51981.3345.01 & 51984.3154.01 Application For A Minor Change To Development Approvals For A Seafood Kiosk At 185 Weyba Road, Noosaville [As Published]

               PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                                  10 SEPTEMBER 2024


               •      On 24 April 1989 Council issued a letter to the property owner in response to a request to
                      provide onsite dining for ten (10) people. The letter refused the request, noting the conditions
                      of TPC1705 which specifically prohibited the ‘consumption of any food on the premises by the
                      general public’.
               •      On 16 August 1990 Council resolved to register a Caterer’s Shop (seafood kiosk) over the site
                      as an existing non-conforming use (NCU23). The use was pursuant to and in accordance with
                      conditions of TPC 1503 and TPC 1705.
                      Notably the registration of an existing non-confirming use is not an approval or continuing
                      approval under the former planning legislation or the Planning Act 2016 and therefore no use
                      rights are attributable to this registration. It was simply a register of, and an acknowledgement
                      that the use was lawful despite the site being zoned for residential purposes.
               •      On 2 April 2008 Council issued a letter in response to a ‘customised planning request’ received
                      27 March 2008 requesting planning advice about the operation of a take-away fish and chip
                      shop from the site. The letter noted Condition 18 of TPC1503 and Condition 6 of TPC1705,
                      which specifically prohibited the consumption of food on site, further stating ‘in addition, these
                      conditions make it clear that the use is for the sale of take-away sea-foods only. The sale of
                      drinks and other food items is contrary to the approval.
               4.       ASSESSMENT
               4.1. Instruments for Statutory Assessment
               Under the Planning Act 2016 the application must be assessed against each of the following
               statutory planning instruments to the extent they are relevant to the development:
               •      State Planning Policy;
               •      South East Queensland Regional Plan;
               •      Planning Regulation 2017;
               •      The 1973 Town Planning Scheme for the Shire of Noosa;
               •      Noosa Plan 2020.
               Notably under s81 of the Planning Act 2016 Council must consider the planning scheme in effect
               when the development applications for the development approvals were originally made (1973
               Town Planning Scheme for the Shire of Noosa) but may give weight the Council considers
               appropriate in the circumstances to the current planning scheme (Noosa Plan 2020).
               4.2. Statutory Process
               The applicant has requested to make a minor change to a development approval under s78 of the
               Planning Act 2016. An application for a minor change to a development approval can only be made
               in circumstances where a change would constitute a ‘minor change’.
               A minor change to a development approval is defined under the Planning Act 2016 as meaning
               that it:
               (i)      would not result in substantially different development; and
               (ii)      if a development application for the development, including the change, were made when
                        the change application is made would not cause—
                        (A)   the inclusion of prohibited development in the application;
                        (B)   referral to a referral agency, other than to the chief executive, if there were no referral
                              agencies for the development application; or
                        (C)   referral to extra referral agencies, other than to the chief executive; or
                        (D)   a referral agency, in assessing the application under section 55(2), to assess the
                              application against, or have regard to, a matter, other than a matter the referral agency


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Document Set ID: 23119253
Version: 13, Version Date: 26/08/2024