2016-08-09 Planning & Environment Committee Agenda

PLANNING & ENVIRONMENT COMMITTEE MEETING AGENDA                                     9 AUGUST 2016




           c.    The reference to ‘other relevant matters’ is a concern because it is considered to
                 lack finality and therefore offends the finality principle under law and the condition
                 should be deleted.
           d.    In this condition Council has essentially reserved the right to restrict hours of
                 operation should a nuisance occur by refusing to extend the relevant period after
                 21 June, 2017. There are numerous authorities in different planning regimes in
                 Queensland and New South Wales where such a condition was deemed to be
                 unlawful.
           e.    The condition leaves for later decision an important aspect of the development,
                 and the decision on that aspect could alter the proposed development in a
                 fundamental way, namely it will cease as at 21June, 2017. Consequently the
                 current decision notice with Condition 7 cannot be regarded as final. The
                 condition offends the finality principle and should therefore be deleted.
     V.    In any regard, with Condition 7 making such a vague and open reference of Council’s
           assessment criteria, it may be that a determined neighbour may continue to lodge
           regular complaints directed at the Village Bicycle with Council. To date Council has not
           been forthcoming with providing the applicant with any information on such complaints
           or even communication with the Office of Liquor & Gaming Regulation. Given the
           investigations by Council following certain complaints with the applicant, it would
           appear that such complaints can at times relate to other nearby premises and not the
           Village Bicycle premises. Council should therefore keep accurate records of any such
           complaint and thoroughly investigate each complaint and concisely document its
           findings of any such complaint may be considered by Council to be ’any other relevant
           matter.’ The applicant should also be given complete access to such complaints and
           to Council’s documented findings of any such complete these complaints and/or
           findings may be relied on by Council in any way to close Village Bicycle at 21 June,
           2017.
[The applicant requests] Condition 7 be deleted from the development permit.
Assessment
To address some of the issues raised above, staff advise:
   The application type to extend or remove the lapsing date would be a request to change a
     condition of approval under S369 of the Sustainable Planning Act. Provided an application
     was received prior the lapsing date, the development would not be considered to lapse while
     Council assesses the request.
   The lapsing condition is not a relevant period provision under the Act. The development is
     already in operation (without a necessary development permit) and, as such, the approval
     will take effect at the end of the applicant’s appeal period.
   Once the approval takes effect, the applicant cannot choose to delay construction of the
     acoustic fence required by Condition 13. The fence must be erected within 3 months.
   The intent of Condition 16 requiring landscaping on the Bottlebrush Avenue side of the
     acoustic fence is to visually screen the fence – not for acoustic attenuation.
   Liquor Licencing breach action has been in abeyance pending the outcome of the subject
     development application.
The applicant’s concern with the uncertainty placed on the business by the condition is noted. The
Sustainable Planning Act requires conditions to be reasonable and relevant. As such, they must
relate to relevant assessment provisions. Temporary approvals and sunset clauses are applied in
some circumstances by Council.


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