20220728 Ltr Negotiated Decision Notice 17-19 Noosaville

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