2021-06-08 Planning & Environment Committee Meeting Agenda

PLANNING & ENVIRONMENT COMMITTEE MEETING AGENDA                                          8 JUNE 2021


The application was refused as it was considered that the proposed dwelling was too large to be
ancillary to the site’s industrial use, the applicant had not demonstrate a need for a caretaker and
therefore the proposal did not meet the Noosa Plan 2006 definition of ancillary dwelling unit and was
really just a detached house. Concerns were also raised that as the use was really a detached
house, the proposal was not suitable in the industrial area.
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 unit be approved subject to
reasonable and relevant conditions.
During the course of this appeal and the Gateway Drive appeal (which raised similar issues), 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. 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 is not for an Ancillary Dwelling Unit as defined under section 2.11.5
      of the Noosa Plan because:
      a)    A detached house is proposed on the premises;
      b)    The proposed dwelling unit is not subordinate to the non-residential use;
      Given the decision of the Court in the declaratory proceeding, we may only be able to place
      limited reliance on this ground. We understand that the proposal is to operate the use in the
      same way to the 64 Gateway development application – i.e., a caretaker/owner/employee of
      the industrial use operating on the lower level of the site occupying the ancillary dwelling unit.
      In respect of the argument it is in fact a detached house, the position of the Court is that when
      determining what use applies, if a use fits within two or more types of defined use definitions,
      it is up to the developer which one they apply under.



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