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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.

of 9

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          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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            N^tibQv of A|3pjeal                               CONNOR O'MEARA
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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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                                            3 -


      (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

Page 4

                                           - 4


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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                                        - 5 -


     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;

Page 6

                                    6


(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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                                   - 7 -


                                      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

Page 8

                                              8


                       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

Page 9

                                                 - 9 -


 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.

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