2016-08-09 Planning & Environment Committee Agenda

PLANNING & ENVIRONMENT COMMITTEE MEETING AGENDA   9 AUGUST 2016




                                                   Page 44 of 119

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:-
              |.   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’.
             Il.   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:-
              |. | 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.

              ll.  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.
             Ill. | 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 ... ‘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.
             \V. | 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.
                      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.

                                                                                               Page 44 of 119