2016-08-09 Planning & Environment Committee Agenda

PLANNING & ENVIRONMENT COMMITTEE MEETING AGENDA                                      9 AUGUST 2016


(b)   Those matters that more specifically identify the applicant’s concern with respect to being in
      conflict with relevant provisions of the Sustainable Planning Act include:-
      I.     Condition 7 identifies a date (i.e. “21 June, 2017”) and not a period from when the
             approval takes effect. Section 341 of the Sustainable Planning Act provides the ability
             for a development approval to state ‘a different period from when the approval takes
             effect’.
      II.    It is to be noted that the current approval requires works the following works to be
             completed and the applicant is agreeable to undertaking such works:-
             ‘Condition 13: The 2.6m acoustic fence recommended by the approved Acoustic
             Report must be erected within 3 months of this approval taking effect. The fence must
             meet the construction standards required by the approved Acoustic Report.’
             ‘Condition 16: Dense native screening shrubs up to 3m in height must be established
             on the Bottlebrush Avenue side of the new acoustic fence for its full length to visually
             screen the fence.’
             Obviously these works will only be commenced if this development approval takes
             effect. It is suggested that, despite the condition nominating a date and not a period
             from when the development approval takes effect, the 21 June, 2017 date is not
             appropriate for a number of related reasons. These reasons include that the
             compliance of such conditions may not have had such a sufficient time to have had
             any noticeable impact by such a date.
(c)   Those matters that more specifically identify the applicant’s concern with respect to a lack of
      certainty/finality:-
      I.     The condition provides no certainty for the applicant as to the continuation of the
             approved use noting that it is not possible for the use to be viable for significantly
             reduced hours and the like.
      II.    It is also unrealistic for Council to require the construction of an acoustic fence and
             ‘dense native screening shrubs’ to grow to grow to at least 3 metre high when the use
             may only be viably operate for 10 months from when the approval possibly takes effect
             and perhaps 7 months from when the fence is completed and vegetation planted.
      III.   Condition 7 does not clearly indicate what Council will take into consideration when it
             is assessing what is assumed to be a request to extend the relevant period under the
             Sustainable Planning Act. The conditions states that I. ‘Council will have regard to any
             breach details available from the Office of Liquor & Gaming Regulation and any other
             relevant matters’. Such criteria are considered to be vague and uncertain.
      IV.    The applicant considers that the following are particularly relevant in this regard:-
             a.    Existing premises has never had a breach issued by the Office of Liquor &
                   Gaming Regulation and intends for this to continue. However there are some
                   breaches that could be issued which are of no relevance to whether Council
                   agrees to extend the relevant period. Such an open reference is not considered
                   appropriate.
             b.    More importantly Council is essentially deferring to others such as the Office of
                   Liquor & Gaming Regulation for a proper determination of a critical town planning
                   consideration, namely whether the use will continue after 21 June, 2017. The
                   condition therefore purports to reserve the right to make a further assessment to
                   others as well as Council and is therefore considered to be clearly ultra vires.




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