MCU15/0095 Notice of appeal - Synergy Property Partners Pty Ltd v Noosa Council - P & E Appeal no. 1999 of 2016

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In the Planning and Environment
Court
Held at: Brisbane



  Between:       SYNERGY PROPERTYPARTNERS PTY LTO                                 Appellant
                 ACN 160 822 373

  And:           NOOSA COUNCIL                                                    Respondent



                                NOTICEOF APPEAL


Filed on                26/05/2016

Filed by:               Connor O'Meara Solicitors
Service Address:        Level 5, 370 Queen Street, Brisbane 4000
Telephone:              (07) 3221 3033
Facsimile:              (07) 3221 6661
Email:                  [email protected]


SYNERGY PROPERTY PARTNERS PTY LTO ACN 160 822 373 of c/- Connor

O'Meara, Solicitors,         Level 5, 370 Queen Street, Brisbane in the State of

Queensland appeals to the Planning and Environment Court at Brisbane,

against    the    decision     of   the   Respondent,     Noosa        Council,    to   refuse   a

development application for a development           permit for a material change of use

of premises for Retail Business Type 5 (Vehicle Uses) and Retail Business

Type 2 (Shop) with respect to land described as Lot 30 on SP170751 and

situated at 115 Eumundi-Noosa Road, Noosaville (the "Land") and in lieu

thereof seeks the following orders or judgment:




                 peal                            CONNOR O'MEARA
                 If of the Appellant           ..Solicitors
                                                 Level 5, 370 Queen Street
                                                 BRISBANE 4000
                                                 Phone: 3221 3033
                                                 Fax: 3221 6661
                                                1603793 Notice of Appeal

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2.    the development application be approved;


3.    the Respondent pay the Appellant's costs of the proceedings; and


4.    such further or other orders as the Court deems appropriate.


The grounds of appeal are:


5.    The Land:


      (a)   is described as Lot 30 on SP170751;


      (b)   is situated at 115 Eumundi-NoosaRoad, Noosaville;


      (c)   is included in the Industry Zone of the Noosaville Locality Plan in

            The Noosa Plan;


      (d)   comprises an area of 5,018m2; and


      (e)   is vacant.


6.    On 6 October 2015, the Appellant lodged a combined development

      application in respect of the Land for:


      (a)   a development permit for a material change of use of premises

            for Retail Business Type 5 (Vehicle Uses) and Ret(!i1 Business

            Type 2 (Shop); and


      (b)   a development permit for reconfiguration of a lot (1 into 2).


7.    The development application was subject to impact assessment.


8.    By Decision Notice dated 29 April 2016, the Respondent notified its

      decision to approve the application for reconfiguration of a lot (1 into 2)

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     but to refuse the development application for a material change of use

     for Retail Business Type 5 (Vehicle Uses) and Retail Business Type 2

     (Shop) on the basis of the following reasons for refusal:


     N1.    The service station poses unacceptable risks to human health,
            safety and wellbeing at adjacent existing uses, in particular to
            children using directly adjacent school facilities.

     2.     The development provides insufficient         buffers   to     adjacent
            extremely sensitive school uses.

     3.     The development conflicts with The Noosa Plan's Noosaville
            Locality Code and Business Uses Code as it is incompatible with,
            and has the potential to adversely impact on, the adjacent school
            users.

     4.     The service station is unable to contain emissions within the site,
            as sought by The Noosa Plan for sites adjoining community uses.

     5.     A precautionary approach should be applied pursuant to the
            Sustainable Planning Act 2009, given the development's
            significant health and safety risks for adjoin the adjoining
            sensitive uses. "


9.   The development application should be approved having regard to the

     following:


     (a)   The    allegation   that   the   proposed   service   station    "poses

           unacceptable risks to human health, safety and wellbeing at

           adjacent existing uses" is contrary to the scientific           evidence

           available to the assessment manager, including the peer review

           commissioned by the assessment manager and prepared by MWA

           Environmental which concluded that (in response to a request by

           the assessment manager for an assessment against Performance

           Outcome P07 of the Service Station Code of the Brisbane City

           Plan 2014):

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        .Overall, it is considered that the air quality report adequately

         demonstrates   that the proposed service station satisfies

         Performance Outcome P07 of the Brisbane City Plan 2014

         Service Station Code as required by the Noosa Council Request

         for Additional Information.

         Conditions could be applied to an approval to address the

         development's operation and could include:

         •    Requirement for incorporation Stage 1 & Stage 2 fuel

              vapour recovery;

         •    Maximisation of buffer for fuel storage take vents from

              school boundary;

         •    Provisionof tall screening vegetation (such as Elaeocarpus

              eumundii) between the bowsers and the school boundary

              to aid in vapour plume dispersal;

         •    Monitoring of operational emissions to ensure air quality

              objectives are met;

         •    Extensive standard conditions applying to service station

              developments to address Workplace Health and Safety

              Queensland      and      Environmental   Protection    Act

              requirements; and

         •    Requirement for a disaster management plan;"

(b)   If the allegation that the development .poses unacceptable risks to

      human health, safety and wellbeing" relates to a criteria different

      to that referred to in the MWA Environmental peer review or to

      matters other than air quality, that allegation is not based on any

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      scientific     evidence available to the assessment manager and

      speculates about possible effects without any supporting evidence;


(c)   The proposed development is suitably buffered to adjacent land

      uses and includes a proposal to construct a vapour protection

      fence along the boundary between the reconfigured lots.      Further,

      the proposed development can be appropriately conditioned to

      enhance buffering or screening to neighbouring properties, as

      recognised and recommended by the MWA Environmental peer

      review;


(d)   The reasons for refusal advanced to demonstrate a conflict with

      The Noosa Plan are erroneous. Rather, the proposed development

      does not conflict with The Noosa Plan because, inter alia:


      (i)    it complies with the Noosaville Locality Plan Code and the

             Business Uses Code;


      {iiI   the proposed service station is a consistent use within the

             Industry Zone of the Noosaville Locality Plan, with the retail

             component of the use being an ancillary and necessary

             component of a modern service station development;


      (iii) there is no requirement of The Noosa Plan that requires that a

             service station on the Land must contain emissions within the

             site;


(e)   The alleged reliance on the precautionary principle is inappropriate

      in circumstances where:

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      (i)    there   is   no   evidence    of    any   serious   or   irreversible

             environmental damage that will be caused by the proposed

             development;


      {iiI   there is no evidence of any significant health and safety risks

             for adjoining properties;


      (iii) the alleged "unacceptable risks to human health, safety and

             wellbeing" is not supported by any scientific evidence; and


      (iv) the scientific evidence available to the assessment manager,

             including the MWA Environmental peer review, is that the

             proposed     development     will   operate   safely     and   within

             acceptable and recognised limits;


(f)   To the extent that the proposed development conflicts with The

      Noosa Plan (which is not admitted), there are sufficient grounds to

      approve the development application notwithstanding any such

      conflict;


(g)   The proposed development represents a logical and appropriate

      use of the Land given its inclusion within the Industry Zone of the

      Noosaville Locality Plan under The Noosa Plan;


(h)   The proposed development will satisfy a community and economic

      need in a location which is convenient and highly accessible, at the

      intersection of two busy roads;


(i)   The proposed development is well designed, appropriate for and is

      entirely consistent with the community's reasonable expectations

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              having   regard to   the   provisions    of    The Noosa Plan       which

              recognises that a service station use is a consistent use in this

              location; and


        (j)   The proposed development         is well      designed to   avoid   undue

              impacts upon surrounding land uses.


10.     In the premises:


        (a)   the appeal ought be allowed and the development application be

              approved; and


        (b)   the Respondent ought be ordered to pay the Appellant's costs of

              the proceedings.


PARTICULARS OF THE APPELLANT:

Name:                                    Synergy Property Partners Pty Ltd
                                         ACN 160 822 373
Residential or business address:         c/- Connor O'Meara
                                         Level 5, 370 Queen Street
                                         BRISBANE 4000
Solicitor's name:                        Michael Connor
Firm name:                               Connor O'Meara
Solicitor's business address:            Level 5, 370 Queen Street
                                         BRISBANE 4000
Address for service:                     Level 5, 370 Queen Street
                                         BRISBANE 4000
Telephone:                               (07) 3221 3033
Fax:                                     (07) 3221 6661
E-mail address:                          [email protected]


                                          ....C&':1!'y?r..9.:.'!!:l.~~       .
                                          CONNOR O'MEARA
                                          Solicitors for the Appellant
                                          Dated: 26/05/2016

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     If you are named as a respondent in this notice of appeal and wish to be heard
     in this appeal you must:

     la)   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

     Ib)   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:

     la)   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

     Ib)   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