In brief

The case of Wormell Pty Ltd v Gold Coast City Council & Anor (No 2) [2021] QPEC 22 concerned a submitter appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Gold Coast City Council (Council) to approve on a community title scheme lot at Molendinar a development application for a material change of use for a dance studio, with the development application having been made to regularise an existing unlawful use of the premises.

The premises was approved for a warehouse use. The development application was for "indoor sport and recreation". The submitter operates a metal fabrication business that shares access and manoeuvring areas for the building in which the premises is located.

The two broad issues for the Court to determine were, firstly, whether the proposed use is "indoor sport and recreation" or an "educational establishment", and secondly, whether the proposed use complies with the Gold Coast City Plan 2016 (City Plan).

The Court dismissed the appeal for the following reasons:

  • The proposed use was for "indoor sport and recreation", being what was applied for in the development application (see [10] to [27]).

  • The development application complied with the Strategic Framework and Low Impact Industry Zone Code (LIIZ Code) of the City Plan (see [28] to [75]).

  • There were no relevant matters in support of refusing the development application (see [76] to [90]).

Proposed use was properly characterised as "indoor sport and recreation"

The submitter argued that the proposed use was not properly characterised as "indoor sport and recreation" but was more correctly characterised as an "education establishment", the consequence of the distinction being that an "education establishment" is an inconsistent use for the Low Impact Industry Zone in which the premises was included under the City Plan. The submitter argued that "educational establishment" was the correct use category because the educational component of the proposed use was central and not ancillary, and purely recreational dance was not proposed, and the proposed classes would involve education and training.

The applicant argued that the development application remained impact assessable and that the focus of consideration should be on the merits assessment of the activities constituting the use for which approval was sought rather than fitting the activities into a definition within the City Plan. The applicant and the Council argued that the proposed use was correctly categorised as "indoor sport and recreation" for the following reasons:

  • The proposed use was primarily for fitness and fun and not for specific formal qualifications. Education and training are only ancillary to the main activities of the dance school. The fact that a level of instruction may enable participants to go on to make a career in the field did not render the facility an educational establishment.

  • There was no evidence to suggest that the dance school teachers would be focusing on conducting exams or delivering structured classes by the Royal Academy of Dance.

The Court accepted the applicant's and the Council's submission that the proposed use was "indoor sport and recreation" because that conclusion was approached in a "practical and common sense way" (at [27]).

Proposed use complies with the Strategic Framework in the City Plan

The submitter argued that the proposed use compromised the planning intent stated in the Strategic Framework in the City Plan. In particular, based on the characterisation of the use as an "educational establishment" which the Court found was misconceived, the submitter argued that the proposed use was a sensitive land use and therefore the development application conflicted with section 3.2.2 of the Strategic Framework, which is concerned with addressing reverse amenity impacts arising from sensitive land uses being adversely impacted by industrial development.

The applicant's and the Council's town planning experts' evidence was that the proposed use was not in conflict with section 3.2.2 of the Strategic Framework "…as it is not a sensitive land use as defined; rather such a use [indoor sport and recreation] is one that by its inherent nature may impact on sensitive land uses" (at [33]).

The Court preferred the applicant's and Council's submissions and held that the proposed use would instead impact other sensitive uses because of the noise and traffic generated by the use and the hours of operation (at [43]).

The submitter also argued that the premises, which was within a General Industry Area under the City Plan because it was in the Low Impact Industry Zone, ought to be protected from encroachment and that only complementary uses should be accommodated, which the submitter argued the proposed use was not.

The applicant and the Council argued that the proposed use may be established within the General Industry Area if it cannot be catered for in other areas and will not compromise the long-term use of the relevant land for the intended industrial purpose. The applicant's and the Council's town planning experts' opined that the large floor area requirements for the proposed use, as well as the potential amenity impacts, meant that it was not readily catered for in other areas. The applicant also submitted that the Council had approved approximately 39 other development applications for indoor sport and recreation uses in low impact industry zoned land between 15 March 2016 and 18 September 2020.

The Court agreed with the applicant and the Council and held that the proposed use was permitted in a General Industry Area for the following reasons (at [57]):

  • The proposed use was not readily catered for within other areas because of its scale and nature, and amenity impacts on surrounding land uses.

  • The proposed use does not compromise the intended industrial purpose and long-term use.

  • Section 3.5.2.1 of the Strategic Framework of the City Plan contemplates indoor sport and recreation as a complying use, and the Court was satisfied that, in this instance, compliance was achieved.

Proposed use complies with the relevant assessment benchmarks in the LIIZ Code

The submitter argued that the proposed use did not comply with the purpose of the LIIZ Code, in particular section 6.2.9.2(1) the purpose of which was summarised in the Court's judgment as being "…to provide for service and low impact industrial uses as well as other 'support' uses where they do not compromise long term use of the land for industrial purposes" (at [58]), because the proposed use did not support the intended industrial uses.

The applicant and the Council argued that the LIIZ Code was to be read as a whole and "…in a way which is practical…and as intending to achieve a balance between outcomes" (at [65], citing the case of Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; (2014) QPELR 686). The applicant and the Council argued, with whom the Court agreed, that adopting that approach to the construction of section 6.2.9.2(2)(a) of the LIIZ Code sets out non-industrial uses which may achieve the purpose of the LIIZ Code, explicitly including indoor sport and recreation uses. The Court held that the proposed use complied with the overall outcomes of the LIIZ Code, and that even if there was non-compliance it would be technical or minor and the proposed use would not compromise the operation of industrial uses intended within the Low Impact Industry Zone (at [66]).

The submitter also argued that the proposed use did not comply with the overall outcomes of the LIIZ Code, in particular section 6.2.9.2(2)(a)(vi) which states that land uses "that are incompatible and have the potential to compromise the industrial operation of the zone such as sensitive land uses are not supported."

The Court accepted the Council's submissions, being that the proposed use "…is not a sensitive land use; its scale and nature is inappropriate for other areas; and the use does not compromise the long or short term use of the land for industrial purposes and can comfortably co-exist in the industrial area as it has done for six years" (at [75]).

No relevant matters supported a refusal of the development application

The Court did not find any relevant matters which supported a refusal of the development application. In particular, the Court held that the proposed use conformed with the community's reasonable expectations given that there was compliance with the relevant assessment benchmarks in the City Plan and were other approved dance studios in the Low Impact Industry Zone (at [85]).

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 2022.

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