ABC Developmental Learning Centres Pty Ltd v Redland Shire Council & Anor [2007] QPEC 11

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: ABC Developmental Learning Centres Pty Ltd v Redland Shire Council & Anor [2007] QPEC 011 PARTIES: ABC DEVELOPMENTAL LEARNING CENTRES PTY LTD ACN 010 788 502 Appellant V REDLAND SHIRE COUNCIL Respondent And API NEXUS PTY LTD ACN 113 693 762 Co-respondent FILE NO/S: 2625/2006 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court of Queensland, Brisbane DELIVERED ON: 27 February 2007 DELIVERED AT: Brisbane HEARING DATE: 19, 20, 21 February 2006 JUDGE: Alan Wilson SC, DCJ ORDER: Appeal dismissed CATCHWORDS: PLANNING – PLANNING AND ENVIRONMENT – PLANNING LEGISLATION – CONSTRUCTION OF PLANNING SCHEMES – NEED – application for child care centre – whether in conflict with planning scheme – relevance of need – meaning of ‘co-location’ Integrated Planning Act 1997 Local Government (Planning and Environment) Act 1990 Cases considered: Arksmead v Gold Coast City Council (2001) 1 Qd R 347 Delaview Pty Ltd v Redlands Shire Council [1997] QPELR 250 Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] -- 1 of 6 -- 2 QPELR 208 Harburg Investment Pty Ltd v Brisbane City Council [2000] QPELR 313 Isgro v Gold Coast City Council [2003] QPELR 414 Mooncraft Pty Ltd v Redland Shire Council [2006] QPELR 338 Weightman v Gold Coast City Council (2003) 2 Qd R 441 COUNSEL: W G Everson for appellant P R Smith for respondent C L Hughes SC for co-respondent SOLICITORS: Dibbs Abbott and Stillman for appellant Redland Shire Council Legal Services for respondent Macfie Curlewis Spiro for co-respondent [1] ABC, a large-scale operator of childcare centres, is appealing against Council’s approval of an application by the co-respondent for a material change of use which would allow the construction of a 75-place childcare centre at 77 Bunker Road, Victoria Point. Although the centre would lie in the midst of a residential area, noise and traffic experts agree there would be no adverse impacts on residential amenity. The issues at trial devolved to need and what ABC asserts to be conflict between the proposed development and the relevant planning scheme. These issues, it says, indicates a strong preference that these types of centres be located in association with other established non-residential uses (‘co-location’). [2] Victoria Point is a fast growing urban area in Redland Shire. The proposed site is at the intersection of Bunker Road and Brookvale Drive, and contains 2,388 square metres. It lies about 900 metres to the west of the Victoria Point shopping centre, a very large sub-regional centre covering three of the four quadrants of the intersection of Cleveland-Redland Bay Road, Bunker Road, and Colburn Avenue, and containing four supermarkets with a wide range of other retail and commercial facilities. [3] The site had a Residential A zoning under the transitional planning scheme which was in force in the Shire when the application was lodged in late 2005. A childcare centre is permissible development in that zone. The co-respondent’s application was supported by town planning, traffic and noise reports, and a needs analysis. It was approved by council on 25 July 2006. Because the application was lodged during the currency of the transitional planning scheme, ss 6.1.29 and 6.1.30 of the Integrated Planning Act 1997 (‘IPA’) necessitate assessment under the earlier legislation, the Local Government (Planning and Environment) Act 1990. Section 4.13(5A) of that Act relevantly provides: (5A) The local government must refuse to approve the application if– (a) the application conflicts with any relevant strategic plan or development control plan; and (b) there are not sufficient planning grounds to justify approving the application, despite the conflict. -- 2 of 6 -- 3 [4] The tests set up in that section, and explained in Weightman v Gold Coast City Council (2003) 2 Qd R 441, means the issues in this case become: (a) whether the failure of this proposed childcare centre to co-locate with other retail or community facilities amounts to a conflict with the strategic plan (or otherwise warrants refusal); (b) if there is a conflict with the strategic plan, whether it is sufficient to involve s 4.13(5A) – that is, whether or not it is sufficient to warrant refusal of the application, in the absence of appropriate supportive planning grounds; (c) if there is such a conflict, whether there are relevant planning grounds (including need) which would warrant approval in any event; and, (d) need. [5] Very experienced town planners Mr Buckley for the appellant, Mr Challoner for the co-respondent and Mr Toohey for the Council, were at arm’s length about the degree of emphasis the transitional planning scheme places upon co-location and its relevance, in the context arising here, as a town planning principle. Mr Buckley espoused the importance of ‘clustering’ as a principle which, in his view, received strong support in the relevant parts of the transitional scheme. Mr Challoner and Mr Toohey, while accepting the principle, thought that the degree of emphasis on it in the planning scheme was not high and, in the present circumstances, should properly give way to an obvious need arising at this particular location. [6] Need was the focus of reports and evidence from Ms Bonwick and Mr Brown, both of whom have qualifications as economists and market researchers. Ms Bonwick, for the co-respondent, believed there to be an overwhelming need for this centre while, Mr Brown, for the appellant, categorised it as moderate. Mr Brown expressed concerns that need may decline over time with a lowering of demand from the large number of families with young children in the area, as those children grow up. [7] In this district the population growth within the last 10 years has been twice the Queensland average. That this increase involves children is confirmed by a particularly strong growth in birth rates, which have increased by 48% over the five years to 2005. The western sector of the catchment area, that is to say the area to the west of the Cleveland-Redland Bay Road and around the subject site, has the fastest growth in the district, with 70% of new building approvals in 2005/2006. Ms Bonwick and Mr Brown concur (and other evidence confirms) that there is substantial additional capacity for residential development in this western sector1. [8] Presently, all existing childcare facilities are located to the east of Cleveland-Redland Bay Road, and there are none in this rapidly growing western sector. Information from the Australian Bureau of Statistics (ABS) shows that an important factor for a significant proportion of the population who must choose childcare facilities is proximity to the child’s home (21% thought it was paramount). The evidence points strongly, then, to the conclusion that there is a real and immediate need in this western sector for childcare facilities. 1 This was confirmed by aerial photographs and zoning maps in Exhibits 1 and 8, and by physical inspection. -- 3 of 6 -- 4 [9] That said, need is not a critical issue under the former legislation when, as here, the relevant planning scheme included this site in the Urban Residential Preferred Dominant Land Use (PDLU) designation. As the Court of Appeal noted in Arksmead v Gold Coast City Council [2001] 1 Qd R 347, need can properly arise for consideration on an application for town planning’s consent; but the weight to be given to it will vary and, when the proposal involves facilities of obvious importance to the community, it may not be paramount. I was reminded of the following passage in another case concerning the need for childcare centres, Isgro v Gold Coast City Council [2003] QPELR 414, at [28]: … where the proposed development provides an important service to the community, is permissible in the area in which it is to be located, and is largely consonant with surrounding facilities, need is not a matter to which great weight should be given. In particular, it was not incumbent upon the applicant here to establish existing facilities were inadequate, or that approval might potentially impact upon them. Rather, it was only required to show that, in the existing market place, there was still a reasonably apparent, discernable need for extra childcare places.2 [10] Ms Bonwick and Mr Brown, in their joint report3, clearly acknowledged the existence of a discernable need for extra childcare places. The evidence of high levels of growth, combined with the absence of a childcare facility in the immediate vicinity, indicate that present childcare facilities are inequitably distributed in the sense that parents of young children in the western sector have no centre in their immediate locale. It is true that the distance between the subject site and other centres to the east of Cleveland-Redland Bay Road is not large (about two kilometres), but the emphasis parents unsurprisingly place upon the proximity of these facilities to their homes means that distance is not immaterial. [11] Mr Everson, Counsel for the appellant, was unable to refer to any authority for the suggestion raised by Mr Brown that need must be considered not only at the present time but, also, in the longer term (he spoke of a period 5-7 years into the future). That is unsurprising. While Mr Brown’s concerns have an inherent logic – all children grow up – it would be speculative to conjecture what might occur with an established childcare centre in the distant future and, as Mr Hughes SC (for the co-respondent) submitted, that speculation carries the risk of adding an additional, unusual burden to any application for town planning approval - the need to establish not only present need, but also that it will endure. [12] As to co-location, the Urban Residential PDLU is attached to those areas within the Shire intended to accommodate the bulk of urban residential development. In s 4.2.1, the Plan contains these passages: While it is intended that residential uses will dominate, certain non-residential support facilities which provide local services to residents of an area may be contemplated in appropriate locations and subject to detailed development requirements which are designed to achieve a satisfactory form of development compatible with residential living. These facilities may include community support services such as local shopping developments, medical centres, churches, childcare centres, educational facilities and the like. These forms of development shall preferably be located together in association with local shopping facilities or established non-residential development and designed in such a way as to reduce their impact on the amenities of nearby residences. (Emphasis added) 2 And, see Mooncraft v Redland Shire Council [2006] QPELR 338 3 Exhibit 4 -- 4 of 6 -- 5 [13] Mr Challoner said, and I accept, that ‘co-location’ of a childcare centre with some other facilities of the kind mentioned in this passage is, in this particular residential area, unlikely to occur. It is only some 900 metres from the major subregional centre, and smaller shopping developments or like facilities are unnecessary and would be unlikely to be commercially viable. At the same time, placing a childcare centre within such a large subregional centre is neither promoted by the planning documents, nor in accord with planning principles or, indeed, ordinary common sense. The Council’s own policy with respect to childcare centres looks to siting them in locations best suited to service the needs of the child and the local community, which would draw upon those services, while minimising amenity impacts. [14] This very question of co-location was considered, within this Shire, by Griffin SC DCJ in Mooncraft Pty Ltd v Redland Shire Council [2006] QPELR 338. His Honour was, in particular, satisfied that the locational requirements in the strategic plan were not mandatory, and the use of the word ‘preferably’ in s 4.2.1 indicated nothing more than that this end was desirable, but not imperative. I respectfully adopt that conclusion which accords, here, with what was plausibly advanced by Mr Challoner, and Mr Toohey. [15] The planning scheme also contains Planning Policies, and Policy ENPE 010 Child Care Centres – Locational & Design Criteria provides, in clause 3.1.1: Proposed centres should be located adjacent to community focal points within the neighbourhood unit, such as local neighbourhood or district shopping centres, community facilities including secondary, primary and preschools, churches, neighbourhood open space networks, parkland and active sporting grounds and public transportation nodes ie railway stations etc. [16] In clause 3.4, the policy continues: In residential areas where not directly abutting the type of non-residential land uses described in sub-paragraph 3.1.1, a corner site will generally be preferred to provide for a lessening of direct common boundaries with residential properties and the opportunity to minimise any impacts with astute design treatment applications to the two, or less common boundaries with residential dwellings. [17] The absence of any adverse impacts in the areas of noise, or traffic; design treatments for the proposed development which are not, I accept, discordant with residential structures; and, the fact the subject site is on a corner all mean there is an appropriate level of compliance with clause 3.4. Moreover, as Griffin SC DCJ also pointed out in Mooncraft at para [30], these policies do not themselves form part of a traditional planning scheme but are merely one of a number of material considerations. His Honour said, at para [34]: Furthermore, the objectives of the policy include the provisions of guidance ‘in the community interest’ to the childcare industry. The policy requires the Council to have regard to ‘locational’ criteria as to the appropriateness of the particular childcare centre site. That requirement ‘will have regard to’ indicates in my view that the planning authority is required to take into account those relevant matters and properly assess them but is not bound in some mandatory way to comply with them. Although the criteria indicate a preference in para 3.1.1 that childcare centres be located adjacent to community focal points a fair reading of the policy overall leads to the conclusion that there is contemplation that childcare centres may be established in other locations. -- 5 of 6 -- 6 [18] It is unassailable that s 4.2.1 of the Strategic Plan specifically contemplated childcare centres within the urban residential fabric. At the highest, it contains a preference for co-location – explained, as Mr Buckley says4, by reference to planning principles which emphasise issues like convenience, accessibility, and the equitable distribution of centres. (As Mr Challoner also pointed out, additional reasons for co-location include the strengthening of commercial centres and the concentration of users to minimise impacts on residential amenity). [19] Those principles and their appearance in the planning scheme have to be considered, here, in light of the strong evidence that this proposal is plainly convenient, and accessible; and, that its position actually redresses what can be described, without unfairness, as a present inequitable distribution of childcare facilities. When there is no evidence suggesting a need to strengthen the very large Victoria Point shopping agglomeration, nor any suggestion of adverse impacts on the amenity of this residential community if this facility is allowed, it can be seen that none of the reasons underpinning co-location are offended by the proposal. [20] The question becomes, then, whether a mere ‘preference’ in a strategic plan can give rise to a conflict of the type contemplated by s 4.13(5A) in the former legislation, and attract the Weightman test. As the cases show, the conflict must be capable of plain identification5. The fact the scheme expresses a preference, rather than any strong emphasis, means any conflict cannot be described as vivid and, on any view, cannot be categorised as other than minor, or low-level. [21] The planning grounds which might be relevant to that minor conflict will involve those matters upon which s 4.2.1 of the Strategic Plan is plainly focused: impacts upon residential amenity; and, the level of need for the particular community support service. While it has been said that the absence of adverse impacts may not, itself, be a positive planning ground, the focus upon them in the scheme gives them relevance here – and there are, the evidence shows, no material impacts6. [22] Otherwise, positive grounds will include the significant level of apparent need, combined with accessibility and convenience, itself arising in contrast with a present, inequitable distribution of centres. The facility is not critical to continued obeisance to the planning principle of co-location either generally, or in the particular context of this scheme. Childcare facilities are not required to strengthen, or create, a focus upon nearby larger facilities like shopping centres, and will not create any impact upon their hierarchy. [23] In the face of minor conflict these planning grounds provide a strong basis in support of the decision Council reached. The appeal should be refused. 4 Exhibit 6 p 9 5 Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, at 212; Harburg Investment Pty Ltd v Brisbane City Council [2000] QPELR 313 at [31] 6 Delaview Pty Ltd v Redlands Shire Council [1997] QPELR 250 -- 6 of 6 --