Winlaw v Brisbane City Council

[2000] QPEC 14

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Michael Winlaw and Mary Winlaw and Michael John Winlaw Superannuation Fund & Ors v Brisbane City Council & Ors [2000] QPE 014
PARTIES:	MICHAEL WINLAW AND MARY WINLAW AND MICHAEL JOHN WINLAW SUPERANNUATION FUND (Appellants) v BRISBANE CITY COUNCIL (Respondent) and NORTHSIDE CHRISTIAN FAMILY PROPERTY LTD (Co-Respondent)
FILE NO:	Appeal No. 3843 of 1999
PARTIES:	DIANNE DENISE DAHL AND DAVID IAN DAHL (First Appellants) and ABBERLEY NOMINEES PTY LTD ACN 010 133 178 (Second Appellants) v BRISBANE CITY COUNCIL (Respondent) and NORTHSIDE CHRISTIAN FAMILY PROPERTY LTD (Co-Respondent)
FILE NO:	Appeal No. 3453 of 1999
PARTIES:	MICHAEL WINLAW AND MARY WINLAW AND MICHAEL JOHN WINLAW SUPERANNUATION FUND (Appellants) v BRISBANE CITY COUNCIL (Respondent) and NORTHSIDE CHRISTIAN FAMILY PROPERTY LTD (Co-Respondent)
DIVISION:	Planning and Environment Court
PROCEEDING:
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	2 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	16 December 1999
JUDGE:	Quirk DCJ
ORDER: CATCHWORDS: COUNSEL: SOLICITORS:

1. These appeals have been instituted against the respondent’s approval of separate

   applications to permit;

1. The extension of a church and school complex by way of new buildings;

and

2.          An increase in the area of the complex to include additional land for parking

and playground purposes.

1. The complex is located in Flockton Street at Everton Park and comprises the

   Northside Christian Family Church and the Northside Christian College which are

   conducted by the Assemblies of God in Australia. The applicants, the Winlaws and

   Dahls own and reside on adjoining residential properties.

2. The application in question sought necessary approvals for;

1. The extension of an existing building to accommodate a tuckshop and the

construction of four new two storeyed buildings for classrooms, offices,

storage and amenities.

2.          The expansion of the complex into the rear portion of two allotments

adjoining to the north and the use of these areas for carparking and

recreation purposes.

A re-configuration of these allotments will be required and their balance

areas (upon which dwellings stands) fronting Keona Street will continue to

be used for residential purposes.

1. The Church has stood on this site since the mid-1970’s. The school first established

   in the mid-1980’s and has grown steadily since that time. Details of the layout of

   the school and its mode of operation are found in the material placed before the

   Court and in the evidence of Murray Averill, the school’s principal.

2. In the Town Plan, part of the subject land is included in the “Special Use”

   (Church/Child Care Centre and Community Centre). The balance of the complex is

   in the Future Urban Zone as are surrounding allotments to the north and west

   fronting Flockton and Keona Streets which are used for residential purposes. This

   development is generally low density (on larger allotments) although some

   suburban residential development has occurred in the area.

3. Along the northern side of Flockton Street to the east some non-residential

   development (including a hospital, medical centre, hotel and shopping centre) is

   found. South of Flockton Street conventional residential development has occurred

   within the Residential A Zone.

4. In the Strategic Plan the land is in an area designated Urban. The McDowall and

   Bridgeman Downs Local Area Outline Plan is part of the Town Plan and is a

   detailed strategic planning instrument. In it the major part of this complex is

   designated as “Existing Shopping-Community Facilities”. The hospital/medical

   centre and the hotel/shopping centre are similarly designated. In s.3.5.3 the LAOP

   intends that:

   “Existing uses will be allowed to continue and expand provided that they are not in conflict with the ultimate local area outline plan intent”.

5. The remaining part of the subject land and adjoining land is designated as Potential

   Development Area”. The LAOP indicates that these areas identify the major

   development opportunities within the plan area. Residential development is, of

   course, anticipated but the plan adds:

   “In addition to residential development there will be opportunities for a range of complementary uses that are compatible with residential uses and will assists in the development of integrated communities”.

6. The issues in the appeal appeared to be;

   1.            Planning;

   2.            Traffic;

   3.            Amenity impact.

7. In regard to town planning I had the advantage of evidence from three experienced

   consultants, Mr Butler (called by the appellants), Mr Bennett (by the respondent)

   and Mr Coyle (by the respondent by election).

8. That the church and school are inherently incompatible with residential use could

   not be (and indeed was not) seriously suggested. While I readily appreciate that

   certain characteristics of such activity are not always welcomed by nearby

   neighbours such uses are very much a part of (and necessarily so) the urban fabric.

   That is not to say that amenity considerations are thereby of little account and no

   party took that approach in the appeal.

9. Mr Butler’s major concern appeared to be that insufficient attention has been given

   to amenity impact and was not ready to accept that the proposed uses could be

   regarded as “complementary uses that are compatible with residential uses and

   (that) will assist in the development of integrated communities”.

10. However it has to be noted that he saw the LAOP as identifying the area into which

    expansion of the complex is sought as an “intended suburban residential area”.

    This is not entirely consistent with what the plan says in respect of the “Potential

    Development Area” designation.

11. Such a misapprehension also emerged in other evidence from the appellant’s side of

    the case in which there was a tendency to characterize the area as a residential or at

    least a rural residential one. While the area’s residents value their amenity and are,

    no doubt, protective of it, it remains the position that the zoning is Future Urban

    and expectations must be consistent with this.

12. In the Town Plan in the Statement of Intent for the Future Urban Zone, the

    following passage appears:

    “While and in the Future Urban Zone is to be used primarily for residential purposes it is intended that other land uses which provide services or amenity to newly developing areas should also be provided for in appropriate locations. This includes uses such as centres, schools, open space, personal services, health care facilities, youth clubs and emergency services these land uses are to be accommodated in locations which maximize the service they provide to the surrounding community while minimizing any associated impacts”.

13. The LAOP must also be taken into account and its clear intention that “existing uses

    will be allowed to continue to expand” provided this is not in conflict with the

    Plan’s overall intention must be accepted. Accordingly I am unable to say that,

    provided proper and reasonable attention is given to amenity considerations, the

    proposal is in conflict with the Town Plan’s intent for this area’s proper and orderly

    development.

14. At one point it was said that local residents were entitled to be concerned at growth

    and expansion of the complex which was occurring in a haphazard and

    unpredictable way. It was suggested that some form of master plan was called for.

15. While no doubt this might have its attractions, I accept that the planning of such

    matters (and their funding) is never an easy task for those who must do the exercise.

    There is nothing in the Town Plan which would support a demand for such a master

    plan and the position remains that it is open to the church authorities to decide at

    any point in time on a particular course. It may then submit a corresponding

    application to the planning authority and have it decided on its merits.

16. Similarly, in respect of complaints of lack of public consultation, it must be said

    that, apart from the legislative provisions dealing with public notification, there is

    no obligation imposed on a church body to consult publicly. Whether it chooses to

    do so is a matter for it and it cannot, in proceedings of this kind, be held against the

    church if it decides not to do so. In any event the evidence in this case does not

    point to any particularly secretive or misleading conduct on the church’s part.

17. A more detailed assessment of the proposal made against the background of

    relevant town planning considerations is to be found in the assessments of Messrs

    Bennett and Coyle. Applicable development standards are examined and

    compliance is established except in respect of some relatively minor matters

    relating to side boundary clearance. The relaxations there called for are

    supportable.

18. Initially there was concern expressed regarding the likelihood of congestion in

    Flockton Street at times when students arrive at or depart from the school. The

    consultant to the co-respondent, Mr Holland, has examined the matter and has made

    recommendations which the co-respondent is prepared to adopt. These

    recommendations include;

1.	Fencing along the frontage to discourage student drop off in Flockton Street;
2.	Improvements (including the creation of a roundabout) to the internal layout which will allow traffic to move more freely within the site;

1. The intended fencing will also prevent students cutting through neighbouring

   properties which has become a source of annoyance to those neighbours. Mr

   Brameld, the appellant’s consultant seemed prepared to accept that these measures dealt with his major concerns although he believed that it was important that the

   internal carpark in the eastern area of the site continued to function as such. There

   is no indication that it will not.

2. Another matter initially raised by Mr Butler and referred to in the evidence of the

   appellants was whether the expansion of the complex into land fronting Keona

   Road might prejudice future residential subdivision of that land by constraining

   opportunities for an orderly road layout for new allotments.

3. Documents were produced which were said to indicate the thinking (at various

   times) of Council officers who turned their minds to the way in which such a road

   layout should develop. It is true that the proposed expansion of the school might

   not be compatible with some of these possibilities but it would be wrong to attempt

   to elevate these ideas to some form of adopted planning strategy. In any event the

   evidence fell short of indicating that the proposed expansion of the complex would

   effectively preclude an orderly road layout for any future subdivision of land to the

   north.

4. In respect of traffic one last matter should be referred to. The appellant’s case,

   particularly in the evidence of Mr Brameld, questioned the need for an expansion to

   provide further on site parking on the complex. It is novel to hear such a point

   being made as complaints are usually based on an alleged deficiency rather than a

   surplus of on site car parking.

5. The matter was dealt with in evidence but I have to say that providing no

   difficulties in traffic engineering terms arise from the provision of on site car parking, it is not really any business of this Court to instruct the co-respondent how

   its church and school should be conducted.

6. Amenity proved to be the most important issue in the appeal. Though relevant

   town planning provisions anticipate the development of churches and schools in

   areas such as this, the need to avoid unreasonable detriment to the amenity of

   adjoining land is recognized.

7. However it must also be recognized that the matter before the Court did not involve

   the introduction of a non-residential use into an area that is largely residential in

   character. The church and school has been in place for some time and the proposal

   before the Court relates to an expansion of those facilities. A relevant distinction

   appeared to be blurred in at least some of the evidence given on the appellants’

   behalf.

8. Amenity impact received appropriate expert attention. Mr Kamst (called by the co-

   respondent and Mrs Richardson (by the respondent) made a careful assessment of

   the likely impact of noise from the proposed new structures in the south-western

   area of the site. It was noted that, following expert recommendation, alterations

   were made to the design of G Block to ameliorate noise intrusion into adjoining

   properties. Additional fencing to the northern and western boundaries is also

   intended.

9. For reasons which they explained, their conclusions were that noise from areas

   subject to these proposals would not be likely to be beyond acceptable limits. A

   good deal of attention was given to verandahs and potential problems if these were used extensively. On the evidence given the probabilities appear to be that

   verandahs will not be used regularly (particularly at night times) and I am prepared

   to accept that they will not be the source of unreasonable noise.

10. Other evidence indicated that noise from the new car park/basketball area is

    unlikely to offend the usually adopted exceedance test that compares the L10 of the

    potentially offensive noise to existing background levels. The point should be

    made that playground noise will be greatest during daylight hours and is not likely

    to be a sleep disturbing influence. Monitoring conducted by Mrs Richardson

    indicated peak levels already experienced in the locality as such that peaks of noise

    levels from proposed activities will fall well within them and not be intrusive.

11. Mr Chessells, another experienced acoustic consultant, was engaged by the

    appellants and, for reasons which he explained, reached conclusions contrary to

    those of Mr Kamst and Mrs Richardson. However these differences of opinion can

    be seen to be attributable to the method adopted and I prefer the approach taken by

    the consultants to the respondent and co-respondent.

12. Mr Chessells, in his predictions, appeared to focus upon maximum instantaneous

    noise events (which in some cases he may have over-estimated or at least have

    adopted a very worse case scenario) rather than averaging those noise maxima over

    a given period. But the generally accepted approach is to compare the L10 with the

    L90. Mr Chessells also appeared to rely on a somewhat improbable scenario

    involving the occurrence of a large number of noise maxima simultaneously. As it

    was explained by both Mr Kamst and Mrs Richardson such a possibility is remote

    and of little use in an appreciation of what is really likely to happen. The predictions made by Mr Chessells are demonstrably inconsistent with those of Mr

    Kamst which were supported by Mrs Richardson’s monitoring.

13. I accept the evidence adduced by the respondent and co-respondent and find that

    the proposal should not be rejected on the ground of likely adverse impact from

    noise.

14. Although some reference was made in the evidence to annoyance from light spill,

    Mr Kamst, who has expertise in this area, expressed satisfaction with what is

    proposed. The Town Plan sets out standards in respect of lighting and there is no

    suggestion that these standards will be offended.

15. I listened carefully to the evidence given by Mr Dahl and Mr and Mrs Winlaw. I

    accept the sincerity of their concerns which of course is borne out by their

    preparedness to undertake the trouble and expense of these appeals. What caused

    me some difficulty was that their views appeared to have been coloured to an

    extent by their negative feelings towards the church and school as it currently

    operates. I can well understand that to live next to a large school would not always

    be easy. Young people do not necessarily conduct themselves with suitable

    restraint notwithstanding reasonable efforts by school authorities to maintain

    discipline at an appropriate level.

16. However as with many other features of urban living, tolerance in respect of these

    necessary but not always welcome forms of activity is called for. I understand that

    the appellants are anxious to see that difficulties now experienced are not

    exacerbated with any expansion of the church/school complex but, for the reasons given by Mr Averill, this expansion is dictated by a level of growth that was not

    unusual and a need to meet the requirements of those who wish to (and certainly are

    entitled to) resort to an education facility of their choice.

17. It is understandable that most residents are anxious to achieve the highest level of

    amenity possible but the reasonableness of expectations professed in any given case

    can be judged only by reference to statutory planning controls. In this case I am

    satisfied that what is here proposed is not contrary to expectations reasonably

    entertained.

18. On the whole of the evidence I am satisfied that the onus of showing that these

    applications should be approved has been discharged and the appeals must

    accordingly be dismissed.