Australian International College of Language v Council of the City of Gold Coast & Ors [1994] QPEC 14

D ) ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 45 of 1993 Before Quirk DCJ (Australian International College of Language v. Gold Coast c.c.] BETWEEN: AUSTRALIAN INTERNATIONAL COLLEGE OF LANGUAGE Appellant - and - COUNCIL OF THE CITY OF GOLD COAST Respondent - and - THE PROPRIETORS OF "THE STRADBROKE PLAZA & ANOR. Respondents by Election Appeal No. 46 of 1993 BETWEEN: LEX SERVITIUM PTY. LTD. Appellant - and - COUNCIL OF THE CITY OF GOLD COAST Respondent - and - AUSTRALIAN INTERNATIONAL COLLEGE OF LANGUAGE PTY. LTD. Respondent by Election -- 1 of 16 -- Appeal No. 47 of 1993 BETWEEN: PROPRIETORS OF "THE STRADBROKE PLAZA" Appellant - and - COUNCIL OF THE CITY OF GOLD COAST Respondent - and - AUSTRALIAN INTERNATIONAL COLLEGE OF LANGUAGE PTY. LTD. Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): Respondent by Election REASONS FOR JUDGMENT 04/03/1994 M. Bain Q.C. with J. Kimmins for the Australian International College of Language Pty. Ltd. R. Litster for the Respondent M. Hinson for the Proprietors of Stradbroke Plaza and Lex Servitiurn Pty. Ltd. Jan Mccaughan for the Australian International College of Language Pty. Ltd. McDonald Balanda & Chesters for the Respondent Czaus Blanc for the Proprietors of the Stradbroke Plaza 1 0- 1 4 January, February 1994 31 January and 1 -- 2 of 16 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 45 of 1993 BETWEEN: AUSTRALIAN INTERNATIONAL COLLEGE OF LANGUAGE Appellant - and - COUNCIL OF THE CITY OF GOLD COAST Respondent - and - THE PROPRIETORS OF "THE STRADBROKE PLAZA & ANOR. Respondents by Election Appeal No. 46 of 1993 BETWEEN: LEX SERVITIUM PTY. LTD. Appellant - and - COUNCIL OF THE CITY OF GOLD COAST Respondent - and - AUSTRALIAN INTERNATIONAL COLLEGE OF LANGUAGE PTY. LTD. Respondent by Election -- 3 of 16 -- 2 Appeal No. 47 of 1993 BETWEEN: PROPRIETORS OF "THE STRADBROKE PLAZA" Appellant - and - COUNCIL OF THE CITY OF GOLD COAST Respondent - and - AUSTRALIAN INTERNATIONAL COLLEGE OF LANGUAGE PTY. LTD. Respondent by Election REASONS FOR JUDGMENT - QUIRK D.C.J. Delivered the 4th day of March 1994 These appeals, heard together for convenience, relate to the conditional approval of an application for town planning consent to the use of one of the units of a multi-unit building (Stradbroke Plaza) at Southport as an educational establishment. An appeal by the applicant is in respect of one of the proposed conditions of approval which related to the provision of carparking spaces. The other two appeals are by objectors against the granting of town planning consent to the proposal. Stradbroke Plaza is located on an allotment occupying 1104 square metres with frontage to Marine Parade, Cloyne Road and Marshall Lane. It is approximately 200 metres north of the Mall which is focus of retail and commercial activity in Southport and opposite a large area on the broadwater which contains public carparking and the olympic swimming pool. The building is an attractive one comprising 8 storeys, the 3 lowest of which have ground level access due to the sloping ,, ( -- 4 of 16 -- 3 nature of the site. The storeys are progressively "raked back" from the Marine Parade frontage. When first built, the Plaza was approved as a mix of commercial and residential development (6 units for commercial use, 7 units for residential use). Since then, however, with the granting of appropriate approvals, the mix has changed and there are now only 2 units which are used solely for residential purposes. Two more are used both commercially and residentially and the remaining units are used only for commercial purposes. The unit which is the subject of the application under examination (Unit 8) is situated on the 3rd floor (two above the foyer level) and has a floor area of 271 square metres occupying the western half of that building level. Other occupants of the floor are a residential unit and an accountant's office. The development for which town planning consent is sought commenced, in fact, in July of last year. Its main activity is well described by its acronym E.t.I.C.o.s. (English Language Intensive Courses for overseas Students). The college conducts courses in English language of up to 48 weeks in length. The main objective of these courses is to equip the students with a command of the English language sufficient to enable them to cope with further study in Australia at a tertiary level. Formal controls exist in respect of establishments of this kind and accreditation through the Government established Accreditation Scheme (N.E.A.S.) is required. Accreditation of this facility to take up to 90 students has been granted subject to a successful resolution of these appeals. -- 5 of 16 -- 4 There were a number of objectors to the proposal and two of these objectors have become parties to these appeals. One of these parties was the Body Corporate of the building constituted pursuant to the provisions of the ~uilding Units and Group Titles A£t. That it was appropriate for a Body Corporate to involve itself in matters of this kind was a matter in respect of which I expressed some reservations on an earlier occasion. However, it is not a matter on which it is necessary to dwell as there was another objector party to the proceedings whose competency was not questioned. While that party (whose name suggests that it may be some form of "service company" to a legal practice) did not directly involve itself in the matters put before the Court, the evidence that it caused to be led in opposition to the granting of town planning consent was of relevance and, where necessary, from experts appropriately qualified. Consequently, issues have been validly raised and must be determined. The unit in question has been divided into 4 teaching areas each of which can accommodate 15 students. There are, as well, areas set aside for a library, common areas for the students and teachers and for administration purposes. Sensibly it is proposed that the number of students on the premises at any one time be limited to 60. Present enrolment has not reached that level but the possibility of an increase to the accredited limit (90 students) in the future has not been discounted. As a rule, classes are conducted during normal business hours but as student numbers increase, the staggering of class hours may be necessitated. Special language tuition to small groups at night times and perhaps at weekends is a possibility -- 6 of 16 -- 5 with future growth of the facility. The building has a lift and the students use it to ascend to the level upon which the college is located. However, to avoid undue disturbance to other occupants of the building, use is made of an internal stairway (to which access is gained within this unit) to exit the building. The building is located in an area which has been appropriately characterised as "fringe c.B.D. land". Office block and commercial/retail facilities . predominate and the presence of residential development is limited and evidently in decline. Essentially the objectors' case was that the proposal, though a discretionary use in the respondent's Town Planning Scheme, was one which should not, in the circumstances, be approved. In the current Town Planning Scheme, the subject land is included in the Comprehensive Development Zone. The proposed use falls within the definition "Educational Establishment" which is defined as: "Any premises used or intended for use as a school, college, university, technical institute, public library, public lecture hall, cultural centre, art gallery (display only) or non-commercial museum; or any premises not referred to above used or intended for use for the training or teaching of backward or handicapped persons but not those mentally ill; the term includes, when carried on at the same time the residential use of any premises by any person conducting or employed at the educational establishment; the term does not include a hospital or institution as herein defined". That use is a discretionary use in the Comprehensive Development Zone. -- 7 of 16 -- 6 A strategic Plan and a Development Control Plan form part of the Town Planning Scheme. The Development Control Plan divided the central area of Southport into a number of separate planning precincts where "preferred uses", "uses considered on merits" and those considered to be "undesirable" are listed. The subject land is found in "precinct 4 - Marine Parade North' in respect of which it is said: "The primary use will be residential with some development for permanent residence and some for tourists. Office developments will also be important in this precinct. Multi-unit buildings are an 'preferred use'. Commercial premises are a 'use to be considered on merit' and Educational Establishments (falling by default into the 'all other uses' category) are 'uses considered undesirable'." Mr. Priddle (called by the objectors) sought to attach importance to this and made the point that: "The 'preferred' form of land use development within the relevant precinct of the current D.C.P. is for residential and commercial off ice use. The existing development of the Stradbroke Plaza building for such activities is considered to be very much in line with future desired land use planning objectives for the area; according to the provisions of the existing D.C.P., the proposed use is listed as 'undesirable' within the relevant planning precinct area. such a use of the premises is therefore considered inconsistent with the future planning intent of the precinct and incompatible with 'pref erred' forms of development". Mr. Challoner (called by the applicant) and Mr. Schomburgk (by the respondent) were not prepared to take such a negative view of the proposal. That the current D.C.P. saw an "educational establishment" (as defined in the Scheme) as being "undesirable" was recognised. However, Mr. Challoner pointed out that: "Such classification fails to recognise that although primary and secondary schools and the like are obviously inappropriate in the precinct, there are however types of -- 8 of 16 -- 7 educational establishment such as business colleges which are most appropriate." He added that this has been recognised in the respondent's proposed Development Control Plan (which has been exhibited publicly and awaits gazettal) and which "educational establishments" are uses to be considered on merit in the precinct in which the subject land is found. Mr. Challoner also drew attention to the way in which, as a result of a succession of town planning approvals in respect of this building, its use as a whole had tended away from a balance of commercial and residential use to a predominance of commercial development which he said, detracted substantially from the argument that an approval of this proposal conflicted with reasonably based expectations of other occupants of the building. It was Mr. Challoner's view that experience has shown that a facility of this kind (in contrast to educational establishments of a more orthodox nature} was most likely to be encountered in a "commercial" setting. Having regard to the relevant provisions of the existing and proposed town planning schemes, I accept the view put forward by Mr. Challoner and Mr. Schomburgk that the proposal is one which is entitled to be considered on its merits and that it is not one which, by its very nature, would be in conflict with proper town planning and ought therefore to be rejected. It has to be accepted that the proposed use is one which is likely to generate a greater degree of human presence and movement in and about the building than had been experienced prior to its arrival. It goes without saying that most of us would prefer to go about our daily activities with as little -- 9 of 16 -- 8 interference from others as can be achieved. However, having regard to the fact that this building is one which is predominantly used for commercial purposes, I am satisfied on the evidence that the extent of disturbance that could be fairly attributed to this proposal would not be beyond that which other occupants of the building should be asked to tolerate. I am satisfied by evidence given by those associated with the college that every effort has been made to reduce possible friction between the presence of the students and the amenity of other occupants and that, for the most part, these efforts have been successful. I was not particularly impressed by some evidence called by the objectors in which incidents in the past which had allegedly caused disturbance were detailed. Without wanting to be unkind, I was left with an impression that this evidence was overstated and, to a degree, orchestrated. In at least one instance I felt it was accompanied by a notable lack of fairmindedness. Conduct which might readily have been corrected by appropriate I! authoritative intervention was said to have been noted but no effort was made to refer the matter to those in charge of the college. The version of events given by some of those called in opposition to the proposal appears to be at odds with that of Messrs. Lather and O'Meara who are involved in a legal practice in the building at foyer level and who gave evidence that the operations of the college had not troubled them to any degree that might be fairly regarded as unacceptable. It is also inconsistent with the observations made by Mr. Challoner who took IJ -- 10 of 16 -- 9 the opportunity to be present on site when students were in attendance. I do not intend to say that the evidence of all of the occupants of the building called by the objectors was less than satisfactory. Some (particularly those who are close to the proposed facility and most likely to be effected by its activities) gave evidence in a sensible and restrained way. I fully understand their concerns that their amenity may be threatened but it seems that the lack of interference which they have experienced to date has, in no small way, been attributable to the fairly low level of usage of the building. The reasonableness of professed expectations are, however, judged by reference to proper town planning practice and under-utility of premises should not be allowed to distract from a fair and relevant assessment of the matter. on all the evidence I pref er the opinions of Messrs. Challoner and Schomburgk that a proper town planning assessment of the proposal leads to a conclusion that it is not an inappropriate use in this case. There was some argument that the Language College proposal was a fairly intense use of the site in that it involved an "occupation density" of something in the order to one person per 4 square metres and that the need to stagger classes and to use the internal staircase for exiting the building illustrated the inappropriateness of these premises for the proposal. "Occupation density" would not however appear to be a matter which would have a great deal of impact outside the unit and I accept the evidence of Mr. Ferrier regarding the suitability of the premises for the proposed use. The other matters to which -- 11 of 16 -- 10 reference was made could equally be seen as indicative of the concern on the part of those involved in the school's operation to keep potential conflict to a minimum. I was impressed with the evidence of those persons and I am satisfied that the school has and can continue to be operated in a manner which is satisfactory in the circumstances. some criticism of the location which was made in regard to traffic difficulties that might be associated with the deposition and collection of students by vehicles at the building's entrance and difficulties that faced students who, as pedestrians, seek to make a crossing of Marine Parade. Evidence from traffic engineers in regard to these matters produced differing opinions but, taking the most negative view of this evidence, these factors would not appear to be such as called for the proposal's rejection. Messrs. Challoner and Schomburgk, who both supported the proposal, differed in that the latter, in a more cautious approach, believed that conditions should not only limit the number of students attending but also the hours of operation and prevent activity at the Language College beyond business hours and at weekends. I appreciate that this may well produce a better result from the point of view of the occupants of the building, but I am not satisfied on the evidence that such conditions would be justified on the basis of building security of threat to amenity of those who reside in it. It would seem hardly reasonable to limit the operation of other commercial premises in the building in this way and, in all the circumstances, I am not satisfied that such a restriction is -- 12 of 16 -- 11 reasonably or relevantly required by this approval. On the whole of the evidence I find that the onus of showing that the application is one that should be approved has been discharged and accordingly the Appeals by the objectors are dismissed. The dispute between the applicant and the respondent related to a condition of town planning approval which required a contribution for the shortfall in carparking below that required by the development. On the evidence it is beyond dispute that no further provision for on-site carparking can be made on this land. It is equally evident that any parking generated by this proposal will be comfortably accommodated in public carparking in the area for some of which a charge is made and in other cases does not involve any cost to the user. There is no suggestion that parking generated by the proposal is likely to give rise to any traffic difficulties. Generally speaking I have no difficulty with the proposition that there should be adequate provision for carparking generated by a particular proposal and if proper provision cannot be made on site it is in order that there be an appropriate contribution to the planning authority to assist in the provision of carparking elsewhere or in the improvement of and maintenance to existing carparking facilities. It seems to me that, in general terms, such a requirement could be relevant or reasonably required by planning approval. In this case however when consent to the development of Stradbroke Plaza was given, the need for carparking was assessed on the basis that Unit 8 was to be used as commercial premises. In all an assessment was made that 30 carparking spaces were -- 13 of 16 -- 12 required but it is not at all clear what part Unit 8 played in this assessment. subsequent parking allocation by the Body corporate would seem to me to be entirely irrelevant to this question. The respondent has a policy which deals with the provision of carparking in the Comprehensive Development Zone. The effect of s. 5 of this policy is that where there is, in respect of particular premises, a change of use, in the calculation of the carparking requirement; "The carparking requirement for the existing use shall be a credit towards the proposed use carparking requirement even though it may not have been provided on site for the existing use". On its face such a provision seems eminently fair and reasonable. There was some debate as to whether "the carparking requirement for the existing use" should be read to mean the current requirement for such use or the requirement at the time when a particular use was approved or commenced. In my view the only sensible and practical way to answer this question is to read the "requirement" as meaning the current requirement. The alternative would inevitably lead, in my view, to uncertainty and confusion. If it is appropriate therefore to "credit" Unit 8 with a carparking provision complying with the requirement for commercial premises, the question then is whether the proposal hereunder consideration calls for any increased provision. In the opinion of both Mr Challoner and Mr Viney (an experienced Traffic Engineering Consultant called by the applicant) it does not. The reasons which they expressed for this view were: ,1 -- 14 of 16 -- 13 1. The parking demand generated by the proposal is likely to be comparable to that generated by many types of commercial premises. 2. Most of the students are from overseas and do not own a car. 3. Most of the students are transported to and from the college by their homestay families; and 4. There is a large amount of public carparking space in the vicinity. I regard these matters and the conclusion to which they led as being valid. The respondent in evidence sought to make an assessment of the "demand" for carparking which the proposal would generate. The result was anything but convincing and involved, in my understanding of what was said, a confusion as to the difference between "carparking demand" and a fair and reasonable "carparking requirement". Additionally, although it is by no means conclusive for the purpose of this appeal, it was pointed out that some other approvals not dissimilar to this, the respondent had adopted an approach similar to that advocated by the applicant's witnesses in this case. In all of the circumstances I am satisfied that the carparking requirement for the proposal be assessed on the basis that it is comparable with that of commercial premises and that no further provision is required. In the circumstances I find that the condition .requiring a "contribution in lieu" should be deleted from the approval. The applicant's appeal is accordingly allowed. -- 15 of 16 -- . \4 ~ M /<-A ~~ . -~-:u'-°w=:0-c..--1 _ . .J . ~ ., , ( i C, 8 ~ .) 7?.... f--t.__...Q_ l l . -- 16 of 16 --