ABC Developmental Learning Centres Pty Ltd & Anor v Town of Dalby Council & Anor [2001] QPEC 67

ji i Q\)£,(. 661 S R rt. B a QueenslandGovernment tate e po Ing urea u ~ Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. PLANNING AND ENVIRONMENT COURT JUDGE QUIRK No 2808 of 2001 REVISED COPIES ISSUED State Reporting Bureau Date i I (( I O ( ABC DEVELOPMENTAL LEARNING CENTRES PTY LTD (A.C.N. 010 788 502) and PIKE MIRLS McKNOULTY PTY LTD (A.C.N. 010 370 448) and TOWN OF DALBY COUNCIL and VERONICA LAFFY BRISBANE .. DATE 19/10/2001 JUDGMENT Appellants Respondent Co-respondent 4 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 1 -- 1 of 8 -- 19102001 Tl/JJD24 M/T CMS106/2001 (Quirk DCJ) HIS HONOUR: Just dealing with this ABC Development case, for the reasons which I publish, I find that the appeal should be dismissed and----- HIS HONOUR: I will make an order in these terms. That is consistent with what I have said in the order. Well, I said it is to be dismissed. I suppose it is not really consistent with it. Well, I say, I find the onus of showing in the application one which should be proven and must accordingly be dismissed. MR HAYDON: Well, I don't mind if you then in the formal order dismiss it, but then leave the rest of the order paragraph two in, because it's dismissed on a conditional basis. Does that make sense to your Honour? HIS HONOUR: Well, we will try. MR HAYDON: Yes. The result's the same. HIS HONOUR: I don't think anyone will be confused by it, do you, Mr Ure? MR URE: No, your Honour. HIS HONOUR: I will make an order in those terms. I'll just change the word to 11 allowed in part" to dismiss. 2 JUDGMENT 1 30 51 -- 2 of 8 -- 60 PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: PARTIES: FILE NO/S: DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED ON: DELIVERED AT: HEARING DATE: JUDGE: ORDER: CATCHWORDS: COUNSEL: SOLICITORS: ABC Developmental Learning Centres PIL & Anor v Town of Dalby Council & Anor [2_001) Q?E.C. 067 ABC DEVELOPMENTAL LEARNING CENTRES PTY LTD (ACN 010 788 502) and PIKE MIRLS McKNOULTY PTY LTD (ACN 010 370 448) Appellants V TOWN OF DALBY COUNCIL Respondent and VERONICA LAFFY Co-respondent 2808 of 2001 Planning and Environment Court Submitter appeal Brisbane 19 October 2001 Brisbane 1-3 October, 2001 Judge Quirk The appeal is dismissed Arks mead Pty Ltd v Gold Coast City Council (2001) 1 Qd R 347 Mr C Hughes for the appellants Mr S Ure for the respondent Mr J Haydon for the Co-Respondent LeMass Solicitors for the appellants King & Company for the respondent Hede Byrne & Hall for the co-respondent -- 3 of 8 -- 2 [I] This appeal, by adverse submitters, is against the respondent's approval of an application for a material change of use of land at Dalby. The subject land occupies 2,000 square metres and is located in Bunya Street. It was part of the grounds of a now disused Catholic school. [2] The proposal is for a childcare centre which will provide "long day care". The respondent Veronica Laffy and her sister Liesel Walton are both trained teachers and members of the Kutmann family which presently conducts a popular and successful childcare centre (A Country Garden) in Toowoomba. It is their intention to establish a modem "purpose built" facility of a comparable kind in Dalby. [3] It is unnecessary to go into the design and layout of the proposal details of which appear in the material and drawings placed before the court. No issue was made of these matters. Similarly, except in one respect, it was not suggested that the proposal was in conflict with any relative provision of the Town Planning Scheme or Council policy. These matters are dealt with sufficiently in the reports of the town planning consultants whose evidence was before the court. [4] Mr Veal, an experienced town planner, was consulted by the appellant. He indicated in his evidence that his opposition to the proposal was based on a demonstrated lack of need for the proposal and the planning consequences of that. In supposing that a lack of need existed he relied upon the views of Mr William Owen, an economic planner, who was engaged by the appellants to examine that question and who gave evidence to the court. -- 4 of 8 -- 3 [5) Although one adjoining neighbour had made an adverse submission regarding the applicant, in the end it was not suggested that there was any amenity grounds which would justify a rejection of the proposed development. The design of the proposed landscaping was exhibited and the evidence of Mr Brameld, an experienced traffic engineering consultant that the proposal would operate safely and efficiently and without traffic impacts on the surrounding network was unchallenged. [6] The only issue that was pressed with any real vigour was that of need and an associated question namely whether there was conflict with s.2.3.2.7 of the relevant Strategic Plan which provides: "The provision of government supported community infrastructure in relation to population changes and needs will be monitored to minimise the likely loss or downgrading of important health care, educational, social and administrative services". This particular provision is found as one of the stated criteria of the "Social Objective" of the Strategic Plan which is: "To support an urban form which seeks social equity for members of the community in terms of access to community services and infrastructure, housing and employment and a high quality of lifestyle." It is to be noted that the emphasis in this objective is upon an appropriate level of access by the community to the relevant services. [7] The wording of the criteria is not as clear as it might have been but the most sensible and useful interpretation of it would appear to be that, in making planning decisions, the Council will bear in mind the level and quality of government supported community infrastructure ( as affected by population changes and needs) and seek to ensure that such decisions minimize any likely loss or downgrading of the important identified services. -- 5 of 8 -- 4 [8] Whether or not any loss or downgrading of such services is likely would have to be judged from the community's perspective. Arguably no such loss would occur if a new and better quality (government supported) facility which was likely to serve the community at least as well took the place of an older, less effective or attractive facility. [9] However it is unnecessary to dwell on that question in this appeal because, on my view of the evidence, there is not, on the balance of probabilities, any likelihood that the existing childcare services available to the local community will be lost or downgraded. [JO] Childcare facilities receive substantial government funding. These benefits are assessed in respect of each child resorting to care but are paid to the operators of the facilities. All children receive some benefit but the level of such benefit is a function of the means of parents and this has a bearing on the "gap" between the benefit and the fee charged by the childcare facility which must be met by the parent. Non profit (or community based) facilities receive additional funding for capital works and infrastructure. This was all explained in undisputed evidence. [I I] The concerns of witnesses who gave evidence for the appellant (and other existing facilities) was that a decrease in the number of children attending a particular facility would lead to a corresponding reduction in the benefit received from the government. This is undoubtedly true but the evidence fell well short of establishing, on the balance of probabilities, that the level and quality of services available to the children in the community would, in any case, be lost or downgraded. -- 6 of 8 -- 5 [12] The views of Mr Owen to the contrary appear to be influenced by too narrow an appreciation of the catchment area of the Dalby centres. He did not look beyond the town into surrounding rural areas. Furthermore I do not believe he gave sufficient attention to the growth in use of such facilities by the community in recent times when the level of government support has increased. [13] He also took a relatively low level of use of childcare facilities by children in Dalby (as reflected in certain statistical data) as an indication of a lack of need for such facilities in the town. As was pointed out that could be explained just as easily by a relatively low availability of such services. On the issue of need I prefer the views of Mrs. Miles (the consultant to the respondent by election) who supported the proposal [14] Compelling evidence on the advantage to the community that would result from the proposal came from the number of parents who have already expressed an interest in enrolling their children at it. There was evidence that childcare facilities in Dalby have had their difficulties in the past but to what these were attributable is not entirely clear. It did not emerge that it was because of a superfluity of childcare centres of a satisfactory and attractive kind. [15] In fact the evidence was that the existing facilities that provide "long day care" (particularly that of the appellant) are doing well enough. Other facilities (e.g. kindergartens and after school care for older children) were mentioned but it emerged that opportunities for these facilities to work hand in hand with the proposal would exist with its introduction. On the evidence given I find that not only will the proposal improve (in a qualitative way) the availability of childcare -- 7 of 8 -- 6 services to Dalby but its establishment will not propose a serious threat to the viability of existing services. Accordingly, on the issue of need, I find in favour of the proposal. [16] I was referred to certain decisions on need, particularly the recent decision of the Court of Appeal in Arksmead Pty Ltd v Gold Coast City Council (2001) 1 Qd R 34 7 which discussed the relevance of need to matters which (under the repealed legislation) required town planning consent as opposed to rezoning. The Court of Appeal held that absence of need may, in appropriate cases, work against a proposal and I do not see that as any serious departure from the manner in which this court has approached this question in the past. However no discussion on the topic is called for here as it is not a case where an absence of need has been demonstrated. [ 17] On the whole of the evidence I find that the onus of showing that the application is one which should be approve has been discharged and the appeal must accordingly be dismissed. -- 8 of 8 --