The case of McNamara-Healey Holdings Pty Ltd v Redland City Council & Ors [2025] QPEC 23 concerned an appeal by McNamara-Healey Holdings Pty Ltd (Applicant) to the Planning and Environment Court of Queensland (Court) against the decision of Redland City Council (Council) to refuse a development application for a material change of use for a 117 place childcare centre at Birkdale Road, Birkdale. 

The proposed development is a childcare centre with access via Birkdale Road. The development application is impact assessable and is to be assessed against version 10 of the Redland City Plan 2018 (Planning Scheme), with the site relevantly being within the Low Density Residential Zone and partly within the Community Facilities Zone (at [5]). 

The issues to be determined by the Court were as follows: 

• Whether there is a need for the proposed childcare centre (see [20] to [32]). 

• Whether the proposal is "small scale" and of a "house-like" and "house compatible" scale in the local context (see [33] to [57]). 

• Whether the proposal will cause unacceptable visual amenity impacts, and whether approval should be granted in the exercise of the planning discretion (see [47], [48], [58] and [61]). 

The Court allowed the appeal, set aside Council's refusal and approved the development application subject to reasonable and relevant conditions. 

Because the application was impact assessable, the Court assessed it against the assessment benchmarks in the Planning Scheme and could also have regard to "relevant matters", including need, under section 45(5)(b) of the Planning Act 2016 (Qld) (at [16]). 

The Court emphasised that the assessment involves a "broad and flexible discretion" where any noncompliance must be balanced against factors favouring approval (at [17]). It noted that "…blind adherence to a planning scheme is not appropriate…" as a degree of flexibility may better serve the public interest (at [19]). 

All economic experts agreed that there was a need for additional childcare places in the relevant catchment, but they differed on the scale of unmet demand, particularly beyond 2026 (see [20] to [31]). 

The Court accepted the evidence of the Applicant's expert that there was significant economic and community need for a further childcare centre and that, while demand may decline, the market would remain constrained absent the proposal (see [31] to [32]). 

Need was treated as a significant issue, but not a paramount one (at [32]). 

The site fronts Birkdale Road, a busy four lane road carrying approximately 24,000 vehicles per day, and the locality included nearby non-residential activity, including a commercial flower farm and a nearby commercial centre (see [4] and [13]). 

The Council accepted that there is no relevant noise, lighting or air quality impacts, leaving visual amenity and character as the real points of dispute (at [43]). 

A key contextual feature is the existing preliminary approval for a dwelling of similar footprint and built form on the site, which the Court treated as relevant to visual amenity and scale, though afforded it lesser weight given that it is a preliminary approval (see [4] and [36]).  

Within this context, the Court concluded the proposal is "house-like and house compatible" (at [56]). 

Under the Low Density Residential Zone Code in the Planning Scheme, whether the childcare centre is "small scale" is central. The Court accepted that "scale" involves both built form and operational intensity, including activity and traffic movements (see [34] and [37]). 

Despite acknowledging there is "no bright line" to be drawn as to whether a proposed non-residential use is or is not small scale, the Court found that the proposal's features, being a large building on a large lot, having 117 places, 22 staff and 37 car parks, did not permit a finding of "small scale" (at [57]). 

Even so, the Court considered it was effectively faced with a binary choice on the application before it, rather than approving a smaller facility (at [28]). It found substantial compliance with other benchmarks and the demonstrated need outweighed the single noncompliance, assisted by the comparison to a similar approval found in the case of Griffith Capital Pty Ltd v Redland City Council [2022] QPEC 21 (see [60] to [61]). 

Accordingly, the Court approved the development in the exercise of its discretion (see [61] to [62]). 

The Court allowed the appeal, having found that the reasons for approval of the proposed development outweigh that it is not "small scale", and approved the development application subject to reasonable and relevant conditions  

This decision confirms that, in impact assessment, a failure to satisfy a prescriptive benchmark like "small scale" in a low density residential zone does not always necessitate refusal. Where need is clearly demonstrated and the proposal is otherwise substantially compliant, particularly in a context already influenced by major road infrastructure and nearby non-residential uses, the Court may approve the development in the balancing exercise of discretion, subject to appropriate conditions. 

The following key matters are significant and important: 

• “Small scale” remains a meaningful constraint in low density residential zones, and the Court will examine both built form and operational intensity, including traffic and activity. 

• Demonstrated community and economic need can carry significant weight, even where longer-term demand projections are uncertain. 

• Existing approvals on the subject land (including preliminary approvals) may materially inform the Court's assessment of visual amenity, bulk and compatibility in context. 

• In an appeal, the Court is generally required to decide the application before it and not institute an alternative, which can sharpen the role of discretion once noncompliance is identified. 

• The decision reinforces that the Court's discretion under the Planning Act is broad, the Court will balance compliance with relevant assessment benchmarks, noncompliance, and relevant matters, and will not apply assessment benchmarks in the relevant planning scheme with "blind adherence".