Minor Change Council Report 152006.1999.4

152006.1999.4 - Application for a minor change to development approval to reconfigure a lot (52 lots & park) at 191 hollett Rd, noosaville

Document information

Author	Manager Development Assessment, Kerri Coyle
Environment and Sustainable Development Department

Index	ECM/ Application/ 152006.1999.4

Attachments	1	Proposed Revised Layout
2.	Further Plans received 23 April 2020
3.	Approved Plan

APPLICATION DETAILS
Application No.	152006.1999.4
Development Approval	Development Permit to Reconfigure a Lot (52 lots & Park)
Applicant	Kathleen Mary Hofmann and John Stuart Hofmann
Request Received On	29 November 2019

PROPERTY DETAILS
Property Address	191 Hollett Rd, Noosaville
RP Description	Lot 53 SP 163571
Land Area	77ha
Existing Use of Land	Rural land containing one dwelling

STATUTORY DETAILS
SEQRP Designation	Regional Landscape & Rural Production Area
Locality	Tewantin & Doonan
Zone	Rural
Overlays	Biodiversity Overlay Natural Hazard Overlay
Assessment Type	Minor Change to Development Approval

RECOMMENDATION
That Council note the report by the Manager Development Assessment to the Special Meeting 13 May 2020 regarding Application No. 152006.1999.4 to make a minor change to an existing approval to Reconfigure a Lot (52 lots and park) situated at 191 Hollett Rd, Noosaville and:
A.	Refuse the application for the following reasons:
1.	The proposed development conflicts with the South East Queensland Regional Plan as the site is located in the Regional Landscape and Rural Production area, in an area where the intent is to protect the landscape, environmental values and capacity for rural production and where rural settlement lots are not expected.
2.	The proposed development conflicts with the requirements of Planning Regulation 2017 as it is located in the Regional Landscape and Rural Production Area and will result in the removal of koala habitat.  The proposed development would be prohibited development under the current regulations.
3.	The proposed development is inconsistent with the Noosa Plan’s Strategic Framework as the proposed development will not conserve land for agricultural purposes and will result in development inconsistent with the rural character and amenity of the locality.
4.	The proposed development is not consistent with the outcomes sought for the site by the Tewantin and Doonan Locality Code, being located outside the urban growth boundary, and on rural land intended to be protected and managed to preserve the scenic and environmental values of the locality.
5.	The proposed development fails to meet the Overall and Specific Outcomes of the Biodiversity Overlay Code as the proposal will result in the removal of significant vegetation, intrude into riparian buffers, and remove koala habitat.
6.	The proposed development does not satisfactorily address the risks to people and property from bushfire and the proposed bushfire mitigation measures will adversely impact on the site’s environmental values.
7.	There is no need for the proposed development.
B.	Note the report is provided in accordance with Section 63(5) of the Planning Act 2016.

REPORT
PROPOSAL
The application seeks to change the approved subdivision plan and consequential amendments to conditions to reflect the revised layout. The applicant advises that the following changes are proposed:
The development footprint has been reduced to better conform to ecological, bushfire and agricultural matters raised as part of the current Planning and Environment Court Appeals.
The number of lots has been reduced from 52 to 40 lots
The reduced development footprint has resulted in the total area of parkland increasing to 59.444 hectares from 52.757 hectares, as originally approved.  This represents an additional 6.687 hectares of land to be dedicated to park purposes.
A copy of the revised layout is included as Attachment 1.
Based on the proposed changes to the plan, the applicant submits that conditions 2, 5, 6, 8, 9, 11, 12, 15, 18, 19, 49, 23-27, 29, 42-44, 46, 47, 50, 51, 57-59, 63, 67, 75 require amendment.  As part of the requested changes to conditions the applicant requests that Council agree to extend the timeframe to complete the development ‘within 6 years of the date of this change approval’.
The applicant also submits that the following matters are relevant to Council’s consideration of the application and the reasons why the application ought to be approved:
The existing approval includes comprehensive conditions which are generally consistent with current laws and policies and will ensure maintenance and enhancement of ecological and amenity outcomes;
The applicants have expended considerable money over time in obtaining the development approval and unfortunately Mr Hofmann’s poor health has delayed the applicants’ ability to carry out the approved development;
The land was originally identified as generally suitable for the type of development proposed. As part of that approval, it was required to provide a not insignificant contribution of public benefit with respect to the road network, for which Council received the benefit of the Walter Hay Drive road dedication without paying any compensation. Properly understood, the approved development (including conditions of approval) the subject of the minor change application is generally consistent with earlier development proposals. The proposed change is a notable improvement on the existing approved layout in terms of ecological outcomes and community benefits;
The land is currently designated in the Rural zone, but has no utility for sustainable rural uses due to matters including lot fragmentation and poor soils;
The land adjoins areas designated for Rural Residential and detached dwellings, and is in close proximity to areas designated for Industry and Shire Business Centre. The current Planning Scheme designates other land outside the Urban Growth Boundary for similar types of development, given that no areas of Rural Settlement are shown within the Urban Growth Boundary mapping on ZM9;
Notably, further plans were also emailed to Council on 23 April 2020, which update the proposal plans to address Energex’s objection. The applicant requests that the plans provided on 23 April 2020 be approved as part of Council’s minor change application. However, no further extension to Council’s decision period was provided to support this request.
Therefore, this report reviews the plans lodged with the change application in November 2019, with comments provided on the 23 April 2020 in section 5 of this report. A copy of the applicant’s plans provided on 23 April 2020 is provided as Attachment 2.
background
A rezoning application was approved over the site on 1 August 1997, approving a change of the site’s zoning to Special Residential and permitting the development of a maximum of 80 rural residential lots and 2 rural lots.
This rezoning was gazetted in 1 May 1998 and has an associated Plan of Development (PoD) referred to in the superseded planning scheme maps. The PoD established the footprint for future development and open space areas. It also established the development parameters for the site, including lot density and lot size.
The rezoning and PoD have now been superseded with the adoption of The Noosa Plan in February 2006 and the rezoning approval is no longer current.
Under the rezoning approval, the applicant was required to dedicate a large portion of land for the Walter Hay Drive road reserve. The PoD required a further application to be made to Council for the subdivision of the land.
An application for subdivision (reconfiguring a lot) was subsequently made on 12 September 2006 for 82 lots plus 1 park lot. The applicant at the time requested that the application be considered under the superseded planning scheme as provided for under the Integrated Planning Act 1997.
At Council’s Ordinary Meeting on 19 October 2006, Council confirmed that the subsequent development application for reconfiguration could be assessed against the Superseded Planning Scheme. In arriving at this decision, Council considered that assessment of the application under the new (2006 Noosa Plan) may have resulted in a compensation claim arising from the potential loss of value in the land as a result of the change of zoning from Special Residential to Rural under the 2006 Noosa Plan.
The subdivision application was refused as Council was instructed by the Department of Environment & Resource Management (as Concurrence Agency) to refuse it as the proposal did not satisfy the Vegetation Management Act. Accordingly, a Decision Notice of Refusal was issued on 16 November 2009. The decision was appealed through the Planning and Environment Court.
The proposed Rural Residential development was amended by the appellant during the appeal process, with the number of residential lots reduced to 49 rural residential and 3 rural allotments.
The final approval granted by way of the Planning and Environment Court Order (Appeal No. 344 of 2009) dated 5 July, 2013 reduced the overall yield to 52 Lots and Park. This approval requires dedication of 52.757 hectares of parkland. A copy of the approved plan is contained within Attachment 3.
In 2012 the site was part of an application which also included land situated at 99 Hollett Road, 106 and 108-142 Tidswell Road, Weyba Downs.
The application sought preliminary approval under section 242 of the Sustainable Planning Act 2009 to vary the effect of The Noosa Plan and Maroochy Plan 2000 Planning Schemes for a mixed-use community title development. The development was to be known as Noosa on Weyba comprising a mix of residential, retail, community and open space uses to be established under a multi-level community title scheme structure.
The applicant proposed a Noosa on Weyba Locality Plan to generally override the local planning schemes provisions for the development site. The Plan identified four primary urban precincts with varying density and character. The precincts were further broken down into zones, being Detached Housing, Attached Housing, Rural Settlement and Neighbourhood Centre zones. An Open Space Conservation Zone surrounded the urban precincts.
Proposed uses within the precincts included detached houses, small lot houses, duplexes, multiple dwellings (units, townhouses and attached dwellings), retirement dwellings and aged care facilities.
Minimum lot sizes ranged from 350m2 to 800m2 and minimum residential densities ranged between 15 – 32 dwellings per hectare. Proposed building heights were 2 to 3 storeys and the Noosa on Weyba Locality Plan also proposed differing built form provisions (such as site cover and boundary setbacks) to those sought in comparable urban areas under the Maroochy and Noosa planning schemes.
The application was refused on 4 April 2014 to which an appeal was lodged on 7 May 2014, but was subsequently withdrawn after the applicant failed to demonstrate that a proposed change to the plan constituted a minor change.
On 28 April 2017 an application to extend the relevant period of the original approval granted by the court dated 5 July 2013 was received under the Sustainable Planning Act 2009. This application was determined at Council’s Ordinary Meeting on 20 July 2017 where it was determined to refuse the application to extend the relevant period.
On 29 June 2017 the applicant lodged survey plans for sealing for the first stage of the development. An Operational Works application has not been made and accordingly no works required prior to plan sealing had commenced at the time.  An Action Notice was issued on 21 July 2017 for the outstanding works requesting additional time to complete the actions, but this was not agreed to.
On 7 July 2017 an application to extend the currency period was received under the Planning Act 2016.  The application was determined at Council’s Ordinary meeting on 17 August 2017 where it was determined to refuse the application for the following reasons:
1.	The approval is not consistent with the South East Queensland Regional Plan as the development would result in the creation of an urban settlement within an area where the intent is to protect the landscape and the capacity for rural production and the development would be prohibited under the Planning Regulations 2017.
2.	The approval is not consistent with the Noosa Plan 2006 as the proposed urban development is not located within an established village and would result in fragmentation of land holdings outside of areas already allocated for such purpose by the Noosa Plan. The development is also partly located within the Riparian Buffer area identified for protection by the Biodiversity Overlay.
3.	The approval is contrary to the South East Queensland Koala Conservation State Planning Regulatory Planning Provisions as the development will result in the removal of non-juvenile koala habitat trees.
4.	Different bushfire hazard mapping to that used for the initial approval applies as the State Planning Provisions came into effect after the original approval and results in a higher hazard rating. The higher hazard rating may require changes to setback/buffer areas and an amended subdivision layout. An updated bushfire management plan has not been submitted to enable an assessment of the current bushfire hazard.
5.	Significant time has lapsed since the ecological assessment reports were originally submitted and the information in these reports is now outdated. Updated ecological reports have not been submitted.
6.	The community is unlikely to be aware of the proposal given the significant time that has lapsed, the Noosa Plan’s current zoning and no works have commenced on site
An appeal was lodged against all 3 applications, with all 3 appeals remaining current.  In summary these include appeals against:
Refusal of application to extend relevant period under the Sustainable Planning Act 2009
Refusal of request to extend the time frame required to complete actions for Plan Sealing
Refusal of application to extend currency period under the Planning Act 2017
Site Description
The subject site has an area of 110 hectares and is located south of the Noosa Shire Business Centre. The site is bordered to the northeast by Eenie Creek, to the east by undeveloped land fronting Lake Weyba, to the south by Hollett Road and the west by rural residential land. The north-west corner of the site adjoins land developed for detached housing. The site is dissected by Walter Hay Drive, but no access is permitted from this road, with the site having vehicular access via Hollett Road.  An Energex transmission line and an associated easement traverse the northern portion of the site.
Topographically the site is largely flat with gently undulating slopes with a mosaic of soil types.  The site currently supports large areas of grasslands that have been actively used for cattle grazing. The site also supports areas of paperbark forest and eucalypt woodlands and there are a number of small dams scattered through the central portion of the site.
The site forms part of an area of land that provides a corridor for native wildlife to move between areas of protected habitat in the locality, including Noosa National Park, Lake Weyba and Tewantin State Forest. Notably the Regional Ecosystem Map for the site locality identifies the presence of areas identified as being Essential Habitat for species listed as Endangered, Vulnerable or Rare pursuant to the Nature Conservation Act. These are wetland habitats which are associated with Eenie Creek and its tributaries for the Wallum froglet and Wallum rocketfrog. A number of other significant fauna species also have a high probability of utilising the habitat within the site, including koalas.
Subject site
Subject site
Figure 1: Locality Plan
Surrounding Land Uses
The land abuts a mix of residential, rural, open space conservation and community services land uses. A number of parcels of Bushland Reserve associated with the Noosa Business Centre and the residential estate accessed via Lake Entrance Boulevard are adjacent the northern boundary. A number of detached housing lots along Lake Entrance Boulevard also abut the northern boundaries of the site, though there is no direct road link from that estate to the subject site.
Directly to the west of the site are rural residential lots accessed via Hollett Road and the Noosa Par 3 Golf Course. A large (321.9ha) Council-owned allotment sits to the south-east of the site. The Noosa refuse station is located in its south-eastern corner but majority of the lot is undeveloped and a portion is dedicated as nature refuge (known as Weyba Nature Refuge).
Densely vegetated rural zoned land holdings are located to the east of the site. Weyba Downs residential estate is to the south-west of the site, in Sunshine Coast Regional Council area and comprises a mix rural-residential and rural lots.
assessment
Instruments for Statutory Assessment
Under the Planning Act 2016 the application must be assessed against each of the following statutory planning instruments to the extent they are relevant to the development, including those in place at the time the original application was made and the requirements which apply today:
State Planning Policy;
South East Queensland Regional Plan;
Planning Regulation 2017;
The Noosa Plan.
The following codes from the Noosa Plan are particularly applicable to this development:
Tewantin & Doonan Locality Code
Biodiversity Overlay Code
Natural Hazard Overlay Code
Statutory Process
The applicant has requested to make a minor change to a development approval under s78 of the Planning Act 2016. An application for a minor change to a development approval can only be made in circumstances where a change would constitute a ‘minor change’.
The Council is required to have regard to the matters set out in s81(2) of the Planning Act 2016 in considering the application for a minor change before making its decision under s81A(2).
Amongst the matters to be considered by the Council under s81(2) are those in subsection (da) including all matters Council would or may assess against or have regard to if the change application were a development application.
The proposed change to the development approval requested by the applicant is determined to constitute a minor change on the grounds that:
the development would not result in substantially different development as the proposed changes maintain a similar but reduced front print, and do not raise new or additional impacts;
the change does not include prohibited development;
the change would not require the application to be referred to an additional referral agency or cause a referral agency to have regard to new matters prescribed by regulation;
where the original application was code assessable, the change would not cause the application to become impact assessable.
Nevertheless, Council is required to consider all matters it would have been required to consider if the change application were a development application.  These are dealt with hereunder:
Statutory Instruments
South East Queensland Regional Plan
The subject land is designated Regional Landscape and Rural Production Area under the South East Queensland Regional Plan (SEQRP) and has been similarly designated since the regulatory provisions took effect in 2004. These regulatory provisions imposed strict controls on subdivision of land, but did not apply to land for which a rezoning approval applied or to land zoned ‘residential’. The intent of the SEQRP provisions being to stop fragmentation of rural lands and bushland, achieve a more compact urban form and maintain inter-urban breaks.
The proposed changes to the proposal plan do not raise any additional conflicts with the SEQRP but the proposed subdivision continues to conflict with the SEQRP and the proposed changes to the plans do not address this conflict.  The proposal results in the creation of rural settlement type lots within an area where the intent is to protect the landscape, environmental values and capacity for rural production.
The proposed subdivision is prohibited under the Planning Regulations 2017 and an application for subdivision would not be able to be lodged with Council today.
Planning Regulations 2017
In accordance with the provisions in place at the time this minor change application was lodged, the site was identified as being in a Koala Assessable Development Area and contained areas identified as bushland habitat. The regulations require that premises outside of the Urban Footprint do not remove non-juvenile koala habitat trees in areas defined as bushland habitat.

Figure 2 Koala Conservation in South East Qld State Planning Regulatory Provisions
The approved layout requires the removal of non-juvenile koala habitat trees in bushland habitat in an area outside the urban footprint. The proposed changes to the proposal plan include removal of a number of lots identified as bushland habitat but have not removed all lots mapped as bushland habitat.
Notably, under the changes made to the koala mapping and Planning Regulation 2017 on 7 February 2020, the site is now mapped as a Koala Priority Area with large areas mapped as core koala habitat area. Under these provisions an application to subdivide the land would be prohibited development where the proposal interferes with mapped koala habitat, including where building, structures are within 50m from a koala habitat area.
Planning Scheme
The subject land is identified as having a preferred dominant land use of ‘rural’ and ‘areas of ecological significance’ by the Noosa Plan’s strategic framework map.  The site is further located in the Tewantin & Doonan Locality and is zoned Rural.  These designations and zoning seek to prevent the fragmentation of agricultural land, and protect the scenic and environmental amenity and values of the area.  Rural settlement type lots are intended to only occur on land zoned for rural settlement with residential land uses contained within the defined urban growth boundaries.  The land is not zoned for rural settlement and is located outside the defined urban growth boundary and therefore the proposal raises significant conflicts with the outcomes sought for the site by The Noosa Plan.
The Biodiversity Overlay also maps large areas of the site for Environmental Protection and as Riparian Buffer generally reflective of the site’s vegetation and watercourses in the area.  The Biodiversity Overlay seeks to conserve or improve these areas and for development to be located outside of these areas to enhance native fauna movement, conserve and consolidate habitat and maintain water quality of waterways.   These areas are shown on Figure 3 below.

Figure 3 – The Noosa Plan’s Biodiversity Overlay mapping
Parts of the site are also mapped by the Noosa Plan’s Natural Hazard Overly as having a very high potential bushfire intensity.  Some minor areas are also mapped as being flood affected though these areas are not proposed to be subdivided.  While not mapped by the Natural Resources Overlay, large areas of the site have also been identified as good agricultural land by Council’s agricultural scientist as part of the appeal process.
The proposed changes to the plans do result in some improvements in terms of environmental and agricultural land outcomes and bushfire resolution, when compared with the current approved plans.
The proposed area of parkland has increased by approximately 6.6 hectares.
The extent of intrusion into the site’s riparian buffer in the north has been reduced somewhat though proposed lots 36 to 39 still partly intrude into this riparian buffer as does the proposed associated fire trail for these lots contrary to the outcomes sought for the site.
The proposed changes to the plans will still lead to the removal of koala habitat, including lots 3-5 and their associated fire trial.  Many lots include large building envelopes which also result in the many of the lots being fully cleared of koala habitat trees.
A number of the proposed lots still consume good quality agricultural land, including lots 1, 4-13, 19-21, 37-39 and possibly lots 2, 3, 22 and 36 being adjacent to the good quality agricultural land.  Lot 40 contains good quality agricultural land that will be fragmented from the other GQAL on the whole site.
The removal of some lots, redesign of the road layout and increased fire trail widths has better addressed the site’s bushfire hazards, though some of the increased fire trail widths have pushed further into the riparian buffer such as adjacent lot 5.
Lot 40 remains a concern being served by a long track through bushfire prone areas from Hollett Road.  The proposed fire trail within lot 32 to protect lots 6, 13, 14, 20 and 21 also inappropriately burdens this private land owner, with other proposed fire trails burdening Council in the long term.
The fire trail around proposed lots 1 and 2 also ends in a dead end and should return to Hollett Road. Emergency access to Walter Hay Drive is also proposed but no details have been provided demonstrating appropriate sight lines and while has merit from a bushfire resolution perspective is contrary to Council’s traffic planning for the shire.
draft planning scheme
Under the draft planning scheme, the site is located outside the identified rural residential area and outside the urban area boundary.  The site’s vegetation is identified on the Biodiversity and Environment Map as forming part of a connecting habitat area and ecological linkage, with the site zoned Rural.  No subdivision is envisaged for this land, with the draft seeking to maintain the capacity of the land for rural uses while also avoiding adverse environmental and scenic amenity impacts.
Comments on Further plan of 23 April 2020
The plans submitted to Council on 23 April 2020 include a revised subdivisional layout prepared in response to Energex’s objection.  Review of these plans finds the proposed changes do not overcome the conflicts with the Noosa Plan previously identified in this report.  The proposed layout also raises the same or similar issues outlined in section 3.3 of this report though notably the development further intrudes into the northern riparian buffer.
cONSULTATION
Referral Agencies
The applicant has provided notice of the proposed change to the development approval to the following Referral Agency:
Department of Infrastructure, Local Government & Planning (SARA)
The Department was a referral agency due to the Energex easement and high voltage power lines that traverse the site.
Energex in response to the change application on 20 December 2019 objected to the change on the following grounds:
The amended proposal includes 250m of road within the Energex easement, involves additional impacts on Energex’s interests, for which insufficient information has been provided; and
The amended proposal results in a total of 8 lots directly interfacing the Energex easement.  There is insufficient information provided to demonstrate the concept of prudent avoidance for future dwellings on these lots, particularly those with building envelopes in close proximity to the high voltage electricity infrastructure corridor.
Energex further advised it may revise its position in relation to the change application, subject to the applicant submitting an amended proposal showing a perpendicular road crossing of the easement and/or further detailed assessment addressing the issues raised.
Further correspondence from Energex was received on 23 April 2020 advising it has reviewed its position in relation to the change application and it no longer objects to the change application subject to a number of requirements including that the development is carried out in accordance with the new plans received in April 2020 from the applicant.
Other Referrals
The application was forwarded to the following internal Council specialists:
Coordinator, Engineering
Ecologist
conclusion & reasons for decision
The application, while offers some improvements to the approved subdivisional layout, does not resolve the development’s significant conflicts with the SEQRP, the Planning Regulation requirements for subdivision outside the Urban footprint and protection of koala habitat and the Noosa Plan’s outcomes sought for the site to be maintained as rural land.
The proposed changes have further not addressed the proposal’s conflicts in respect to the environmental outcomes sought for the site as the proposed subdivision intrudes into riparian buffers and removes koala habitat. The proposed development will further result in the fragmentation of good agricultural land and the proposed changes have not satisfactorily resolved the site’s potential bushfire hazards.
The applicant’s grounds to approve the application do not justify the proposed subdivision and the change application. The conditions are not all consistent with current statutory requirements and best practice and the proposed changes to the conditions by the applicant do not satisfactorily address the differences.
A persons financial input into a project is also not a relevant consideration and while Mr Hofmann may have been in poor health, Mr Hofmann has had over 20 years to develop the site after the rezoning was approved in 1997. Mr Hofmann further had the opportunity to seek compensation for dedication of part of the site for construction of Walter Hay Drive but never pursued this within the required time frames.
There is further no demonstrated need for additional rural settlement lots in Noosa Shire, with recent reviews for the SEQRP and draft planning scheme concluding that sufficient capacity exists to accommodate projected demand for dwellings until 2041.
In exercise of the Council’s power under s81A of the Planning Act 2016 having regard to the matters to be considered under s81(2), it is therefore recommended that the application be refused.
Departments/Sections Consulted:
	Chief Executive Officer		Community Services		Corporate Services
	Executive Officer		Community Development		Financial Services
	Executive Support		Community Facilities		ICT
			Libraries & Galleries		Procurement & Fleet
			Local Laws		Property
			Waste & Environmental Health		Revenue Services
					
	Executive Services	x	Environment & Sustainable Development		Infrastructure Services
	Community Engagement		Building & Plumbing Services		Asset Management
	Customer Service	x	Development Assessment		Buildings and Facilities
	Governance		Economic Development		Civil Operations
	People and Culture		Environmental Services		Disaster Management
			Strategic Land Use Planning		Infrastructure Planning, Design and Delivery
					

[word/footer1.xml]
Page 11 of 11

[word/header1.xml]
3

[word/header2.xml]
SPECIAL MEETING REPORT	13 MAY 2020

[Attachment: image3.png (image text)]
[7 Let and Pian
[=| Priority Koala Assessable Development Areas
[==] Koala Assessable Development Areas
[outside SPRP Koala Assessable Development Areas
Koala SPRP - Identified Broad-Hectare Areas
QZ, Koala SPRP - Identified Broad-Hectare Areas
Koala SPRP - Habitat Value
Bushland Habitat
IH High Value Bushiana
IEEE Medium Value Bushland
© Low Value Bushland
Suitable for Rehabilitation
[EEE High Value Rehabilitation
Medium Value Rehabilitation
Low Value Rehabilitation
Other Areas of Value
IEE High Value other
Medium Value Other
Low Value Other
Generally not suitable
Water
Cadastral Boundaries
LILI Local Government Boundaries T

 

 

 

 

 


[Attachment: image4.png (image text)]
4
x He
base
|
Land Parcels A
WA
Local Government
loosa
Biodiversity Overlay
vironmental
Areas