Tadpoles Early Learning Centre v Noosa Shire Council & Ors [2008] QPEC 9

[3] David Low Way is an arterial road and the major spine serving coastal communities from Mudjimba to Noosa. Pacific Avenue is a lesser, but also important road serving Sunshine Beach, the well known beach township between David Low Way and the sea. The intersection of these two roads is highly developed with signs, road markings and the like, and is channelized.

[4] To the west, on the other side of the David Low Way and on the western side of a road called Ben Lexcen Drive is a precinct designated for community and recreational uses and containing a shopping centre and, relevantly, schools and child care centres. Ben Lexcen Drive forms part of a recently improved road system which provides increased accessibility between Sunshine Beach and the suburbs to the west (Noosa Heads, and Noosaville).

[5] The appellant's proposal involves a child care centre in a single storey building. It will provide for 63 child care places with accompanying carparking and set-down area, landscaping, children's play area, turf, shading over play areas, seating, boundary walls, fences and the like. The proposed hours of operation are weekdays, 7:00 am - 6:30 pm. The plans prepared by the architect who designed the premises show a low-rise development of a relatively low-key nature which is not particularly discordant with the surrounding residential development. The carpark and set-down area is at the southern end of the site, nearest the two residences adjoining on that boundary. That proximity is a matter which excited some evidence about noise, visual amenity and landscaping.

[6] Relevant to any analysis of local planning law (and issues of need for community facilities of this indubitably important kind) in an appeal of this kind is the number and location of existing child care centres. Research undertaken by the witnesses called in respect of need (Mr Coghlin and Mr Norling) led to agreement that there are presently 16 long day care centres within the Shire, offering a total of 931 places. Mr Coghlin concluded that available information showed there was a 'significant' community need for a development of the kind proposed, while Mr Norling described the level of the need as 'between minor and significant'.

[7] The experts did agree that what they termed the 'service area' for this proposed centre would include a variety of beach suburbs stretching from Peregian in the south to Noosa Heads in the north. Significantly, only three established centres are located within that area and all three are in or near Ben Lexcen Drive. Another proposed centre associated with the St Thomas More Catholic primary school in that locale, offering 75 places, is likely to proceed. All are in the vicinity of the 'community services' area shown on the maps forming part of Council's planning scheme.

[8] The Court-ordered meeting of the town planning experts and a mediation under the auspices of the Court's Registrar (P&E/ADR) led to a consensus that the planning issues at trial, arising in the context of the relevant planning scheme and general town planning principles, were:

(a) conflict with the intent of the planning scheme;

(b) whether or not there is sufficient planning need for the proposed child care centre; and

(c) expectations of the community and intangible amenity issues.

[9] While some of the agreed amenity issues concern things like traffic and noise which require a separate discussion, others raised by Council like the character of the proposed development, the question whether or not its design and structure will clash too vividly with surrounding residential development, and its position in the face of community expectations are all matters which, upon closer examination, prove to have little substance.

[10] The architects' and landscapers' drawings and sketches and evidence about the proposed design were persuasive that, while the centre would not present as a residential structure, neither would it be seriously discordant with surrounding residential development. Indeed, the evidence of those experts manifested a high level of concern to avoid conflict of that kind.

[11] It is also material that the land has been vacant for many decades. The expert witnesses agreed it is now unlikely that any form of dwelling house will be constructed upon it. There is a possibility of use for multiple dwelling buildings but that would also be inconsistent with the planning scheme. The fact nothing of that kind has ever, apparently, been proposed for the land tends to confirm its improbability.

[12] Other factors germane, I thought, to the question of amenity were the location of the site on busy roads, and at the very edge of a residential area with a mixed housing and units character. In the 1970s the site was actually the subject of an approval for a petrol station and caretaker's residence; that is still the sort of use which, on inspection, suggests itself for the site. It simply does not present as presently suitable for residential purposes, whether single or multi-unit.

[13] Suggestions of inconsistency between a proposed development and community expectations, and the concept of amenity, involve inevitable reference to the decision of the Full Court in Broad v Brisbane City Council [1986] 2 Qd R 317. There two members of the Court (Thomas J and de Jersey J (as their Honours then were)) remarked upon the intangible elements of the concept of amenity. In particular, de Jersey J said at 326, in an oft-quoted passage:

... the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident's subjective perception of his locality. Knowing the use to which a particular site is or may be put, may effect one's perception of amenity.

It is important to remember, however, that Broad's case involved the proposed rezoning of residential land to permit the construction of what the trial judge described as a 'very large building indeed, one which is quite out of character with the other buildings in the neighbourhood' in an area which had, as he also said '... the general appearance of a quiet street of detached houses'.[3] That is a long way from what is proposed here, both in terms of the structure the appellant seeks to build, and the nature of the immediate surrounding area.

[14] A number of submissions were received by the local authority which were opposed to the proposal and these, too, fall to be considered in the context of generally inchoate issues like amenity (although they also have a connection with the issue of community expectation). These important issues, their analysis and the weight to be given to them were, with respect, very helpfully analysed and considered by Dodds DCJ in Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112. His Honour said at p12:

[40] A person's right to put their land to any lawful use they wish is, in these more enlightened times, tempered by town planning considerations, one of which is amenity. Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness ... Proposed development will often affect existing amenities. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity.[4] The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject ... (emphasis added)

[15] In light of the factors mentioned earlier touching this property (both historical, and current) it is difficult to see how any reasonable analysis of the various factors now affecting this site, and its designation under the current planning scheme, could have led to an expectation that it would necessarily be developed for ordinary residential purposes.

[16] As will be seen from the discussion later there is not, in truth, major conflict between this proposal and the current planning scheme, and traffic and amenity issues may be overcome. When that is appreciated, questions to do with amenity and community expectation, while important and necessitating earnest consideration, do not present as sustainable grounds for refusing this development.

[17] Both of the experts called in respect of the question of need spoke of it in 'community' terms, which accords with the apparent focus of the language of the planning scheme; and, in that sense, the word means the same thing as the phrase 'planning need'. I found Mr Coghlin's evidence about the level of need for a facility of this kind, which he said was significant, persuasive. His statistics show that in the last full year of operation the existing child care centres were at effective full occupancy for a good proportion of the time. He also found that 80 percent of children ordinarily live within about a three kilometre radius of a centre.

[18] This finding suggests that many of the existing centres in the Shire are an excessive distance away from parents in this particular service area. There is no doubt the site is convenient to that area, and nearby educational institutions. This evidence, and these factors, indicate that need exists in the relevant sense - and, indeed, that if there is conflict with the planning scheme it is a factor which may assist the appellant to overcome that conflict.

[19] The planning scheme defines this proposal as a 'community use' ('premises for the education, recreation, minding or care of more than four children ... for a fee ...'). A use of that kind is described as inconsistent for this part of the Shire (called the Eastern Beaches Locality) which is in a Detached Housing Zone. Section 2.11 of the scheme defines an inconsistent use as one which is "... not appropriate in the relevant zones". Indeed, the use is inappropriate in all residential zones under the scheme.

[20] It is, however, a consistent use in the Community Services Zone. Unsurprisingly, Council points to the presence of the area falling within that zoning designation immediately to the west of Ben Lexcen Drive. It argues that this site's proximity to a Community Service Zone tells against allowing a use of this kind within a zone where it is categorised as inappropriate.

[21] Construction of these planning schemes does not of course occur in a vacuum. The evidence conclusively establishes that a large proportion of existing child care centres within the Shire are, in fact, located within what the scheme categorises as Residential Zones. Indeed, with a logic which is obvious, many have plainly been deliberately developed in places adjacent to residential uses. Materially, too, there appears to be no land east of Ben Lexcen Drive which is presently available or could be developed for child care purposes. West of that road the Girraween Estate contains land which is included in the community services zone but, again, none of it is, it seems, potentially available for development for usage of this kind.

[22] Analysis of the planning scheme itself also shows that while an 'inconsistent use' indicates a need for impact assessment, there is nothing in the scheme to suggest that a child care centre is an incompatible use - that word is not used in Part 7 of the scheme concerning the Eastern Beaches locality plan. The distinction is meaningful. The word is used in other contexts in the plan in which it is made clear that, for example, residential and industrial uses cannot coexist. At worst for this proposal, then, it is not categorised as so anomalous as to be strongly discouraged by the scheme, and it is simply subject to impact assessment on its merits.

[23] Nor is the requirement for impact assessment an apparent sign that the scheme necessarily and strongly turns its face against a child care use within a residential area. It requires the broadest evaluation of the proposal against the whole planning scheme to achieve ecologically sustainable development - the purpose of IPA.

[24] The relevant assessment Tables include inconsistent uses which call up either self-assessable or code assessable development, but without reference to any specific codes. The consideration of the various parts of the scheme touching the question point to the clear conclusion that the coexistence of child care centres within residential areas is not a matter which was seen as critical by the scheme drafters, nor as a major issue concerning development within the Shire. Certainly, it could never be concluded that the scheme espouses any principles on the lines that child care centres cannot be located in residential areas.

[25] The parts of the scheme touching the Eastern Beaches locality contain both Overall and Specific Outcomes. Council placed particular emphasis upon some of these. The particular overall outcomes said by Council to involve offence concern matters of compatibility with the surrounding streetscape, amenity and the expectation of residents. Those matters, addressed earlier, do not here give rise to any forceful conflict with the planning scheme when the location of the site on a busy road, its history, and the terms of the current scheme are taken into account.

[26] The specific outcomes involve what are said to be unacceptable burdens on local amenity and offences to the streetscape and, in particular, the excessive height of surrounding fences and walls and the absence of any protection for the amenity of the two houses to the south.

[27] The first two have already been addressed, and discounted as material or significant. The question of the height of the fences and walls was very closely examined by one of the town planners, who presented a large number of photographs of high fences around residential properties in the immediate vicinity. The evidence was persuasive that the fencing proposed for this site will not be discordant. The question of the amenity of the nearby residences largely concerns matters of noise, discussed below.

[28] Reference was also made to boundary set backs which, according to the scheme, should be up to six metres. Various provisions to which I was taken about these dimensions show they are not prescriptive, and are to be considered in the context of Specific Outcome O5 of the Locality Code which calls for 'appropriate design' to protect amenity and provide 'adequate' distance from adjoining uses, while acknowledging the relevance and importance of landscaping and vegetation. This unusual site has two road frontages one of which should, in accordance with long standing local government practice, be effectively treated as a side boundary. Importantly, there is no offence to any of the scheme provisions in respect of the set back against the two residential premises to the south. Otherwise the evidence showed that the proposal meets the relevant criteria contained in SO O5.

[29] The important amenity issue is plainly noise. The sounds emanating from a child care centre, including the sounds associated with the delivery and pick up of children, immediately present as a feature which will have the strongest impact on the amenity of immediate neighbours. The question was addressed by two senior noise experts who, unfortunately, disagreed about fundamental methods of methodology. Ultimately the question became little more than a distraction. Notwithstanding the different methodologies used, the noise estimates were within tolerances which, the experts agreed, were acceptable.

[30] Final submissions at the end of the trial for the Council helpfully and fairly acknowledged that any noise issues were capable of being solved, from a technical viewpoint, by acoustic measures. While appreciating the assistance this sensible and entirely correct concession makes I have the misfortune to disagree with its premise, which is that noise impacts would otherwise be unacceptable. The experts are now in general agreement about the height of the wall along the David Low Way; and, that the outdoor noise from the premises and the carpark in the vicinity of the houses to the south is at worst (as one of the noise experts described it) intermittent and transient and would ordinarily only persist for about one percent of the time - and, hence, not register on any of the usual noise measurements.

[31] Materially, the evidence does not support the contention advanced by the expert called for Council that there is a significant potential for an adverse impact on the acoustic amenity of the two neighbouring dwellings. As the development presently stands the noise levels detected by machinery indicate, rather, compliance with the usual criteria. When that conclusion is reasonably available, and accords with ordinary common sense, the dispute about methodology becomes unhelpful and arcane. The common sense element arises from the unassailable proposition that the noise of children and motor vehicles in suburban areas is hardly novel, or unexpected. Inevitably, it will be intensified in a centre of this kind. It is not, usually, innately offensive so the relevant question becomes whether its volume or duration is likely to have a meaningful impact on amenity. The evidence of the noise experts does not point to that conclusion.

[32] Regrettably, similar disputes about methodology arose in respect of traffic issues, of which only two remained to be resolved at trial: available site distances to the south for a vehicle leaving the child care centre; and, difficulties which might be caused to residents on Pacific Avenue (in particular on the eastern side) by road markings placed on the road surface to improve entry to and exit from the centre.

[33] One of the experts relied upon an Australian Standard relevant to non-domestic access driveways and, on the basis of the provisions of that Standard, concluded the site distance was adequate. The other was critical of the Standard and thought it was unclear and flawed. While the latter mounted a persuasive argument pointing to that conclusion, it remained an individual one and was not supported by any evidence suggesting the Australian Standard has fallen into disrepute, or had been otherwise or elsewhere acknowledged as flawed, inadequate or inappropriate. Ultimately it cannot be said that reliance upon the Standard is unreasonable or inappropriate and in light of the importance and widespread use of those Standards, that conclusion compels a finding that the site distance is adequate.

[34] The proposed new road markings might initially trouble persons leaving driveways on the northern side of Pacific Avenue but it is unarguable that the markings are commonly used and can lawfully be driven over. The risk of confusion or want of clarity is limited, then, to the circumstance where the driver is ignorant of the traffic law. That can at least partly be remedied by information to those residents. In any event, the consequences of excessive caution are hardly dire - safe alternative routes which avoid crossing the chevrons are readily available, and involve little inconvenience. In the circumstances it is not correct to classify the issue as one involving tangible danger or uncertainty, warranting refusal.

[35] Because the question of possible offence to the amenity of the two residences in the south is, ultimately, the only issue of any real moment it is important, I think, to give particular consideration to the risk of nuisance emanating from the premises in that direction. An acoustic fence is proposed along this boundary (even though the senior and experienced noise expert called by the appellant did not believe it was necessary) and the evidence of the landscaper shows that considerable thought has been given to additional screening which will minimise impacts upon visual amenity. This (perfectly appropriate) emphasis upon protection of the amenity of the occupiers of those properties is appropriate and, I am satisfied, has been satisfactorily addressed, with satisfactory outcomes.

[36] Section 3.5.14(2)(b) of the Integrated Planning Act 1997 requires the local authority to refuse an application of this kind if there is conflict with the planning scheme and there are not sufficient grounds to justify approval despite that conflict. The grounds referred to are not limited to 'planning grounds'. The discussion already undertaken points inexorably to the conclusion that conflict with the planning scheme is of a relatively low order, and it has also been observed that the level of community need is a ground which assists in overcoming that conflict.

[37] There are also, in my view, others positive outcomes. The building is not without interest and subtlety, and exhibits an architectural style which accords with much of the residential development seen in and around Noosa. Importantly, it successfully blends in with the surrounding environment. The landscaping design is also of an apparently high calibre using flora which native to the Noosa shire. The species selected will also reduce visual impacts. I accept the submission from the appellant that these factors warrant the description of the centre as a potential 'good neighbour' even though the use is not residential.

[38] The absence of other impacts is not a positive supportive ground, but the existence of a significant level of need certainly is. As the discussion of the planning scheme provisions undertaken earlier shows it is also important, in this case, not to be overwhelmed by the reference to this use as 'inconsistent', or by the need for impact assessment. Planning schemes are documents intended to both reflect, and guide existing and future development. To read them in any other way would be unrealistic.

[39] Noosa's planning scheme plainly has some aspirations for the location of child care centres which are, in fact, different from those reflected by existing facilities. The presence of such an important factor as need, in circumstances where the designated Community Service Zones cannot satisfy the growing demand, compels approval of this development. That conclusion is further buttressed by the finding, discussed earlier, that development of this site of the kind contemplated by the scheme is unlikely and indeed, arguably inappropriate.

[40] For these reasons the appeal should be allowed and the development application approved, subject to conditions. The first co-respondent by election has already notified conditions and it is appropriate to adjourn the matter for a reasonable interval to allow Council to supply a list of those it would seek to attach. The matter will be adjourned to a date which suits the parties for that purpose.

[1] Order Brabazon QC, DCJ 17 August 2007 (first co-respondent); Order Brabazon QC, DCJ 28 November 2007 (second co-respondent).

[2] called, in this locale, Edwards Street

[3] Broad v Brisbane City Council (supra) at 321.

[4] Rio Pine Air Gravel Co v Warringah Shire Council (1969) 17 LGRA 153 at 168 (adopted by Thomas J in Broad (supra) at 319).