2021-06-08 Planning & Environment Committee Meeting Agenda

PLANNING & ENVIRONMENT COMMITTEE MEETING AGENDA                                           8 JUNE 2021


The potential for 32 people to reside on the site and within the industrial estate was considered to
potentially erode the ability of the industrial area to function and attract industrial uses. Significant
concerns were also raised as to the potential impacts associated with reverse amenity especially as
the industrial development has not commenced, and it was not clear as the nature of the industrial
uses that may be undertaken on the site and new residential owners may not anticipate noisy
industrial uses.
As a result of Council’s decision to refuse the application, the applicant lodged an appeal to the
Planning & Environment Court seeking that the ancillary dwelling units be approved subject to
reasonable and relevant conditions.
During the course of this appeal, Council received legal advice that Council should seek to have the
Gateway Drive appeal dealt with by way of an originating application to the Planning & Environment
Court given Council contends the application was not for ancillary dwelling units and were better
defined as multiple dwelling units. At the time Council’s barrister for the appeal considered there
was merit in this approach for the following reasons:
     Firstly, as a matter of statutory construction, the position of the Council seems to be more
      preferable interpretation of the provisions in the planning scheme.
     Secondly, if the matter is to proceed only by way of the appeal against refusal, having regard
      to the grounds for refusal, I have concerns about the Council’s prospects of success.
     Thirdly, my view about prospects is reinforced by the provisions of the Detached House Code
      which do not seem to deal generally with ancillary dwellings and instead deal with detached
      houses.
     Fourthly, having this matter dealt by way of the originating application is likely to be much more
      cost effective if the Council is successful as compared to having to run a trial with various
      expert witnesses.
The originating application was heard by the Planning & Environment Court on 27 August 2020, with
judgement delivered on 31 March 2021. The judgement concluded that the ‘additional use proposed
as Ancillary Dwelling Unit and as defined in the Noosa Plan 2020, is capable of being applied to that
development application’, thereby favouring the applicant’s position in the appeal.
While the court was careful not to make other findings regarding the merits of the substantive appeal,
in light of the finding of the Court in the declaratory proceeding, Council’s solicitor for the appeal
advises that Council’s prospects in both appeals are damaged as the issues in dispute have been
reduced primarily to an impacts case.
In this regard the Noosa Plan 2006 contains very few requirements for ancillary dwelling units and it
is considered that this deficiency, now means Council will have low prospects of success in the
appeal, as the potential impacts identified do not warrant refusal over a conditional approval.
In this regard Council’s solicitor for the appeal has reviewed Council’s grounds for refusal and
provided comment against each reason for refusal.
1.    The proposed development does not comply with the following assessment benchmarks:
      (a)   Overall Outcome (a) of the Detached Dwelling Code in that the proposed dwelling units
            are not suited for the intended form of development having regard in particular to:
            (i)    the number of units proposed;
            (ii)   the nature of development including that the non-residential uses below the
                   dwelling units are presently unknown;




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