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Notice of Appeal (Sealed) (22.04.22) (00447099xF33C9)
Attached to the e-mail Notice of appeal - PKA Group Pty Ltd & Anor v Noosa Shire Council - No 928/22.
In the Planning and Environment No. of 2022
Court 9^
Held at: Brisbane
Between: PKA GROUP PTY LTD (ACN 652 564 Appellant
675) AND PAUL WESSEL PTY LTD
(ACN 111 454 276)
And: NOOSA SHIRE COUNCIL Respondent
NOTICE OF APPEAL
Filed on 22/04/2022
Filed by: Connor O'Meara Solicitors
Service Address: Level 4, 10 Eagle Street, Brisbane 4000
Telephone: (07) 3221 3033
Facsimile: (07) 3221 6661
Email: [email protected]
PKA GROUP PTY LTD (ACN 652 564 675) AND PAUL WESSEL PTY LTD (ACN
111 454 276) of c/- Connor O'Meara Solicitors, Level 4, 10 Eagle Street,
Brisbane in the State of Queensland appeals to the Planning and Environment
Court at Brisbane, against the decision of the Respondent to refuse the
Appellant's application for a minor change to a development approval for a
Retail Business Type 4 Vehicle Uses and Type 2 Shop {"the Change
Application ") with respect to land described as Lot 21 on SP322770 and
situated at 52-54 Mary Street, Noosaville ("the Land") and, in lieu thereof, seeks
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Form No/PE2^-1 Level 4, 10 Eagle Street
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Phone: 3221 3033
Fax: 3221 6661
Email: [email protected]
00446219. DOCX
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(a) the appeal be allowed;
(b) the Change Application be approved; and
(c) such further or other orders as the Court deems appropriate.
The grounds of appeal are:
1 . The Land:
(a) is situated at 52-54 Mary Street, Noosaville;
(b) is described as Lot 21 on SP322770;
(c) comprises an area of 2,488m2;
(d) is currently improved by a service station approved by a
development approval for a Retail Business Type 5 Vehicle Uses
and Type 2 Shop and Salon {"Development Approval")]
(e) is included within the District Centre Zone pursuant to the Noosa
Plan 2020]
(f) has a frontage to Weyba Road to the east which separates the
Land from land zoned Environmental Management and
Conservation;
(g) has a frontage to Mary Street to the south which separates the
Land from commercial uses in the District Centre Zone;
(h) adjoins a clothing store to the west, also included in the District
Centre Zone; and
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(i) adjoins residential houses to the north which are included in the
Medium Density Residential Zone.
2. By way of decision notice dated 18 December 2019, the Development
Approval was given by the Respondent.
3. In approving the development application which gave rise to the
Development Approval, the Respondent imposed, amongst others, the
following development conditions:
Condition 5
"5. The approved use must not operate outside the hours of 5am to
10pm."
Conditions 2 and 1 03
"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 or annotated by Council.
Plan No. Rev. Plan/Document Name Date
18316 DA- 4 Signage, prepared by 19/07/12
7000 Al/eanza Architecture
103. Advertising devices 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 Rev. Plan/Document Name Date
No.
DA- 4 Signage plan, prepared by 12.07.2019"
7000 Al/eanza Architecture
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4. On 17 January 2022, the Appellant lodged the Change Application with
the Respondent.
5. The Change Application sought to:
(a) amend condition 5 so that hours of operation are from 4am to
10pm, rather than from 5am to 10pm; and
(b) replace approved Plan No. DA-7000 Rev 4 ( Approved Signage
Plan") with Plan A-7001 Issue 7 ("New Signage Plan"), which
would allow the illumination of four BP logos with areas of 0.46m2
each, to be located within the green LED strip lighting on the
bowser canopy.
("the Proposed Change ")
6. By decision notice dated 23 March 2022, the Respondent refused the
Change Application on the following grounds:
"1. The proposed change does not constitute a minor change to the
development approval as the change in hours will increase the
severity of known amenity impacts and likely attract further
submissions objecting to the change were the application to be
publicly notified given the site's proximity to residential properties.
2. The proposed trading hours do not comply with Overall Outcomes
2 (d) & (h) and Performance Outcome P0 1 1 & P024 of the
Business Activities Code as the proposed hours will adversely
impact on nearby resident's amenity.
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3. The proposed trading hours do not comply with Overall Outcome
2(m) and Performance Outcome P042 of the District Centre Zone
Code as the proposed change in hours will impact the amenity of
nearby residential premises as nearby residents would not
reasonably expect the service to be operational at this time.
4. The proposed illuminated signage does not comply with Specific
Outcome A07 and Overall Outcome 07 of the Advertising Devices
Code within the Noosa Plan 2006 as it proposes more than one
illuminated sign and is not compatible with the visual amenity of
the surrounding area.
5. The proposed additional illuminated signage is not consistent with
provisions of the Local Law signage requirements as the proposal
exceeds the maximum number of signs permitted to be illuminated
and is prohibited by the Local Law. "
7. In the exercise of the Court's discretion, the Change Application should
be approved for the following reasons:
(a) The Proposed Change is a minor change of the Development
Approval, given that the Proposed Change would not:
(i) result in a substantially different development;
(ii) include prohibited development; or
(iii) cause referral to a referral agency, other than to the chief
executive;
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(b) The approval of the Change Application is consistent with and
furthers the planning outcomes sought by the Noosa Plan 2006
and Noosa Plan 2020.
Particulars
(i) the approved development, as changed by the Proposed
Change, complies with the Noosa Plan 2006, including the
applicable provisions contained in the Advertising Devices
Code;
(ii) the approved development, as changed by the Proposed
Change, complies with the Noosa Plan 2020, including the
applicable provisions contained in the Business Activities
Code and the District Centre Zone Code;
(iii) the proposed change to the hours of operation so that the
use commences at 4am rather than 5am will not impact on
the ability of the approved development to maintain and
protect the amenity of surrounding residential uses; and
(iv) the proposed illumination of the four BP logos associated
with the approved development is appropriate to its setting
and is compatible with the visual amenity of the
surrounding area.
(c) Consistency with a Local Law is not a proper reason for refusing
the Change Application.
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Particulars
(i) if the Change Application is approved, the approved
development may require an approval under a Local Law;
(ii) that Local Law provides for an application and decision
process;
(iii) no application has been made under the Local Law, to the
extent one may be necessary;
(iv) relying on the Local Law as a basis for refusing the Change
Application presupposes the outcome of an application
under the Local Law which has not yet been made and
otherwise usurps and undermines that application process;
and
(v) the Local Law otherwise seeks to regulate development in
a way inconsistent with the statutory scheme for planning
and development in Queensland.
(d) There are relevant matters that support approval of the Change
Application.
Particulars
(i) the existing conditions of the Development Approval which
protect the amenity of the surrounding uses in the existing
hours of operation between 5am and 10pm will equally
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protect the amenity of surrounding uses in the hours
between 4am and 5am;
(ii) the four BP logos which are proposed by the Change
Application to be illuminated:
A have an area of only 0.46m2 each; and
B are surrounded by green LED lighting which would be
continuous if the four BP logos were also illuminated;
and in the circumstances, the illumination of the BP logos
would have no adverse impact on the amenity of
surrounding properties given, to the extent necessary, the
illumination of the BP logos can be conditioned to comply
with the appropriate lighting standards.
8. In the premises of the above:
(a) the appeal should be allowed; and
(b) the Change Application should be approved.
PARTICULARS OF THE APPELLANT:
Name: PKA GROUP PTY LTD (ACN 652 564
675) AND PAUL WESSEL PTY LTD
(ACN 1 1 1 454 276)
Residential or business address: c/- Connor O'Meara
Level 4, 10 Eagle Street
BRISBANE 4000
Solicitors name: Michael Connor
Firm name: Connor O'Meara
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Solicitor's business address: Level 4, 10 Eagle Street
BRISBANE 4000
Address for service: Level 4, 10 Eagle Street
BRISBANE 4000
Telephone: (07) 3221 3033
Fax: (07) 3221 6661
E-mail address: [email protected]
CONNOR O'MEARA
Solicitors for the Appellant
Dated: 22/04/2022
NB: If you are named as a respondent in this Notice of Appeal and wish to be
heard in this appeal, you must:
(a) within 10 business days after being served with a copy of this Notice of
Appeal, file an Entry of Appearance in the Registry where this Notice of
Appeal was filed or where the Court file is kept; and
(b) serve a copy of the Entry of Appearance on each other party.
The Entry of Appearance should be in Form PEC-5 for the Planning and
Environment Court.
If you are entitled to elect to be a party to this appeal and you wish to be heard
in this appeal, you must:
(a) within 10 business days of receipt of this Notice of Appeal, file a Notice
of Election in the Registry where this Notice of Appeal was filed or where
the Court file is kept; and
(b) serve a copy of the Notice of Election on each other party.
The Notice of Election should be in Form PEC-6 for the Planning and
Environment Court.