Dhimar & Dhimar v Council of the Shire of Albert & Ors [1993] QPEC 9

( ) I ) I ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT SOUTHPORT QUEENSLAND P & E Appeal No. 40 of 1992 BETWEEN: JITENDRA DHIMAR AND SHEILA DHIMAR Appellants THE COUNCIL OF THE SHIRE OF ALBERT & ORS. Respondents REASONS FOR JUDGMENT QUIRK D.C.J. Delivered the /g'/1{ day of February. 1993 This appeal arises out of the respondents' refusal of an application for town planning consent to the erection of a child care centre at Robina. The subject land occupies an area of 1814 square metres on the southern side of Cottesloe Drive from which it slopes fairly gently to a cul-de-sac, Grenaside Court, where it also has frontage. The land comprises two surveyed allotments and is roughly rectangular in shape. It is included in the Residential A Zone in the respondents' Town Planning Scheme as is other land in the general area where the development is consistent with that zoning. A short distance to the east along Cottesloe Drive an area of land has been included in the Residential B Zone and multiple unit dwelling development is found on this land. Beyond Grenaside Court to the south, a large area of land is occupied by the Robina Woods Golf Course. The proposed child care centre which is intended to cater / for 72 children and 8 staff members has been thoughtfully I j ----- -- 1 of 6 -- 2 designed and involves a building of approximately 480 square metres gross floor area located towards the western end of the site. Appropriate provision for on-site car parking is located on the eastern side. Careful attention has been given to the matter of screening, buffering and landscaping. The proposal complies with all relevant requirements of the Child care (child care centres) regulations and council requirements which are specific to child care centres. Although earlier town planning assessment appeared to favour the proposal, the respondent resolved to refuse the application on the stated grounds that - " 1. It is likely to have a detrimental effect on the amenity of the locality. 2. It is contrary to the provisions of the strategic Plan. 3. Objections have been received which are considered to be valid with respect to amenity." There was considerable objection to the proposal and a number of nearby resident objectors were called to give ( evidence. Town planning consultants were engaged by both principal parties and gave evidence to assist me in my assessment of the matter. As the evidence unfolded it became clear that the determination of the appeal depended on a consideration of its consistency with the relevant provisions of the respondent's Strategic Plan. Some evidence (though not expert evidence) raised possible traffic problems but I am satisfied that it would not be appropriate to refuse the application on that basis. Access is planned to be to Cottesloe Drive which carries a (\ -- 2 of 6 -- 3 fairly substantial volume of traffic. However, proposed ingress and egress arrangements appear suitable for safe entry to and exit from the site. Evidence of need was given by the appellant's town planning consultant and although the importance of this consideration is not perhaps as great when an application for town planning consent is being examined, I am satisfied that, but for the town planning considerations here relevant, as existing centres in the area appear to be operating at near capacity, the community's interest would be served by the provision of a child care centre in this area. The subject land is included in the Residential A Zone in which the proposed use is a discretionary use. The general intent for the Residential A Zone is expressed in the scheme as being: "The Residential A Zone is intended to accommodate low density residential development predominantly in the form of single family detached dwellings to the general exclusion of other types of land use. It is also intended that other support facilities such as general stores, child care centres, and recreation uses may be allowed in appropriate locations". In the Strategic Plan, the subject land is designated as having a Pref erred Dominant Land Use of "Urban Residential 11 • The Strategic Plan's intent for this designation is: "Urban residential areas include existing and future areas of urban housing. It is intended that this housing will be mainly detached on 600-1000 metre square lots but with limited areas of high density. The overall urban residential density is intended to be within the range of 20-30 persons per hectare. While residential land use dominates, urban residential areas also include non- residential land uses which serve or compliment housing areas; these include local or district level shopping centres, educational facilities, parks and open space, kindergartens and churches. Some cases small commercial and service industry areas and other minor non- -- 3 of 6 -- 4 residential development may be included. Tourist development may also be permitted in suitable locations". The stated objectives of the Strategic Plan include the following statement in respect of "Urban Residential": "To promote a high standard of amenity in residential areas; in particular to promote the qualities of quiet, safety, visual attractiveness, privacy and clean air". Both town planning consultants appeared to acknowledge that, in relation to the assessment of this application, the important implementation criterion is expressed in these terms: "Essential non-residential intrusions into residential areas should be located together, and designed in such a way to reduce their impact on amenity of nearby residences. The neighbourhood concept as illustrated in s.25 of Part B is intended partly to promote the achievement of this objective. Other than in exceptional circumstances, facilities such as indoor sports centres, professional services, service stations, kindergartens and churches will be located in association with local shopping facilities or established non-residential development". The language of the strategic Plan is plain enough, and it is difficult to escape the conclusion that, unless exceptional circumstances can be pointed to in this case, the proposal would be contrary to the Strategic Plan's Objectives. It is clear that the proposal is not part of any "neighbourhood concept" nor could it fairly be said to be "located in association with local shopping facilities or established non-residential development". Mr. Bell, the appellant's town planning consultant, made a review of recent town planning approvals by the respondent of child care centres in the Residential A Zone and felt that the results showed that "These approvals are generally for -- 4 of 6 -- 5 sites which are not physically related to other non- residential uses". He concluded: "Council has obviously taken the view that child care centres fulfil the 'exceptional circumstances' provisions of the Strategic Plan and have approved of the decentralisation of some of these centres away from established non-residential nodes but closer to the population centres they are intended to serve". The results of his review were not conceded by the respondent, but even if they were correct, it seems to me to lack logic to say that the "exceptional circumstances" referred to in the Strategic Plan could be constituted merely by the proposals being a kindergarten or child care centre. That fact merely qualifies it for consideration. Beyond that, if approval is to be forthcoming, further circumstances which are judged to be exceptional must be shown if a proposed development is to be established other than in association with local shopping facilities or established non-residential development. If it was true (and I am not saying that it is) that the respondent planning authority has, in the past, not properly understood its obligations under the Strategic Plan it would be no justification for a departure from these important provisions by this Court. While it is not for the Court to review the provisions of a strategic Plan, it could hardly be said that the Strategic Plan is being unreasonable in relation to this matter of the preferred location for developments of this kind. Such proposals have their difficulties notwithstanding an applicant's best endeavours to safeguard the amenity of nearby residents and the fact that the hours of operation of child -- 5 of 6 -- 6 care centres are 1 imi ted. The matters of building bulk and height, human activity and vehicle movement can rarely be entirely eliminated. In any event, s. 4 .13 (SA) provides that in assessing a town planning application: "The Local Authority 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". On the evidence given in this case, I am not satisfied that any exceptional circumstances exist in respect of this proposal, nor am I satisfied that there are sufficient planning grounds to justify approving the application despite its conflict with the Strategic Plan. In those circumstances it is, in my view, simply not open to me to find that the onus of showing that the application should be approved has been discharged. Accordingly, the appeal is dismissed. ( -- 6 of 6 --