MCU15/0086 Representations to Council approval for Village Bicycle

(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.’ 9..

              ‘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.

                 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.