Planning and Environment Court of Queensland exercises discretion to approve a childcare centre despite non-compliance with the planning scheme

In brief
The case of Wu & Kuo Childcare Pty Ltd & Anor v Brisbane City Council & Anor [2022] QPEC 27 concerned a submitter appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Brisbane City Council (Council) to approve a development application for a childcare centre servicing 70 children on land (Subject Land) located in Lister Street, Sunnybank (Proposed Development).

The Subject Land is in the Low Density Residential Zone (LDRZ) under the Brisbane City Plan 2014 (version 19) (City Plan). The Court considered the following issues in deciding the appeal (at [6]):

1. Compliance – Whether the Proposed Development complies with Overall Outcome 4(k) of the Low Density Residential Zone Code (LDRZ Code).

2. Economic Impacts – Whether an approval would have an adverse effect on the extent and adequacy of childcare centres available to the community, and make good any adverse economic impacts.

3. Discretion – Whether the planning discretion ought to be exercised in favour of approval in light of the findings made in relation to Compliance and the Economic Impacts.

Ultimately, the Court upheld the Council's decision and approved the development application subject to conditions, because the Court found that although the Proposed Development did not comply with the LDRZ Code, the planning discretion ought to be exercised as the Proposed Development struck an appropriate balance between meeting an identified need as against protecting the character and amenity of the LDRZ.

Court finds that the Proposed Development does not comply with the LDRZ Code

Overall Outcome 4(k) of the LDRZ Code requires a consideration of the following two issues:

1. First issue – Whether the Proposed Development will serve a local community facility need only.

2. Second issue – Whether the Proposed Development is of a bulk and scale that is compatible and integrates with the built form intent for the zone.

With respect to the first issue, the Court found that a need had been established for an additional childcare centre approval (at [59]), and that the Subject Land is very well located and parents may regard the relevant part of Sunnybank as attractive and convenient for a multi-purpose trip (at [53]). However, the Court found that this need is one for a wider community, and thus there is non-compliance with the requirement in Overall Outcome 4(k) of the LDRZ Code that the Proposed Development "only" serve a local community facility need (at [59]). The Court found the nature of this non-compliance to be serious, but held that it could be mitigated for the following reasons (at [60]):

1. The Proposed Development will support the needs of the local community in terms of convenient access to important social infrastructure.

2. The Proposed Development can be conditioned to ensure that there will be no unacceptable impacts on the character and amenity of the local community and to strike a balance between need and residential amenity.

With respect to the second issue, the built form intent anticipated by the LDRZ Code is that of "low rise, low density buildings in green landscaped areas". The Court found that whilst landscaping will be provided, to say that the carpark proposed as part of the Proposed Development and in front of the structure will present as a green landscaped setting "is to employ exaggeration" (at [38]). 

Further, the Court found that the proposed car park is not "small-scale" and therefore did not comply with the purpose of the LDRZ Code (at [39]). However, the Court concluded that this was a minor non-compliance because the LDRZ has mixed character and amenity which is more resilient to impacts from non-residential uses (at [41]). Therefore, the Court held that the Proposed Development would be consistent with and would support the existing mixed character and amenity of the area, and could be conditioned to appropriately manage adverse impacts on character and amenity.

Court finds that approval will not have any adverse economic impact

The Appellants argued that the Proposed Development would have an adverse economic impact on existing and approved childcare facilities in Sunnybank. In considering the economic impact, the Court held that "[c]ompetition will be relevant where it has the potential to have an adverse effect on the extent and adequacy of facilities available to the public, which would not be made good by the development seeking approval" (at [72]). The Court held that competition is meant to be examined from the public perspective and approvals of nearby facilities are relevant to this assessment (at [72]).

The evidence established that the economic impacts of the Proposed Development would not result in a diminution of services available to the public because impediments to the activation of nearby approved facilities were already facing other difficulties. The Court found that the market was supply constrained and in need of further long day care facilities, which the Proposed Development is well located to meet and where it can be conditioned to ensure it will have no unacceptable impacts on the character and amenity of the area (at [76]).

Court finds that the planning discretion ought to be exercised

The Court observed that "[t]he planning discretion to be exercised is a 'broad evaluative judgment' where non-compliance with an adopted planning control is a relevant fact and circumstance, but does not mandate refusal" (at [7]). 

The Court commenced its consideration of whether it ought to exercise the planning discretion by observing the way in which childcare centres are recognised in the City Plan. The Court observed that the City Plan "recognises there is a legitimate community need for childcare centres" and that they are relevantly anticipated in residential zones, but not without qualification. 

The Court observed that for development in the LDRZ, the LDRZ Code identifies the issues to consider as being accessibility and locational factors, traffic impacts, character and amenity impacts, and a zone specific control intended to limit the form and function of non-residential uses to protect the integrity of the zone, which is set out in Overall Outcome 4(k) (at [78]). Here, all of the factors were uncontroversial, apart from the zone specific control stated in Overall Outcome 4(k) of the LDRZ Code.

The Court accepted that the zone specific control stated in Overall Outcome 4(k) of the LDRZ Code is not complied with because the Proposed Development is not consistent with the scale of development anticipated in the LDRZ, and will serve a need that goes beyond that anticipated for the use in the LDRZ (at [80]). However, the Court held that although non-compliance with the City Plan is a reason deserving significant weight, it was to be balanced against the following four countervailing considerations pointing in favour of approval (see [82] to [88]):

1. The Proposed Development has a high degree of compliance with the City Plan, particularly given that it is located and designed to be conveniently accessible to users, maintains traffic safety, and is compatible with the existing residential character and amenity of the area.

2. The Proposed Development can be conditioned to ensure that it will not have an unacceptable impact on the amenity and character of the area.

3. The non-compliance with the LDRZ Code does not create any unacceptable planning consequences and does not undermine the underlying planning purpose for Overall Outcome 4(k) of the LDRZ Code. The Proposed Development does not compromise or adversely affect the amenity of the relevant part of the LDRZ.

4. The Proposed Development is in the public interest, especially where the evidence suggested that the community has an inadequate supply of long day care facilities to meet its needs.

Ultimately, the Court held that the planning discretion ought to be exercised because the Proposed Developed struck an appropriate balance between meeting an identified need in a highly accessible and convenient location against protecting the character and amenity of the applicable zone.

Conclusion

The Court dismissed the appeal and upheld the Council's decision to approve the development application. The parties were ordered to prepare conditions that reflect the changes recommended in the joint reports prepared for the appeal.