In brief

The case of IVL Group Pty Ltd & Anor v Redland City Council [2017] QPEC 73 concerned a development application for a material change of use to convert a public park into a landscaped carpark extension for an adjacent shopping centre.

The subject land had been dedicated to the State as a park, with the Council as trustee, under the conditions of the earlier approval for the adjacent shopping centre. Now located within the Open space zone under the Redlands Planning Scheme, the park was also shown as part of an "Urban Habitat Corridor" for the purposes of the Strategic Framework and as "Bushland Habitat" on the Habitat protection overlay map.

The appeal focussed on the public interest in removing a park with inherent CPTED (crime prevention through environmental design) issues and a history of anti-social behaviour as a ground to justify approval despite clear conflict with the Redlands Planning Scheme, in circumstances where the park contained ecological values of local significance and the community was adequately served by recreational facilities.

The Court noted that the proposed development "is of an uncommon kind and has an unusual history", ultimately dismissing the appeal and upholding the Council's refusal.

Conversion of park instigated by the Council to address a history of anti-social behaviour
Approximately 0.91 hectares in area, the park had been dedicated as part of the historical shopping centre approval to provide a vegetated buffer and pedestrian connection between the shopping centre and adjacent residential areas. However, the park had since developed a history of reports of problematic antisocial and criminal behaviour.

The Council encouraged IVL Group, the owner of the adjacent shopping centre, to acquire the land and amalgamate it into the centre's carpark. The Council subsequently resolved to surrender its trusteeship, the State and the Council provided written consent for the lodgement of the development application and IVL Group entered into a conditional contract of sale, notwithstanding that the existing shopping centre carpark was functioning without capacity issues.

Following local government elections, the Council changed its position within a month of the development application being lodged and, contrary to the Council officers' recommendation but consistent with a body of local resident opposition, refused the development application.

"A proposal to replace a park with CPTED problems with a carpark with CPTED problems"

The parks and recreation expert witnesses agreed the CPTED characteristics of the park were less than desirable, with one expert of the view that "it's hard to get a worse site".

The park was elongated in shape and sandwiched between an acoustic fence adjacent the rear service areas of the shopping centre on one side, and the fenced rear yards of adjacent dwellings on the other. As a consequence of its location, shape, considerable vegetation and poor lighting, there was limited, if any opportunity for casual surveillance into or within the park.

However, despite the documented history of anti-social and criminal behaviour within the park, there was disagreement between the experts as to the prevalence and seriousness of those behaviours. Interestingly, following the proposal to replace the park with a carpark, residents had either stopped complaining or reported that problems had diminished.

The experts further acknowledged that while the carpark would provide a more open area with greater opportunities for general activity, lighting and casual surveillance, there remained the potential for an array of different vehicle-facilitated or related anti-social behaviours including "hooning", which was known to occur elsewhere in the precinct.

The Court accepted that there was a level of continuing anti-social behaviour associated with the park due to its current configuration and management, and concluded that the development was "a case of a proposal to replace a park with CPTED problems with a carpark with CPTED problems" and the public benefit was to be weighed with other relevant considerations.

Park not needed to adequately meet the active and passive recreation needs of the community
The subject park was located adjacent to a full size neighbourhood park containing embellishments including children's play equipment, cleared kick-about areas and retained bushland habitat.

The parks and recreation expert witnesses agreed, and the Court accepted, that the catchment is well served by open space areas for active and passive recreation and the park, which was the subject of the development application, was not required to meet those needs of the community, either by itself or as part of an expansion to the adjacent neighbourhood park.

Park contained values of environmental significance that would be compromised were development to proceed

The ecology expert witnesses agreed that the park contained values that are of environmental significance, consistent with the site being mapped as "Bushland Habitat" on the Habitat protection overlay under the current Redlands Planning Scheme and as "Local Environmental Significance" on the Environmental significance overlay under the draft Redland City Plan 2015.

The evidence showed that the park supports a variety of native flora including at least 153 trees, of which 109 were identified as koala habitat trees, which provide habitat resources for a number of native fauna. The site also provided potential for fauna linkages and connections within the local and broader landscape.

Consequently, the Court found that the conflicts with the Habitat protection overlay were more than minor.

Court not satisfied public interest sufficient to warrant approval in the face of clear and significant conflict with the Redlands Planning Scheme

While the Court acknowledged the public interest in closing a park with significant CPTED deficiencies and a history of anti-social behaviour in a community well served by recreational open space, it nevertheless found that the proposal "squarely conflicts" with the Redlands Planning Scheme and runs counter to the reasonable expectations of the community.

The Court found the park to have a number of positive values, including legitimate informal daytime recreational use, a function as a buffer and physical separation from the shopping centre, visual relief, attractive visual character and amenity, and ecological values of local significance. If approved, those positive values would be lost in circumstances where an extension to the shopping centre carpark was not needed and would continue to have significant CPTED deficiencies.

In the circumstances, the Court was not persuaded that the public interest ground was sufficient to warrant a decision to approve the development application in the face of the clear and significant conflict with the Redlands Planning Scheme.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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