132007.1259.05 - Development Application To Change The Development Approval And Extend The Relevant Period For Visitor Accommodation, Office, Shops And Restaurants At 215A David Low Way, Peregian Beach

132007.1259.05 - DEVELOPMENT APPLICATION TO CHANGE THE DEVELOPMENT APPROVAL AND EXTEND THE RELEVANT PERIOD FOR VISITOR ACCOMMODATION, OFFICE, SHOPS AND RESTAURANTS AT 215A DAVID LOW WAY, PEREGIAN BEACH

Document information

Author	Development Planner, Glen Conforti
Planning & Infrastructure Department

Index	ECM / Application / 132007.1259.05

Attachments	Approved Plans

APPLICATION DETAILS
Applicant	Scanlon Property Group
Proposal	Change the development approval and extend the relevant period of Material Change of Use for visitor accommodation, restaurant, shops and office
Properly Made Date	13 September 2016
Decision Due Date	16  March 2017
Number of Submissions	The original application attracted 2 properly made and 4 not properly made submissions

PROPERTY DETAILS
Property Address	215A – 219  David Low Way Peregian Beach
RP Description	Lots 8 – 10 P 9315 & Lot 76 MCH 2969 (currently Lot 77 SP 231615)
Land Area	23.12ha
Existing Use of Land	Shopping complex (IGA and various shops) and vacant land (formerly Peregian Beach Caravan Park)

STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Locality	Eastern Beaches
Zone	Semi-Attached Housing and Open Space Recreation
Overlays	Natural Hazards Overlay – Bushfire hazard Natural Hazards Overlay – High and Low Potential Acid Sulfate Soils
Assessment Type	Extension to Relevant Period

RECOMMENDATION
That Council note the report by the Development Planner to the Planning & Environment Committee Meeting dated 7 March 2017 in regard to the request to extend the relevant period and to change Condition 31 of approval No. 132007.1259.05 for a Development Permit for Material Change of Use – Visitor Accommodation Type 4 Conventional, Entertainment & Dining Type 1 Food & Beverages, Retail Business Type 2 Shop & Salon, Commercial Type 1 Office situated at 215A David Low Way, Peregian Beach and
A.	Refuse the request to extend the relevant period for the following reasons:
The proposed development is inconsistent with The Noosa Plan and given the time lapsed it is relevant to examine whether there are still grounds in the community’s interest to justify the conflict with the planning scheme.
The community is unlikely to be aware of the development approval given the time lapsed since the application was lodged in 2007; changes in the area; and the shopping complex that has been constructed on a significant portion of the site.
The application would be likely to attract further properly made submissions were a further development application lodged and publicly notified today, given:
the time lapsed since the application was lodged in 2007;
the changes that have occurred in Peregian Beach, including significant urban growth west of Peregian Beach; and
the development cannot proceed in its current approved form and the change is likely to result in a substantially different development.
The approved development in its current form cannot proceed as a shopping complex has been constructed on a significant portion of the site and has superseded the development approval.  Substantial changes would be required to the development approval for it to proceed.
B.	Advise the applicant that the request to change Condition 31 must be made to the Planning and Environment Court pursuant to the Sustainable Planning Act 2009.

REPORT
PROPOSAL
The applicant seeks a 2 year extension to the relevant period and a 2 year extension to the sunset provision of the development approval. Condition 31 below outlines the current relevant period and sunset provision for the development.
31.	The Development Permit for a Material Change of Use lapses if the first change of use has not started by 28 September 2016, and all works associated with the development have been completed by 4 February 2018.
The applicant seeks Condition 31 to be amended to read as follows:
31.	The Development Permit for a Material Change of Use lapses if the first change of use has not started by 28 September 2016 28 September 2018, and all works associated with the development have been completed by 4 February 2018 - 4 February 2020.
Under the Sustainable Planning Act 2009, as the development approval was issued by the Planning and Environment Court, Council is only able to extend the relevant period and the Court is able to change the condition of approval in respect to the sunset clause.  Given this complication, advice is being sought from Council’s planning solicitor on how to frame Council’s decision in this regard.
site details
Background
Material Change of Use
An application (132007.1259) for a Material Change of Use for visitor accommodation, restaurant, shops and office was originally refused by Council on 21 August 2009 but subsequently settled on 12 February 2010 through the appeal process. The application attracted 2 properly made and 4 not properly made submissions. The approval was over 4 lots, 3 with frontage to the David Low Way and a larger lot to the rear of these lots, all accessed from the then Unnamed Road, which is now Sandpiper Court.

The approved development comprises a commercial building fronting the David Low Way, which includes 306m² of restaurant, 387m² of retail uses on the ground/podium level and a low cost 58 bed visitor accommodation use to the first floor with parking underneath this building To the rear of the site and behind the Peregian Beach Hotel, 2 three storey accommodation buildings consisting of 32 x 3 bedroom units, pool/BBQ area and 30 individual 2, 3 and 4 bedroom “beach shacks” are approved.  The most western portion of the site is conditioned to be dedicated to council as parkland for environmental purposes.

On 24 January 2012 a permissible change was issued by the Planning and Environment Court (Appeal No. 4783 of 2011*). The primary changes included:

Staging the development into 3 stages, being:
Stage 1 – commercial building fronting David Low Way and rehabilitation and dedication of the parkland to Council.
Stage 2 – The 2 larger visitor accommodation buildings (32 x 3 bedroom units) to the rear of the site.
Stage 3 – 30 Beach Shacks (2, 3 and 4 bedroom individual buildings); and
An updated Stormwater Management Plan to reflect the staging and the current best practice water management objectives.
As part of this application to change the development approval, the court did not allow the addition of juliette balconies and additional outdoor dining facilities to the commercial and visitor accommodation building fronting David Low Way. The court did not agree the juliette balconies and the outdoor dining areas constituted a permissible change pursuant to Sustainable Planning Act 2009.
As such a new impact assessable application for a development permit to include juliette balconies and additional outdoor dining (MCU12/0023) was lodged and subsequently approved on 26 July 2012.  The application attracted 198 properly made and 12 not properly made submissions. Of the 198 properly made submissions, 81 objected and 117 supported the proposal. The submitters were primarily concerned with noise generated from the outdoor dining activities.
On 15 November 2013, Council agreed to extend the relevant period to 28 September 2016 and extend the sunset provision to 4 February 2018 (Appeal No. 4139 of 2013).
Reconfiguring of a Lot
A Development Permit for Reconfiguring a Lot (152010.627) was approved by Council on 29 October 2010. This approval created the western lot required by the material change of use approval to be dedicated as parkland for environmental purposes and 2 other lots, being one lot for the commercial and visitor accommodation uses fronting David Low Way and the other lot for the majority of the visitor accommodation uses located to the rear of the site.
This subdivision approval was subsequently changed in order for the IGA and associated shops (MCU13/0251) to be wholly sited within one lot as the development was straddling the original approved boundaries. The lots have been sealed by Council but to date the parkland and commercial lot have not been registered at the titles office. Figure 1 below shows the original approved plan and the approximate location of the existing commercial development.

Figure 1 – The red line indicates the approximate location of existing IGA and shops. The black line indicates the original approved lot. Lot 3 is the proposed park for environmental purposes which is sealed by Council but not registered with the titles office to date.
Figures 2 and 3 show an aerial of the site and the Planning Scheme zones.

Figure 2 – Aerial of the site

Figure 2 – Zone map and aerial of the site.
assessment
Statutory Process
In accordance with Section 388 of the Sustainable Planning Act 2009, in deciding a request to extend the relevant period, the assessment manager must only have regard to:
(a)	the consistency of the approval, including its conditions, with current laws and policies applying to the development, including, for example, the amount and type of infrastructure contributions, or infrastructure charges payable under an infrastructure charges schedule;
(b)	the community’s current awareness of the development approval; and
(c)	whether, if the request were refused-
(i)	further rights to make a submission may be available for a further   development application; and
(ii)	the likely extent to which those rights may be exercised; and
(d)	the views of any concurrence agency for the approval…
The Planning Scheme’s requirements for the site remain generally the same as when the application was originally lodged and as such the development remains inconsistent with the Planning Scheme’s development intent for the site. The site is predominantly zoned Open Space Recreation, with a portion of the site fronting David Low Way zoned Semi-Attached Housing.  For the area of the site zoned Open Space Recreation, the planning scheme seeks to maintain the use of the site for the former caravan park and supports visitor accommodation units only where associated with the caravan park use. Small scale commercial offices and medical offices are supported for that part of the site zoned Semi-Attached Housing.  The planning scheme also seeks to ensure that buildings fronting David Low Way are of a domestic scale, visually pleasing and consistent with the character of the area.
The application was originally refused on numerous grounds including but not limited to the development being excessive for the site in terms of density, height, bulk and scale. The development was also considered contrary to the Specific and Overall Outcomes of the Eastern Beaches Locality Code which sought to protect and retain the caravan park for low cost visitor accommodation needs. The applicant also relied on inadequate or irrelevant planning grounds to justify the departure from the Planning Scheme.
Through the appeal process the development’s density, height, bulk and scale were reduced and the development’s general presentation to the street significantly improved.  It was also accepted that the proposed visitor accommodation was a reasonable replacement for the caravan park as it included low to mid-range cost visitor accommodation facilities.  In terms of the commercial aspect of the proposal, Council’s economic consultant at the time concluded ‘although ‘out of centre’ the restaurant and retail facilities are appropriate components to the proposal. The visitor accommodation would generate the demand and support the proposed retail and restaurant facilities.’ The approved plans for the development are provided as Attachment 1.
A significant amount of time has lapsed since the original application was lodged in 2007 and it is relevant to consider whether there are sufficient grounds for the development today given its conflict with the Noosa Plan.  Need has not been re-examined since the application was originally lodged and no supporting documentation for the proposed visitor accommodation uses has been submitted with this request.  It is noted though that the applicant has lodged a further application over the subject site seeking approval for a development which primarily comprises permanent residents and significantly scaled back visitor accommodation.  Changes in the economic environment have also occurred in the past 10 years, which may affect need for the proposal.
Significant population growth (approx. 480 dwellings or 1300 population growth, 2006-2011 ABS data) has also occurred to the west of Peregian Beach, with many of these residents recreating and utilising facilities in Peregian Beach.  Many of these new residents would be unlikely to be aware of the development and were this application remade today, it is likely further new submissions would be received from this community and residents of Peregian Beach raising reasonable objection to the development.
While a marketing sign for the development was erected on site for some time, any awareness of the development has likely waned as a different and separate development has been approved and constructed on a portion of the site.  An IGA supermarket and speciality shops have been constructed over approximately a third of the site to the David Low Way frontage, removing the approved commercial uses and low cost visitor accommodation components.  The development of this shopping complex means the proposed development has been superseded and cannot proceed without substantial changes to the approval.
Concurrence Agency
The original application was referred to the Department of Environment and Heritage as a concurrence agency for Unexploded Ordnance (UXO).
conclusion
The proposal remains inconsistent with the current Planning Scheme. The applicant has not re-visited or demonstrated a need still exists for the proposal and given the time that has lapsed, it is also likely community awareness of the development has diminished. New residents would be unaware of the development approval and if an identical development application were remade today new submissions are likely to be lodged with Council.
Furthermore, a new unrelated development is now constructed on a portion of the site (IGA and associated shops) and as such this development cannot proceed as approved.
The request to extend the relevant period and sunset provision is therefore recommended for refusal.
Departments/Sections Consulted:
	Chief Executive Officer		Community Services		Corporate Services
	Executive Officer to the Mayor & CEO		Community Facilities		Financial Services
	Executive Support		Community Development		ICT
			Libraries & Galleries		Procurement & Fleet
			Local Laws		Property & Facilities
			Waste & Environmental Health		Revenue Services
					
	Executive Office	X	Planning & Infrastructure		
	Community Engagement		Building & Plumbing Services		
	Customer Service		Civil Operations		
	Economic Development		Infrastructure Planning & Design		
	Governance	X	Planning & Environment		
	Human Resources		Strategic Land Use Planning		
	Sustainability				

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT	7 MARCH 2017

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