Appeal from refusal – application for material change
of use to "educational establishment" – whether
DEOs compromised – whether conflicts with planning scheme
– planning need – whether "sufficient
grounds" – traffic / amenity issues
Facts: This was an applicant appeal against
Council's decision to refuse a development application for a
material change of use for an "educational
establishment", being a primary school, on land located at
South Street, Rangeville in Toowoomba. The proposal involved the
establishment of a 200 student school in three stages.
At the time the development application was made in December
2009, the Integrated Planning Act 1997
(IPA) and Council's Toowoomba City Council
Planning Scheme 2003 were in force. At the time of the
hearing, the Toowoomba Regional Planning Scheme 2012 had
been drafted and was to commence on 1 July 2012.
Under the 2003 planning scheme, the site was located within the
Neighbourhood Residential Zone and, within that zone, the
Escarpment Residential Precinct. An educational establishment was a
"not preferred" use in that zone, however under the
proposed 2012 planning scheme it would be a "consistent"
use on the site.
At the time of the hearing, the following issues remained in
whether the development application compromised the achievement
of DEOs 1, 2, 3 and 4 of the 2003 planning scheme;
the nature and extent of any conflict with the 2003 planning
whether there were sufficient grounds to justify approval of
the development application despite any conflict;
what weight was to be given to the 2012 scheme; and
whether any traffic or amenity concerns warranted refusal of
the development application.
The Court also considered whether the application could be part
Decision: The Court held, in dismissing the
in terms of the approach of the authorities when assessing a
need for a "community use", while clearly subject to the
application of the general principles, such a use must have the
effect that a latent unsatisfied demand for such a facility may
well be a matter of greater significance to the community in
question than those needs that are referrable to the obtaining of
such things as petrol or reaching a cinema complex. The need for a
community use may be significant when considering amenity concerns,
because sooner or later some part of the community "must make
a sacrifice", with the degree to which the amenity is harmed
being compensated for by the possible proximity of the lawful
in dealing with the Neighbourhood Residential Zone and the
Escarpment Residential Precinct within it, the conclusion that
could be reached with respect to the potential school catchment was
that it was not significantly locally based. Accordingly, while
there was a need in the planning sense of the term, the school was
not "location dependent"
the proposal did not threaten the achievement of the DEOs
even though it was in evidence, alternative sites were
irrelevant because the appeal was about a development on the
subject site and nowhere else. It was not the function of the Court
to determine whether other sites did or did not exist, to enquire
whether they were any "better", or to enquire about the
reasons a particular site was purchased for the development
the additional traffic associated with Stage 3 of the proposal
would lead, by the implementation of it, to the likelihood of an
unacceptable impact on the amenity of the residents of South
Street. Hence, conflicts issues should be considered on the basis
that Stage 3 would not be approved, should approval otherwise be
the recurring theme in the evidence of the submitters in
relation to general amenity was one based on expectation arising
from the 2003 planning scheme. On a proper interpretation of that
scheme, the potential had always existed for such a proposal
the 2012 planning scheme was entitled to significant, but not
even with a modified proposal, there were not sufficient
planning grounds which would justify the decision to approve the
development proposal despite the identified conflicts.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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