20220728 Ltr Negotiated Decision Notice 17-19 Noosaville

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