20220728 Ltr Negotiated Decision Notice 17-19 Noosaville

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   We conclude that Condition 5 of the Development Approval is not imposed for a proper planning
   purpose, and unlawful and should be removed.

   (2) Condition 14, which says

       “Security in the Form of a cash bond or trading bank guarantee to the sum of $50,000 must be
       submitted to Council, to secure performance of all conditions of this approval, prior to a pre-
       start meeting. The cash bond or trading bank guarantee will be returned on performance of the
       conditions of approval 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”.

   We conclude that Condition 14 is neither reasonable nor relevant as prescribed under the Planning
   Act 2016 and should be removed. The condition is ambiguous in terms of release as conditions are
   required to be maintained for the duration of the development.

   (3) Condition 53, which says

       “Prior to the prestart meeting, a bank guarantee or a bond of $30,000 must be lodged as security
       for the protection of the tree/s identified for retention in the conditions of this approval. The
       bond:

       a) may be drawn upon by Council in its entirety if any one tree identified for retention
          is damaged to the point where the tree cannot be saved (as confirmed by the
          project arborist and agreed in writing by Council)
       b) will be returned upon practical completion of all the operational works relating to
          this development”.

   We conclude that the condition is not reasonable and propose the following amendment:

       “Prior to the prestart meeting, a bank guarantee or a bond of $30,000 must be lodged as security
       for the protection of the tree/s identified for retention in the conditions of this approval. The
       bond:

       a) may be drawn upon by Council in its entirety if any one tree identified for retention
          is damaged to the point where the tree cannot be saved (as confirmed by the
          project arborist and agreed in writing by Council); and

       b) the tree cannot be rehabilitated elsewhere on the site via new stock at a replanting ratio of
          1:2 (in a location to be agreed to in writing by Council).

       The bond will be returned upon practical completion of all the operational works relating to
       this development (where a) and b) above are met)”.


Representations on Conditions of Approval

Stockwell’s representations and the facts and circumstances which support the representations are
outlined below:

Page 3

Background

On or about 25 August 2021, Stockwell Development Group Pty Ltd (“Stockwell”) made a development
application to the assessment manager for a development permit for a material change of use for
multiple dwellings (“Development Application”) on land at 28 Eenie Creek Road, Noosaville (“Land”).

The Land is:

1.     part of Lot 3 on SP246584;

2.     located in part of Noosa Civic; and

3.     located within Precinct 5E (High density residential precinct) of the Major Centre Zone within
       the Noosa Business Centre identified in the Noosa Plan 2020.

Originally the Development Application sought approval for:

1.     a total of 96 residential units in 3 separate buildings, each occupying 3 storeys;

2.     a mix of dwelling types, including 27 x 1 bedroom, 57 x 2-bedroom and 12 x 3-bedroom units;

3.     vehicular access (including service vehicles) from a single driveway to Hofmann Drive; and

4.     building styles which depicted a high-quality architectural design “consistent with the laid
back coastal style presented in Noosa”.

The Development Application was subject to impact assessment. The application received one
submission against the submission which was concerned about carparking. On 21 June 2022 the
Council approved the Development Application subject to conditions.

Condition 5

We request the removal of condition 5 from the conditions package.

Condition 5, says:

       The study rooms must not be used as a bedroom with these rooms to have at least one wall with
       a maximum height of 1.5 metres or limited to sliding doors, concertina doors or the like. Study
       rooms are rooms detailed on the plans which do not include a bed within the furnishings.”

Figure 1 and 2 demonstrate the proposed internal design of 2- bedroom units.

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Figure 1 & 2: Type 2A and image of wall to room Source: Mode

The motivation for condition 5 emerged from Council, who said1:

          “It is concerning that within a number of the 2-bedroom apartments, the second bedroom is
          positioned at the rear of the apartments, directly abutting the central circulation spine. It would
          appear that no windows are proposed to these bedrooms. Certainly, the fire egress
          requirements in the building code will prevent having operable windows to these bedrooms. The
          lack of ventilation and daylight access to these bedrooms is not an acceptable outcome, from a
          resident amenity perspective.”

Council also claimed the internal bedroom did not achieve compliance with PO8 of the Sustainable
Building Design Code, which forms part of Noosa Plan 2020.

PO8, AO8.1 and AO8.2 are reproduced below.

    Performance Outcomes                           Acceptable Outcomes
    Building design
    PO8                                         AO8.1
    Development –                               Development     provides     a   detailed
                                                assessment      including      supporting
    (a)    orientates buildings and windows documents, demonstrating the means by
           to make the most of prevailing which the design meets PO8.
           winds, natural ventilation and cross
           breezes;                             AO8.2
                                                Development demonstrates a measured
    (b)    maximises shade to east and west equivalent to a 5-star Green Star rating.
           walls;
                                                Editor’s note–The publications Design and
    (c)    contains an open and permeable Companion, prepared by the State of
           built form that connects indoor and Queensland, provide climate responsive
           outdoor spaces in an integrated design principles for development in south
           design;                              east Queensland. Council encourages
                                                building and landscape designers to

1
    Email Noel Robinson dated 2 February 2022

Page 5

    (d)    retains existing vegetation and incorporate best practice outcomes
           natural shading where possible; described in these publications to help
                                           development comply with
    (e)    incorporates passive building
           design to reduce the need for PO8.
           auxiliary heating and cooling;

    (f)    uses low toxic internal and external
           building materials;

    (g)    uses natural light rather than
           artificial light, and may include
           skylights, atriums and light walls;

    (h)    contains a minimum of two
           openings per habitable room;

    (i)    provides a minimum floor to ceiling
           height of 2.7 metres; and

    (j)    enables efficient operation and use
           of the building.

    Editor’s Note: Refer to Figure 9.4.6.4

Statutory Framework

The power to approve a development application includes the power to impose development
condition2. The power to impose development conditions is expressed in general terms and as was
noted by the Court of Appeal3:

          “Conditions are the community price a developer must pay for a development approval. They
          have characteristically been the vehicle for minimising adverse impacts…”

The power to impose development conditions must be read subject to the statutory provisions about
lawful conditions.

Section 65 of the PA imposes a constraint on the power to impose conditions4. It states, relevantly:

          “65     Permitted Development Conditions

                  (1)     A development condition imposed on a development approval must –

                          (a)     be relevant to, but not an unreasonable imposition on, the development
                                  or the use of premises as a consequence of the development; or

                          (b)     be reasonably required in relation to the development or use the
                                  premises as a consequence of the development”.



2
  PA, s60(2)(c)
3
  Atkinson J in Hymix Industries & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334
4
  Australian Retirement Homes Limited v Pine River Shire Council & Anor [2009] QPEC 92, noting that the power
to impose conditions in the PA is materially the same as its predecessors including s345 of the Sustainable
Planning Act 2009.

Page 6

The Court has noted that whether conditions are reasonably required involves a consideration of the
proposed development and the change that the development is likely to produce 5 and the condition
must be a reasonable response to the change in existing state of things6.

A condition that is not “reasonably required” may nevertheless be “relevant” if it maintains proper
standards in a local development or some other legitimate planning sense, such as where it is
reasonably imposed in the interest of rational development of an area7.

The mere fact that a condition is relevant to the proposed development will not necessarily be
sufficient enough to justify imposition. It also must not be an unreasonable imposition on
development or use of premises as a consequence of the development. That requirement focuses
attention on the development or potential use of the Land as a consequence of the development and
the reasonableness of the proposed condition in light of that development or potential use8.

Even if a condition is one that can be lawfully imposed, having regard to the restrictions in section 65
of the PA, there is no obligation to do so.

The Council and the Planning and Environment Court on appeal, retains a residual discretion to
determine that lawful conditions should or should not be imposed and the Court has commented that
there is no requirement for an assessment manager to impose each and every condition that passes
one of the tests prescribed in section 65(1) of the PA9.

The discretion to impose a condition is not to be imposed capriciously and regard must be had to all
relevant considerations including provisions of the planning scheme.

The Court has said the following:

        “…that discretion, while broad, must be exercised for a proper planning purpose and not for any
        ulterior purpose. A planning purpose is one that implements a planning policy whose scope is
        ascertained by reference to the legislation that confers planning functions on the relevant
        authority. In the case of the SPA, the assessment manager’s decision including a decision to
        approve subject to conditions, must be based on the assessment of the application under
        Division 2 of Part 5. That includes assessment by reference to the planning scheme.”

        [underlining added]

Also, the outcome must not offend common sense and the conditions must fairly and reasonably
relate to the permitted development and planning considerations affecting the land10.

National Construction Code

An assessment by Mathew Kennedy from McKenzie Group has confirmed “the room and glazed window
opening provides for sufficient natural light borrowed from an adjoining room as prescribed under F4.7
of the National Construction Code to be considered as a habitable room”. The room which Condition 5
seeks to regulate , qualify as a habitable room, including a bedroom.

Figure 5 below is an extract of the NCC demonstrating F4.3



5
  Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39
6
  Wootton v Woongarra Shire Council [1986] QPEC 122
7
  Proctor v Brisbane City Council [1993] 81 LGRA 398
8
  Bryant v Caloundra City Council [2005] QPEC 113
9
  Sincere International Group Pty Ltd v Council of the City of Gold Coast [2018] QPEC 53
10
   Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63

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       Figure 5 – F4.3 of the NCC, Source: NCC


Affordable Housing Choices

Noosa Council seeks to promote the delivery of affordable and adaptable housing products.
Recently (15th July 2022) Noosa Council released the Draft Noosa Housing Strategy and stated:

       “Noosa Council has grown increasingly concerned about the housing crisis affecting the local
       community and broader Sunshine Coast region. Because Council is committed to ensuring the
       Noosa Shire is a place for everyone regardless of age, mobility, household size or budget, it has
       developed the attached draft Housing Strategy, a plan designed to help keep Noosa home for
       members of our community.
       The draft plan details specific actions that will help address the current housing crisis. It is
       based on the reality that developable land is finite and that it is important to make the most of
       what remaining capacity there is within our existing urban areas, so that housing choice is
       improved. Council is particularly interested in innovative housing models, that might offer an
       alternative to what is already here.

Acceptable Outcome AO80 of the Major Centre Zone Code states that:

       “Development:

               a) makes provision for affordable and social housing;
               b) provides social housing that is distributed across the development site;
               c) provides 2 in every 10 dwellings as affordable housing;
               d) provides 1 in every 10 dwellings as social housing”.

The corresponding Performance Outcome (PO80) states that:

       “Where there is development for multiple dwellings, dwellings are provided to meet the needs of
       different households”.

The approved development has been designed and is intended to provide additional housing choice
and diversity to the local community through a range of different product types, in terms of unit sizes
and bedroom mix. Additionally, all units have a gross floor area less than 100m² to assist with
maintaining a comfortable price point for owner occupiers and / or tenants, aligning with the
objective of AO80 (which calls for the delivery of affordable housing).

Page 8

The room design in the smaller 2 bed type enables this unit type to be adapted to meet the changing
needs of the community and households, which aligns with the objective of PO80. The product type
also sits at a lower price point than a traditional 2 bedroom product. Limiting the way the room can be
used limits the adaptability and flexibility of the unit layout.

Discussion

It is intended that the room the subject of Condition 5 can be used for a variety of habitable purposes
at the occupant’s or owner’s discretion, including as a study, media room, napping or guest bedroom
or as a dedicated bedroom for an occupant.

The design of the room allows large sliding windows to capture natural light and ventilation to the
space from adjoining rooms and areas. That window measures 2,300mm long by 600mm high with an
area of 1.382m2 for a room of 9.6m2. A 1,500mm high wall provides both privacy and the required
acoustic rating for occupants’ comfort.

Assessed against the Building Code of Australia, the rooms which Condition 5 seeks to regulate,
qualify as habitable rooms which are able to be used for all the purposes proposed, including a
bedroom.

For the reasons we discuss below, we think that Condition 5 is both unlawful or alternatively not
imposed for a proper planning purpose that can be properly discerned from the Noosa Plan 2020.

There are a few things to note.

First, for the purpose of section 65(1)(b) of the PA, we are unable to discern a change that the proposed
development is likely to produce for which the condition might be considered reasonable response.

Secondly, whilst a condition may nevertheless be relevant if it maintains proper standards in local
development or in some other legitimate planning sense, we have been unable to discern such a
purpose from a review of the Noosa Plan 2020.

The Council identifies PO8 of the Sustainable Building Design Code as the genesis for Condition 5 and
this is disagreed.

The Sustainable Building Design Code does not specifically refer to bedrooms, as opposed to other
habitable rooms, in its provisions. That outcome is to be contrasted with other assessment
benchmarks within the Noosa Plan 202011.

As for PO8 of the Sustainable Building Design Code, there is no element which could be said to be a
proper foundation for Condition 5 because:

5.      most of the provisions of PO8 are focussed on considerations other than internal elements of
a building – PO8(a), (b), (c), (d) and (f); and

       of the elements of PO8 that contain reference or could be reasonably said to apply to internal
       elements of a building, all apply equally to whether the room is used for a bedroom or some
       other habitable space, for example PO8(e), (g), (h) and (i).




 For example, AO6.2 of the Caretakers Accommodation, Dwelling Unit and Rural Workers Accommodation
11

Code, PO5 of the Dual Occupancy and Multiple Dwelling Code, AO17(b) of the Special Residential Code

Page 9

PO8 expressly envisages that some internal rooms may not have an external opening given the
provisions of PO8(g) which says development “uses natural light rather than artificial light, and may
include skylights, atriums and light wells”.

Thirdly, even if the requirement could be said to be relevant in the sense required by section 65(1)(a)
of the PA, it is an unreasonable imposition on the use of the units because the room qualifies as a
habitable space under the Building Code of Australia and what owners and occupiers might think is
appropriate amenity for a bedroom will depend on their preferences and choices. Some may view the
fact that the room does not have external openings as an advantage for sleeping, either in the day or
at night, given it is further removed from external influences of noise and light. Others might take a
different view.

Fourthly, whilst the views of Council are entitled to consideration, it is difficult to see how the
subjective views are entitled to weight in the imposition of a condition of this kind. The Court has
remarked that “the ‘planning purpose’ of a condition is not ascertained from some preconceived general
notion of what constitutes planning. The planning purpose underlying the exercise of the condition
power in any given case is to be ascertained from the PA, and the documents to which regard must or
may be had, in the assessment of the application”12.

Fifthly, the Building Code of Australia establishes criteria and standards for a range of things,
including the structural adequacy of buildings, the fire resistance of buildings and criteria for the
health and amenity of residents. Those criteria and standards have application across Australia. It is
difficult to understand in those circumstances why it would be concluded that the rooms, the subject
if Condition 5, are habitable rooms but otherwise not suitable as a bedroom when the Building Code
of Australia does not draw that distinction.

Finally, even assuming that Condition 5 may be lawful in the sense required by s65(i) of the PA, a
planning purpose for the disputed condition does not exist in the Noosa Plan 2020.

Conclusion

We conclude that Condition 5 should be deleted from the Development Approval as it is both unlawful
given the requirements of section 65 of the Planning Act 2016; and otherwise not imposed for a proper
planning purpose.


Condition 14 – Performance Bond

We request removal of Condition 14 from the conditions package.

Condition 14, says:

           “Security in the Form of a cash bond or trading bank guarantee to the sum of $50,000 must be
           submitted to Council, to secure performance of all conditions of this approval, prior to a pre-
           start meeting. The cash bond or trading bank guarantee will be returned on performance of the
           conditions of approval 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”.

Discussion

Condition 14 is neither reasonable nor relevant as prescribed under the Planning Act 2016.



12
     Sincere supra

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Condition 14 of the development approval requires the payment of a $50,000 performance bond. This
condition is unnecessarily onerous and is intended to ensure the fulfilment of all conditions of
approval. The bond amount will be returned less any costs incurred by the Council in respect of
enforcing performance of any condition. The condition is silent on how costs are to be calculated and
justified by the Council which is problematic, specifically those conditions which are ongoing and to
be maintained.

We note compliance with conditions of approval is a legal requirement imposed on all applicants.
Non-compliance gives rise to enforceable rights and there are a number of options that are available
to Council in that event.

There are conditions that must be satisfied prior to commencement of use, whilst others are
operational conditions and are ongoing. The wording of this condition in its current form creates
confusion as to how this could be reasonably satisfied, particularly if the fulfilment of some
conditions is an ongoing obligation which will extend to the future owners of individual units.

Conclusion

We request that Condition 14 be removed on the basis that:

   •   Condition 14 is neither reasonable nor relevant as prescribed under the Planning Act 2016.

   •   There are other conditions in the package that require performance bonds for specific works
       (condition 53) where there is additional protection required for a particular aspect of
       development;

   •   Noosa Council has the required powers to enforce compliance of conditions, without the need
       for a performance bond.


Condition 53

We request amendment to Condition 53 of the conditions package

Condition 53, says:

    “Prior to the prestart meeting, a bank guarantee or a bond of $30,000 must be lodged as security for
   the protection of the tree/s identified for retention in the conditions of this approval. The bond:

   a) may be drawn upon by Council in its entirety if any one tree identified for retention
      is damaged to the point where the tree cannot be saved (as confirmed by the
      project arborist and agreed in writing by Council)
   b) will be returned upon practical completion of all the operational works relating to
      this development”.

Discussion

Condition 53 of the development approval requires the payment of another bond as security to ensure
the protection of trees on the site.

Whilst we do not object to the performance bond for the protection of trees and recognise the
importance of fulfilling the requirement of this condition, the current wording of the condition is too
rigid and does not account for contingencies such as accidental tree removal arising from site works.

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We request that Condition 53 is amended to provide a reasonable degree of flexibility, in the instance
a tree was accidentally damaged on the site. The intent of the condition will remain and will ensure
the trees are protected or otherwise rehabilitated elsewhere on site. A replanting ratio of 1:2 provides
further incentive to avoid impacts to existing trees on the site.

Conclusion

We request that Condition 53 is amended as follows:

   “Prior to the prestart meeting, a bank guarantee or a bond of $30,000 must be lodged as security for
   the protection of the tree/s identified for retention in the conditions of this approval. The bond:

       a) may be drawn upon by Council in its entirety if any one tree identified for retention
          is damaged to the point where the tree cannot be saved (as confirmed by the
          project arborist and agreed in writing by Council); and

       b) the tree cannot be rehabilitated elsewhere on the site via new stock at a replanting ratio of
          1:2 (in a location to be agreed to in writing by Council).

   The bond will be returned upon practical completion of all the operational works relating to
   this development (where a) and b) above are met)”.

If you have any questions in relation to the above representations, please do not hesitate to contact
the undersigned.

Yours sincerely,




Leanne Porter
Stockwell Development