Notice of Appeal - Altum Constructions V Noosa Shire Appeal No 2097 of 2020 · 132005.1133.13

Page 2

In the Planning and Environment Court                                   No.            of 2020
Held at: Brisbane

Between:      ALTUM CONSTRUCTIONS                                                    Appellant

And:          NOOSA SHIRE COUNCIL                                                 Respondent




                                   NOTICE OF APPEAL

Filed on            /2020


Filed by:             Appellant
Service address:      Anderssen Lawyers Pty Ltd
                      Level 24,12 Creek St, Brisbane, QLD 4000
Phone:                07 3234 3103
Fax:                  07 3211 8014
Email:                dale<5>anderssens.com.au



ALTUM CONSTRUCTIONS care of Anderssen Lawyers, Level 24, 12 Creek Street, Brisbane in
the State of Queensland appeals to the Planning and Environment Court at Brisbane against
the decision of the Respondent set out in its decision notice dated 23 June 2020 determining
to approve a Change Application in respect of a Development Approval for Material Change
of Use - 140 Multiple Dwelling Units and Associated Facilities - Shop, Restaurant, Multi-
Function Room and Gym over land located at 75 Resort Drive, Noosa Heads (Precinct F),
formerly described as lots 6 and 7 on SP178340 and originally described as lot 3 on
SP221524 (the Subject Land) and seeks the following orders or other relief:


1.       The appeal be allowed;


2.       Condition 83 of the development approval be amended;


3.       The Respondent pay the Appellant's costs; and


         Any such further or other orders that this Honourable Court may deem fit.



NOTICE OF APPEAL                                         Anderssen Lawyers Pty Ltd
Filed on behalf of Appellant                             Level 24,12 Creek St, Brisbane, QLD
                                                         4000
Form PEC-1                                               Ph:    07 3234 3103
                                                         Fax: 07 3211 8014
                                                         [email protected]
                                                         DBE:GQ:314800

Planning Act 2016                          Version 1                                 July 2017

Page 3

                                             2.


The grounds of appeal are:


5.     The Subject Land;


         (a)    forms part of precinct F of the Noosa Springs residential community;


         (b)     is subject to an existing development approval for multiple dwellings

                comprising 140 dwelling units and associated facilities (shop, restaurant,

                multi-function room and gym);


         (c)    was formerly described as lots 6 and 7 on SP178340 and originally

                described as lot 3 on SP221524;


         (d)    is now described as lot 8000 on SP305566, Common Property of Parkridge

                Noosa Principal Community Title Scheme 52856 (lot 0 on SP290680),

                Common Property of Parkridge Villas Noosa Community Title Scheme

                52857 (lot 0 on SP290691), lots 701-704, 801 - 804 and 901-904 on

                SP290691, lots 1001 to 1002, 1101 to 1103 and 1201 to 1202 on SP290692,

                Common Property for Parkridge Green Noosa South Community Titles

                Scheme (lot 0 on SP290696), lots 211 to 215, 221 to 225 and 231 to 233 on

                SP290696,     Common Property for Parkridge Residences Noosa North

                Community Titles Scheme (lot 0 on SP290693), lots 311 to 314, 321 to 324

                and 331 to 333 on SP290693, lots 411 to 413, 421 to 423 and 431 to 433 on

                SP290698, common property for Parkridge Residences Noosa South

                Community Title Scheme (lot 0 on SP305569), lots 511 to 515, 521 to 525

                and 531 to 535 on SP305569.


6.     Pursuant to the development approval, as amended;


        (a)     a total of 125 dwellings (comprising buildings 2-12 and 14-17) have been

                constructed; and


        (b)     the facilities building, including the pool, gym, restaurant, shop and lobby

                were completed and operational in December 2019.


7.     By negotiated decision notice dated 1 November 2007, the Respondent approved a

       development application for material change of use -155 multiple dwelling units and

       associated facilities - theatre, restaurant, shops and function room in respect of the

Page 4

                                                3.


      Subject Land (the Original Development Approval).             In respect of the Original
      Development Approval;


        (a)         contained condition 83 which           included the requirement for the
                    development to implement a number of additional noise attenuation
                    measures and approved operating hours of 7am to 12am; and


        (b)        a noise assessment was submitted as part of the application with the
                   assessment based on 150 patrons and an outdoor area of 150m2.


8.    The development application the subject of the development approval was impact
      assessable.


9.    A number of change applications have been approved by the Respondent including;


       (a)      on      14   May   2019   the   Respondent      approved   change   application
                   132005.1133.09 which included a condition allowing outdoor dining area
                to operate until 12am;


       (b)      by decision notice dated 18 October 2019 the Respondent approved
                change application 132005.1133.10 which;


              (i)        approved an increase in the outdoor dining area from 114m2 to
                         185m2; and


              (ii)       amended condition 83 which limited the outdoor dining rooms hours
                         of operation to 10pm and approved an annotated plan noting the
                         restriction on operating hours.


10.   On 17 December 2019 the Appellant made an application under section 78 of the
      Planning Act for a minor change to the development approval (change application).
      The change application;


       (a)      sought, amongst other things;


              0)         an amendment to condition 83 to allow the operating hours for the
                         outdoor dining area to be extended to midnight (as approved in the
                         original development approval); and

Page 5

                                               4.


              (N)        the removal from the approved plans the annotation on the
                         approved plan regarding the restricted hours of operation;


        (b)        was supported by a noise report dated 30 March 2020 which proposed a
                   limitation on the maximum number of restaurant patrons from 100 to 90
                   people;


       <c)      the noise reports submitted with the change application demonstrated
                compliance with the relevant noise criteria could be achieved.


11.   By decision notice dated 23 June 2020, provided to the Appellant on 24 June 2020,
      the Respondent approved the change application subject to amendments to the
      conditions, in particular condition 83 was amended by the Respondent to;


      "83. The development shall comply with the Noise Management Plan (Report No.
      R19084/D3295Rev.4/30.03.20) prepared by David Moore & Associates and dated 30
      March 2020 to the reasonable satisfaction of Council, including


       (a)      The necessary and appropriate noise control measures incorporated into
                the fagade of the apartments and within the restaurant/cafe in the Resort
                Facilities Building. These measures shall include;


              0)        Upgraded glazing and air-conditioning to the potentially affected
                        apartments;


              (H)        Strategically placed wing walls on balconies to screen the apartment
                         and balconies from outdoor dining areas;


              (M)        Revised hours of operation to no later than midnight for the
                        restaurant /cafe (indoor area only);


              H         The outdoor dining areas associated with the restaurant/cafe use is
                        to operate between the hours of Gam and 10pm only;


              M         After 10pm, all patrons must be within the building confines with
                        doors/windows closed, except for the ingress and egress of patrons
                        and staff;

Page 6

                                        5.


        (vi)     The underside of all roof elements over outdoor dining areas
                 associated with the cafe use are to be lined with acoustic
                 absorptive lining minimum NRC 0.7;


        (vii)    Outdoor dining is confined to the 185m2 roofed area shown on the
                 approved plans;


        (viii)   All amplified noise at the premises must be conducted through a
                 sound limiting device at all times to ensure that noise
                 does not exceed the following:


                 (1) during the daytime and evening (0600 to 2200) must not exceed
                     92 dB(A) LWA, which is equivalent to 75 dB(A) + 5 = 80 dB(A)
                     LAeq, adj, Tat 3 metres from the speakers;


        (ix)     Any live performer must be required to play through the in-house
                 system. No speakers (in addition to the in-house system) are
                 permitted on site;


  (b)     Within 20 business days of the commencement of trading of the
          restaurant/cafe use, Council must be provided with a Noise Management
          Plan which is specific to the use and prepared on the basis of physical and
          technical assessment of noise from the restaurant/cafd use, including both
         internal and external use areas. The noise management plan must suitably
          detail physical and management noise control measures;


 (c)      The applicant must advise prospective purchasers that a Noise
          Management Plan has been prepared to manage noise emissions related to
          the development.


 (0)      The Noise Management Plan referred to in Condition 83(b) shall be
         incorporated in perpetuity in the By-Laws of the Body Corpfor the whole
         development;


(e)     The Noise Management Plan shall include a process for dealing with
        complaints and specify that the Restaurant/Cafe
        Management and Body Carp Manager be responsible for dealing with any
        noise complaints."

Page 7

                                             6.


12.   The Appellant appeals against the amendment of the development conditions made
      by the Respondent in respect of the changes and seeks an order that condition 83 be
      amended, to reflect that previously approved in change application 13005.1133.09
      (with the reference to the updated noise management plan included), i.e. to read;


      "The development shall comply with the noise management plan contained in the
      report prepared by David Moore & Associates and dated 30 March, 2020 to the
      reasonable satisfaction of the Council: -


      83.1.   The necessary and appropriate noise control measures incorporated into
              the fagade of the apartments and within the restaurant/cafe in the Resort
              Facilities Building. These measures shall include:


              83.1.1. Upgraded glazing and air-conditioning to the potentially affected
                      apartments;


              83.1.2. Strategically placed wing walls on balconies to screen the apartment
                      and balconies from outdoor dining areas;


              83.1.3. Installation of a roof over the outdoor dining area with the
                      absorption to the underside should be explored;


              83.1.4. Revised hours of operation to no later than midnight.


      83.2.   Formulate and implement a Noise Management Plan to deal with noise
              emissions from the premises including patron noise.


      83.3.   The applicant must advise prospective purchasers that a noise management
              plan has been prepared to manage noise emissions related to the
              development.


      83.4.   The Noise Management Plan referred to in Condition 83.2 shall be
              incorporated in perpetuity in the By-Laws of the Body Corp for the building.


      83.5.   The Noise Management Plan shall include a process for dealing with
              complaints and specify that the Restaurant Management and Body Corp
              Manager be responsible for dealing with any noise complaints."

Page 8

                                               7.


13.     The change application should be approved, as proposed by the Appellant on the
        grounds set out below.


14.     The proposed changes are minor for the purpose of schedule 2 of the Planning Act
        2016, in particular the changes would not result in a substantially different
        development.


15.     If a development application for the development, including the change, was made
        when the change application was made, would not cause:


          (a)    the inclusion of prohibited development in the application; or


          (b)    there to be any referral to any additional referral agency.


16.     The change application should be approved, as proposed by the Appellant, as;


         (a)     it is a minor change;


         (b)     the proposed changes have been supported by a detailed noise
                 assessment;


         (c)     the development has incorporated significant attenuation works to both
                 the facilities building and residential building;


         (d)     noise monitoring and testing has been undertaken which demonstrates
                 that the noise standards are able to be achieved by the development, as
                 proposed to be conditioned;


         (e)     the restaurant is subject to liquor licencing requirements; and


         (f)     the development includes a complaints handling procedure.


17.     In the premises of the above:


         (a)     the appeal should be allowed; and


         (b)     the change application should be approved.


Signed:
Description:        Anderssen Lawyers Pty Ltd^Solicitors for the Appellant
Dated:              21 July 2020

Page 9

                                      8.


If you are named as a respondent in this notice of appeal and wish to be heard in
this appeal you must:

 (c)     within 10 business days after being served with a copy of this Notice of
         Appeal, file an Entry of Appearance in the Registry where this notice of
         appeal was filed or where the court file is kept; and

 (d)     serve a copy of the Entry of Appearance on each other party.

The Entry of Appearance should be in Form PEC-5 for the Planning and
Environment Court.

If you are entitled to elect to be a party to this appeal and you wish to be heard in
this appeal you must:

 (a)     within 10 business days of receipt of this Notice of Appeal, file a Notice of
         Election in the Registry where this Notice of Appeal was filed or where
         the court file is kept; and

 (b)     serve a copy of the Notice of Election on each other party.

The Notice of Election should be in Form PEC-6 for the Planning and Environment
Court.