First Steps Children's Centre v Council of the City of Gold Coast [1991] QPEC 22

....._'() A_d' I r - IN THE PLANNING AND ENVIRONMENT COURT HELD AT SOUTHPORT QUEENSLAND P. & E. Appeal No. 3 of 1991 BETWEEN: FIRST STEPS CHILDREN'S CENTRE Appellant COUNCIL OF THE CITY OF GOLD COAST Respondent •• I ._,O\.OC REASONS FOR JUDGMENT - QUIRK, D.C.J. ) Delivered the day of ~ 15•/0-l'i( 1991 This appeal concerns a refusal by the respondent of an ) application for Town Planning consent to the extension of an existing child care centre at the intersection of North and Scarborough Street, Southport. ) The subject land is included in Residential "C" Zone wherein the proposed use is a discretionary use. Pursuant to an approval given in 1988 the appellant established a child care centre (licensed for 59 children) in buildings located on the corner ) allotment which were formerly occupied by a church. Because of the limited amount of car parking available, all of the floor area of the existing structures was not able to be put to use in the centre. The applicant has, however, been able to negotiate a lease of land adjoining to the north and it is proposed to extend on-site parking onto this land so that full use can be made of the existing buildings. Licensing by the statutory authority responsible for such matters would be required for any increase in the capacity of this centre which is presently licensed to care for 59 children. An increase in capacity of 55 -- 1 of 6 -- ) ) ) ) 2 children is intended. An earlier attempt to add to the centre's car parking was not successful. This had involved the proposed use of an allotment adjoining to the west which had frontage to Tate Street. Mr. Bell, the Town Planning Consultant, who was called by the appellant, agreed that this earlier proposal which would have led to the introduction of an appreciable amount of non- residential traffic into a residential cul-de-sac was difficult to support on Town Planning grounds. In his opinion the subject proposal did not, however, share these difficulties and represented "a natural extension" of the existing use to the north. Although two consulting Traffic Engineers were called to give evidence, there do not appear to be any serious traffic difficulties which might result from the proposal. Mr. Holland (called by the appellant) acknowledged the importance of providing off-street car parking but, as has been mentioned, this was the object of obtaining the use of adjoining land. Alleged difficulties with the proposal which have been raised in evidence by the respondent includes:- (1) Alterations to what is presently on site will result in a reduction in visual amenity in the area; (2) There are certain features of area set aside as outdoor play areas for children which make them unsuitable for such -- 2 of 6 -- ) ) 3 purposes; (3) Detrimental effects (in terms of intrusion upon residential amenity) will flow from increased usage of the site; and (4) It would be undesirable to allow the proposal to go ahead unless the appellant could show that control over additional land was not limited (in relation to tenure) in any significant way. Dealing with points (1) and (2) referred to above, Mrs. Kerr (the respondent's Town Planning Consultant) was concerned about the suitability of outdoor play areas that will be established on the North and Scarborough Streets frontages near the intersection. She pointed to the heavy volumes of traffic that use this intersection and was of the opinion that noise and other polluting influences from this traffic and the risk of accidents made these areas less than appropriate for their intended use. ) She added that the construction of a brick wall along part of the Scarborough Street frontage and the loss of landscaping will ) result in an unacceptable loss in visual amenity having regard to the land's zoning. Mr. Bell could not agree with this. As to the suitability of the outdoor play areas for the children's point of view he felt that the brick wall to be constructed offered adequate protection from disturbing influences. He added that this was primarily a matter that would receive careful consideration by the licensing authorities. As to the visual amenity question, he felt that the amenity of the area could not be considered to -- 3 of 6 -- 4 be one of such high quality as to be unacceptably impaired by what is proposed. The area was one of transition from the commercial character of the business district of Southport to more established residential areas and the heavy volumes of traffic along both Scarborough and North Streets had, in his opinion, taken their toll. In any event the wall such as is here proposed could not be said to be something quite out of character in residential areas whether of low or high density. While I understand Mrs. Kerr's concerns I feel that the points made by Mr. Bell have considerable force and in relation to these matters I prefer his views. As to the effect of an increase in the level of activity by children on the site, Mrs. Kerr's concerns were supported by evidence from two adjoining residents who described difficulties encountered from noise and activity from the facility operating at its present levels. I do not doubt the sincerity of these witnesses but it was pertinent that each of these households had been afflicted with considerable misfortune in regard to the health of family members. It would be quite understandable if the "tolerance threshold" of these persons were correspondingly lower than "the norm". More to the point, however, is that their complaints are of activity at a facility which is operating with Town Planning approval. As has been explained in evidence called by the appellant, while the level in activity in areas near to and likely to effect adjoining residents will increase to an extent, -- 4 of 6 -- 5 this extent will not be a simple function of the increase in the number of children at the centre. Other areas are being allocated for outdoor play and the activity programmes of the children are carefully scheduled and controlled. Mrs. Kerr had to agree that on many accepted criteria (convenience of location, accessibility etc.) this site had to be judged as being a very suitable one. She also conceded that a pressing need for such facilities in the community can not be denied. Small children whose parents are unable to attend them on a "full time basis" must be adequately cared for in a situation which is regarded as being suitable by those entrusted with the task of assessing these matters. While the sounds of active and healthy children (even in considerable numbers) would not offend the majority of the community, there will inevitably be some who, for a variety of reasons protest. However, the balancing of conflicting interests is very much a part of Town Planning and when a balance is achieved it is not at all unusual that at least some interested parties are less than satisfied with the result. In my view this is such a case. A child care centre has established here and is operating in what appears to be a satisfactory way with considerable benefit to the community. The buildings in which it is located are under utilised. The proposal seeks to correct this and in my view the community benefit that will result should not be outweighed by professions -- 5 of 6 -- 6 of irritation by some adjoining residents. As to the matter of security of tenure of the adjoining land, the respondent's argument appeared to be based on difficulties which it might experience if the right to use this land were lost by the applicant and it was forced to call for a cessation in part of an activity which was considered to be of considerable community benefit. I was less than impressed by this argument. I doubt whether the chance of political discomfort for the respondent is a relevant and proper Town Planning consideration. If its regulations stand on a fair and reasonable basis (and one would presume they did) a Town Planning Authority should have no fear of insisting that these regulations are observed. However in any event, it does not appear to be a real basis in this appeal for such apprehensions on the respondent's part. In evidence that was not challenged the appellant's principal told me that if this proposal goes ahead, the probabilities are that it will be in a position to acquire the additional land. Having previously acquired land (the Tate Street site) which it was unable to use, it was reluctant to again commit itself until the future was more clear. I accept this. In all of the circumstances I find that the onus of showing that this application should be approved has been discharged. The appeal is accordingly allowed. -- 6 of 6 --