In particular, existing vegetation is to be retained in the south, west and eastern parts of the site creating private open space for the proposed independent living units. It is also proposed to keep some trees along the Richmond Road frontage and to supplement vegetation throughout the site, including its perimeters, to minimise visual impact on surrounding residential properties.
The issues identified in the Notice of Appeal and Council’s letter of 30 May 2007 are an alleged failure to use the site for a community use; the scale, character and lack of integration of the proposed development with consequential unacceptable visual impacts; ecological impacts upon a ‘habitat node’ and corridor for wildlife movement; unacceptable loss of vegetation; traffic; and, stormwater quality and quantity. At the hearing Council no longer relied on those issues to contend for refusal although it remained in dispute with the appellant about a relatively minor matter, concerning possible access to the site in the southeast corner. Each conceded, however, that the issue could be resolved by an appropriate condition.
Mr Wilson, the sole co-respondent who appeared at the hearing, signified his continuing opposition and cross-examined certain expert witnesses who had prepared reports for the appellant or Council. They were Mr Brown and Mr Vann, town planners; Mr Elliott, an ‘architectural illustrator’ who prepared drawings purporting to show how the site would look after the construction of the various buildings and landscaping proposed by the appellant; Mr O’Brien, a landscape architect; Mr Owen, an urban planner specialising in economic issues; Mr Quinn and Mr Beard, traffic engineers; Mr Nagel, a civil engineer in connection with structural and drainage work on the site; and, Mr Moffitt, an ecologist. Mr Wilson also called two local residents who expressed their general, continuing opposition to the proposal.
By arrangement final submissions were in writing. Mr Wilson’s did not address all of these issues but asserted, in summary, that:
(a) Past consultation with the community had been insufficient and, in some respects inaccurate. In particular, it is said that it was misleading for the community to be given information suggesting the facility would provide new accommodation for members of the aged community when, initially at least, it would be used in part to rehouse residents of another facility operated by the appellant, while that facility was redeveloped;
(b) the appellant’s claim that the facility would include a medical centre is not supported by the evidence;
(c) similarly, the claim that the landscaping would provide ‘visual buffering’ from Richmond Road and adjoining neighbours was incorrect, and not supported by the evidence;
(d) in truth, there will be adverse visual impacts which will not be mitigated for many years, while new vegetation grows; but,
(e) if approval is, nevertheless, granted stringent conditions are required to ensure construction work does not have serious adverse impacts upon neighbours; further thought needs to be given to stormwater and runoff to minimise impacts in the northeast corner, in particular; because of the poor quality of the soil on the land there should be a ‘… longer than normal timeframe … in place for vegetation maintenance’; changes should be made to a proposed retaining wall on the Richmond Street frontage to ‘break up’ its visual impact; and, there should be changes to the width of footpaths and some aspects of traffic design, also to minimise impacts.
The proposal fell to be assessed under Brisbane City Plan 2000 (City Plan), which is this Council’s planning scheme promulgated under the Integrated Planning Act 1997 (IPA). It is categorised as ‘impact assessable’ and is, therefore, to be assessed under IPA s 3.5.5 and decided under s 3.5.14. The latter provides that an assessment manager’s decisions must not compromise the achievement of Desired Environmental Outcomes (DEOs) for the planning scheme area, nor conflict with the scheme unless there are sufficient grounds to justify approval, despite the conflict. The meaning and effect of these provisions has been considered in a number of judgments in the Court of Appeal, and this Court[2]. The word ‘grounds’, is defined in IPA Schedule 10 to mean ‘… matters of public interest’.
[2]Weightman v Gold Coast City Council [2003] 2 Qd R 441; Woolworths Limited v Maryborough City Council [2006] 1 Qd R 273; Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 7
Under City Plan the greater part of the site is included within a Community Use Area CU4, while the remainder is in the Low Density Residential Area. Accordingly, by reason of their location on the site, the multi-unit dwellings buildings for aged care accommodation and the medical centre are impact assessable and categorised as generally inappropriate, while the healthcare and childcare facilities, although also impact assessable, are generally appropriate.
The immediately preceding planning scheme designated most of the site for Special Uses (School) Zone and that no doubt explains why the IPA plan categorises the Community Use Area for an educational use. While the classification is one which most likely reflects the previous historical intention of the owner of the land (the State of Queensland) and the fact that intended purpose has, apparently, been abandoned might on one view be said to diminish the importance or relevance of the designation[3], a question still arises whether the proposed use is discordant with what the planning scheme envisages and, therefore, gives rise to a level of conflict with it.
[3]See, eg, Chelmer Bowls Pty Ltd v Brisbane City Council [2006] QPELR 611, at 615
In City Plan the intent for the Community Use Area incorporates the notion that the best use for community purposes may change, and says:
When a Community Use Area is no longer being used for its intended purpose, its replacement should be another community use, particularly in an area where there is a demonstrated need for these services.
The experts planners suggest, and I agree, that (as Mr Vann summarised it[4]) this reflects a philosophy of ensuring that there is a stock of land available for community purposes which, typically, have difficulty competing with residential, commercial and industrial uses in the marketplace; and, the scheme seeks to ‘… underpin the continued availability of a pool of land for community use purposes’.
[4]Exhibit 12, page 12
Mr Brown says[5]:
87 The purpose is similar in many respects to a community use and is likely to be regarded by the community generally as being a community use. In addition the purpose of the proposed development is for a community purpose, designed to provide community benefits.
[5]Exhibit 6, page 18
While various provisions of City Plan address issues relating to scale, design and compatibility (in the context of reasonable expectations about amenity) Chapter 2 speaks, in particular, of DEOs which balance the ‘… expectations of housing choice to meet resident needs during all stages of their life’[6] and those choices include ‘… a variety of housing types and tenures to be available across the City’[7].
[6]Chapter 2, s 4.2.2.1
[7]S 4.2.2.2.
As to matters of scale and the like, the evidence of Mr O’Brien and Mr Elliott was persuasive that the proposed use of landscaping can successfully mitigate the potential impact of the intensity and height of the proposed development and will mean that, within a tolerably short time, much of it will be successfully concealed from surrounding residential development. In terms of community expectation those questions must also be considered, fairly, in the light of the potential impact of the permitted use for education purposes which might well involve even larger buildings on the site. While, again, there were some small areas of disagreement between the planners about the issue of consistency and scale and character and the integration of the proposed development with surrounding areas, any level of conflict is minor and capable of being overcome if there are sufficient planning grounds – and, as I have later concluded, there are.
Although questions to do with ecological impact evaporated as areas of dispute it is appropriate to note that the joint reports of Messrs Agnew and Sharpe established that while the land is part of a potential movement corridor for the squirrel glider it is not critical. There is another corridor about 250 metres to the south which is part of the Brisbane Green Space System. In any event, the evidence was also persuasive that the retention of significant stands of vegetation, and new landscaping, can maintain potentially suitable movement corridors. The same satisfactory conclusions about birds in the area appears from the joint report of Mr Agnew, and Dr Debus who go on to suggest (with the other wildlife experts) appropriate conditions to address ecological issues.
The site is not identified in the Brisbane Green Space System as having ‘values’ important to it. The Cannon Hill District Local Plan mentions the site but only to seek retention of significant stands of mature/semi-mature vegetation and the vegetated buffer to Richmond Road. Mr Moffitt’s report is persuasive that the development proposal meets these demands. Mr O’Brien’s evidence clearly showed that the design of the proposed development has some subtlety in terms of visual impact because it locates the largest buildings on the flattest part of the site, with vehicle parking areas underneath them, and uses almost vertical retaining walls all of which minimise the area of the site which might be disturbed.
Traffic experts Mr Beard and Mr Quinn ultimately agreed that the provision of 261 on-site parking spaces would not generate any significant off-site parking or on-site parking management problems, and the design of the major access to the site via Richmond Road would be satisfactory. They disagreed, however, about the possible impact on local residents if access was also allowed from a far corner of the site into Rembrandt Street.
While Mr Beard conceded there were no traffic issues which would warrant refusal of the application he thought uninhibited access at that location would add unnecessary additional traffic into the local street network and, if permitted, access ought be limited to residents of the independent living units, and emergency vehicles. Inspection showed Rembrandt Street to be part of a generally quiet residential area with typically small streets and in the result I found Mr Beard’s evidence about potential adverse impacts on that local street network persuasive. In that event, the appellant signified it is content to accept conditions appropriate to achieving restriction of the use of the Rembrandt Street access by residents of the independent living units, and emergency vehicles.
The co-respondents cross-examination of Mr Nagel did not persuade me that in terms of drainage hydraulics, stormwater and water quality solutions there is any reason to think the views of the experts were wrong or that the development would add to any existing problems. Indeed, the evidence was persuasively to the contrary.
As noted earlier, the only potential conflict with City Plan relates to the intent of the Community Use Area, and any discord between the elements of this proposal and the character of the surrounding area. I did not understand Mr Vann’s evidence to suggest anything other than that the level of conflict was low, particularly in the context of other evidence from Mr Owen that there is a demand, and economic and social need for, aged care facilities in this locality.
The evidence of both Mr Vann and Mr Brown was to the effect that, because of the relatively large site area, the impact of the intensity and height of the proposed development can be successfully ameliorated through positioning of buildings, and landscaping; that by way of contrast, had the land been developed for education purposes the level of impact may be greater; and, that while the proposed uses are not defined in the City Plan as community uses they are effectively of a similar nature and are provided by a community-based organisation.
Meeting an important community need is something which, it seems to me, readily falls within the domain of ‘public interest’ and, therefore, to mean that this factor qualifies as an important grounds supportive of the proposal. Although the lay witnesses called by the co-respondent were critical of some aspects of the development process (including, in particular, a lack of consultation) they, too, accepted the added benefit to the elderly community of being able to remain in their neighbourhood.
Mr Brown and Mr Vann largely concurred about the nature of other planning grounds which support the proposal and serve to successfully overcome the minor conflict between the proposal and City Plan. The most compelling is, of course, the matter of need but another, of impressive weight, is the provision of a community use on land always intended for that purpose.
Many of the matters raised by Mr Wilson in his submissions were not issues in the appeal. Of those which were, matters concerning visual amenity, landscaping and visual ‘buffering’ were negated by the evidence discussed earlier. The complaints about want of information and consultation were reiterated by the lay witnesses he called, but there was no evidence of any want of non-compliance with IPA provisions concerning advertising, or public notification.
This analysis shows that in the circumstances the appeal should be allowed, and the matter adjourned for further mention when the parties have settled appropriate conditions including those directed to the Rembrandt Street access.
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