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BD.2147 of 2022. Judgment
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In the Planning and Environment Court No. 2147 of 2022
Held at: Brisbane
Between: SUNSHINE ENTERPRISES (QLD) PTY LTD Appellant
(ACN 646 658 479)
And: NOOSA SHIRE COUNCIL Respondent
Before His Honour Judge Williamson KC
Date of Hearing 26 April 2023
Date of Order 26 April 2023
ORDER
THIS MATTER HAVING on this day come on for hearing by way of appeal against the decision of the
Respondent to refuse the Appellant's development application for a development permit for material
change of use for a Dual Occupancy with respect to land situated at 6 Margit Crescent, Sunrise Beach
and also described as Lot 116 on RP132135.
UPON HEARING the Solicitor for the Appellant and the Solicitor for the Respondent
UPON READING the Orders of the Court dated 26 September 2022 and 21 February 2023
IT IS ORDERED WITH THE CONSENT OF THE PARTIES THAT:
1. The appeal is allowed.
2. The development application is approved subject to the conditions attached hereto as
Annexure "A", contained in pages 1 to 14.
3. Each party bear its own costs of the appeal.
Filed on 26 April 2023
Filed by Thynne + Macartney Lawyers
Service Address Level 32, 123 Eagle Street
Telephone BRISBANE 4000
Facsimile Phone: +61 7 3231 8876
Email: [email protected]
……………………….
Registrar
Order Thynne + Macartney Lawyers
Filed on behalf of Respondent Level 32, 123 Eagle Street
BRISBANE 4000
Phone: +61 7 3231 8876
Fax: 61 7 3229 0855
Email:[email protected]
6285392_1
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Full text of the other 14 pages
Page 2
PLANNING
"A"
When Conditions must be Complied With
1. Unless otherwise stated, all conditions of this Decision Notice must be complied with prior to
the use commencing, and then compliance maintained at all times while the use continues.
Approved Plans
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.
Plan No. Rev. Plan/Document Name Date
22-005 – DA300 D Proposed Site Plan drawn by OH 15/11/2022
Architecture
22-005 – DA301A D Proposed Level 0 Floor Plan drawn by OH 15/11/2022
Architecture
22-005 – DA301B D Proposed level 0 Floor Plan drawn by OH 15/11/2022
Architecture
22-005- DA302 D Proposed Level 1 Floor Plan drawn by OH 15/11/2022
Architecture
22-005—DA303 D Proposed Roof Plan drawn by OH 15/11/2022
Architecture
22-005- DA351 A Proposed Elevations drawn by OH 00/00/00
Architecture
22-0005- DA352 D Proposed Elevations drawn by OH 15/11/2022
Architecture
22-005- DA353 D Proposed Elevations drawn by OH 15/11/2022
Architecture
22-005- DA501 E Perspective Images drawn by OH 20/01/2023
Architecture
22-005- DA502 E Perspective Images drawn by OH 20/01/2023
Architecture
Vergola Louvres
3. The louvres of the vergolas must be fixed in an open position at all times, similar to an open
pergola structure.
Building Appearance
4. External design features, materials and finishes must be as shown on the approved plans of
development, with no inclusions or alterations made without approval in writing by Council.
5. All deck and balcony areas must not be enclosed by permanent fixtures such as shutters,
louvres, glass panelling or the like thus remaining as open structures.
6. The landscaped eaves as shown on the approved plans of development for level 1 must be
landscaped and maintained at all times, with replacement planting undertaken promptly where
plants fail or do not have a healthy and vigorous growth.
7. External colours and finishes must be of an understated colour scheme and low-reflective
roofing and cladding materials as shown on the approved plans of development.
8. All air conditioning units or other mechanical equipment must be fully enclosed or screened
such that they are not visible from the street frontages nor adjoining properties.
9. Waste storage areas, clothes drying areas and external storage areas must be screened from
view of the street.
Currency Period
10. This development approval lapses if the use has not happened by 16 March 2029, unless an
application to extend the currency period is approved by Council.
Page 1 of 4
1
Page 3
Building Height
11. The maximum height of the development must not exceed 8 metres above the ground level.
12. Certification must be submitted to Council from a Registered Cadastral Surveyor (Qld) which
certifies that the building does not exceed the maximum height requirement of this Decision
Notice.
Performance Bond
13. Security in the form of a cash bond or trading bank guarantee to the sum of $7,500 must be
submitted to Council, to secure performance of all conditions of this approval, prior to the issue
of a Development Permit for Operational Works. The cash bond or trading bank guarantee will
be returned on completion of the development subject to satisfactory performance of the
conditions of approval at that time less any costs incurred by Council in respect of enforcing
performance of this permit. Council reserves the right to call upon the bond or guaranteed sum
to effect compliance with conditions.
Fencing and Walls
14. Any street fencing must not exceed 1.8m in height, be set back an average of 1 metre and
articulated to provide visual interest by stepping the design. Any fencing on the front boundary
must either:
a. not exceed a maximum height of 1.2m
b. be of open construction.
15. The area of land between the fence and the front property boundary must be densely
landscaped to screen any fencing from the street.
Landscaping Works
16. The development site must be landscaped. The works must be undertaken in accordance with
an Operational Works approval and the Noosa Plan for that specific area and must include in
particular:
a. provision of 1 street tree within the road reserve for every 8 metres of road frontage
b. planting of shrubs and trees that will visually frame and soften the presentation of the
built form to the streetscape
c. provision of dense screen planting along the side and rear boundaries to protect the
privacy of adjoining properties.
17. All landscape works must be established and maintained in accordance with the approved
design for the life of the development, and in a manner that ensures healthy, sustained and
vigorous plant growth. All plant material must be allowed to grow to full form and be refurbished
when its life expectancy is reached.
Community Management Statement
18. Any proposed Community Management Statement required for the development pursuant to
the Body Corporate and Community Management Act 1997 must be submitted to Council for
endorsement at the same time as submission of the Building Format Plan (or similar) to Council
for compliance assessment.
19. All clauses and by-laws of the proposed Community Management Statement must accord with
the requirements of this Decision Notice and, in particular, must include the following additional
clause:
a. The dwelling units cannot be used for short term accommodation, unless where
identified as accepted development by the Noosa Plan or where there is a Development
Permit for Material Change of Use for short term accommodation in effect. Short term
accommodation means the use of the premises for providing accommodation of less
than 3 consecutive months to tourists or travellers.
Page 2 of 4
2
Page 4
External Works
20. Margit Crescent must be upgraded for the length of its frontage to the subject site. The works,
which must be undertaken in accordance with an Operational Works approval and be generally
in accordance with Barlow Shelley’s Earthworks Plan (P01) dated 20 June 2022 are:
a. construction of a 1.5-metre-wide pedestrian footpath in accordance with the conditions
of this Decision Notice; and
b. removal of the existing property access and reinstatement of the kerb and verge area to
match the balance of the site frontage, including the provision of topsoil and turf where
the existing verge is grassed.
Site Access and Driveways
21. A sealed access driveway must be provided from Margit Crescent to all parking and
manoeuvring areas of the development. The works must be undertaken in accordance with an
Operational Works approval and be generally in accordance with Barlow Shelley’s Earthworks
Plan (P01) dated 20 June 2022.
Car Parking
22. A minimum of 3 car parking spaces must be provided and marked on the site. The works must
be undertaken in accordance with Drawing No. 22-0005 DA301A, Revision D prepared by OH
Architecture and dated 15 November 2022.
Stormwater Drainage
23. The site must be provided with a stormwater drainage system connecting to a lawful point of
discharge. The works must be undertaken in accordance with an Operational Works approval
and must include the works shown on the drawing titled ‘Stormwater Layout and Services
Layout Carparking and Manoeuvring Layout’, Drawing Number P02 Rev C, dated
08/08/20222, prepared by Barlow Shelley Consulting Engineers, with the exception of the
following:
a. The area provided for infiltration at each soakage pit is to be increased to the area
required to infiltrate a flow of 1L/s, based on the in-situ saturated hydraulic conductivity
of the soil; and
b. The pit connection point for roofwater downpipes is to be nominated on the Operational
Works drawings, such that any sections of roofwater pipework with negative grade are
able to drain to the soakage pit and empty between rainfall events.
Services
24. Unless otherwise stipulated by telecommunications legislation at the time of construction, the
development must be provided with all necessary conduits, pits and pipes to accommodate
the future connection of optic fibre technology telecommunications.
25. Certification must be submitted to Council from all relevant service providers (Energex, NBN
and Unitywater) which certifies that the development has met the requirements of this Decision
Notice and all applicable legislation at the time of construction.
Easements
26. Unless otherwise agreed in writing by the relevant service provider, any public or third party
infrastructure located on the subject site must be placed within an easement registered against
the title of the property.
27. All easements must be designed in accordance with the planning scheme and granted at no
cost to the Grantee. Where the Grantee is Council or a service authority, the easement
documentation must be in accordance with the Grantee’s standard easement terms. Draft
easement documentation must be submitted to Council for endorsement.
28. All works must be kept clear of any existing or proposed easements on the subject land, unless
agreed otherwise in writing by the Grantee.
Page 3 of 4
3
Page 5
Earthworks and Retaining Walls
29. All fill and associated batters must be undertaken in accordance with an Operational Works
approval, be generally in accordance with Barlow Shelley’s Earthworks Plan (P01) dated 20
June 2022 and contained entirely within the subject site unless written permission from the
respective landowner(s) is provided to Council.
Damage to Services and Assets
30. Any damage caused to existing services and assets as a result of the development works must
be repaired at no cost to the asset owner at the following times:
a. where the damage would cause a hazard to pedestrian or vehicle safety, immediately;
or
a. where otherwise, upon completion of the works associated with the development.
Any repair work which proposes to alter the alignment or level of existing services and assets
must first be referred to the relevant service authority for approval.
Waste Management
31. A waste storage area must be maintained in accordance with Planning Scheme Policy PSP9
Waste Management and the Noosa Plan’s Waste Management Code. The waste storage area
must be correctly sized for all refuse and recycling containers.
Page 4 of 4
4
Page 6
RIDGE RL 42.540
RIDGE RL 42.380
37.80
0
37.8
37.6
0 0
0
6605
0
SETBACK
SETBACK
CP
2090
GUTTER RL 39.880
37.600
GTP101286
00
37.4
37.6
00
37.800
1500
1970
1970
CP
13500
6000 GTP1018
CRESCENT
200
CP
37.
PROPOSED DUPLEX DWELLING 1
BUP13368
00
PROPOSED POOL
37.8
38.000
MARGIT
PROPOSED DUPLEX DWELLING 2 PROPOSED POOL
37.800 12750
6000
Lot 116
1970
1930
1500
RP132135
00
00
00
CP
37.4
37.6
37.2
SETBACK
2370
GTP106735
00
37.8
38.200
6650
38.000
SETBACK
610
45.
RL
GE
38.200
38.000
RID
38.000
1 PROPOSED SITE PLAN
1 : 200
OH ARCHITECTURE PTY LTD CONTACT PROJECT / DRAWING PROJECT CODE / DRAWING NUMBER DATE REV
E [email protected] 0 1 2 6m
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6 MARGIT CRESCENT - PROPOSED SITE PLAN 22-005 - DA 300 15/11/22 D
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37.600
Ca Cb
352 352
00
37.6
37.800
1500
1500
2000
2000
3450
TV UNIT
SKY. OVER SKY. OVER
ENTRY
LINE OF LANDSCAPED EAVE OVER
GATE
1800 SCREEN
LIVING
WC
6310 DINING
LINE OF VOID OVER
GARAGE DOOR
LINE OF LANSCAPED EAVE OVER
RL+37.880 PATIO
4880
VISITOR RL+37.880
PARKING GARAGE
00
CRESCENT
37.8
REFER 301B FOR CONTINUATION
38.000
KITCHEN
BUTLERS / LDY
RL+37.930
RL+37.880
A
MARGIT
STORE FRIDGE STORE BBQ
351
4000
6080
2000
DRIVEWAY STORE FRIDGE STORE BBQ
BUTLERS / LDY KITCHEN
RL+37.930
LINE OF LANSCAPED EAVE OVER
GARAGE
GARAGE DOOR
VISITOR
PARKING
4880
PATIO
LINE OF VOID OVER RL+37.880
WC DINING LIVING
LINE OF LANDSCAPED EAVE OVER
1800 37.800
6800
SCREEN
GATE
ENTRY
SKY. OVER SKY. OVER
3450
TV UNIT
2000
2000
1500
1500
00
00
Da Db
37.4
37.6
353 353
1 PROPOSED LEVEL 0 FLOOR PLAN
351 1 : 100
OH ARCHITECTURE PTY LTD CONTACT PROJECT / DRAWING PROJECT CODE / DRAWING NUMBER DATE REV
6
E [email protected] 0 .5 1 3m
A 101 Days Rd, Grange QLD 4051
IG oh.architecture
6 MARGIT CRESCENT - PROPOSED LEVEL 0 FLOOR PLAN 22-005 - DA 301A 15/11/22 D
W oharchitecture.com.au Scale 1:100 @ A3
Page 8
37.600
Ca Cb
352 352
37.4
00
17250 00
37.6
1500
1500
2000
2000
3450
TV UNIT
SKY. OVER SKY. OVER
ENTRY
BACKYARD
LINE OF LANDSCAPED EAVE OVER
GATE
SCREEN
LIVING
6310 WC
DINING
LINE OF VOID OVER
GARAGE DOOR
00
LINE OF LANSCAPED EAVE OVER
RL+37.880 PATIO
2
37.
4880
RL+37.880
GARAGE
00
POOL
37.8
REFER 301A FOR CONTINUATION
BENCH SEAT
KITCHEN
BUTLERS / LDY
RL+37.930
RL+37.880
A STORE FRIDGE STORE BBQ
351 B
2000
351
STORE FRIDGE STORE BBQ
BUTLERS / LDY KITCHEN
RL+37.930
BENCH SEAT
POOL
LINE OF LANSCAPED EAVE OVER
GARAGE
GARAGE DOOR
4880
PATIO
LINE OF VOID OVER RL+37.880
WC DINING LIVING
LINE OF LANDSCAPED EAVE OVER
37.800
6800
SCREEN
GATE
BACKYARD
ENTRY
SKY. OVER TV UNIT SKY. OVER
3450
2000
2000
1500
1500
16500
00
00
00
Da Db
37.4
37.2
37.6
353 353
1 PROPOSED LEVEL 0 FLOOR PLAN CONT.
351 1 : 100
OH ARCHITECTURE PTY LTD CONTACT PROJECT / DRAWING PROJECT CODE / DRAWING NUMBER DATE REV
E [email protected] 0 .5 1 3m
A 101 Days Rd, Grange QLD 4051
6 MARGIT CRESCENT - PROPOSED LEVEL 0 FLOOR PLAN 22-005 - DA 301B 15/11/22 D
IG
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Ca Cb
352 352
1500
2000
2000
EAVES GUTTER
LANDSCAPED EAVE ROOF BELOW SKYLIGHT SKYLIGHT
PLANTER
ROBE
BED 03 WIR VOID
BALCONY
ROBE 15200
RL+41.380
6000
LANDSCAPED EAVE
6600 HALLWAY
ROBE DUCT RL+41.430
LANDSCAPED EAVE
MASTER BED
STAIR ROBE
VERGOLA OVER
WIR
BED 02 ROBE
SKY OVER SKY OVER ENSUITE
BATH SHOWER SHOWER
BATH
A ROBE
351
ROBE ROBE
SHOWER SHOWER
BATH BATH ENSUITE
SKY OVER SKY OVER WIR ROBE
LANDSCAPED EAVE
BED 02 STAIR ROBE
MASTER BED
7050 DUCT HALLWAY LANDSCAPED EAVE
RL+41.430
ROBE
BALCONY 14460
BED 03 VOID
WIR RL+41.380
VERGOLA OVER
ROBE
6000 PLANTER
LANDSCAPED EAVE ROOF BELOW SKYLIGHT SKYLIGHT
EAVES GUTTER
2000
2000
1500
Da Db
353 353
1 PROPOSED LEVEL 1 FLOOR PLAN
351 1 : 100
OH ARCHITECTURE PTY LTD CONTACT PROJECT / DRAWING PROJECT CODE / DRAWING NUMBER DATE REV
E [email protected] 0 .5 1 3m
A 101 Days Rd, Grange QLD 4051
6 MARGIT CRESCENT - PROPOSED LEVEL 1 FLOOR PLAN 22-005 - DA 302 15/11/22 D
IG
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Ca Cb
352 352
1500
2000
2000
RL+45.300
BALCONY BELOW
13500
6000
VERGOLA BELOW
OVERFLASHING
ROOF 02
FALL 2°
OVERFLASHING
SKYLIGHT SKYLIGHT
A
351
SKYLIGHT SKYLIGHT
ROOF 01
OVERFLASHING BELOW
FALL 2°
VERGOLA BELOW
FALL 7°
ROOF 03
RL+45.806
BALCONY BELOW
12750
6000
2000
2000
1500
Da Db
353 353
1 PROPOSED ROOF PLAN
1 : 100
OH ARCHITECTURE PTY LTD CONTACT PROJECT / DRAWING PROJECT CODE / DRAWING NUMBER DATE REV
E [email protected] 0 .5 1 3m
A 101 Days Rd, Grange QLD 4051
6 MARGIT CRESCENT - PROPOSED ROOF PLAN 22-005 - DA 303 15/11/22 D
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FINISHES LEGEND
+8.000m ABOVE NATURAL GROUND AT FCW1
RL+45.806
BOUNDARY RS1 AC1 ALUMINIUM CLADDING TYPE 1
BOUNDARY
BOUNDARY
EG1 +7.500m ABOVE NATURAL GROUND AT
CHS1 CIRCULAR HOLLOW SECTION TYPE 1
BOUNDARY
CO1 CONCRETE TYPE 1
EG1 EAVES GUTTER TYPE 1
FCW1 FIBRE CEMENT WALL TYPE 1
RL +44.230 RL +44.230
TC1 RM1 CEMENT RENDER TYPE 1
AC1 GLAZING GLAZING
GLAZING GLAZING RS1 ROOF SHEETING TYPE 1
TC1 TIMBER CLADDING TYPE 1
+4.500m ABOVE NATURAL GROUND AT WB1 WEATHERBOARD TYPE 1
BOUNDARY
RM1 CO1
RL +41.430 RL +41.430
RL +41.130 TC1 TC1
RL +41.130
RM1
GARAGE DOOR GARAGE DOOR
GLAZING GLAZING
GATE GATE
RL NATURAL GROUND AT BOUNDARY
RL +37.930
+37.790 RL
RL +37.930
+37.790
A ELEVATION A
301A 1 : 100
BOUNDARY
BOUNDARY
+8.000m ABOVE NATURAL GROUND AT
RS1
BOUNDARY +7.500m ABOVE NATURAL GROUND AT WB1
RS1
WB1 VERGOLA OVER BOUNDARY VERGOLA OVER
RL +44.230 RL +44.230
GLAZING GLAZING
GLAZING GLAZING
CHS1
CHS1
+4.500m ABOVE NATURAL GROUND AT
RL +41.430 EG1
WB1
BOUNDARY WB1 EG1
RL +41.430
RL +41.130 RM1
RL +41.130
RM1
GLAZING GLAZING
RL
RL +37.930
+37.790 RL
RL +37.930
+37.790
NATURAL GROUND AT BOUNDARY
B ELEVATION B
301B 1 : 100
OH ARCHITECTURE PTY LTD CONTACT PROJECT / DRAWING PROJECT CODE / DRAWING NUMBER DATE REV
E [email protected] 0 .5 1 3m
A 101 Days Rd, Grange QLD 4051
6 MARGIT CRESCENT - PROPOSED ELEVATIONS 22-005 - DA 351 00/00/00 A
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FINISHES LEGEND
AC1 ALUMINIUM CLADDING TYPE 1
CHS1 CIRCULAR HOLLOW SECTION TYPE 1
CO1 CONCRETE TYPE 1
EG1 EAVES GUTTER TYPE 1
FCW1 FIBRE CEMENT WALL TYPE 1
RM1 CEMENT RENDER TYPE 1
RL+45.806 FALL 7° RS1 ROOF SHEETING TYPE 1
+8.000m ABOVE NATURAL GROUND AT TC1 TIMBER CLADDING TYPE 1
FALL 2° FCW1
BOUNDARY
EG1
BOUNDARY WB1 WEATHERBOARD TYPE 1
EG1 WB1 AC1
REFER BELOW FOR CONTINUATION
VERGOLA OVER RM1
RL +44.230 RL +44.230
RM1
GLAZING WB1 GLAZING
GLAZING
RL +41.430 WB1
RL +41.430
AC1
RL +41.130 RM1
RL +41.130
GLAZING
RL
RL +37.930
+37.790 RL
RL +37.930
+37.790
Ca ELEVATION C
301A 1 : 100
RL+45.806 FALL 7°
+8.000m ABOVE NATURAL GROUND AT
FALL 2° FCW1
BOUNDARY
EG1
+7.500m ABOVE NATURAL GROUND AT BOUNDARY
REFER ABOVE FOR CONTINUATION
EG1 WB1 AC1
BOUNDARY
VERGOLA OVER RM1
RL +44.230 RL +44.230
RM1
GLAZING WB1 GLAZING
GLAZING
+4.500m ABOVE NATURAL GROUND AT
RL +41.430 BOUNDARY WB1
RL +41.430
AC1
RL +41.130 RM1
RL +41.130
GLAZING
RM1
BENCH SEAT
RL
RL +37.930
+37.790 RL
RL +37.930
+37.790
NATURAL GROUND AT BOUNDARY
Cb ELEVATION C CONT.
301A 1 : 100
OH ARCHITECTURE PTY LTD CONTACT PROJECT / DRAWING PROJECT CODE / DRAWING NUMBER DATE REV
E [email protected] 0 .5 1 3m
A 101 Days Rd, Grange QLD 4051
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FINISHES LEGEND
AC1 ALUMINIUM CLADDING TYPE 1
CHS1 CIRCULAR HOLLOW SECTION TYPE 1
CO1 CONCRETE TYPE 1
EG1 EAVES GUTTER TYPE 1
FCW1 FIBRE CEMENT WALL TYPE 1
RM1 CEMENT RENDER TYPE 1
RS1 ROOF SHEETING TYPE 1
TC1 TIMBER CLADDING TYPE 1
+8.000m ABOVE NATURAL GROUND AT RL+45.806
BOUNDARY
FALL 7° WB1 WEATHERBOARD TYPE 1
+7.500m ABOVE NATURAL GROUND AT BOUNDARY
FALL 2°
REFER BELOW FOR CONTINUATION
BOUNDARY EG1
EG1
EG1
FCW1
VERGOLA OVER
RL +44.230 FCW1
GLAZING
RL +44.230
WB1 RM1
GLAZING
GLAZING
+4.500m ABOVE NATURAL GROUND AT
BOUNDARY
WB1
RL +41.430 RL +41.430
RL +41.130 RM1 RL +41.130
TC1
GLAZING
RM1
RL
RL +37.930
+37.790 RL
RL +37.930
+37.790
NATURAL GROUND AT BOUNDARY
Da ELEVATION D
301A 1 : 100
REFER ABOVE FOR CONTINUATION
+8.000m ABOVE NATURAL GROUND AT RL+45.806
BOUNDARY
BOUNDARY FALL 7°
EG1
FALL 2°
EG1
EG1
FCW1
VERGOLA OVER
RL +44.230 FCW1
GLAZING
RL +44.230
WB1 RM1
GLAZING
GLAZING
WB1
RL +41.430 RL +41.430
RL +41.130 RM1 RL +41.130
TC1
GLAZING
RM1 RM1
RL
RL +37.930
+37.790 RL
RL +37.930
+37.790
NATURAL GROUND AT BOUNDARY
Db ELEVATION D CONT.
301A 1 : 100
OH ARCHITECTURE PTY LTD CONTACT PROJECT / DRAWING PROJECT CODE / DRAWING NUMBER DATE REV
E [email protected] 0 .5 1 3m
A 101 Days Rd, Grange QLD 4051
6 MARGIT CRESCENT - PROPOSED ELEVATIONS 22-005 - DA 353 15/11/22 D
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6 MARGIT CRESCENT - PERSPECTIVE IMAGES 22-005 - DA 501 20/01/23 E
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E [email protected]
A 101 Days Rd, Grange QLD 4051
6 MARGIT CRESCENT - PERSPECTIVE IMAGES 22-005 - DA 502 20/01/23 E
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