Isgro v Gold Coast City Council & Anor [2003] QPEC 2

[4] The property is within the Rural Residential Preferred Dominant Land Uses (PDLU) on the current, transitional Strategic Plan for Gold Coast City of February 1994. It is contained within the Park Residential zone. All adjoining land is designated Park Residential although there is a large section categorised as Public Open Space - General, one block to the west.

[5] A number of non-residential activities are, however, currently carried out on other properties facing Napper Road within 400m of the site. These include Arundel State School, and Parkwood-Arundel Community Centre on the opposite, northern side of Napper Road and an aluminium boat repair activity, a medical centre, and a child care centre on the same (southern) side. A second child care centre is located in Woodlands Way, one lot removed from Napper Road. The Arundel Hills Country Club golf course is located on the north-west corner of Napper Road and Arundel Drive. The closest non-residential or commercial activities are the medical centre, which is one block to the east, and the Club Junior child care centre, two lots to the west.

[6] The appellant's proposal involves the construction of a large single-storey child care centre containing a gross floor area of about 456m2. It would incorporate five activity rooms, a nursery, kitchen facilities, office, reception area, staff room and amenities, and represents a substantial development, providing for long-term use of the land for child care purposes.

[7] Entry is proposed along the eastern elevation of the building, via a driveway/vehicle crossover from Napper Road. Internal vehicle circulation within the site would be achieved by a standard driveway incorporating an internal T-intersection providing access to a car park at the rear of the premises, and a set-down/pick-up area on the eastern side. The centre is proposed to operate between 7 a.m. and 6.30 p.m. Monday to Friday, and involve approximately nine employees, engaged in the supervision of a maximum of 75 children.

[8] Under the Strategic Plan, Preferred Dominant Land Use designations and descriptions identify the spatial distribution, extent and characteristics of Preferred Dominant Land Uses in the scheme area. The Rural Residential PDLU is described in Part 1-8:

The Rural Residential designation comprises those areas where large allotment subdivisions have been created specifically for detached housing development. The Preferred Dominant Land Use is detached housing on large allotments which enable residents to enjoy a semi-rural lifestyle in a park-like setting.

Other development which may be suitable in these areas is limited to that which is directly related to residential development and that which complements the semi-rural lifestyle and which does not adversely affect residential amenity. Such development may include a private tennis court or the keeping of a pony, for example.

Development in these areas will be required to accord with the provisions applicable to the Park Residential zone.

[9] Two objectives are stated for the Rural Residential PDLU:

(a) To protect existing residential amenity and preserve a generally open space character;

(b) To limit the Rural Residential designation to existing areas.

It is intended that development in these areas be restricted to single dwelling houses and functions directly related to residential development. Home-based child care is specifically identified as an example of an acceptable function.

[10] Under s 4.2 of the 1994 Planning Scheme the subject site is zoned Park Residential and that section expresses the following Intent:

The intent of this zone is to implement the objectives of the Rural Residential PDLU in the Strategic Plan by protecting the development character of the existing Rural Residential areas and large allotment subdivisions predominantly located in Parkwood, Ashmore and Currumbin. Accordingly it is intended that land included in this zone will not be further subdivided and development will be primarily limited to single or dual occupancy dwellings on large allotments.

The range of permissible development in this zone will be restricted to development which provides a service to the area or which is directly associated with, and subordinate to, the dominant residential development. Such development will be limited under any approval granted by the Council to a scale that is compatible with the residential development in this zone.

[11] Within the Table of Development for the Park Residential zone, a child care centre is a Permissible Development, under Column 3. As permissible development, this application required the consent of Council and was impact assessable.

[12] Under s 17.2 Council was obliged to take various matters into consideration including:

17.2.2.2 (i) whether the proposal would create a traffic problem or increase an existing traffic problem, and whether adequate provision has been made for the safe and efficient movement of pedestrians and cyclists.

(xxi) whether there is sufficient need and demand for the proposal.

17.2.2.3 Without limiting the discretion of the Council in respect of any application for its consent, the Council may refuse the application if the proposal conflicts with, or fails to comply with any of the criteria contained within provision 17.2.2.2.

[13] The issues are need, and traffic. In respect of the latter, Council's original objections had narrowed, by the time of the hearing, to two matters: whether egress onto Napper Road allowed drivers sufficient sight line to and from the vehicles travelling west on that road; and, whether the development would create circulation problems in the surrounding road structure.

[14] On the issue of need the respondent Council, when it came to consider this application, had a report from its planning officer, Ms Lorna Scally. She related concerns amongst submitters that there was no need for another childcare centre in the Parkwood/Arundel area, and that it would affect the viability of existing centres. Nevertheless, she recommended approval of the application, saying:

It is considered that the role of the role of the town planner is to determine whether a childcare centre would represent an appropriate use of subject allotment having regard to the proposal's level of compliance with Council's planning scheme and not to restrict development opportunities merely on the basis that a favourable recommendation could potentially impact upon the financial viability of existing service providers.

Analysis of the economic impact of a proposal is considered applicable particularly in the assessment of large scale development and/or uses which are prohibited in the zone, where approval of such uses could potentially prejudice or undermine the balance of zones or the integrity of an area (e.g. the location of a shopping centre development outside a major business centre) or lead to a demonstrated over-supply or proliferation of such larger scale developments. However, such an analysis is not considered to be critical for the purposes of a childcare centre, which in this case is identified as "permissible development" pursuant to the Table of Development of the Park Residential zone and is consistent with the intent of Council's Strategic Plan.[1]

[15] Council rejected that advice and its decision notice to the applicant of 15 April 2002 gave these reasons for refusal:

(i) that having regard to the provision of other childcare facilities in the area the applicant has not in the opinion of Council demonstrated sufficient need and demand for the proposed childcare centre;

(ii) that the increased traffic would be likely to have a detrimental effect on vehicular and pedestrian safety.

[16] In the course of this appeal Council provided further and better particulars of its stance on the need issue[2] and, in those particulars:

(a) identified and listed 29 childcare facilities within a five-kilometre radius of the land; and

(b) asserted those providers adequately served the area; and, that approval of the proposed development would not add to the convenience, needs or range of services available to residents of the area or those who worked there; nor, "make good any negative impacts it has on existing childcare centres in the area by reason of its approval".

[17] I was provided with reports and heard evidence from town planners (Mr Grummitt, and Mr Van As), traffic engineers (Mr Beard, and Mr Viney), and experts who described themselves, variously, as economists and "urban economic geographers" i.e., experts on the question of need: Mr Coghlin, and Mr McCracken. Evidence was also called from three persons involved in the operation of childcare centres in the area: Messrs Patel, Edmondson, and Balson.

[18] It is for the appellant to establish the appeal should be upheld[3] and he carries the onus of demonstrating that there is sufficient need and demand for the proposal, in the face of existing childcare facilities in the area.

[19] This Planning Scheme raises the issue of need in two ways: first, s 17.2.2.2(xxi) directs the Council to consider whether there is sufficient need and demand for the proposal; and, in the statement of intent for the Park Residential zone provides, in s 4.2:

The range of permissible development in this zone will be restricted to development which provides a service to the area or which is directly associated with, and subordinate to, the dominant residential development.

[20] In Watts & Hughes Properties Pty Ltd v BCC (1998) QPLR 273 at 275 the Court said:

Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire. A thing is needed if its provision, taking all things into account, improves the physical well-being of the community (see Cut Price Stores Retailers v Caboolture Shire Council (1984) QPLR page 126 at 131). Need does not connote a pressing urgency but relates to the well-being of the community. A use would be needed if it would, on balance, improve the services and facilities available in a locality (see Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD page 58 at page 60).

[21] Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community (Fitzgibbons Hotel Pty Ltd v Logan City Council (1997) QPELR 208 at 213; Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193 at 198C). Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met (Indooroopilly Golf Club v BCC (1982) QPLR 13 at 32-35, William McEwans Pty Ltd v BCC (1981) 1 QPLR 33 at 35).

[22] The question whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors: Sempf v Gatton Shire Council (1997) QPELR 198, at 199-200; Arksmead Pty Ltd v Gold Coast City Council (1989) QPELR 322 at 330. Nor is the impact of a proposed development on existing like businesses a matter which is to be taken into account adversely to the proposed new facility unless, as Ms Scally noted in her report, the extent of competition will cause an overall adverse effect on the extent and adequacy of facilities available to the community: Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, at 687.

[23] Any possible adverse effects on an existing business will only be relevant to the extent that there is a risk of a reduction in the level of services enjoyed by the community by depressing one provider, and not replacing it with another: Zieta No. 59 Pty Ltd v Gold Coast City Council (1987) 2 Qd R 116, at 120; Whitehead v Hervey Bay City Council (1999) QPELR 131, at 132. Indeed, providing competition and choice can be a matter which also provides for a need, in the relevant sense: Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193, at 198.

[24] The weight to be given to the question of need, in assessing the merits of an application, is not fixed. As Moynihan J said in Intrafield Pty Ltd v Redland Shire Council (2001) QCA 116, at para [20]:

**...**Need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account.

In some instances public or community need for a service or facility may not be great, and other considerations may be of greater moment.

[25] It is also relevant to have regard to the nature of the proposed development. In Harburg Investments Pty Ltd v Brisbane City Council [2000] QPEC 32; (2000) QPELR 313, the Court said at 317:

(25) To state a truism, in assessing need when a development is being proposed, one must bear in mind the nature of that development. What is proposed here is not a specialised development such as a liquor barn, a hardware house, a hospital, a cinema complex or the like which attract custom from people with one specific purpose in mind. In such a case one would look more critically at the availability of like institutions elsewhere in reasonable proximity to the site. The benefit of more competition and choice would seldom justify having two liquor barns, two hardware warehouses, two hospitals or two cinema complexes cheek by jowl.

(26) However, less stringent tests would apply in a case such as this, where convenience retail centres are under consideration. Stress must be paid on the convenience to the likely patrons of those development. Some patrons will prefer to visit one centre rather than another for idiosyncratic reasons which may relate to such things as the perceived convenience of access, the "atmosphere" of the development, the range of goods and services available and the personalities of the people employed there. While the access to this site is not entirely convenient, many may prefer it to negotiating the heavy traffic likely to be encountered in the Aspley business centre; the "atmosphere" at the proposed centre is likely to be more relaxed than at the Hypermarket or other business centres (including the centre where the Harburg premises are); the range of goods and services to be offered at the Ecovale development are at this stage undefined, other than a convenience store, but it is likely that there will be a mix which will particularly suit and attract some patrons; friendships of greater or lesser degrees are likely to be struck up between patrons and those who work there. It is in this sense that convenience, and thus need, should be judged and in my view it is probably that a need will be filled by the establishment of this small convenience centre for many of those people who live in the catchment areas identified by Mr Abnett, the economic consultant who was called by Ecovale.

[26] This Court has been prepared to find that a need exists, despite the presence of similar businesses in the locality. Generally speaking, however, those decisions have been confined to circumstances where the proposals were likely to provide benefit by way of a greater level of convenience to patrons: Harburg Investments (supra); Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143. At the other end of the spectrum are cases in which such facilities as a new service station, or cinema complex would add to a consumer's area of choice but not noticeably improve the wellbeing of the community, or improve the services and facilities available in a locality where existing businesses plainly met demand: Prime Group Properties Limited v Caloundra City Council [1995] QPLR 146, at 150; and, Queensland Investment Corporation v Toowoomba City Council [2000] QPELR 362.

[27] As to the question of the weight to be ascribed to need here, while this is a development of a "special" kind with a specific purpose, suggesting the issue should be looked at fairly critically (as Skoien SDCJ suggested in Harburg (supra)) the proper care of children, and the provision of adequate facilities for that purpose are of manifestly greater importance, and of a more critical kind for the wellbeing of an important group in the community (parents of young children), than such things as service stations, liquor barns, hardware houses and cinemas, or the like. On any view, the existence or otherwise of a latent unsatisfied demand for childcare facilities is a matter of greater significance to the community than, say, having to drive a few extra miles or minutes to fill a car with petrol, or reach a cinema complex. The presence of other existing child care centres in the area of the proposed development, and the competition it might provide to them, is to be considered in this light.

[28] Relevantly, too, need is but one of a large number of issues Council is required to consider in an application of this kind and is not, on any view, paramount. In the context of this scheme, its proper position in the spectrum of matters of greater or lesser importance was fairly set out by Council's own planner, Ms Scally, in the passage already transcribed at para [14]: i.e. unless approval of the proposal is likely to have an obvious detrimental effect, need is a matter of relevance, but no great moment. Here, where the proposed development provides an important service to the community, is permissible in the area in which it is to be located, and is largely consonant with surrounding facilities, need is not a matter to which great weight should be given. In particular, it was not incumbent upon the applicant here to establish existing facilities were inadequate, or that approval might potentially impact upon them. Rather, it was only required to show that, in the existing marketplace there was still a reasonably apparent, discernible need for extra childcare places.

[29] When a Council comes to consider issues of this kind, it is a relevant matter that nothing in the legislation suggests local authorities are intended, or required, to actively manage and oversee private enterprise in their areas, or assume a planning role which requires them to protect existing businesses from competition. There must, too, be some reasonable, practical limits to the quality and detail of information an applicant must adduce to satisfy a Council about the matters raised, here, under s 17.2.2.2, and .3. As Skoien DCJ recognised so long ago as Cut Price Stores Retailers & Ors v Caboolture Shire Council (1984) QPLR 126 at 131, an obligation to provide information about the likely economic impact of a proposed development upon similar existing businesses could, strictly speaking, involve crippling amounts of time, and money. For these reasons need has never been defined, in this jurisdiction, as reflecting an economic imperative, or one which (by extension) requires an applicant to establish an overwhelming demand by means of very strong supporting evidence: Cut Price Stores Retailers (supra) at 131; Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58 at 60; William McEwans Pty Ltd v Brisbane City Council (1981) 2 APAD 165.

[30] Within those parameters the central question is whether or not there is evidence of an existing, latent unsatisfied demand of the kind discussed in Queensland Investment Corporation (supra, at 373) and Arksmead Pty Ltd v Council of the City of the Gold Coast [2000] QPELR 285.

[31] Like Intrafield (supra) at first instance, this case involved significant disagreement between the experts about that question. Much of the argument between them (Messrs Coughlin, and McCracken) was highly technical and did not, in the upshot, do more than show that attempts to measure demand for the services of childcare centres are necessarily based on uncertain information about which highly qualified and experienced experts might disagree. Of some assistance was the fact that consensus was reached about two relevant matters. First, those experts agreed that, in looking at available facilities, the parameters used by the respondent in its further and better particulars (a radius of five kilometres) were too wide and attention should, rather, be paid to the Arundel/Parkwood area alone which effectively contained, within its boundaries, seven other centres (with another two just outside it). Second, attempts to measure latent demand are clouded both by the unreliability of statistical information and because that demand is, by its nature, concealed.

[32] Cross-examination of both economic experts revealed some errors or uncertainties of calculation, or disputed interpretation of information from other sources and I was led to conclude that Mr Coughlin's estimates of likely present and future demand might be too high but Mr McCracken's were, conversely, unduly pessimistic about the scope of existing facilities to cater for demand either now, or in the future.

[33] Three matters pointed quite strongly, in my view, to the conclusion that existing need was not being fully met, and a latent demand existed.

[34] The first arose from an inspection of the site and the surrounding Arundel/Parkwood district. I saw areas within the obvious catchment area for the proposed centre where intensive, large-scale home construction is proceeding at the present time and, plainly, will proceed in the future. I accept the evidence of Mr Grummitt that large-scale future development is likely. It was very clear the area is continuing to grow quite rapidly, and it is far more probable than not that it will continue to do so in the future.

[35] Secondly, the evidence showed that while no new childcare centre has opened in the surrounding area since 1995, the total population has risen from 4,346 in 1991 to 11,196 in 1996, and 16,117 in 2001; and, continues to grow apace.

[36] Third the evidence of those experts, and the three witnesses who operate existing centres, showed that while occupancy rates for different age groups (and most childcare centres measure vacancies by reference to quite precise age groups between babies of one day, and pre-schoolers of six years, usually divided into six, or seven categories) vary at different times throughout the year, demand in the centres conducted by the three lay witnesses has risen considerably with the passing years and occupancy is, generally, now well over 70 per cent.

[37] The weight of this evidence clearly showed that for families living in the area, or moving into it with young children wanting places at a centre, there could be no certainty that a vacancy would be found. Rather, those parents are likely to have to search through a number of centres, may well be compelled to go outside the area to find a suitable vacancy and, at best, might only find vacancies for some specific age categories on some particular days which may not, of course, suit their convenience. Certainly vacancies exist in some age categories in existing centres on some days, but on any view, present supply is limited, and uncertain. In the context of the ordinary meaning of the word "need" it is impossible to see why, in those circumstances, it cannot be said that there is both need, and present and likely future demand for more places, on more days.

[38] Ultimately the co-respondent's economic expert Mr McCracken was compelled to agree that the existing statistics and data were so inherently uncertain, and unhelpful that it was "...very difficult to tease out various factors and indices" and any conclusions were, ultimately, a matter of "professional judgment"[4]. Statements of that kind illustrate the difficulties which confront local authorities attempting to fairly exercise the kind of discretion which arises under s 17.2.2.3, but the plain evidence, discussed above, should have impelled Council towards the conclusion I have reached, and whatever tests it did apply in exercising the discretion (and its deliberations are not disclosed) were too stringent. I am satisfied there was, at the time the application was made, and remains, sufficient need and demand for the proposal.

[39] For the sake of completeness, it is also clear that the proposed development accords with the requirements of s 4.2 of the Planning Scheme in that it provides a service to the area which is directly associated with, and subordinate to, dominant residential development. Indeed, as appeared on inspection, this area of Napper Road is already, in large measure, devoted to education and child care and the proposed centre would not present as inappropriate, incongruous, or discordant with surrounding development. The large State school on the northern side of the road, and other nearby childcare centres give the vicinity the immediate impression of an area devoted to young children, and their care and education. I agree with Mr Grummitt's conclusion that a significant benefit offered by the proposed facility is one of convenience because of co-location in the vicinity of the Arundel State School, one of the largest in the region[5].

[40] The evidence of Mr Viney, and Mr Beard concerned two putative detrimental effects on vehicular and pedestrian safety in the area. So far as sight distance is concerned, both agreed that, at the point of departure from the proposed development both the driver of the departing vehicle, and the oncoming vehicles, should ideally have a sight distance of about 85 metres. Mr Beard believed that could be attained by trimming some existing trees but as Mr Viney's evidence showed, at busy times at the school vehicles parked on Napper Road might inhibit that line of sight. This seemed to occur principally, during afternoon peak times.

[41] At that time, however, a speed limit of 40 kilometres per hour pertains and traffic will, generally, be very slow moving, as dictated by the movement of vehicles stopping briefly and collecting children, and the constraints of the nearby roundabout. In light of those matters, I was not persuaded this evidence created a serious safety issue.

[42] As to access to the centre generally, all traffic using it would be restricted to a left-turn entry but one half of these entry traffic movements (and exit movements) will approach and leave via U-turns in Napper Road. Departing vehicles will be able to perform a U-turn via the roundabout at Arundel Drive. Arriving vehicles would need to make a U-turn at an unsignalised median break for primary school access without the benefit of a right-turn lane (so they would hold up following traffic); or, by performing a U-turn at the Woodland Way signalised intersection where a right-turn lane has been constructed in the median.

[43] Strictly speaking, however, because that intersection is signalised and U-turns are not permitted by any sign, they would currently be illegal. Mr Beard said, and I accept, that when he visited the site however he noticed a number of motorists approaching a nearby medical completing their U-turns at Woodland Way. Sight distances are good at the intersection and U-turns could simply be permitted irrespective of the proposed development because that is a much safer option for visitors to the medical centre, or ultimately, the proposed development.

[44] Of course neither the respondent nor any other authority can be compelled to undertake these works[6] but it is to be hoped responsible authorities would take note of the suggestions made by Mr Beard, and Mr Viney.

[45] The respondent properly conceded that these traffic issues were not, in themselves, sufficient to result in refusal of the application but argued that, if approved, conditions should be attached that the use not commence unless and until the applicant obtains approval for the works identified by Mr Viney[7] but that course is inappropriate where the respondent's position, in terms of any compulsion to perform those works, is uncertain, or unavailable. I was satisfied from Mr Beard's evidence, which was direct, practical and helpful, and impressions formed on an inspection of the site, that increased traffic is not likely to have a detrimental effect on vehicular and pedestrian safety or, at least, one sufficient to warrant refusal of the application. Both he and Mr Viney suggested simple, and obviously quite inexpensive, changes to the surrounding traffic system which would successfully alleviate any residual concerns to which the proposal gives rise.

[3] Integrated Planning Act, s 4.1.50(1)

[6] Jones Flint & Pike Pty Ltd v Maroochy Shire Council [1999] QPELR 434