Planning and Environment Court of Queensland approves a development application for a childcare centre in the low density residential zone

In brief

The case of Griffith Capital Pty Ltd v Redland City Council [2022] QPEC 21 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the deemed refusal by the Redland City Council (Council) of a development application made by Griffith Capital Pty Ltd (Applicant) for a material change of use for a childcare centre.

The development application sought a development permit to facilitate a childcare centre located in the low density residential zone (Proposed Development). The relevant planning scheme was the Redland City Plan 2018 (Version 4) (City Plan).

At the time of the hearing of the appeal, the Council opposed the Proposed Development on the grounds that it does not comply with the provisions of the City Plan relevant to built form and scale. The Court considered the issues that were in dispute between the parties and reached the following conclusions:

• The built form and scale of the Proposed Development is appropriate despite minor non-compliances with the assessment benchmarks.

• There is a need for the Proposed Development.

Court finds that the Proposed Development is substantially compliant with the relevant assessment benchmarks

The Council argued that the Proposed Development is inconsistent with section 3.4.1.8(4) of the Strategic Framework and a number of Overall Outcomes and Performance Outcomes in the Low Density Residential Zone Code (Code). The Council's reasons were that the Proposed Development is an inappropriate non-residential use because of its built form and scale (at [18]).

The Applicant argued that section 3.4.1.8(4) of the Strategic Framework is not relevant to the Proposed Development because the section only applies to shopping centres. The Court rejected the Applicant's argument and held that the plain meaning of the words and the context of the provision meant that the section is a relevant assessment benchmark for the Proposed Development (see [25] to [27]).

The issues for the Court to determine were as follows:

1. Whether the built form is of a house-like or house compatible scale and consistent with the local character as required under Performance Outcome PO30 and Overall Outcome OO6.2.1.2(2)(g) of the Code.

2. Whether the Proposed Development is small scale as required under Performance Outcome PO18 and Overall Outcome OO6.2.1.2(2) of the Code, and section 3.4.1.8(4) of the Strategic Framework.

The Court considered both of these issues in turn.

Built form is of a house-like or house compatible scale and consistent with the character of the locality

The Council argued that the Proposed Development would be recognisable as a non-residential development from the street frontages because of its bulk and scale, and therefore is not consistent with the character of the locality (at [41]).

The Applicant's visual amenity expert conceded that the building footprint of the Proposed Development is substantially larger than the low-density residential dwellings found in the locality given that it is twice the size of neighbouring buildings (at [80]). The Court held that the consequence of the building footprint was insignificant because the low density residential zone is intended to include dual occupancy dwellings under the City Plan (at [81]).

The Court held that the Proposed Development was of a house-like or house compatible scale. The Court's decision was relevantly informed by the plans and the visual representation of the Proposed Development, which demonstrated that the Proposed Development integrates into the setting of the locality and has no material visual impacts (at [82]).

The Court also considered whether the Proposed Development is consistent with the character of the locality. The Court agreed with the Council's visual amenity expert's definition of the locality as the area that is inclusive of the primary theoretical visual catchment and beyond to the perimeter roads, which the Court said "provide relatively robust delineations between the local area and the areas opposite" (at [56]). The Council's visual amenity expert opined, and the Court agreed, that within that area the character is that of typical suburban residential development, whereas beyond there were schools on large grounds (at [56]).

The Court held that the Proposed Development is consistent with the open and low density character of the local area as defined by the Council's visual amenity expert (at [84]). The Court also held that the Proposed Development is not the most visually prominent building within a context that has a varied and differentiated streetscape character (at [83]).

Proposed Development is not small scale 

The phrase "small scale" is not defined in the City Plan and the Court held that "[i]t is a relative phrase that calls for a factual determination having regard to the terms of the assessment benchmarks viewed through the lens of the local context in which the development is proposed" (at [94]). The Court rejected the Applicant's argument that whether a development is small scale is to be determined by its nature and not by its size, and instead found that scale is to be determined having regard to the built form, proposed use, and the context of the locality (at [94]).

Although the Court had held that the Proposed Development has an acceptable built form and was appropriate to the locality, the Court held that it is not small scale when the operating parameters of the proposed use are considered. The Court held that "[t]he provision of 23 car parks is demonstrative of a scale of use that could not be fairly regarded as small scale in the context of the Low density residential zone" (at [101]).

Court finds there is a need for a childcare centre in the locality as the Council and Applicant find common ground

The Council argued that there is not a need for the Proposed Development since, as conceded by the Applicant's economic expert, "…if [the Proposed Development] wasn’t constructed or approved that there would not be any one that could not get a child care place" (at [106]).

The Court held that "[a]lthough these concessions are relevant to an assessment of whether there is a need for the proposed development, they are not determinative of the issue" and went on to consider the Proposed Development against the following general principles that inform and guide an assessment of need (see [106] to [108]):

1. "Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire but relates to the well-being of the community" (citing Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 417-8 at [20]).

2. "Need is a relative concept to be given a greater or lesser weight depending on all the circumstances which the planning authority is to consider" (citing Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 at [20]).

3. "Whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors" (citing Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 418 at [22]).

Whilst there were some areas of disagreement between the economic experts, the Court found it unnecessary to decide on those matters given the following eight matters about which there was little, or no, disagreement:

1. The Proposed Development would be located 500 metres from the existing Bay View State School (at [113]).

2. The Proposed Development "…would provide enhanced choice, competition, and convenience" (at [114]).

3. There are no alternative sites within the local area, or beyond in the broader catchment area, that can accommodate a childcare centre unless an impact assessable development application was made and approved (at [115]).

4. The need for the Proposed Development was supported by the evidence of a co-director of the proposed operator, who had a proven "track record" (see [116] to [118]).

5. The Court accepted evidence that there are difficulties with existing providers in the local area and the broader community in that their facilities are dated or they are not meeting the national quality standards (at [119]).

6. There is a lack of availability at the existing centres (at [120]).

7. The population in the locality has grown rapidly (at [121]).

8. The Court accepted that the Proposed Development will not impact on the centres hierarchy or compromise any neighbourhood centres (at [122]).

The Court was therefore satisfied that there is a need for the Proposed Development (at [123]).

Court finds other relevant matters support the Proposed Development and exercises its planning discretion 

The Council conceded and the Court ultimately held that the Proposed Development is a modern, well-designed childcare centre and will provide residents with additional choice (at [127]). The Court was also satisfied that the built form of the Proposed Development represents an appropriate transition between the local area and the schools on the boundary of the local area (at [128]). The Court held that these matters, and that the Proposed Development was well located, were relevant matters that support approval (see [129] and [134]).

Conclusion

The Court allowed the appeal and approved the development application subject to reasonable and relevant conditions.