Brisbane Islamic Centre Limited v Brisbane City Council & Anor [2016] QPEC 14 [2016] QPELR 378

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Brisbane Islamic Centre Limited v Brisbane City Council & Anor [2016] QPEC 14 PARTIES: BRISBANE ISLAMIC CENTRE LIMITED (appellant) and BRISBANE CITY COUNCIL (respondent) and CHIEF EXECUTIVE ADMINSTERING THE TRANSPORT INFRASTRUCTURE ACT 1994 AND THE TRANSPORT PLANNING AND CO- ORDINATION ACT 1994 (co-respondent) FILE NO/S: 2249 of 2014 DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: Planning & Environment Court of Queensland, Brisbane DELIVERED ON: 31 March 2016 DELIVERED AT: Brisbane HEARING DATE: 5, 8, 9, 10 and 11 February and 7 March 2016 JUDGE: R S Jones DCJ ORDER: I will hear from the parties before making final orders. CATCHWORDS: APPEAL AGAINST REFUSAL FOR DEVELOPMENT OF A MOSQUE AND COMMUNITY CENTRE – where clearly a need for a mosque in locality – where proposed development located within rural zone of City Plan 2000 and City Plan 2014 CONFLICT – weight to be given to new planning scheme introduced after development application lodged – whether proposal in serious conflict with the respondent’s planning scheme – whether there are sufficient grounds for approval despite conflict ISSUES FOR DETERMINATION – VISUAL AMENITY – ECOLOGY – WATERWAY CORRIDOR ISSUES – TRAFFIC – HYDROLOGY -- 1 of 39 -- 2 Sustainable Planning Act 2009 Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61 Kotku Education and Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267 Luke v Maroochy Shire Council & Anor [2003] QPEC 5 Weightman v Gold Coast City Council (2002) 121 LGERA 161 Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 COUNSEL: Mr C Hughes, QC with Mr M Williamson for the appellant Mr M Batty for the respondent SOLICITORS: Lillas & Loel, solicitors for the appellant Brisbane City Legal Practice for the respondent [1] This appeal is concerned with the respondent’s refusal to approve a development incorporating a mosque, community hall and carpark. For the reasons set out below I do not intend to make any final orders at this stage but will hear further from the parties once they have had an opportunity to consider these reasons. The land and its environs [2] The subject land is situated at 161/161A Underwood Road, Eight Mile Plains. At present it is comprised of two allotments described as Lot 44 on RP889946 and Lot 15 on RP889946. Lot 15 is a small triangular allotment located at the Underwood Road frontage of the land. The total area of the land is 4.299 (4.3) hectares. Located on the north western corner, adjacent to Underwood Road is a single residence which, at the time of the inspection, looked abandoned. The land has frontage to Underwood Road of about 145m and is about 320m in depth. [3] Of particular relevance is a waterway that traverses the land from east to west and which severs the land, broadly speaking, into two roughly equal sized trapezoids. At present the waterway comprises of a narrow channel of approximately 1m in width -- 2 of 39 -- 3 and a flood plain varying between approximately 20m to 30m. This waterway is defined by its vegetation community, particularly the presence of the Melaleuca paperbark species. [4] Over time the vast majority of the land has been disturbed by the activities of man including clearing. The waterway, as is the case with the balance of the land, shows signs of historic clearing and the invasion of a range of weed species. Again, broadly speaking, the land falls away from Underwood Road to the waterway corridor and then rises from that corridor towards its southern boundary. [5] To the immediate north is the relatively busy Underwood Road which is a two lane local government road. To the north of Underwood Road is urban development. To the west, the northern half of the land adjoins residential development. The southern half of the land adjoins a park, which I understand is owned by the respondent. As is the case with the subject land this park area is in a degraded and weed infested state. It also accommodates the waterway which traverses the subject land. There is also some evidence that this park land has been used as a dumping ground by some of the residents in the general locality. Immediately to the south is a large parcel of land referred to as “Warrigal Farms”. Presently that land is being used for agricultural purposes, more particularly the growing of produce which would seem to fall under the general description of “market gardening”. Of particular relevance is that the Warrigal Farms land has been approved for a major residential subdivision by the respondent. That proposal includes the designation of privately owned but public open space including an area to the immediate south of the subject land. More will be said about this below. [6] To the immediate east is the Gateway Motorway Arterial Road. It is, as Mr Hughes QC, senior counsel for the appellant, pointed out a dominant feature of the locality. -- 3 of 39 -- 4 The planning schemes [7] The development application was lodged on or about 23 December 2011 and on 16 May 2014 the Council issued a decision notice refusing the proposed development. Both those events occurred during the operation of the respondent’s City Plan 2000 (“CP2000”). Some six weeks later on 30 June 2014 City Plan 2014 (“CP2014”) came into force. Notwithstanding that the development application was dealt with under CP2000 a considerable amount of evidence was led concerning CP2014. Section 495(2) of the Sustainable Planning Act 2009 (SPA) provides that the court – “(a) must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate; ...” [8] In this regard though I agree with the town planners, Mr Buckley for the appellant and Mr Ovenden for the respondent, that CP2000 is the most relevant scheme but, where appropriate, regard can also be had to relevant provisions of CP2014. In their joint report, the planners said:1 “28 The relevant planning scheme is City Plan 2000 as the application was made and decided under that Scheme. It is a superseded planning scheme. 29. Whilst City Plan 2014 is now in force and has been for 12 months, it is not pleaded with respect to any issue in the Appeal. However to assist the Court we have provided an overview of the planning context for the site established under the current scheme. 30. Because many of the issues pursuant to the 11 themes in the reasons for refusal are the subject of consideration by experts in ecology, hydraulics, noise, visual amenity and traffic, we have limited the City Plan 2000 references below to those we consider relevant to the planning assessment.” [9] Under CP2000 the subject land is: 1 Exhibit 1 Volume 3, p 1143. -- 4 of 39 -- 5  Mapped in the Strategic Plan component of the Strategies for the City in the Residential Neighbourhoods and is identified as having corridor value in the respondent’s Green Space System which extends, more or less, along the motorway.  Is predominantly within the rural area designation with a very small part adjoining Underwood Road falling within a road area designation.  Lies within the Kuraby Local Plan which identifies over the land a waterway corridor, habitat areas and ecological corridors (private).  Is subject to a Natural Asset Local Laws affecting some of the vegetation on the site.  Is subject to a number of codes of which the Community Use Code is probably the most relevant.  Is mapped in the Priority Infrastructure Plan. [10] Under CP2014 the land is identified in the Strategic Framework as a Suburban Living Area and as having Corridor Value. As the town planners identified, that framework is also generally consistent with the intent of CP2000.2 Unlike the situation where under CP2000 the whole of the land fell within the rural zone, under CP2014 while the majority of the land remained in that zone an area in the north western portion of the land was zoned Emerging Community. The proposal [11] The development application before the court comprises of two components namely: (i) a reconfiguration of a lot (two lots into three); and (ii) a material change of use for a place of worship and associated facilities. 2 Ibid, p 1148, para 51. -- 5 of 39 -- 6 [12] The proposed development involves the construction of a mosque and a hall with provision for 396 carparks of which more than 200 will be situated under the mosque. The development would consist of two floors, a ground floor and a first floor. The total gross floor area of the proposed development is 5595m2. [13] The mosque is to be situated on both the ground floor and the first floor with a total floor area at ground floor level of 2647m2 and on the first floor 1477m2. The hall is to be located on the first floor with a total floor area of 1471m2. The proposal also includes office areas and of course various amenities including bathroom facilities. It is also intended to carry out extensive landscaping, including major restoration, weed eradication and maintenance of the waterway which is to be preserved as a 60m wide corridor. In the proposed Lot 2, where the mosque is to be situated, trees required to be removed are to be replaced at a ratio of 4:1. [14] The mosque and hall is intended to provide a venue for the Muslim faithful situated in suburbs in the south western part of Brisbane. In particular, suburbs including Kuraby, Runcorn, Eight Mile Plains, Sunnybank and Sunnybank Hills but extending as far south as Logan and Springwood. Currently the Muslim community in these areas is serviced by three mosques. One located at Kuraby, another referred to as the Bosnian Mosque and, to a lesser extent, by a mosque located at Slacks Creek. The proposed mosque is intended in particular to ease the overcrowding at the Kuraby mosque. [15] The above mentioned suburbs, relatively speaking, house a significant number of community members who practice the Muslim faith. Indeed, in Kuraby approximately 19% of the population stated they were practising Muslims and, by way of contrast, 17% of the same population indicated that they were of the Catholic -- 6 of 39 -- 7 faith.3 According to Mr Mohammad Hatia, the Muslim population in Queensland has been increasing by between 60-70% every five years for the past 10 years. At present, according to him, between 600 and 800 people attend the Kuraby Mosque. It is expected that, in the event the current proposal were to be approved and constructed, about half would attend the new mosque.4 In fact, those who attend the new mosque might be somewhat larger than that as it is expected that more women would attend as there would be more space specifically available for them to pray. Islamic men and women pray in separate areas. [16] Evidence was given about the current status of the Kuraby Mosque by Mr Hatia. It is quite clear that he is heavily involved in the local Muslim community and, indeed, could be described as being the “driving force” behind the proposed development. In his first statement Mr Hatia described the proposal in these terms:5 “My vision evolved from just building a mosque to include a community hall, library, audio visual centre and offices. In this way the Muslim community, the Muslim youth, Australian public and university students could find that this Centre would be a fountain of unadulterated information about Muslims and Islam. It was vitally important to me that my Australian compatriots who lived side by side with me in the same neighbourhood needed to be educated about Islam and to remove all misconceptions and phobias about my religion. The community hall would also be available to everyone irrespective of their race, colour or creed, provided that they abided to a basic Islamic ethos (e.g. no pork or alcohol). I also realised at the time that the Muslim community does not have a single retirement/aged care facility in Queensland that would cater for its aged and specific religious and culinary needs, e.g. halal food, sanitation, etc. I formulated a plan to build an Islamic Centre that would incorporate all of the above elements for the benefit of the local multicultural and multi-faith community that we lived in.” 3 Exhibit 3 Volume 3, p 1141 at para 18. 4 Exhibit 9A, para 5. 5 Exhibit 9, p 3. -- 7 of 39 -- 8 [17] There is no doubt that the mosque at Kuraby is grossly overcrowded. People are required to pray not only on balconies and fabricated structures removed from the actual mosque building but also in the carpark. This overcrowding also spills over into the surrounding streets so that, particularly at arrival time and departure time, for the compulsory Friday prayers, traffic congestion in the area could only be described as chaotic or, to use Mr Beard’s words, “terrible”.6 [18] The peak periods for prayers at the mosque is Friday at midday when “compulsory” prayers occur and during the holy month of Ramadan. [19] According to Mr Hatia land suitable for a mosque and associated buildings is scarce. In his first statement he identified that he had been looking for a suitable site from 2001 through to 2007. However, none of those sites proved suitable for various reasons including flooding, location and not otherwise being “appropriate for a place of worship”. Just why some of the other sites were not “appropriate” was not explored as Mr Hatia was not required for cross-examination. [20] As is often the case in proceedings such as this, it is not concerned with the mosque and associated buildings per se. The central issue is whether by reference to the height, bulk and scale of the manmade works and structures, the proposed development would result in significant adverse impacts and be in genuine conflict with the planning scheme. And, if so, are there sufficient grounds to approve the development despite the conflict. The issues in the appeal [21] It was agreed by the parties that the issues requiring determination were: 6 T2-35 L 25. -- 8 of 39 -- 9 (i) whether the proposed mosque and multi-purpose hall would be visually unacceptable; (ii) whether a decision to approve the development application would give rise to conflict with CP2000 having regard to the Rural zoning of the land; (iii) whether the proposed mosque and multi-purpose hall would have an unacceptable impact on the ecological and waterway values of the subject land; (iv) whether the proposal makes adequate provision for onsite car parking; (v) whether, in the event of material conflict with the respondent’s planning scheme, there are sufficient grounds to justify a decision to approve the development despite the conflict. [22] Initially, there were some issues associated with the intrusion of development into the waterway. However, it was agreed between the parties that any concerns in that regard could be dealt with by way of adequate conditions. Also, in this context, the co-respondent by election did not oppose the proposed development subject to conditions acceptable to him and, as a consequence of that, did not participate in the appeal. [23] Under CP2000 no specific mention is made of “mosques”, and a “church” was but one example of a Community Facility. Accordingly, CP2000 provides little, if any, meaningful guidance as to the locational criterial that might be applicable in considering such development. In these circumstances I respectfully adopt the observations made by Wilson SC DCJ (as he then was) in Kotku Education and Welfare Society Inc v Brisbane City Council & Ors:7 “The compelling conclusion is that City Plan does not address the needs of small religious groups like the Society or a proposal of this kind in a detailed or comprehensive way. That is neither a criticism, nor surprising – space would not permit the drafters, with the best 7 [2005] QPELR 267 at [22]. -- 9 of 39 -- 10 intentions, to cater for every small minority interest; but the consequence must be that any provisions having possible relevance here should be construed in a way which acknowledges that, generally speaking, the planning documents contain no specific direction or firm guidelines with respect to the appropriate locational criteria for a use of this kind. That circumstance means the case bears some similarity to which a planning scheme simply fails to identify appropriate sites for a particular form of development, and the choice of suitable sites is left to ad hoc selection.” (footnote deleted) [24] CP2014 speaks not of churches but of “places of worship”.8 [25] Before turning to the specific issues in dispute it is necessary to bear in mind the proper approach to construing the principles summarised by Britton SC DCJ in Westfield Management Ltd v Pine Rivers Shire Council,9 and Luke v Maroochy Shire Council & Anor10 where Wilson SC DCJ concluded: “The proper method of construction is that adopted in the authorities set out above, involving identification of those parts of the planning scheme which are germane to the issues in the case, and their consideration to discern the tenor of the scheme, as a whole; and, by that process, to discover whether or not the proposed development accords with the scheme.” Traffic [26] In reality there were no traffic issues per se. The dispute centred on whether adequate parking spaces were provided or capable of being provided. [27] The proposal envisages 396 formalised car parking spaces to be located in a basement level beneath the mosque and some at grade between the mosque and the Motorway. Some additional ad hoc parking is also intended to be located on the “Main Roads No Build Zone” land located along the eastern portion of the land.11 Notwithstanding the provision of the ad hoc temporary parking, the parties proceeded on the basis that it was intended that there be 396 carparks. 8 For example, CP2014 s 6.2.6.2. 9 [2004] QPELR 337 at 342. 10 [2003] QPEC 5 at [60]. 11 Exhibit 5, Attachment B. -- 10 of 39 -- 11 [28] The relevant Performance Criteria under CP2000 provided:12 “The layout of development must achieve adequate provision for onsite vehicle parking that is clearly defined, safe and easily accessible and must be designed to contain potential adverse impacts within the site. Vehicle parking:  must not detract from the aesthetics or amenity of an Area;  must discourage on-street parking where parking has adverse traffic management, safety or amenity impacts; and  must be consistent with convenient pedestrian and cyclist access.” [29] Under the Acceptable Solutions reference is made to guidelines and policies reflected in the Transport, Access, Parking, Servicing and Planning Scheme Policy where, relevantly here, Table 12 of that policy calculated the acceptable level of car parking spaces on a Gross Floor Area (“GFA”) basis. It prescribed ten spaces per 100m2 of GFA. In the joint expert report Mr Holland, the traffic engineer relied on by the appellant, calculated an “effective” GFA of 4422m2 including 1471m2 of hall space.13 Mr Beard, the traffic engineer relied on by the respondent, was prepared to accept that as a reasonable assessment.14 Having regard to the relevant code/policy under CP2000 a minimum of 443 carparks would therefore be required. Clearly there is no satisfaction of the relevant acceptable solution. That of course is not the end of the matter, as CP2000 is performance based and it is important to address on the actual performance outcomes identified. [30] Under CP2014, unlike the situation under CP2000, places of worship are expressly dealt with in table 13:15 “Place of worship, if fronting a declared public road or including a hall 10 spaces per 100m2 auditorium and seating area… in all other cases 8 spaces per 100m2 of auditorium and seating area.” 12 P7 of the Transport, Access, Parking and Servicing Code. 13 Exhibit 1 Volume 3, p 1131. 14 T2-27 LL 15-23. 15 Exhibit 2 Tab 8, p 171. -- 11 of 39 -- 12 [31] Mr Holland calculated the auditorium and seating area at 3222m2.16 Adopting that approach, 323 carpark spaces would be required. That, of course, sits comfortably within the 396 spaces provided. In cross-examination by Mr Williamson, junior counsel for the appellant, Mr Beard accepted that CP2014 seemed to be complied with “to the extent that that’s relevant”.17 While in no way decisive, I consider it appropriate to have some regard to the change in philosophy concerning car parking reflected in CP2014 dealing as it does, unlike the situation in CP2000, expressly with places of worship. [32] Returning to CP2000 and the requirement for 443 carparks, Mr Holland seemed to be of the opinion that even if demand exceeded 500 vehicles it could still be accommodated within the proposed carpark area. That was so, according to him, because at peak times on Friday there was a “first in first out” regime that applied to a significant number of prayer attendees and that, in a facility such as this, overflow parking in the traffic aisles would be able to be accommodated and would be tolerated.18 The “first in first out” regime is a reference to a significant number of attendees who, rather than attend and remain for the totality of the prayer service, would typically arrive late, remain for the compulsory prayer component of the service and then leave immediately thereafter. [33] According to Mr Beard, the car parking requirements would come nowhere near satisfying the performance criteria under CP2000. That opinion seemed to be based on his “best guess” that parking requirements would probably be in the order of 750 vehicles.19 That “best guess” stands in stark contrast to the evidence of Mr Hatia. 16 Exhibit 5, para 14 and Attachment A. 17 T2-31 LL 25-45. 18 T2-15. 19 T2-27, LL 43-47. -- 12 of 39 -- 13 His evidence was to the effect that in the short term there would be some 300 to 400 worshipers but that would clearly increase over time. Also, as Mr Beard had to concede under cross examination 443 carparks would be likely to satisfy the relevant performance criteria under CP2000.20 During the course of Mr Beard’s cross examination the following exchange took place:21 “QUESTION: But, Mr Beard, isn’t it in the appellant’s interest to try and be able to manage car parking and the number of people parking on site? ANSWER: – Yes QUESTION: And part of that would include managing people parking in aisles and ensuring that it’s creating as little inconvenience as possible for the users? ANSWER: – Yes QUESTION: It’s in the appellant’s interest to ensure this runs effectively? ANSWER: – Yes and, as I said, I really don’t – I agree with Mr Holland; I think you can probably can do some car parking in the aisles and I think it is the sort of thing that would happen. With just reasonable cooperation, I think it would occur. I think you could probably accommodate the best part of 100 extra cars. QUESTION: So nearly 500 cars? ANSWER: – If you’re talking about – if you’re now talking about against the performance criteria type assessment, yes, I agree.” [34] On the evidence before me on this topic, save for a matter addressed below, I would have been satisfied that appropriate steps could be taken to ensure offsite parking was minimised and that, even during the more intense compulsory prayer timeframe, parking arrangements would be relatively convenient, accessible and safe. In this context it also needs to be borne in mind that any inconvenience associated with parking accommodation will be limited to only those attending the mosque at peak 20 T2-30, LL 10-30. 21 T2-36, LL 35-47: T2-37, LL 1-2. -- 13 of 39 -- 14 times. That is, the general public is not affected. Additionally, it would not be unreasonable to expect that those attending the mosque for prayer might be more forgiving and tolerant of parking difficulties than one might expect, by way of example, in a shopping centre or other public carpark. [35] Accordingly, at face value, while the car parking arrangements as proposed would not fully comply with the relevant performance criteria, to the extent that there is conflict I consider it of itself would not warrant refusal of the application. In this context it is also of some significance that the new mosque would have a material positive impact on the current traffic difficulties at the Kuraby Mosque. A matter accepted by Mr Holland.22 Mr Beard recognised the possibility of that occurring but was more sceptical.23 [36] However, for reasons which will be expanded on below I do not consider the current carpark layout to be a reasonable one in all the circumstances. It is my opinion that most, if not all, of those carparks effectively adjacent to “Main Roads No Build Zone” and the Gateway Motorway corridor, that is, at the eastern extremity of the land, would, in the future, need to be sacrificed for landscaping purposes. That would require finding space to locate in the order of 55 carparks on my count. In this regard in the written submissions made on behalf of the appellant it was asserted:24 “In any event, the so-called shortage in on-site carparks is not a reason for refusal once it is appreciated that parking could occur on land north of the waterway corridor. To the extent this may be [sic] impact future development potential, this is a matter to be considered (and consequences understood) at some future time. In the meantime there is no safety issue; on street parking (if it ever occurred) can be controlled and any amenity or convenience issue would only ever affect users of the mosque.” 22 T2-23 LL 20-47. 23 T2-35. 24 At para 156. -- 14 of 39 -- 15 [37] It was not made clear whether the reference to car parking occurring to the north of the waterway was intended to be in connection with the longer term proposed use for the northern part of the land for, at least at this stage, retirement village purposes or whether it was to be independent of that. Visual amenity [38] On more than one occasion when questioning witnesses Mr Hughes QC suggested to the effect that a mosque should be seen no differently than a church or other place of worship, and was a type of architecture or structure that formed part of a tolerant and divergent community. I agree. That then raises the question as to why would the mosque be located to the very rear of the land requiring relatively extensive roadworks including the construction of a bridge across the waterway. During the course of the proceeding three reasons emerged. First, the topography was more suited for the provision of basement parking. Second, according to Mr Hughes QC, it was the “good neighbourly” thing to do. That is, to build it as far removed from existing housing as is practicable.25 The third reason is that the area of land designated as Emerging Community under its CP2014 would remain available for other uses including that of a retirement village.26 [39] There can be no doubt that a structure in excess of 5,500 m2 together with a large area for car parking is a significant development and one that, if not treated appropriately, could result in unacceptable visual impacts. [40] At its maximum length the building is just in excess of 100m. The maximum height of the bulk of the building is in the order of 10m save for the two minarets which will 25 T1-9 LL 33-37. 26 Exhibit 9, at p 3. -- 15 of 39 -- 16 be in the order of 30m. There is also a dome shaped area which will extend to a height of about 17m.27 [41] As I understand it, a buffer width of 15m running along the western boundary of Lot 2 is considered adequate. In any event, I am satisfied that the existing and proposed vegetation would address any realistic potential visual amenity impacts from the west. In that regard, I consider the photomontages depicting likely outcomes from Springsure Street and Noble Court give a sufficiently accurate indication of what would be likely to be seen.28 [42] I am also satisfied that the existing and proposed planting within the 60m waterway corridor would be likely to provide an adequate landscaping buffer between the mosque and Underwood Road. In this context it is also relevant that most observers from the northern boundary of the property would either be driving or a passenger travelling along Underwood Road in a vehicle and, from the road, the nearest point of the mosque is some 180m away. I do not consider the most likely form of bridgeworks required to cross the waterway would be a problem in a visual amenity sense. That the 60m waterway might screen the mosque from Underwood Road is not the end of the matter though. More will be said about this when addressing the “Green Corridor” issue raised, in particular, by Messrs King, Ovenden and Buckley. [43] From the south, that is from the Warrigal Farms land as it now presents, the mosque would be very visible indeed and, entirely out of character.29 However, Warrigal Farms has been approved for a relatively intense residential development.30 That subdivision incorporates significant areas of what will become privately owned open 27 See e.g. Exhibit 1 Volume 1, p 429. 28 Exhibit 3, Figures 2, 3, 4 and 5. 29 Exhibit 3, Figures 8 and 9. 30 Exhibit 1, Volume 3, p 1224. -- 16 of 39 -- 17 space, which includes an area to the north, that will accommodate the waterway which flows through the subject land and, of particular relevance, an area immediately to the south of the subject land. [44] Mr King, the expert witness relied on by the respondent to address visual amenity, initially contended that a 15m buffer strip would be required along the entire southern boundary of the subject land to sufficiently screen the proposed mosque. However, he was clearly not aware of the proposed Warrigal Farms residential subdivision to the south. It is tolerably clear that as that estate is developed with housing, views of the mosque from the estate and, indeed from further south, would be substantially limited, effectively to a limited number of allotments in the north-eastern part of the estate. However, even for those lots the screening proposed along the western boundary of the subject site would materially reduce any visual impacts. [45] When the proposed development of the Warrigal Farms land was brought to Mr King’s attention, while not completely conceding the point, his concerns seemed to focus more on the most north-eastern lots within the estate, particularly Lot 226. As Mr Hughes QC pointed out, it is most likely that any house constructed on that lot would be oriented towards the park. While I accept that, I still consider there is a need for more intensive landscaping in the area of the south-western corner of the subject land. [46] My conclusion concerning the southern boundary is that where the subject land shares a common boundary with the proposed open space to the south the 3m buffer strip would be sufficient. However, where the boundary of the subject land extends beyond the western most boundary of the proposed park land more intense landscaping is required. This would, not of itself, warrant refusal. -- 17 of 39 -- 18 [47] Turning then to the eastern boundary, the proposed buffer is likely to be grossly inadequate in my view. As I indicated to Mr Hughes QC during final addresses, I could see no real difficulties concerning visual amenity from the Motorway, particularly for those travelling in the north bound direction. In this regard it also needs to borne in mind that most vehicles travelling past the site will be travelling at or about 100kph and, in the case of the northern bound traffic, the site would not come into view until the motorist turned in a more northerly direction.31 [48] The reason I gave that indication to Mr Hughes QC was because I accepted that the photogrammetry gave a reasonable representation of what would be likely to occur.32 The reality is though, as the traffic engineers identified, future roadworks in the area are envisaged, including upgrading Underwood Road to four lanes and upgrading of the Motorway.33 In its concurrence agency response dated 2 May 2014, the Department of Transport and Main Roads (“DTMR”) specified a number of conditions including a setback area which must be kept clear of permanent buildings, structures and improvements.34 In correspondence dated 16 March 2012 the DTMR advised the appellant, inter alia:35 “Future State-Controlled Road Requirements Transport and Main Roads planning of state-controlled roads includes the identification of road corridor requirements. Transport and Main Roads normal approach to this issue is to preserve these corridors as development occurs by placing a ‘setback’ condition on development. The ‘setback’ requirement that TMR seeks not to be compromised in this instance is the frontage requirement as shown on the attached plan U13A-0016(D) dated 28 June 2011. The proposed future property boundary shown on the attached plan must be used as the property boundary for all building setbacks. TMR 31 See for example Exhibit 6, Figure 5. 32 Exhibit 3, Figures 11 & 13. 33 Exhibit 1 Volume 3, at pp 1129 and 1135. See also Exhibit 1 Volume 2, at p 629. 34 Exhibit 1 Volume 2, at p 836. 35 Exhibit 1 Volume 1, p 402. -- 18 of 39 -- 19 will not accept any permanent structures in the land shown as required on the sketch. Please provide a layout showing how the development maintains the frontage requirement.” (emphasis added) [49] The relevant “setback” required by the DTMR is the “Main Roads No Build Zone” identified in various plans. As can be readily identified that setback tapers away to virtually nothing in the proposed Lot 2 where the mosque is to be constructed.36 While Mr King’s concerns may be overly pessimistic, they are nonetheless valid.37 [50] The difficulty for the appellant is that it relies to a significant extent on the vegetation within the Motorway road reserve and, to a lesser extent, within the no build zone to provide a permanent buffer between the proposed development and the Motorway.38 On more than one occasion when this matter came back before me on 7 March 2016, Mr Hughes QC said to the effect that there was no probative evidence about when the roadworks would commence, if at all. And, even if such works did occur, what the extent and consequential impacts might be.39 That may well be so but, with respect such submissions are not to the point. In respect of the issue it is incumbent on the appellant to satisfy me that, on the balance of probabilities, sufficient screening to the west of the proposed development will be provided to address the negative visual amenity issues identified by the respondent. I am not so satisfied. [51] In his written submissions Mr Batty, counsel for the respondent, stated:40 “Finally, there has to remain significant doubt about how the proposed development, if approved, would appear given that: (a) the proposed development seeks to use land not the subject of the development application before the Court in an attempt to screen the proposed development with vegetation; 36 See for example Exhibit 1 Volume 3, p 1231. 37 Exhibit 1 Volume 3, p 1012; para 2.6.13: T4-5 LL 26-42. 38 See e.g. Exhibit 1 Volume 3, pp 1218-1222. 39 E.g. Transcript of 7/3/2016; T 1-2 LL 33-35: T1-4 LL 25-30. 40 At para 140. -- 19 of 39 -- 20 (b) at certain points in the land immediately adjacent the highway (controlled by DTMR) there would seem to be limited vegetation; and (c) at any point in time the DTMR land could be needed for the Department’s own purposes. At that point, to certain parts of the proposed development, there would potentially be very little (if any) screening.” [52] In my opinion those submissions ought be accepted to this extent. The evidence raises a more than remote risk that an upgrading of the Motorway is envisaged at some time in the future. And, further, given the “setback” condition imposed, that upgrading is likely to involve the western side of the existing Motorway road reserve. In the event that such works did occur there is a genuine risk that images depicted in the photomontages will be unrepresentative. It is not for the respondent to satisfy me that they will not be representative, it is for the appellant to satisfy me that they are. As I have already indicated, on the evidence before me,41 I am not so satisfied. [53] In this regard I also accept the evidence of Mr King and Mr Ovenden, the town planner relied upon on by the respondent, that it has been a longstanding policy of the respondent (and perhaps also of the Department of Transport and Main Roads) to maintain a “Green Corridor” either side of the Motorway to screen, as far as is practicable, views of the built environment from the Motorway and vice versa. [54] In the event of the Motorway being upgraded and the consequential loss of trees along the western side of the Motorway not only would the mosque be highly visual but, more importantly, there is an unacceptable risk that the “Green Corridor” along the western side of the Motorway could be effectively wiped out. In this context the use of the proposed development is of little relevance be it a mosque, other place of worship or a commercial or industrial use. The essential issue is, in this context, 41 On 7 March 2016 counsel for both parties stated that they wanted me to determine the appeal on the evidence as it stands. -- 20 of 39 -- 21 whether the height, bulk and scale of the proposed development is an acceptable outcome under the respondent’s planning scheme. In the event that the buildings and carpark were to be materially exposed to the Motorway, it would not. [55] Mr King advocated a 30m buffer strip along the western boundary of the subject property. It may be that a narrower buffer strip might suffice but I am unable to make any finding about that on the evidence as it currently stands. [56] Before closing on this topic I should address two further matters. First, at various times during cross-examination Mr King seemed to adopt an almost adversarial stance. By this I mean on occasions he failed to make reasonable concessions, was on occasions less than responsive in his answers to questions and on other occasions his answers almost became lecture like. That is an unfortunate trait in an expert witness. That said however, I am not prepared to conclude, as was submitted on behalf of the appellant, that the entirety of his evidence was “less than compelling”. As can be discerned from these reasons I found Mr King’s evidence to be persuasive in a number of areas. [57] The second matter is concerned with the construction of acoustic fencing adjacent to the western boundary of the proposed Lot 2. It seemed to be suggested by Mr Hughes QC that in the event of any future roadworks which might see a dramatic reduction in the number of trees adjacent to the Motorway an acoustic fence would be erected. Whether the relevant authorities would construct an acoustic fence for the benefit of the mosque is a question about which there is no evidence one way or the other. There is certainly no evidence which would lead me to conclude that on the balance of probabilities that that would in fact occur, nor, if it did, what the result would be. That is, by way of example, how far such a fence would extend north and south of the proposed mosque site (Lot 2). -- 21 of 39 -- 22 Ecological and waterway values [58] The land was described by the flora and fauna experts relied on by the parties in the following terms:42 “The site vegetation can be described as a very open forest to woodland north of the waterway corridor and an open forest along the waterway and south of the waterway corridor. The understorey in the northern portion has been cleared and the area appears to be regularly maintained by slashing. The waterway corridor and southern portion is not maintained and while the understorey has been cleared in the past, these two areas have been invaded by a range of non-native grass and shrub species. It is also important to note, despite the invasion of the site by the non-native plant species, there is some recolonisation of the waterway corridor and southern area by native ground covers including grasses, sedges, ferns and low shrubs species. There is also some regrowth of the tree stratum within the ground cover and understorey stratum.” [59] The waterway was more particularly described:43 “The waterway is characterised by a narrow (1m in parts) channel and a flood plain which has a width approximately 20-30 plus metres. The waterway is more or less defined by its vegetation community and more particularly the presence of paperbark (Melaleuca) species. It is noted however, that the waterway like the whole of the property, has been disturbed in the past and as such, this disturbance has permitted a range of environmental weed species to colonise the low flow channel and the primary flood plain. While the waterway is a natural feature, as far as can be determined using historic aerial photography, it has been compromised downstream of the site due to the structures associated with the Gateway Motorway. However, it is considered to provide some ecological function, providing habitat and movement opportunities for some local species.” [60] It was also agreed by these experts that:44 “Given the site’s surrounding landscape and infrastructure, the site connective values are limited or compromised. Fencing along the eastern boundary, the Gateway, concrete pipes and drainage basin would restrict fauna movement in this location. There would be relatively free fauna movement from the west (i.e. from the pockets of vegetation and waterway catchment of about 500m). Fauna movement north and south would be restricted to the narrow 20m fence setback west of the Gateway. North-south movement in the 42 Exhibit 1 Volume 3, p 904. 43 Ibid p 907. 44 Ibid p 912. -- 22 of 39 -- 23 locality would be compromised due to the open farmland, sports fields, fencing, Underwood Road and Beenleigh Road/rail. Nevertheless, it is expected that common mobile species (e.g. birds) would traverse the site and surrounds.” [61] Notwithstanding those limitations on the “connective values” Mr Agnew, the expert relied on by the respondent concerned with fauna issues, considered that that did not mean that connectivity values were extinguished or that the existing limitations could not be relieved to improve habitat connectivity for a wider variety of native fauna.45 [62] After setting out extracts of Mr Agnew’s opinions stated in the joint expert report46 Mr Batty, made the following submissions:47 “It is submitted that the opinions of Mr Agnew in respect of these provisions (i.e. elements of the Biodiversity Code contained within the planning scheme) are persuasive. Put simply, the proposed development cannot be said to protect, manage and restore ecological features in circumstances where, contrary to the planning instruments, the proposed development locates a large built form within both the waterway corridor and in areas designated as an ecological corridor, habitat area and of being high ecological significance… For the moment, it is sufficient to submit the fact that the proposed development will occur almost exclusively in areas mapped as waterway and high ecological significance means that unacceptable fauna impacts would arise. The proposed development could not be said to protect, manage or restore ecological values in such circumstances. On the basis of the applicable planning instruments (including the Council’s mapping) and the evidence of Mr Agnew in the ecology joint report, it is submitted that the proposed development would cause unacceptable impacts of fauna.” [63] In respect of fauna related issues Mr Batty submitted:48 “Ultimately, the evidence of Mr Friend was that he did not support development over the whole of the land especially given that the proposed development did not (in his view) respect the Council’s planning intent for the land (especially in respect of its environmental values) nor the role that the land plays (and has the potential to play) as a habitat area.” 45 Ibid p 912. 46 Respondent’s written submissions, at para 148. 47 Ibid, paras 151 and 154. 48 At para 159. -- 23 of 39 -- 24 The reference to the “whole of the land” is a reference to not only the proposed development but also to the longer term development of the northern part of the land for a retirement village or some like development. [64] In the joint expert report of the experts retained by each of the parties to deal with flora, Dr Watson for the appellant and Mr Friend for the respondent, after identifying a number of “proposed ecological recommendations”49 concluded:50 “At this stage there are no substantial areas of disagreement. While there is some disagreement as to the specific values within the subject site, and the contribution the subject site adds to the local ecological landscape, it is agreed that the implementation of recommendations identified in section 7… will generally provide an acceptable ecological/development outcome.” [65] However, Mr Friend clearly saw some benefit in retaining not only the proposed waterway corridor but the balance of the northern part of the land. According to him the retention of that land “would significantly contribute to the site’s preservation and enhancement (sic) flora values”.51 [66] Like Mr Friend, Mr Agnew considered that, in the event that the proposal were to go ahead, it would be preferable that the balance land to the north of the waterway corridor be preserved. In the joint expert report Mr Agnew stated:52 “In regard to fauna issues, it is clear to me that the development as proposed is inconsistent with the outcomes sought by the provision and policy requirements reviewed in this JER and subject to the Respondent’s Grounds for Refusal. In an attempt to assist the court in achieving a possible resolution I have recommended the retention and rehabilitation (under protective covenant) of the northern part of the site. Were the current disputed Development Application to accommodate the full suite of experts’ recommendations as outlined in s 7 of this JER, it is my view that a reassessment of the modified Development Application would, at least in considering fauna issues, demonstrate greater consistency with the outcomes sought by provision and policy requirements reviewed in this report and subject to the Respondent’s Grounds for Refusal.” 49 Exhibit 1 Volume 3, pp 925 and 926. 50 Ibid, p 927. 51 Ibid, p 927. 52 Ibid, p 927. -- 24 of 39 -- 25 [67] According to Dr Watson:53 “With respect to the northern portion of the subject site (the apparent only substantial area of disagreement between the experts), I am not convinced that retention/rehabilitation of this small isolated area will provide significant contribution to the local ecological landscape and do not believe the rehabilitation of this ‘residual area’ is necessary for the development proposal to meet the intent of Council’s policies and codes. While retention of this land may offer some short term green space, from a long term ecological benefit this cannot be justified…” (emphasis added) [68] With all due respect to Dr Watson, it is my view that his focus on whether or not the northern “residual” land would make a “significant contribution” is misplaced. Performance Criteria P1, P2 and P4 of the relevant Biodiversity Code provides: Performance Criteria Acceptable Solutions General P1 Ecological features and processes on or adjacent to the site, including those identified in the National Assets Planning Scheme Policy, must be protected, managed and restored, where necessary, to ensure their long term viability. A1.3 Development layout and planning retains protects and manages the ecological features and processes identified on or adjacent to the site, such as fauna and flora habitat areas, ecological corridors, habitat trees, waterways (in-stream habitats), riparian zones and wetlands. P2 Ecological corridors within or adjacent to the site must be identified and retained to create, maintain and/or improve connectivity between habitat areas and to allow wildlife movement between habitat areas. A2 The design and management of ecological corridors is consistent with the principles contained in the Brisbane City Council Ecological Assessment Guidelines. P4 The design and management of the proposal must ensure that significant biodiversity areas will be provided with ongoing protection. A4.1 Areas supporting significant ecological features and/or processes are transferred to community ownership or control, e.g. council community group trusteeship, or community title. OR A4.2 Areas supporting significant ecological features and/or processes are included in 53 Ibid, p 927. -- 25 of 39 -- 26 the Conservation Area or included under a protective covenant. [69] It is common ground that the subject land is not mapped as an Environment Protection or Conservation Area. Nor could it be reasonably described as a significant biodiversity area. Notwithstanding that, in its present state the subject land does provide for a degree of fauna connectivity. That that level of connectivity may be described as being poor and/or limited does not mean it is of no significance. Further, in this regard, it is also clear that the land to the south of the waterway corridor is the most important area, the northern area having been subject to heavier clearing and ongoing slashing. [70] The proposed development would result in the vast majority of the now timbered (albeit to an extent weed infested and subject to non-native flora) area being replaced with manmade structures and hardstand areas. Such a proposal could not be sensibly described as protecting, managing or restoring the ecological features of the land, nor its ecological corridor value. [71] In my view the upgrading of the waterway corridor and ensuring the ongoing maintenance of the 60m waterway corridor would go some way to meeting the destruction of the bulk of the southern area but it is not, in my view, sufficient. Of course, any impact on the ecological features of the land and/or its value as an ecological corridor would be even more dramatically impacted in the event that the northern land in the Emerging Community area was developed. [72] Accordingly, I find that the proposed development is in material conflict with the respondent’s planning scheme. The town planners -- 26 of 39 -- 27 [73] “Places of worship” are not contemplated as appropriate development within the Rural zone under either CP200054 or CP2014.55 They are however considered appropriate within the Emerging Community zone under CP2014. [74] Each of the parties called a town planner to give evidence in this proceeding. Both town planners acknowledge that the proposal involves conflict with the respondent’s relevant planning scheme/s. However, their respective assessments of the level of that conflict varies enormously and in the case of Mr Buckley, it is his opinion that to the extent that there is any conflict it is greatly outweighed by other grounds that would warrant approval, despite the conflict. [75] In this context the most significant, if not the only, ground identified on behalf of the appellant was the need for another mosque and hall to take the enormous pressure off the existing Kuraby Mosque. Mr Ovenden, on the other hand, considered that the proposal involved significant conflict with the planning scheme/s and, in its present form, there were not sufficient grounds to warrant approving the proposed development notwithstanding those conflicts. In this regard, the evidence clearly establishes that there is a well-established need for a mosque and associated buildings in the area. Indeed, it would not be greatly overstating things to say that there is an overwhelming need. [76] Under CP2000 the whole of the subject land, save for a very small part designated for road, was zoned rural. Under CP2014 the bulk of the subject land remained in the rural zoning save for an area in the north western corner which fell within the Emerging Community designation.56 In the event that the subject development was 54 Ex 10, pp 14, 61-63. 55 Ex 11 p 306 (CP2014 s 6.2.6.5(3)(m)). 56 See e.g. Exhibit 8, at pp 8 and 9. -- 27 of 39 -- 28 approved the subject land would go from being one dominated by vegetation to one dominated by manmade development. That is, to the south of the proposed water corridor the proposed development and to the north of the water corridor potential development within the Emerging Community area. [77] In my opinion one of the most significant issues confronting the proposed development is its impact on the respondent’s clear planning intention to provide appropriate “Green Space”. Pursuant to chapter 2, section 4 of CP2000 the Elements of the City of Brisbane include a Brisbane Green Space System. The subject land is also mapped as having “corridor value” (Map C – Brisbane’s Green Space System). Among other things the corridor value is to provide for:  wildlife movement and refuge  habitat connectivity …  water quality protection  viability of ecological processes  screening or separation activities. [78] Under the Kuraby Local Plan it is identified that more than 50% of the subject land is within a Waterway Corridor. That is, the land to the south of the waterway. From a practical point of view that is an inaccurate description of the bulk of the southern area of the land. [79] Mr Ovenden, like Mr King, considered that the respondent had a longstanding policy of maintaining, wherever practicable, “Green Space” buffering adjacent to major infrastructure and, in particular in this case, the Gateway Motorway. To some extent -- 28 of 39 -- 29 this is reflected in the zoning maps included in the joint expert report of the town planners.57 [80] There is no doubt that in this case the rural designation was not intended to protect any agricultural or other potential active rural activity on the land. It is though, I have concluded, a technique or strategy used by the respondent to secure Green Space buffers between incompatible uses.58 In this context I also accept Mr Ovenden’s evidence that these areas:59 “(Act) as buffers between incompatible land uses, provides pleasant vistas along Movement Networks. So there’s an emphasis there you can see on the – on the – on the rural landscape values, and it then goes on to talk about Green Space corridor and – and ecological linkages. Now, your Honour, I won’t – I won’t go through the – the new City Plan, but in my opinion, the new City Plan is reflective of – of what the – what the previous City Plan was seeking to achieve with Green Space Systems. I just wanted to emphasise the fact that – that rural zoning, in the context of Brisbane’s town planning, is very different to rural zonings elsewhere in the state.” (emphasis added) Mr Ovenden’s reference to “elsewhere in the state” was a reference to where rural zonings are used to protect genuine agricultural land. [81] There can be little doubt that the introduction of the Emerging Community designated area in CP2014 would result a reduction of “Green Space” on the western side of the Gateway Motorway. However, preserving an area to the east of that designated land and the balance of the subject land within the rural designation is largely consistent with the philosophy identified above. [82] This issue was raised with Mr Ovenden during his cross-examination by Mr Hughes QC:60 “QUESTION: But the reality is, if you look at Council decisions with respect to this immediate locality, including the 57 Exhibit 1 Volume 3, pp 1187 and 1189. 58 T4-37 to T4-38. 59 T4-38 L 46 – T4-39 L8. 60 T4-48 LL 3-18. -- 29 of 39 -- 30 decisions in the past to approve these massive residential development (sic) which has encroached from the west towards the subject land, which we see, for example, on Figure 5 in Exhibit 6, including the decision to include the northern part of the subject land in the Emerging Community Zone and including the decision to allow development of not just emerging communities, but also sports and recreation land on the Warrigal Farm to go to urban development, that area where the mosque is proposed is not part of any – will not be part of any rural landscape. It will be a copse of trees within an urban environment. Correct? ANSWER: Well, I disagree in terms of the rural landscape contemplated by Brisbane City Plan under both – both versions. And I also will add to that, your Honour, the – the tree area of the – the southern part of this lot, by virtue of its function, it is actually linked to the open space that actually occurs to the west that flanks the waterway. And it also is linked to the open space within the Warrigal Farm site itself, which is further upstream and which the conditions of approval call for – for rehabilitation of that land.” [83] Later in cross-examination the following exchange took place:61 “QUESTION: There’s nothing particularly unacceptable about seeing a view of a place of worship from a roadway, is there? ANSWER: Look, there’s not. But I think when you look at the strategic intent – I talked a bit before about the – the – the biodiversity overlay in the planning scheme. But coupled with that in forming reasonable expectations is the fact that it’s – this Motorway is clearly designated as a – as a corridor – as a green space corridor. And there’s – there’s words in the scheme that actually support that as well in terms of – you know – the – the Motorway weaving its way through the city. There really is very little intrusion of – of built form – I – for several – on several trips, your Honour – I probably did it at about eight or ten times, attracting tolls each time. But going from Compton Road up to Logan Road and then back again to just get an appreciation of the value along this section of the – the Motorway. And it’s not until you do get up to Logan Road where you’ve got the RACQ building – the big white building – the RACQ building – that’s where the context does change. But – but in my – 61 T4-49 LL 30-45. -- 30 of 39 -- 31 from my interpretation, the – the subject site sits squarely in an area of – sort of a – like a – a rural character landscape sort of setting.” [84] And later:62 “QUESTION: You see, to put it bluntly, at the end of the day, if this land was so important from a biological point of view – if the importance was such, from a biological diversity or waterways point of view – the land where the mosque is to go – the Council would have included it, or should have included it, in an open space designation as it did with other land in the vicinity? ANSWER: Well I think the Council could have included it, but my position is when you look at the local government purpose of the Code as well which is paragraph two where it brings into play the Green Space elements in (ii) and (iii), that provides a bit of balance to the whole thing. So this is the Rural Zone seeking to achieve ecological outcomes as well, and I’m actually entirely comfortable with an outcome that sees it in the Rural Zone with overlays that actually identify the values and seek to enhance those values.” [85] During the course of the proceeding it was identified that, to the north west of the subject land, several places of worship, including a mosque, were located in land zoned for rural purposes. However, it is tolerably clear that they were located in a materially different urban landscape. In this context, during cross-examination the following exchange took place:63 “QUESTION: …but here is a case where the Council has clearly approved places of worship on Rural Zone land which involves an element of conflict with the planning scheme, and its looked at… ANSWER: It does. There’s a lesser level of conflict, your Honour, than what is involved in the subject site itself, and I can point to – even at the strategic plan level we talked – there was evidence earlier on today about the importance of these – the Green Space corridors along the Highway network. Well, the same sort of provision is not – it’s not mapped, the Pacific Highway, in terms of a Green Space corridor for obvious reasons because of its heavily urbanised 62 T4-51 LL 30-40. 63 T4-53 LL 23-35. -- 31 of 39 -- 32 context, but when you look at City Plan 2014 it is clearly mapped as a corridor of open space Green Space value along the Gateway Motorway, and I just wanted to draw your attention to that because it’s just important when you’re making comparison between these two sites.” [86] Later in the cross-examination Mr Ovenden was asked to summarise what he considered to be his “conflicts of significance”. Mr Ovenden responded:64 “Well, when you look at the strategic plan intent, which talks about this land being on a Green Space corridor – so it’s the only built form intrusion in that Green Space corridor for some time to the north and some distance to the west – the strategic plan intent about where it talks about enhancement of ecological outcomes, not just maintaining and not just looking at existing values, it talks about enhancement, the – this is all off the top of my head, but I’ll keep going. The zoning being within a Rural Zone, I believe there’s conflict with the overall outcomes of the Rural Zone, notwithstanding that it’s not relevant in respect of the agricultural side of things. Certainly the Green Space outcomes are front and centre of those – of that outcome statement. And then it would be the overlay codes. We’re dealing with certainly the waterway overlay which actually maps the whole southern portion of the site consistent with the biodiversity overlay, but also the overlay – the biodiversity overlay code that I’ve mentioned before.” (emphasis added) [87] During cross-examination Mr Buckley was prepared to concede that the subject site in its present condition provides pleasant views looking west from the Gateway Motorway “to some degree”.65 Mr Buckley was also asked whether he accepted that the proposed development was in conflict with the CP2000 in so far as the rural zoning was concerned. Mr Buckley responded:66 “In broad terms, yes… I concede that basically from the – the zoning of the land, there’s some extensions of things that would represent conflict and, obviously, the degree of that in substance is subject to other considerations.” [88] It is also clear that Mr Buckley conceded that similar conflicts existed under CP2014. However, having regard to the area of land designated rural and its location within its 64 T4-55 LL 10-23. 65 T3-58 LL 43-44. 66 T3-63 L 46 – T3-64 L 5. -- 32 of 39 -- 33 surrounding urban environment it added little to any ecological values and/or visual amenity to or from the Motorway. In cross-examination Mr Buckley said:67 “… As I say, they’ve left it – they’ve left a chunk of the land in the Rural Zone. It’s’ being – it’s like it’s got the – you know, the horns of the whatever it is surrounding it. There’ll be a – it’s outflanked on the north by land that is going to be clearly used for some urban purposes, whether this development proceeds or not. It’s been outflanked on the south where this very planning authority has chosen to allow land it only zoned less than two years ago in the Sport and Recreation Zone to go to housing, a fair chunk of it. Where for all – for many years, the contemplation of it being a district sport facility that has been there for as long – you know, before the 2000 plan.” [89] Pursuant to s 4.1.2.1, in the Green Space System, rural areas are said to consist of, “open landscape providing pleasant views along motor Movement Networks, adding to visual diversity, and allowing for ongoing rural activities”.68 Rural Areas are described in the following terms:69 “Rural components include land that defines the city’s edges, acts as a buffer between incompatible land uses and can provide pleasant vistas along Movement Networks. These components will be retained for the ongoing operation of rural and semi-rural activities and their landscape value will be enhance where possible. Fragmenting this land has detracted from its landscape and agricultural production values and is no longer considered appropriate. This practice will be discouraged.” [90] The importance of Rural Areas acting as a buffer within the respondent’s Green Space System is also reflected in some relevant desired environmental outcomes.70 Indeed, it is noted within the Strategic Plan that “the demand for land to accommodate the city’s anticipated growth had steadily reduced Green Space – … more recently, changing lifestyles and a better understanding… have increased the community desire to protect and enhance Green Space for its own sake. As the city grows and 67 T3-64 L 43 – T3-65 L 4. 68 Exhibit 2 Tab 9, p 185. 69 Ibid Tab 9, p 186. 70 Ibid Tab 9, p 182, see s 3.5.2. -- 33 of 39 -- 34 consolidates, its liveability will rely heavily on having Green Space that is diverse and widely distributed in sufficient amounts to have a positive effect”.71 [91] As I indicated earlier, the designation in CP2014 of the Emerging Community area will, to an extent, dilute the buffering effect of the subject land. However, that has to be seen in context. That area is adjacent to existing residential subdivision, it is located on the more severely affected northern part of the land (i.e. more intensely cleared and slashed) and an area of rural designated land is retained to the east. The shape of the Emerging Community area is also of some significance as it shapes away from the Motorway corridor in a north to south direction. [92] For the reasons given it is my opinion that the proposed development is in material conflict with the respondent’s planning scheme/s. Its height, bulk and scale is not consistent with reasonable expectations having regard to the nature and extent of existing development. That said, save for my concerns about the visibility of the proposed development from the Motorway, this conflict might not have been fatal to the application. Also, as I have already indicated, subject to my concerns about the visibility of the proposed development from the Motorway, while there is conflict with the relevant planning scheme/s in so far as parking is concerned I do not consider those conflicts to be necessarily fatal. However, I consider that the proposed development, intended to be located where it is, is in material conflict with the respondent’s strategic plan(s), Green Space policy and Biodiversity Code. Need and Sufficient Grounds [93] During the course of this proceeding I was referred to a number of cases and, in particular, two concerned with the proposed development of places of worship. In 71 Ibid, p 184. -- 34 of 39 -- 35 Kotku Education & Welfare Inc v Brisbane City Council & Ors72 the application was concerned with a mosque, cultural centre, information centre etc. Baptist Union of Queensland v Brisbane City Council & Anor73 was for a Baptist Church, including an auditorium with seating for up to 1,800 people, and a carpark sufficient to accommodate that many attendees was also proposed. The former application was successful. The latter was refused. It is clear from those cases that the size of what was proposed was a material consideration in the respective outcomes of those cases. Indeed, in Kotku, Wilson SC DCJ (as he then was) observed:74 “Unlike the surrounding circumstances in Baptist Union, this case does not involve a very large development for a very large congregation with associated needs for extensive car parking, earthmoving, roadwork and the like. Impacts upon the local community have been shown, notwithstanding residents’ expressed concerns, to be relatively minimal and it is difficult to discern any clear, measurable conflict with the planning scheme which, largely, ignores this kind of development. Against those factors I must weigh clear and strong need, and other relevant planning grounds of sufficient force to establish that, on balance, they far outweigh conflicts which, adopting a cautious approach, I have assessed as being no more than moderate. [94] It is now well established that while slavish adherence may not always be appropriate, in most cases where the balancing of conflict with the planning scheme against other grounds that might justify approval despite the conflict,75 the decision maker must undertake the three stage test set out by Atkinson J in Weightman v Gold Coast City Council.76 In this context, unlike the situation in Kotku, the proposed development here is a major one in respect of bulk, scale and amenity and the conflicts with the respondent’s planning scheme fall very much at the upper end of the scale envisaged in Weightman.77 72 [2005] QPELR 267. 73 [2003] 1 QPELR 61. 74 [2005] QPELR 267 at para [62]. 75 Section 326 of SPA. 76 (2002) 121 LGERA 161 at [36]: also Stradbroke Island Management Organisation Inc v Redlands Council (2002) 121 LGERA 390: Kotku at [47]. 77 In Kotku the conflicts were considered to be towards the lower end of the scale at [52]. -- 35 of 39 -- 36 [95] As already identified, there is an overwhelming need for an additional mosque in the area. Indeed, once the extent of that need was made known to Mr Ovenden he considered whether a “whole site” solution might be available. In the joint expert report Mr Ovenden said:78 “However, having viewed the preliminary findings of the other experts it would appear that based on the ecological and character values there is some flexibility on how that can be delivered on the site. As foreshadowed in the discussion in paragraph 104 to 111 above, there may be scope to support the proposal (in light of the public interest grounds advanced by Mr Buckley above) if the following is achieved as a ‘whole of site’ solution: 1. No subdivision of the land being permitted. 2. A mechanism being put in place to ensure that the northern portion is not developed for future urban purposes (and the City Plan 2014 be subsequently amended to reflect that) with trees retained and the land rehabilitated consistent with the recommendations of the ecology and visual amenity experts. 3. A scaled back complex to reduce the development footprint and increase landscaped buffers externally and to the waterway. 4. Potential for overflow car parking along the driveway giving access to the facility.” [96] When taken to that compromise by Mr Hughes QC Mr Ovenden said:79 “Well, it’s a little bit unusual. I was – your Honour, I was – what drove those observations if you like – and I didn’t commit to them; I said I may – it may be an acceptable outcome – but really, the practical reality of – it would rely on the owner of that land to agree to forsake the use [indistinct] of the Emerging Community land and, really, on reflection, the practical reality of achieving that is probably pretty slim.” [97] In response to that evidence I asked to the effect why he was so pessimistic. Mr Ovenden responded:80 “Well, just – well, I say that in the context of the evidence that I’ve – that is before the Court, that it is a clear development expectation that that land is going to be developed for some sort of complementary retirement village. I understand the Emerging Community designation does provide – represents some sort of value for the property owner, I guess. The context in which I’ve made those observations is that if you rehabilitate the northern section and achieve 78 Exhibit 1 Volume 3, p 1160. 79 T4-62 LL 8-14. 80 Ibid LL 15-24. -- 36 of 39 -- 37 the same environmental outcomes as the southern section, provided you address visual amenity and view corridor issues, then that is a possibility, but that’s the only – that’s the position I reached in paragraph 115.” [98] Later I asked:81 “QUESTION: Mr Ovenden, I don’t want to put this too crudely by any stretch of the imagination, but perhaps boring down to what your view is, is it (that) it would be more in tune with the planning scheme if the mosque were located on the Emerging Community land? ANSWER: Yes, it would be, your Honour. QUESTION: But if it is going to be located on the southern part of the land, the applicant ought to give up all, or at least a significant part, of the land to the north of the waterway? ANSWER: Well, I was certainly – that’s the point I was making in paragraph 115. And also, it needs to be a reduced footprint in terms of trying to meet the expectations of the Rural Zone.” [99] On balance, I accept Mr Ovenden’s evidence in this proceeding in preference to that of Mr Buckley. As I have already indicated, Mr Buckley seems to have materially underestimated the level of conflict created by the proposed development. I also accept Mr Ovenden’s evidence concerning the possible compromises that might exist. The proposed development would still of course be inconsistent with reasonable expectations in the locality having regard to its height, bulk and scale. However, the local residents would have to recognise that places of worship are contemplated within the Emerging Community designation under CP2014. And, with appropriate landscaping the visual impact of any development could be materially buffered from the residential areas to the immediate west. Also, having regard to the location of the Emerging Community land there would appear to be little need for there to be any extensive buffering to the east or south. Having regard to the northern aspect, it would 81 T4-63 LL 17-26. -- 37 of 39 -- 38 front the busy Underwood Road and it is difficult, at least at this stage of the proceeding, to envisage why any extensive landscaping would be required along that road corridor. [100] While, having regard to the given land use designations, the most appropriate location for any development of this type might be on the Emerging Community designated land, if it were considered more desirable to locate it to the south of the existing waterway it would, in my view, be necessary to ensure the following outcomes: 1. Appropriate visual buffering to the east between the proposed development and the Motorway; 2. The rehabilitation and maintenance of the 60m waterway corridor as currently proposed; 3. An ecological set of conditions as envisaged in section 7 of the joint expert report of Dr Watson and Mr Friend; and 4. The preservation of the land to the north of the waterway corridor. [101] These outcomes would go a long way to addressing the Green Space concerns expressed by Mr Ovenden. They would also address a number of the concerns raised by Mr King and Mr Agnew, the fauna and habitat expert relied on by the respondent. [102] Finally, in this regard, I would observe that there are a number of matters that might justify the development of the type proposed, albeit probably at a lesser scale, on the southern part of the land. That location would greatly reduce the visual amenity issues raised. To use Mr Hughes QC’s terminology, it would be the “good neighbourly” thing to do. Further, it would appear that the topography of the land is such as to more readily facilitate underground parking. Underground parking of course involves positive visual amenity outcomes and includes reducing the reduction in the wasteful and unattractive expanse of hardstand that might otherwise be required for parking. Conclusions -- 38 of 39 -- 39 [103] For the reasons given I have concluded that the proposed development is in genuine and material conflict with both CP2000 and CP2014. Indeed, insofar as it may be relevant, the conflict is potentially worse under CP2014 given the change in zoning of the north western corner of the land. [104] Also, notwithstanding the clear need for an additional mosque in the area, given the extent of the conflict, there are not sufficient grounds to justify approving the proposed development in its current form despite the conflict.82 That is particularly so in circumstances where options of the type identified by Mr Ovenden exist. Orders [105] Therefore, the orders of the Court are: 1. I will hear from the parties before making final orders. 82 Section 326 of SPA. -- 39 of 39 --