In brief

The case of Richards & Ors v Brisbane City Council & Ors [2020] QPEC 26 concerned a submitter appeal (Submitters) to the Planning and Environment Court (Court) against the decision of the Brisbane City Council (Council) to approve a development application for a material change of use for a childcare centre located on land at 19 Melba Crescent and 56 Abbotsleigh Street, Holland Park (Subject Land). 

The Court dismissed the appeal finding that there was no meaningful non-compliance with the Brisbane City Plan 2014 (City Plan) and in the event that the Court was wrong, any non-compliance would be technical and of no planning consequence. 

Proposed development is ideally located

The proposed development comprised a two-storey childcare centre catering for up to 84 children and 13 staff, a basement providing 20 car parking spaces and a built form design similar in bulk and scale to two separate residential dwellings (Proposed Childcare Centre). The Subject Land is located on a road of suitable capacity to accommodate the anticipated vehicle movements generated by the Proposed Childcare Centre, and is located diagonally opposite Holland Park State School. 

Submitters alleged conflict with parts of the City Plan in relation to need and scale of the Proposed Childcare Centre

The Submitters alleged that the Proposed Childcare Centre is non-compliant with the following parts of the City Plan in relation to the need for, and the scale of, the Proposed Childcare Centre:

  • Low density residential zone code (Residential Code) – non-compliance with section 6.2.1.1(4)(k), which states that development "serves a local community facility need only".

  • Holland Park - Tarragindi district neighbourhood plan (Holland Park NP) – non-compliance with section 7.2.8.1.2(3)(g), which states that development must be of a "height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions" for the Subject Land and only be developed "at a greater height, scale and form whether it is both a community need and an economic need for the development".

  • Cooparoo and districts neighbourhood plan (Cooparoo Park NP) – non-compliance with section 7.2.3.10.2(3)(j), which states that development must be of a "height, scale and form which is consistent with the amenity, character and infrastructure assumptions" for the Subject Land.

  • Childcare centre code (Childcare Code) – non-compliance with section 9.3.4.2(2)(b), which states that development must be "compatible with the residential character and amenity of the zone".

  • Community facilities code (Community Code) – non-compliance with section 9.3.5.2(2)(b), which states that development must be "integrated or co-located with other community facilities where possible".

Court concludes that there is both an economic and community need for the Proposed Childcare Centre

The Court considered that the Residential Code required that the Proposed Childcare Centre serve "a local community facility need only" (at 6.2.1.1(4)(k) of the City Plan) and the Holland Park NP required "both a community need and an economic need for the development" (at 7.2.8.1.2(3)(g) of the City Plan). 

In determining whether there was a sufficient planning, economic and community need for the Proposed Childcare Centre, the Court accepted the evidence of two economists that the local catchment area has been undersupplied since 2016 and that the need for the Proposed Childcare Centre was more than sufficient to support the proposed development at a sustainable level. 

The Submitters noted another proposed childcare centre development in a nearby location at 920 Logan Road, which has had the benefit of a development approval since June 2016 but which had not been given effect to (Alternative Development). The Court concluded that given the leasehold nature of the tenure and the extreme uncertainty in obtaining finance for the Alternative Development, the Court was not satisfied that the Alternative Development would proceed to serve the identified need. 

Further, the Court had no doubt that the nearby Holland Park State School would generate sufficient community need for the childcare spaces generated by the Proposed Childcare Centre. 

Therefore, the Court concluded that there was both an economic and community need for the Proposed Childcare Centre, which was more than sufficient to support the development at a sustainable level.

Court concludes that the scale of the built form of the Proposed Childcare Centre is not in conflict with the City Plan

The Court accepted the unchallenged evidence of a visual amenity expert that the design of the Proposed Childcare Centre was compatible with the surrounding residential character and amenity of the zone and was appropriately located near to Holland Park State School. Therefore, the Court did not find any conflict with the Childcare Code and Community Code. 

The Court heard evidence from three town planning experts which considered the issue of the scale of the Proposed Childcare Centre. Two of the town planning experts addressed the issue of scale from the perspective of the proposed development's built form, and were of the opinion that the proposed development was consistent with the anticipated density and assumed infrastructure demand. 

However, the third town planning expert considered the scale of the use of the development and the anticipated number of people and cars present in the Proposed Childcare Centre during the day, and was of the opinion that the scale exceeded that which is contemplated by the City Plan. 

The Court also considered the relevant paragraphs in the City Plan and determined that the term "scale" in the relevant context merely refers to considerations of built form and not use, and therefore the Court accepted the evidence of the two town planning experts which addressed the built form of the Proposed Childcare Centre. The Court therefore found that the scale of the Proposed Childcare Centre was consistent with the requirements of the Holland Park NP and Coorparoo NP. 

Conclusion

The Court dismissed the appeal, and stated that there was no meaningful non-compliance with the City Plan, and in any event, if there were non-compliance it would be technical and of no planning consequence.

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 2020.

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