Negotiated Report (Representations made) MCU21 0043

REQUEST FOR NEGOTIATED DECISION REPORT
Author	Development Planner, Lisa Pienaar
Development Assessment

APPLICATION DETAILS
Application No.	MCU21/0043
Development Approval	Development Permit for Material Change of Use of Premises (Dwelling House within 200m of Agricultural Land)
Applicant	Dalma Elaine Dunn
Representations Received On	4 June 2021
Number of Submissions for Original Application	Not applicable
Report checked by	Patrick Murphy

PROPERTY DETAILS
Property Address	24 Kamo Lane Cootharaba Qld 4565
RP Description	Lot 1 SP 231617
Land Area	132400 m²
Existing Use of Land	Vacant

STATUTORY DETAILS
SEQRP Designation	Regional Landscape and Rural Production
Locality	Not Applicable
Zone	Rural
Overlays	Land Subject to Acid Sulfate Soils – Area 1 land below 5 AHD Agricultural Land Overlay Biodiversity Waterways and Wetlands High Potential Bushfire Hazard and Potential Bushfire Buffer Flood hazard Overlay – Flood extent
Assessment Type	Representations made to original approval

background
A development approval for a Development Permit for Material Change of Use of Premises (Dwelling House within 200m of Agricultural Land) was decided on 6 May 2021.
The applicant suspended the appeal period on 14 May and made representations on 4 June 2021 to the development approval conditions. The representations are detailed below but primarily relate to Condition 7 and the issue of an infrastructure charges notice for the secondary dwelling.

assessment
An assessment in relation to each of the submitted representations is provided below:
Condition 7
Screening vegetation must be planted along the Kamo Lane boundary for a length of 100m being measured 50m either side of the prolongation of the centre of the dwelling at the Kamo Lane boundary. The trees must provide a buffer to the neighbouring property in accordance with Council’s Planning Scheme Policy PSP2 - Landscaping.  The planted vegetation may be, at a minimum, tube stock in size and consist of native, endemic species with a mature height of not less than 9 metres and planted at a maximum spacing of 3 metre centres. The species chosen for the screening vegetation must be provided to Council prior to the issue of the Final Certificate of Classification for the dwelling.

Applicant’s Representation – vegetation buffer
Council have amended the provided plans to show tree planting buffer for 50m each side of the centre of the Dwelling House. As per the tables of assessment within the scheme, the application required assessment against the following planning scheme codes: • Rural Zone Code – AO2.4, AO7.1, AO7.2, AO7.3, AO8.4, AO8.5, AO12, AO13, AO15; • Low Density Housing Code – AO2.1, AO3, AO5.2, AO5.3, AO8, AO9, AO12, AO13, AO14, AO15, AO16, AO18, AO19, AO21, AO22; & Flood Hazard Overlay Code.
There is no relevant provision that requires buffer vegetation and Council’s decision to amend the plans, without discussing the changes with the applicant, is not based on any statutory requirement and places an unreasonable financial burden on the client. Had vegetation buffering been a requirement of the planning scheme, the owner would have been advised prior to submitting the application, and these costs would have been considered when determining the feasibility of the development. The closest dwelling house from the proposed development is over 100m away and is already significantly buffered visually by vegetation on adjoining properties. The unforeseen cost of tree planting for 100m along the street front of a rural no-through-lane that services only two allotments is unwarranted. We are therefore requesting that the approval be revised to reflect the submitted plans, and not the plans that Council amended without any statutory basis or consultation with the applicant. The introduction of 100m worth of tree planting makes the conditions of approval, specifically Condition 2 – Approved Plans, in conflict with Section 65 of the Planning Act that stipulates those conditions of approval must be both relevant to, and not an unreasonable imposition on the development.
Assessment of Representation
The site is located opposite existing cropping. Refer Figure 1 below.
The application was submitted as it does not comply with AO2.4 of the Rural Zone code. The proposed dwelling is located 50 metres from land evident with tree cropping. Performance outcome PO2 seeks that Development does not result in the loss or diminished productive capacity of Agricultural Land Conservation Area.
Locating a sensitive land use such as a dwelling in close proximity to an existing cropping use may result in conflicts with the existing agricultural use.  The residential use may have an issue with spraying of crops or noise coming from machinery.  A vegetative buffer will minimise these impacts and protect the amenity of the dwelling.  Further, it is not possible to increase the setback of the siting of the dwelling due to the flood hazard over most of the property.  Refer to Figure 2 below.
The applicant states that vegetation buffering is not a requirement of the Planning scheme, however, Noosa Plan does not outline all requirements to comply with the Performance outcomes of the scheme.  The condition is relevant tool to achieve compliance with the Performance Outcome.
With regard to the concerns by the applicant about the financial aspect attributed to the planting of tube stock, it is estimated that the purchase of the tube stock would be around $160 or less depending on the species chosen (1 tree every 3 metres over 100m is 33 trees @ approx. $5 each).  In this regard it was discussed with the applicant the estimated cost of implementing Condition 7, and it was agreed that this is not a significant cost.
Existing Condition 7 is not considered onerous and ensures compliance with Performance outcome PO2 and the Overall outcomes of the Rural Zone code.  Therefore, the applicant’s representation with regard to this condition is not supported, with Condition 7 remaining unchanged.

Figure 1 – subject site and neighbouring cropping

Figure 2 – annotated plans as per Condition 7

Applicant’s Representation – Infrastructures charges for secondary dwelling
A summary as follows: The proposed development does not meet the definition of a Secondary Dwelling as outlined in the Noosa Plan 2020, and therefore we contend that it cannot be approved as such.
Fluid Approvals agrees that the area could be looked at as a potential second dwelling, however once looked at, it should have been dismissed as qualifying as a Secondary Dwelling for not meeting the legislative definition. Council’s own assumptions regarding the use of this downstairs area cannot be considered - an approval must be bound by the statutory definitions listed under the planning scheme and not the general opinion of Council’s planning officer. As 1 laundry only is proposed for this development, it is not possible to argue that are 2 dwellings, each containing facilities for washing clothes as defined by the Noosa Plan 2020. The development therefore cannot be approved as such and for this reason, we request the Infrastructure Charges Notice issued to the client be withdrawn.
Assessment of Representation
The assessment of this element has been conducted by the Infrastructure Assessment Coordinator and the following is noted:
The applicant has provided a statutory declaration from the owner that the downstairs room is only to be used as a home office and requested Council to update the approval to reflect a single “Dwelling house” without a “Secondary dwelling”.
This request has been accepted. However, it is recommended to include an additional condition in the approval that the ground floor cannot be used as a second dwelling or for accommodation purposes, and annotate the ground floor plans, thereby removing the capability of the ground floor for the use as a secondary dwelling.
Further, the Infrastructure Charges Notice N1626 originally issued is to be withdrawn and cancelled.

conclusion & reasons for decision
The request for representations for deletion of Condition 7 is not supported to ensure compliance with the protection of agricultural values in the rural area; while a secondary dwelling is no longer part of this approval.
RECOMMENDATION
With regard to Application No. MCU21/0043, and the representations made, Council on 30 June 2021 decided to:
A.	Refuse representations with regard to Condition 7, for the following reason:
a)	Buffer planting is required to ensure compliance with Performance outcome PO2 and the Overall outcomes of the Rural Zone code, and ensures the amenity of the proposed dwelling is protected from neighbouring agricultural uses.
B.	Administrative amendment to Condition 2 to refer to plan annotation as follows:
Approved Plans
2.	Development undertaken in accordance with this approval must generally comply with the approved plans of development. The approved plans are listed in the following table unless otherwise amended by these conditions.
Plan No.	Rev.	Plan/Document Name	Date
WA-01	V1	Cover Page, prepared by prepared by Matt Bradley Designs	17/03/2021
WA-03	V1	Site Plan, prepared by Matt Bradley Designs and as annotated by Council	17/03/2021
WA-08	V1	New Ground Floor, prepared by Matt Bradley Designs and as annotated by Council	17/03/2021
WA-09	V1	New First Level, prepared by Matt Bradley Designs	17/03/2021
WA-10	V1	New Roof Plan, prepared by Matt Bradley Designs	17/03/2021
WA-11	V1	Elevations, prepared by Matt Bradley Designs	17/03/2021
WA-12	V1	Elevations, prepared by Matt Bradley Designs	17/03/2021

C.	Include new Condition 10 as follows:
Nature and Extent of use
10.	The ground floor of the dwelling is not to be used as a secondary dwelling or for accommodation purposes.
D.	Note the report is provided in accordance with Section 83(9) of the Planning Act 2016.

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Buffer tree plantings along the
ot boundary for 50m each side of the ~
centre of the dwelling.

 

 

 

 

 

SITE PLAN