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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 dispute:

  1. whether the development application compromised the achievement of DEOs 1, 2, 3 and 4 of the 2003 planning scheme;
  2. the nature and extent of any conflict with the 2003 planning scheme;
  3. whether there were sufficient grounds to justify approval of the development application despite any conflict;
  4. what weight was to be given to the 2012 scheme; and
  5. whether any traffic or amenity concerns warranted refusal of the development application.

The Court also considered whether the application could be part approved.

Decision: The Court held, in dismissing the appeal, that:

  1. 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 use
  2. 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"
  3. the proposal did not threaten the achievement of the DEOs
  4. 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
  5. 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 determined
  6. 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
  7. the 2012 planning scheme was entitled to significant, but not overwhelming, weight
  8. 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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