In brief

The case of Nadi Lane Projects 1 Pty Ltd v Brisbane City Council [2021] QPEC 5 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the deemed refusal by the Brisbane City Council (Council) of the Applicant's impact assessable development application for a material change of use for a childcare centre (Proposed Development) on land at 1019 to 1021 Waterworks Road, the Gap.

The Court determined the following issues:

1. Traffic and servicing impacts – Whether the Proposed Development had unacceptable traffic and servicing impacts arising from the location of the access driveway and the proposed refuse collection arrangement.

2. Local community need – Whether the Applicant demonstrated that there was a local community need for the Proposed Development.

3. Relevant matters – Whether the location of the Proposed Development, a local community need, a planning need, and the compliance with the applicable assessable benchmarks in the Brisbane City Plan 2014 (Planning Scheme) by way of conditions would justify approval of the Proposed Development.

Court finds that the Proposed Development did not provide safe access and would cause an adverse impact on the efficiency and safety of the transport network

The land the subject of the appeal is located opposite The Gap State High School and has frontages to Waterworks Road and Pammay Street. Access to the Proposed Development was only to be via Pammay Street. Along the Pammay Street frontage is a loading zone, which is a pick up and set down area for students who attend The Gap State High School.

In considering the impact of the traffic likely to be generated by the Proposed Development on the already congested Pammay Street, the Court considered the evidence presented by the parties' experts and accepted the Council's expert who observed that the peak hours in the morning for the Proposed Development were likely to coincide with, or at least considerably overlap, the Gap State High School peak hours and commuters' peak hours.

The Court further accepted the Council's expert's evidence that "there was 'just no opportunity' for vehicles to turn out of the proposed driveway into Pammay Street towards the intersection with Waterworks Road and that this could lead to a dangerous situation" (at [20]). The Court noted that egress from the Proposed Development during the peak hours would be problematical given the proximity of the proposed driveway to the traffic signals at the intersection with Waterworks Street. In addition, the loading zone would be shortened by the proposed driveway from 25 metres to 12 metres resulting in a loss of one vehicle space, which the Court found unacceptable.

The Court noted a further impact in the vicinity of the loading zone where eight wheelie bins had been proposed to be collected two to three times a week from the curb adjacent to the loading zone. The Court found that a development condition could not be imposed to ensure that the effectiveness of the loading zone was not further compromised by the regular presence of a number of wheelie bins.

The Court therefore concluded that the Proposed Development did not provide safe access and would cause an adverse impact on the efficiency and safety of the transport network. Further, the regular presence of wheelie bins would diminish amenity by impeding pedestrian access in the congested area, resulting in unacceptable impacts contrary to the relevant provisions of the purpose and relevant performance outcomes of the Transport, Access, Parking and Servicing Code in the Planning Scheme.

Court was not satisfied that there was a local community need for the Proposed Development

The Court noted that in calculating any demand for the Proposed Development, it was necessary to include approved but not yet available childcare centres and that based on the calculation by the Applicant's expert there would be a short supply of childcare places by 35 places in 2031, at which the Proposed Development would be likely to operate.

The Court noted that the demand for the Proposed Development was well less than half of 67 places which was proposed to be provided, and accepted the Council's expert that "any demand for additional places could be readily accommodated by incrementally increasing numbers at existing [childcare] centres." (at [27]).

Accordingly, the Court was not satisfied that there was a local community need for the Proposed Development as required by the relevant provision (section 6.2.1.1.4.k) of the Low Density Residential Zone Code in the Planning Scheme.

Court finds that the relevant matters did not warrant approval of the Proposed Development

The Court noted that any benefits flowing from the location of the Proposed Development were offset by the traffic and servicing impacts on Pammay Street. Also, the Proposed Development could not be conditioned to comply with the relevant assessment benchmarks in the Planning Scheme.

Conclusion

The Court dismissed the appeal.

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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