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Noosa Plan Submission 17 December 2015 - Final submission table
Attached to the e-mail MCU15/0095 & REC15/0022 PM Submission (1) Object - Jennifer Drysdale.
Plans and drawings: the text below has words only, no drawings.
Principal Submitters
Tracy Stevens
6 Val Cr
NOOSAVILLE 4566
[email protected]
Kelly Gerber
35 Hilton Esp
TEWANTIN 4565
[email protected]
17 December 2015
Noosa Council
Level 3, 9 Pelican Street
TEWANTIN QLD 4565
[email protected]
Submission: MCU 15/0095 - 115 Eumundi Noosa Rd Noosaville (Lot 30 on SP170751) (site)
Property Owner: Lutheran Church of Australia Queensland District (ARBN 051 602 996)
Dear Assessment Manager
A. INTRODUCTION
1. We, the submitters, oppose the above Application for Material Change of Use of
Premises – Retail Business Type 2 - Shop & Salon (shop) and Type 5 -Vehicles Uses (the
service station) and urge Noosa Council to reject the development application (DA) on
the basis that it conflicts with the Noosa Plan on the following grounds:
Inconsistent Use;
Failure to achieve overall outcomes for the Noosaville Locality;
Adverse health impact on the community;
Adverse traffic impact on the community; and
Non-compliance with other relevant Local Codes.
2. In the alternative, if Noosa Council determines that the DA does not conflict with the
Noosa Plan, we urge Council, pursuant to s.326(1)(b) of the Sustainable Planning Act
2009 (Qld) (SPA), to reject the DA on the basis that there are sufficient grounds to
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justify the decision, despite the DA not conflicting with the Noosa Plan 1. Such
sufficient grounds are as follows:
Adverse health impact on the community;
Adverse traffic impact on the community;
Destruction of local amenity;
Incompatibly with surrounding land use; and
Other planning grounds.
B. CONFLICT WITH NOOSA PLAN
3. The Noosa Plan specifies the development standards or criteria for assessing the
suitability of a development proposal. The application is impact assessable and it is
the applicant’s responsibility to establish that the DA does not conflict with the Noosa
Plan. If the DA does not comply with a solution put forward in a relevant Code to
achieve an outcome, it is the responsibility of the applicant to demonstrate how
alternative solutions achieve that outcome. If the DA conflicts with the Noosa Plan,
the Council must reject the application, unless the applicant has demonstrated that
there are sufficient grounds to justify the decision despite the conflict2.
i. INCONSISTENT USE
4. The site is located within the Noosaville Locality and is zoned Industry. The proposed
shop is identified as an inconsistent use within the Industry Zone and sufficient
grounds do not exist to warrant Noosa Council approving the DA, despite this conflict
with the Noosa Plan.
5. In regard to this inconsistency, the only argument that the applicant has provided is
the following:
“A shop in this zone is an inconsistent use. However, the separate use of a ‘shop’
is only applied for because the definition of a ‘service station’ under the planning
scheme does not include a shop/retail area as an ancillary function of the use.
We note that the extent of shop/retail proposed as part of the service station
building is typical to that of modern day suburban service stations of this scale.
1
“Statutory Guideline 05/09, Sufficient grounds for decisions that conflict with a relevant instrument”. See
http://www.dilgp.qld.gov.au/resources/planning/planning/statutory-guideline-05-09.pdf
2
Woodman McDonald Hardware Pty Ltd v Mackay Regional Council [2013] QPEC 21 at [63 – 64].
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Based on the above, it is therefore considered that the ‘inconsistent’ reference
for a ‘shop’ (which in this case is ancillary to the service station) use is not a
significant consideration for this particular application.
6. A specific outcome for service stations under the Business Uses Code (Part 14, Table
14-15, 083) is that the associated sale of goods, including foodstuffs, is ancillary to the
service station use. The probable solution provided for this outcome is that the gross
floor area used for the associated retail sale of goods is limited to 15% of the gross
floor area. Pursuant to Part 2 of the Noosa Plan – Interpretation, ‘ancillary’ means
associated with, but incidental and subordinate to.
7. We contend that the shop does not fall into the category of a small retail shop
ancillary to the service station, as it cannot be considered to be incidental and
subordinate to the service station on the following grounds:
(a) the service station shop cannot be said to be a minor component of the DA, as it
is 195m2, with the retail floor space comprising approximately 100m2. The shop
is approximately 32% of total gross floor area (GFA), as defined in Part 2 of the
Noosa Plan – Interpretation. This is more than double than the 15% provided in
the probable solution to Specific Outcome 083 and the applicant has not
demonstrated how alternative solutions can achieve the specific outcome
required.
(b) the shop is an integral component of a modern day service station model and a
major source of profits, as such, from a commercial basis, the shop cannot be
considered ancillary.
8. We note that the Noosa Council recently approved a Material Change of Use
application over land at 139 Eumundi Noosa Road & 30 Lionel Donovan Drive,
Noosaville (139 Eumundi Noosa Road DA), for the following range of uses:
Industrial Business Type 2 – Production, Alteration, Repackaging &
Repairing;
Industrial Business Type 1 – Warehouse;
Retail Business Type 6 – Hardware Store;
Retail Business Type 5 – Vehicle Uses (service station);
Retail Business Type 2 – Shop & Salon (service station shop); and
Entertainment and Dining Business Type 1 – Food & Beverages.
9. Similar to the DA, the subject of this submission, the 139 Eumundi Noosa Road
development also comprises a service station and retail shop, with the shop also being
identified as an inconsistent use as it is to be located in an Industry Zone. In the 139
Eumundi Noosa Road DA, the applicant successfully argued that the proposed retail
shop was a minor component of the development, as it was only approximately 4% of
the total GFA proposed. This is in stark contrast to the proposed development at 115
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Eumundi Noosa Road, where the proposed retail shop is approximately 32% of the
total GFA.
10. It is also noted that given the proposed shop at 115 Eumundi Noosa Road will only be
approximately 200 metres from the service station shop at 139 Eumundi Noosa Road
and that they are both located on the same side of the road, the two service station
shops will be in direct competition with each other. As such, the proposed shop will
negatively impact on the service station shop at 139 Eumundi-Noosa Road which has
already been approved in June this year.
11. In light of the above, the applicant has not established that there are sufficient
grounds for the Noosa Council to approve the DA, despite the inconsistent use.
Further, we contend, that there are no grounds on which the Noosa Council is justified
in approving the DA, notwithstanding the conflict.
12. Further, it is not appropriate for Noosa Council to approve a proposal which is directly
and significantly in conflict with a formally expressed planning strategy. This is
supported by the following two planning grounds under the Noosa Plan which directly
relate to retail uses and land zoned Industry:
DESIRED ENVIRONMENTAL OUTCOMES
13. Part 3 of the Noosa Plan contains the Desired Environmental Outcomes (DEO).
Relevant to this issue, the DEO for Commercial & Retail Uses states at section 3.1.3:
b) Commercial & Retail Uses
“A hierarchy of centres with a range of Commercial and Retail business uses provide
suitable levels of amenity, service and access to the community, consistent with the
community’s location and needs and is based on—
viii. Uses that comprise a large component of Commercial and Retail business uses or
other non-industrial uses are not located on land that is otherwise intended for
Industrial business uses;…”
14. Given that more than one third of the GFA of the proposed development is taken up
by the proposed service station shop, it is considered that the DA comprises a large
component of Commercial and Retail business uses and, as such, should not be
located on Industry zoned land. Non-compliance with this DEO demonstrates that the
DA does not meet one of the key aims of the Noosa Plan, which is consistent with
community expectation regarding retail intrusion into the industry zone.
NOOSAVILLE LOCALITY PLAN
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15. The overall outcome sought for the Noosaville Locality, Part 3, Division 16, section
11.8.2, provides, among other things:
y) For the Industry Zone, land in this zone
ii. is protected for industrial functions including Industrial business Type 2 to the
exclusion of incompatible uses including Residential Uses, Community Uses,
Commercial business and most sport and recreation uses and Retail business uses
16. The proposal to build a service station shop on the site contravenes this overall
outcome of the Code which seeks to exclude incompatible uses, such as retail business
uses, from being located on Industrial zoned land.
ii. FAILURE TO ACHIEVE OVERALL OUTCOMES FOR THE NOOSAVILLE LOCALITY
17. The DA also fails to meet the following overall outcomes sought for the Noosaville
Locality (Part 11, Division 16):
a) New uses and works are located, designed and managed to:
i. be compatible with other uses and works;
ii. maintain the safety of people and works;
iii. avoid significant adverse impacts on the amenity enjoyed by users of other
premises, including acoustic and visual qualities.
18. The proposed service station’s location directly adjoins the Good Shepherd Lutheran
College (GSLC), which is zoned Community Use. Specifically, the proposal is adjacent
to the GSLC pool and Health & PE Centre (HPE Centre). The pool is used on a daily
basis from 5.30 am to 7.30 pm for swimming lessons and training and the HPE Centre
is used daily, among other things, for physical exercise and activity by students and
the general public using the upstairs gymnasium. The DA is not compatible with these
uses.
19. The air pollutants which will be emitted from the proposed service station and the
increased traffic utilising the service station, will impact, in particular, on the health of
children and the public using the GSLC pool and HPE Centre. (Refer to Health Impact of
Proposed Service Station at page 6 for further discussion on this issue).
20. By locating the proposed development next to the GSLC, the amenity enjoyed by users
of the school (predominantly, students, staff and families) will be negatively impacted.
In terms of visual quality, a service station located directly adjacent to the GSLC will
significantly reduce the aesthetical appeal of the school. In particular, the service
station itself and its associated advertising signage will be unsightly and incompatible
with the aesthetics of the image of the school. In addition, the proposed business is
likely to attract antisocial behaviour which is incompatible with the social mores of the
GSLC.
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n) Gibson Road, part of Mary Street, Noosa Parade, Reef Street, Weyba Road, Walter
Hay Drive, Eenie Creek Road, Beckmans Road d and Eumundi Noosa Road are
protected as parts of the Noosa’s major road network
o) The function, safety and visual amenity of the Noosa’s major road network are
protected.
21. The increased traffic and congestion resulting from the proposal will significantly
compromise the function and safety of Walter Hay Drive and Eumundi Noosa Road.
(Refer to Traffic Impact of Proposed Service Station at page 15 for further details).
22. The visual amenity of Walter Hay Drive will be negatively impacted. The existing
landscaping along Walter Hay Drive (which is the south western (front) view of the
site) comprises substantial trees and foliage which will be substantially reduced as a
result of the development. Presently, the site and the GSLC operate as a “green zone”
and a clear and sensible demarcation of the end of the industrial area when
approaching Noosa from Eumundi Road. The proposed development will result in a
significant loss of this amenity.
x) For the Community Services Zone land for Community Uses and Infrastructure Uses:
i. is protected and managed to enable the efficient and timely delivery of community
services including:
D) the Good Shepherd Lutheran School, Noosaville State Primary School and land
adjacent developed for secondary education; and
ii. is consistent with the infrastructure, indoor and outdoor recreation, education,
social and safety needs of the local community, including people with special
needs, such as the elderly, children, low income earners and disabled persons
23. The proposed use will adversely impact on GSLC’s capacity to deliver its services in an
efficient and timely manner. In particular, it will make it substantially more difficult
for the school to safely operate its student drop off and pick up zone due to increased
traffic and congestion on Walter Hay Drive and Eumundi Noosa Road.
24. The increased traffic and congestion resulting from the proposed service station will
increase the risk of children being involved in an accident when walking or riding their
bikes to and from the school. (Refer to Traffic Impact of Proposed Service Station at
page 15 for further discussion on this issue).
iii. HEALTH IMPACT OF PROPOSED SERVICE STATION
The Noosa Plan – required health outcomes
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25. The Noosaville Locality Plan at Division 16, section 11.8.2, states that one of the
overall outcomes sought for the Noosaville Locality is that new uses and works are
located, designated and managed to maintain the safety of people.
26. It also requires that GSLC (as a community services zone) is protected and managed to
enable the efficient and timely delivery of community services and is consistent with
the infrastructure, indoor and outdoor recreation, education, social and safety needs
of the local community, including people with special needs, such as the elderly,
children, low income earners and disabled persons.
27. A Specific Outcome for the Noosaville Locality Plan, Division 17 at section 11.9
includes:
01 Amenity – Uses are located, designed and operated to avoid significant adverse changes
to the light, air quality, noise, accessibility or other conditions enjoyed by users of associated,
adjoining or nearby uses.
28. Furthermore, Part 14 of the Noosa Plan, states at Table 14-15 that the specific
outcomes required for a service station development are as follows:
O80 - Buildings, structures, driveways, tanks and fuel bowsers are sited to—
a) ensure the safe and efficient use of the site;
b) maintain visual amenity and streetscape character;
c) provide adequate separation to adjoining land uses; and
d) not cause an environmental nuisance to neighbouring properties.
O82 - The layout and design of the service station ensures that on site operations
do not cause any environmental nuisance or harm or result in the release of
untreated pollutants.
The development application
29. The proposed DA at 115 Eumundi Road Noosaville comprises:
Service Station building/shop
10 car parking spaces and 2 motor cycles spaces
1 refuelling canopy over 3 fuel dispensers with 6 filling positions
3 x 60kL (or 180,000 litres3) underground fuel tanks. (Although it is noted on the
Proposed Site Layout Plan that “Total Fuel storage will not exceed 500,000L”)
1 loading service bay
Refuse point- the applicant has not advised what times collection will occur
Fuel delivery – the applicant has not advised what times this will occur
3
Unleaded 91 - 60,000L; unleaded 95 – 30,000L; unleaded 98 - 60,000L and diesel – 60,000L. The site will be
provisioned with underground pipe VR2.
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a 2.5m high fence along part of the boundary between the site and the GSLC
open air pool..
30. The proposed operation hours of the service station are stated as being 24 hours 7
days a week.
31. There will be an estimated trip generation of 129 trips (entry and exit) in the peak
hour4.
GSLC - adjoining land user
32. The site is currently a vacant block and adjoins GSLC, an educational facility of
approximately 900 students from prep to year 12.
33. In particular, the site directly adjoins the GSLC 14 metre outdoor toddler pool. The
GSLC 25 metre outdoor pool is next to the toddler pool. There is no fence or other
solid structure between the boundary of the site and the toddler pool. The pool
facility, apart from constant school use, is utilised all year round by Diamond Swim
(GSLC’s Swim School). The pool facility is open for training and /or use from 5.30am to
7.30pm and teaches babies from 8 weeks of age. The pool facility is also available for
the public to hire.
34. The site also adjoins the GSLC music rooms and HPE Centre, which is used
continuously by the school. The HPE Centre is also available for external hire,
including basketball, netball, indoor soccer, volleyball, badminton and major
functions. In addition, the EFM Health Club, Noosaville operates out of the upper
floor of the HPE Centre, which is open for use between the hours of 6am to 7.30pm.
35. The HPE Centre has a series of high level air intake louvers facing the site. (See
photograph below). If the service station proceeds and the “vapour wall” is
constructed, there is nothing to prevent the emissions going over the barrier and
through the HPE Centre louvers and into the HPE Centre. Even though the vapours
are heavier than air, if the wind is from the west or south west, it will blow the
emissions towards the pool and HPE Centre.
4
Section 4 of the Q Traffic Report.
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36. Of major concern is the close proximity between the proposed refuelling area on the
site and the GSLC boundary. For example, it is less than:
30 meters (estimated) from the outdoor toddler pool to the proposed refuelling
area5; and
40 meters (estimated) from the HPE centre to the proposed refuelling area.
Potential health impacts from the site
37. The applicant has not provided any data with respect to proposed potential air toxins
from the site.
38. Air pollutants will arise from the site from multiple sources, including:
(a) emissions generated by increased fossil fuel combustion by motor vehicles
using the service station;
(b) vapour expelled from a vehicle’s petrol tank as the tank is filled;
(c) drips from the filling nozzle;
(d) leaks from hoses and gaskets;
(e) vapour expelled from underground storage tanks as they are refilled by road
tankers;
(f) vapour from the fuel vents; and
(g) potential liquid spillages.
39. Further, potential dangers regarding the site include:
5
The DA on page 28 states; “The service station refuelling area is sufficiently distanced from the school
boundary which is greater than 25m”.
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(a) petrol and diesel leakage from underground tanks and pipes, contaminating
soil and ground water, with a high risk that it will flow off-site;
(b) explosion/fire risk given that the site will have underground storage of
180,000L of dangerous flammable combustible liquids;
(c) increased noise emissions from engine braking and acceleration; and
(d) in the event of an emergency situation, the logistics of evacuating the
occupants of the GSLC, in particular a pool facility with babies and small
children would be a difficult exercise.
Harmful effect of traffic emissions from increased motorists using the service station
40. The World Health Organization6 has concluded, based on a review of toxicological
evidence, that it is likely that ultrafine particles (UFP) from traffic emissions do have
adverse effects on human health. There are currently no health-based guidelines
recommending threshold concentrations of UFP that should not be exceeded.
41. A study has been conducted in Brisbane regarding the effect of the exposure to
airborne nano and UFP emitted from motor vehicles on the health of children in
schools7. The study is the first Australian epidemiological study to assess the health
effects of ultrafine particles on children’s health in general and peripheral airways in
particular.
42. It has been shown that children are generally more susceptible to air pollution and
their attendance at school for six to seven hours a day during weekdays makes them
even more vulnerable. Owing to their small size, UFPs are able to penetrate deep into
the lungs, where they may cause adverse respiratory, pulmonary and cardiovascular
health effects.
43. A further 2014 Brisbane study8 (attached) has found that about 70% of outdoor
Volatile Organic Compound (VOC) concentrations were attributed to traffic i.e. petrol
vehicle exhaust and fuel evaporation. It concluded: "The outdoor traffic was found to
have very negligible contribution (2%) in indoor VOCs concentrations but the
contribution of 70% on outdoor was from traffic related sources, so providing drop
off/pick up area as far as possible from buildings and stopping the engine of the
vehicles while waiting can improve the situation outdoors. This is of importance,
6
The World Health Organisation: IARC Monographs on the Evaluation of Carcinogenic Risks to Humans Volume
105 (2013). (See http://monographs.iarc.fr/ENG/Monographs/vol105/mono105.pdf).
7
“Ultrafine Particles from Traffic Emissions and Children’s Health (UPTECH) in Brisbane, Queensland
(Australia): Study design and implementation”, International Journal of Environmental Research and Public
Health (2105) Ezz, Wafaa Nabil, Mazaheri, Mandana, Robinson, Paul, Johnson, Graham R., Clifford, Samuel, He,
Congrong, Morawska, Lidia, & Marks, Guy B. (See http://eprints.qut.edu.au/82503/)
8
"Volatile Organic Compounds: Characteristics, distribution and sources in urban schools" Nitika Mishra,
Jennifer Bartsch, Godwin A. Ayoko , Tunga Salthammer , Lidia Morawska (2014) Atmospheric Environment.
See also "Identification of the sources of primary organic aerosols at urban schools: A molecular marker
approach" (2014) - Leigh R. Crilley, Raeed M. Qadir Godwin A. Ayoko, Jürgen Schnelle-Kreis, Gülcin Abbaszade,
Jürgen Orasche, Ralf Zimmermann, Lidia Morawska (2014) Environmental Pollution (attached).
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considering that children do spend a lot of time on outdoor school activities. When
they are active, the inhalation rate increases and thus pollutant intakes”.
44. Given that the proposed service station will generate substantially more traffic (in this
case 129 cars per peak hour) within very close proximity (30 metres) to GSLC, it is
reasonable to conclude that a much greater concentration of UFPs and VOC’s from
traffic emissions will penetrate the GSLC open air pool facility and beyond. This is
even more concerning given that the main group of people affected is children.
45. The above study notes the increased exposure simply from drop-off and pick-up
traffic. This only represents a few minutes of close exposure in a day, compared with
the more extended exposure to children at swimming lessons (anywhere between 30-
90 mins) during which time they are actively inhaling the surrounding air.
46. It is to be stressed that the potential adverse health impacts will be evident regardless
of what vapour recovery system the developer implements (i.e. VR1 and VR2) as the
increased traffic will still be a constant factor.
47. Consequently, at the very least, it should be incumbent on the developer to provide
an independent assessment, modelling the impact of traffic emissions on the GSLC,
prior to any development proceeding.
Harmful effect of petrol emissions from the service station
48. Emissions from service stations are widely acknowledged to contain compounds
harmful to health, including:
benzene9
toluene
xylenes; and
ethylbenzene
49. Air toxins emitted from service stations include significant quantities of benzene which
is a known health risk and carcinogen10.
50. Exposure to emissions from service stations has been shown to be associated with
increased risks of childhood leukaemia, independent of other risk factors (C Steffen et
al 2004 – “Acute childhood leukaemia and environmental exposure to potential
sources of benzene and other hydrocarbons; a case-control study”)11.
9
The Environmental Protection (Air) Policy 2008 Qld (EPP) sets exposure an objective for of 3 ppb (parts per
billion) over a 1-year period.
10
(Morales Terrés et al, 2010). See file:///C:/Users/Kelly/Downloads/1-s2.0-S0301479710002574-
main%20(2).pdf
11
See http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1763669/pdf/v061p00773.pdf
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51. A Spanish study published in the US Journal of Environmental Management in
December 2010 (Terrés et al12) suggested that emissions from evaporated petrol or
fuel, generally when petrol is being transferred or has been spilt, contaminates the
surrounding area with volatile materials, including the carcinogen benzene. This
means that the atmosphere in the immediate vicinity of service stations can be
contaminated up to 50 metres away. The research study shows that a minimum
distance of 50 metres should be maintained between petrol stations and housing, and
100 metres for "especially vulnerable" facilities such as hospitals, health centres,
schools and old people's homes.
52. The service station reviewed in the study had 4 petrol bowsers with a vapour recovery
device which was stage 1 implemented. Accordingly, it was a very similar facility to
the proposed service station, which has 3 bowsers, a VR1 recovery system and a
similar climate.
53. In 2014, Dr Ian Francis Musgrave13, Lecturer in Pharmacology, University of Adelaide,
referred to the Spanish Study as follows:
... the radius of significant levels of hydrocarbons of concern was of the order of
approximately 75m from the station. For example the levels of benzene at 75 meters were 4
µg/m3 , which is 25% of the EPA yearly exposure limit of 16 µg/m3.
…
It must be emphasized the air temperature and wind will alter these contours. Warmer
conditions increase the amount of vapor release from the stations (Morales Terrés et al.,
2010) During summer with north-easterly winds the likelihood of much higher vapor levels
being present in the residential zone is increased (Karakitsios et al., 2007, Correa et al., 2012,
Kountouriotis et al., 2014). These are overseas studies; however an Environment Australia
report (2003) suggests summer vapor exposure in Adelaide will be higher than in winter.
Required separation distance from refuelling area to GSLC
54. The developer in a letter, to “Whom it may concern” dated 2 December 2015 (letter)
received from GSLC, asserts that the service station refuelling area is located more
than 25m from the school boundary which is considered to be a significant setback.
The Noosa Plan or applicable Queensland legislation does not stipulate a required
separation distance/setback from the refuelling area to the GSLC boundary.
55. The developer, in its letter states, “To ensure best practice compliance a comparison
was undertaken with Planning Scheme Requirements of Brisbane City Council...
Reviewing the proposed Development against Brisbane City Council PSP which would
be considered in Qld the most stringent of requirements for Petrol Stations (modelled
12
Morales Terrés, Isabel M. (2010) "Assessing the impact of petrol stations on their immediate surroundings".
Journal of Environmental Management (0301-4797), 91 (12), p. 2754. See file:///C:/Users/Kelly/Downloads/1-
s2.0-S0301479710002574-main%20(2).pdf
13
In an expert statement for the South Australian Environment, Resources & Development Court Proceeding
No 308 of 2013. See http://www.parepg.org.au/sites/default/files/OTR/Expert_Emissions_IFM.pdf
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from the NSW DECC Code Air Quality and Vapour Recovery Requirements) would
comply as is and not need further modification to be compliant”.
56. The relevant section of the Brisbane City Council (BCC) service station code (9.3.21) is
set out below. It concerns the required separation distance between fuel dispensing
areas and a sensitive use zone (which includes a school14):
Performance Outcome 7
Development:
(a) is located a sufficient distance from dwellings to maintain residential amenity in
adjoining, adjacent or surrounding areas;
(b) avoids or minimises air emissions, including the installation of vapour recovery
systems;
(c) complies with the following criteria at a sensitive zone or a sensitive use:
(i) air quality planning criteria in Table 9.3.21.3.D15;
(ii) odour criteria in Table 9.3.21.3.E.
Note—An air quality impact report prepared in accordance with the Air quality planning
scheme policy can assist in demonstrating achievement of this performance outcome.
Acceptable Outcome 7.2
Development:
(a) if the annual throughput does not exceed 1.2ML of fuel ensures fuel-dispensing areas and
vents are not located within 10m of a sensitive use or a sensitive zone;
(b) if the annual throughput is between 1.2ML and 9ML of fuel, ensures fuel dispensing areas
and vents are not located within 50m of a sensitive use;
(c) if the annual throughput does not exceed 12ML of fuel:
(i) is fitted with Stage 1 and Stage 2 vapour recovery equipment in compliance with the air
quality section of the Storage and dispensing of petroleum products planning scheme policy;
(ii) ensures fuel-dispensing areas and vents are not located within 20m of a sensitive use or a
sensitive zone;
(d) if the annual throughput exceeds 12ML, no acceptable outcome is prescribed.
Editor’s note—“Fuel” means motor spirit, including petrol, premium unleaded petrol and
ethanol blend but excluding diesel.
57. The developers have conveniently not informed us as to what the estimated annual
throughput of motor spirit will be with respect to the proposed service station.
However, based on the information provided it is reasonable to expect the annual
throughput of motor spirit could exceed 12ML.
58. Accordingly, based on the BCC Service Station code Acceptable Outcome 7.2(d), if the
annual throughput of motor spirit for the proposed service station does exceed 12ML,
there is no acceptable outcome that is prescribed. Further, no air quality impact
report has been prepared in accordance with the Air Quality Planning Scheme policy
substantiating the developers claim that the 25m setback is sufficient.
14
Table SC1.2.3.A—Index of Brisbane City Council administrative definitions.
15
This requires benzene levels to be limited at 3 ppb (parts per billion) over a 1-year period.
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59. Despite the developer’s claim that it is following “best practice”, other jurisdictions in
Australia have more stringent requirements. The Western Australian Environmental
Protection Authority (EPA) in its policy document, Guideline for the Assessment of
Environmental Factors - Recommended Separation Distances for Industrial Residual
Air Emissions 2005, at Appendix 116, recommends a separation distance of 200 meters
between a service station operating 24 hours a day and a sensitive land use, which
includes a school. “Separation distance” is defined to be the shortest distance
between the boundary of the area that may potentially be used by an industrial land
use, and the boundary of the area that may be used by a sensitive land use.
60. Accordingly, given that the site boundary directly adjoins GSLC, for the purposes of the
WA EPA policy, there would be NO separation distance, and accordingly, the present
DA would not meet the recommended criteria and would not be approved in Western
Australia.
61. The World Health Organisation in 2010 in its policy document, “Exposure to benzene:
a major public health concern”17, recommended that benzene exposure be reduced
by:
(a) petrol filling stations, as far as possible, following best practices in location,
design and extraction; and
(b) Separate dwelling spaces from areas where vehicles and benzene-containing
products are kept. In particular, isolating children from indoor exposure to
vehicle emissions.
Precautionary principle
62. Section 4 of SPA imposes a duty on assessment managers and decision makers
generally, to advance the purposes of the SPA. Section 5 of the SPA states that
advancing the "precautionary principle"18 is one of the ways of advancing the SPA's
statutory purpose.
63. The precautionary principle is the need to take precautionary measures and is
triggered by the satisfaction of two conditions precedent:
(a) a threat (which must be sustained by scientific evidence)19 of serious or
irreversible environmental damage (including on human systems); and
(b) scientific uncertainty as to the nature and scope of the threat of environmental
damage.
16
See http://www.epa.wa.gov.au/EPADocLib/1840_GS3.pdf
17
See http://www.who.int/ipcs/features/benzene.pdf
18
Defined in s 5(2) of the SPA.
19
The level of public concern, and the rationality of and scientific or other evidentiary basis for the public
concern is taken into account.
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64. When both of these conditions have been satisfied, a precautionary measure should
be taken.
65. The scientific studies show that petrol and/or traffic emissions associated with the
proposed service station will present a serious threat of harm to GSLC students,
families and staff along with the public users of the GSLC facilities and irrespective of
the proposed service station’s alleged compliance with any applicable industry or
Australian standard regarding these emissions, Noosa Council should apply the
precautionary principle to abate that threat and reject the DA.
Health conclusions
66. Despite the applicant’s assertions that it has incorporated best practice into its service
station design by implementing a VR1 and Vr2 recovery system to eliminate benzene
and other harmful emissions from adversely affecting the health of GSLC students and
other users of GSLC, this assertion FAILS to take into account:
(a) Adverse health impacts that will occur from traffic emissions as a result of the
increased traffic using the service station in close proximity to GSLC, 24 hours a
day, 7 days a week.
(b) The fact that a 2010 Spanish study in a reputable peer review journal showed
that benzene levels are harmful up to a radius of 50m. Here the distance
between the fuel dispensers and the GSLC toddler pool and the HPE Centre are
30 metres and 40 metres respectively.
(c) The fact that the GSLC pool is an OPEN AIR facility. There is no sufficient buffer
to absorb the harmful air emissions, particularly when the wind is coming from
the west or south west.
(d) That the WA EPA recommends a separation distance of 200 meters between a
service station operating 24 hours a day and a sensitive land use, which includes
a school.
(e) Noosa temperatures are usually high and therefore the warmer conditions will
increase the amount of vapour release from the service station and emissions
from traffic.
67. Furthermore, the proposed development does not comply with the Noosa Plan as it
fails to:
(a) maintain the safety of people, in particular children;
(b) protect the GSLC;
(c) avoid significant adverse changes to the air quality and noise enjoyed by users of
associated, adjoining or nearby uses;
(d) prevent an environmental nuisance to neighbouring properties; and/or
(e) locate a service station on a site that does not cause an environmental nuisance
to neighbouring properties.
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68. In the circumstances, the DA should be rejected outright given that on present
scientific evidence and having regard to the precautionary principle, the DA cannot be
acceptably conditioned to mitigate the adverse health impacts outlined above.
iv. TRAFFIC IMPACT ON THE COMMUNITY
69. An assessment of the DA against the Noosa Plan, demonstrates that it conflicts with
the following planning requirements which relate to traffic:
(a) Overall outcomes for the Business Uses Code
(b) Specific outcomes relating to service stations for the Business Uses Code
(c) Overall outcomes for the Driveways and Carparking Code
(d) Specific outcomes relating to driveways for the Driveways and Carparking Code
(e) Specific outcomes relating to carparking and manoeuvring for the Driveways and
Carparking Code
70. A detailed analysis of the DA’s non-compliance in relation to these planning
requirements is set out below.
Failure to take into account relevant information
71. Having reviewed the DA (including the QTraffic Report prepared on behalf of the
applicant, dated 1 October 2015) and the applicant’s response to Noosa Council’s
Information Request dated 9 November 2015, it is evident that the applicant has failed
to take into account two fundamental and highly relevant issues when preparing these
documents, namely:
(a) the increased volume of GSLC traffic, particularly between 8.15am and 8.45am
and 2.45pm and 3.15pm, being the GSLC pick up and drop off times, which will
result from the withdrawal of parking space on the site, which is currently used
by in excess of 40-50 vehicles at these peak times. Congestion, already evident
as a problem at these times, will be increased at Goodchap Street roundabout as
more vehicles queue to access the GSLC entrance; and
(b) the increased volume of local traffic at the Walter Hay Drive roundabout, next to
the site, which will result from the compounding effect of the recently approved
service station development at 139 Eumundi Noosa Road.
72. The failure of QTraffic to take these two important factors into account significantly
compromises the recommendations contained in its report and also the applicant’s
responses to Noosa Council’s Information Request. Accordingly, these significant
omissions need to be taken into account by Noosa Council when assessing these
documents.
Business Uses Code
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Overall outcomes
73. An overall outcome sought for the Business Code (Part 14, Noosa Plan, section 14.11.2
b)viii) is that:
Business Uses meet the needs and expectations of the Noosa community in terms of
providing logical traffic arrangements without congestion or lengthy delays.
74. The DA will significantly increase the traffic on the Eumundi Noosa Road, the
roundabout outside GSLC and pedestrians (predominantly children) on the footpath
entrance, in the event of queuing to access the proposed site, causing traffic
congestion. Additionally, the stationary traffic backing up along Goodchap Street will
also have a potentially harmful effect on the flow of vehicles accessing the Noosa
Hospital, including emergency vehicles.
75. The applicant has provided no objective analysis of the likely queuing frequency or the
extent of this.
Specific outcomes
76. The DA does not achieve the specific outcomes relating to Service Stations for the
Business Uses Code (Part 14 of the Noosa Plan, section 14.12) as set out in the Table
below.
Table 14-15 Service Station
Specific Outcomes Applicant’s Response Submitter’s Response
Siting 076 Complies Non-compliant
Service stations are It is considered that the Likely future traffic movements will be
located only where proposed development is progressively greater with time as the
they are compatible suitably located, given population density increases and on
with the existing and that the immediate completion of neighbouring developments,
proposed amenity and locality comprises such as another, much larger service station
development of a predominantly industry at 139 Eumundi Noosa Road.
neighbourhood and zoned land with a variety
where they are of uses including retail
appropriate given the and commercial.
existing or likely future
traffic movements in
the area.
Traffic and Access 085 S84.1- S85.1 Not Non-compliant
The use of land for a Applicable Whilst the QTraffic Report indicates that
service station – there will be no noticeable disruption to
a)does not impair traffic flow, we strongly disagree. Having a
traffic flow or road double driveway onto a main road (that is,
safety the Eumundi Noosa Road) just before the
Walter Hay Drive/Eumundi Noosa Road
roundabout, coupled with approximately
200 hundred planned entries per hour into
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the proposed service station/shop, will
undoubtedly disrupt the traffic flow and
cause a road safety issue. In this regard, it is
noted that the QTraffic Report acknowledges
that 75% of trade is expected to be existing
users of the road, but agrees that 25% of
traffic will be new traffic which is generated
by the shop and service station being there.
Cars travelling from Goodchap St regularly
cut across the two lanes of the round about
to make the left hand turn into Walter Hay
Drive.
Presently , a large number of cars travelling
from Goodchap Road and turning right at
the roundabout at the GSLC entrance, veer
across at speed into the left hand lane in
order for them be able to turn left into
Walter Hay Drive. Adding a busy access
egress point there will require left turning
traffic to swing out and around to turn left,
thus causing a road safety problem.
Although the width of the vehicular crossing
(not less than 8m) complies, it is the
projected increase in volume of traffic
passing down this stretch of road and
entering/exiting the service station and/or
the roundabout, which precludes a solution
to 085.
In addition, the safety of cyclists (including
GSLC students) using the cycle lane or the
adjacent pathway will be compromised, with
an increased number of encounters between
bicycles and vehicles.
Finally, the increased volume of traffic
heading west along the Eumundi Noosa
Road will make it difficult for vehicles exiting
the service station and wishing to cross into
the far lane in order to be in the correct lane
to completely circle the Walter Hay Drive
roundabout so that they can travel in an
easterly direction towards the Noosa river.
This currently is already very difficult to do
at pick up and drop off times, let alone with
increased traffic.
Driveways and Carparking Code
77. The overall outcomes sought for the Driveways and Carparking Code (Part 14, Noosa
Plan, section 14.111.2) relevantly include the following:
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b) The safety of pedestrians and cyclists is protected
c) Development reduces the reliance on private vehicles and promotes public and non-
motorised transport options;
f) Development does not adversely impact on existing public parking
78. The DA does not achieve the above overall outcomes based on the following:
(a) A significant proportion of pedestrians and cyclists will be GSLC students and
young families. A driveway being utilised by cars and heavy vehicles, particularly
at peak hours when students are entering or exiting the school, poses an
increased risk to their safety.
(b) More private vehicles are likely to enter the site for commercial purposes (re-
fuelling and retail reasons). Also, the DA is more likely to dissuade pedestrians
and cyclists from commuting to school due to the increased local vehicular
traffic and associated safety risks.
(c) Currently the site is utilised by scores of vehicles to park, particularly at school
drop-off and pick-up times. These excess vehicles will be highly likely to
contribute to further local congestion at the Goodchap Street roundabout as
outlined above, whilst some vehicles may use the service station grounds as an
ad-hoc drop-off or pick-up point for students, which is also an undesirable
outcome.
Specific outcomes - Driveways and Carparking Code
79. The DA does not achieve the specific outcomes relating to Driveways and Carparking
& Manoeuvring for the Driveways and Carparking Code (section 14.112), as set out in
the Tables below.
Table 14-49 – Driveways
Specific Outcomes Applicant’s Submitter’s Response
Response
01 S1.1- S1.3 Complies Non-compliant
Vehicular access Vehicle access is Instances of vehicle versus pedestrian and vehicle
does not adversely considered to be versus cyclist collisions will be increased, particularly at
impact on safety, compliant with the peak drop-off and pick-up times.
capacity and relevant
operations of the requirements. The The proposed pedestrian pathway diversion directly
existing or planned development will from Walter Hay Drive to the site and shop will also
road network, the comply where encourage children, particularly GSLC students, on to
proposed driveway, applicable. the site, increasing their exposure to a more
cycleways or concentrated area of moving standard and heavy
pedestrian pathway vehicles
systems
Table 14-50- Car parking and manoeuvring
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Specific Outcomes Applicant’s Response Submitter’s Response
09 Parking areas are located O9 Complies Non-compliant
where they will not unduly Car parking is located at the The carparking proposed on site
conflict with pedestrians and will front of the building, the will expose more pedestrians
not dominate the streetscape (particularly GSLC students) in
most suitable location for a
the area to moving vehicles.
service station use.
011 Access and egress points do S11.1 Complies Non-compliant
not impact on the safety and There is an increased risk of
operations of the road system queuing back from the access
point as population density
increases. With the secondary
development and proposed
carparking in the second Lot (as
per the developer’s “concept
plan”), the shared easement will
be further congested and cause
interruptions to traffic flow out
on the main road.
014 Provision is made for O14 Complies Non-compliant
pedestrian and vehicular queues Can comply via condition No provision is made for
at conflict points where applicable. vehicular queues.
The DA will significantly affect
traffic on the Eumundi Noosa
Road, the roundabout outside
the GSLC entrance and
pedestrians (predominantly
children) on the footpath
entrance, in the event of queuing
to access the proposed
Development. The Applicant has
provided no objective analysis of
the likely queuing frequency or
extent of same.
018 Development with the It is not considered that the Non-compliant
potential to generate significant development has the In view of the compounding
traffic and parking impacts gives potential to generate effects of constructing two
appropriate consideration to significant traffic and additional service stations (ie. at
transport and land use issues parking impacts. both 115 and 139 Eumundi Road)
in the immediate vicinity, this
outcome is not met.
Applicant’s Response to Noosa Council’s Information Request
80. The applicant has failed to provide adequate responses to the Noosa Council’s
Request for Information relating to traffic issues, as set out in the Table below.
Information Required Applicant’s Response Submitter’s Response
Issue - Traffic
There are concerns with the potential for queuing in the road and traffic conflict in the shared access
area (easement area), particularly in association with the future industry/retail development on the
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balance lot
b) A traffic management It is considered that a traffic The applicant has not provided
procedure to demonstrate management procedure is not the information required.
refuelling will not impact on necessary. As per the Traffic
traffic movements in Eumundi- Report prepared by QTraffic The applicant states that the
Noosa Road or the internal originally submitted, the site existing arrangements will still
traffic within the site. Also, access arrangements are apply, but they do not take into
advise if time restrictions will consistent with the existing consideration the low threshold
be implemented on refuelling arrangements, and are for queuing which exists once
operation schedules to address considered to be appropriate refuelling commences and
this issue. given the nature of the use and vehicles are dually utilising the
the existing road environment. easement for both
Section 4 of the report states development sites during the
that the level of traffic refuelling process, that is,
generation for the proposed existing arrangements are
development is low, and once insufficient.
distributed onto the
surrounding road network,
would be within the range of
typical fluctuations in traffic
volumes.
c) Assessment of the need for a It is considered that queuing in The applicant has not provided
no-queuing area to avoid the easement area will be the information required.
obstructions to traffic flows unlikely as a result of the
within the access easement proposed service station Any future development of the
area and to allow for the future development given the ample second lot will require to either
development of the balance lot. queuing space on site, as per co-utilise the easement
Drawing No 15193- D13. resulting in back-up or apply to
However, as mentioned in 7.a install a neighbouring
above, any future development easement. A second easement
application over the balance lot will present visibility difficulties
will also presumably be and associated risks to exiting
required to demonstrate no vehicles. It will also pose an
queuing into the easement unacceptable risk of further
area. compounding traffic congestion
on the Eumundi Noosa Road
81. Significantly, the applicant has not provided any solution to the Noosa Council’s
concerns with the potential for queuing in the road and traffic conflict in the shared
access area (easement area), as in its opinion, queuing in the easement area will be
unlikely as a result of the proposed service station development given the ample
queuing space on site. As the applicant has not allayed the Council’s concerns, this
clearly supports our position that the DA is inconsistent with the following objectives
of the Noosa Plan:
Use of land for a service station does not impair traffic flow or road safety
The safety of pedestrians and cyclists is protected
Vehicular access does not adversely impact on safety, capacity and
operations of the existing or planned road network, the proposed driveway,
cycleways or pedestrian pathway system
Access and egress points do not impact on the safety and operations of the
road system
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Provision is made for pedestrian and vehicular queues at conflict points
Development with the potential to generate significant traffic and parking
impacts gives appropriate consideration to transport and land use issues
82. The above justifies the Noosa Council rejecting the DA on the grounds that it is not
compatible with traffic objectives contained in the Noosa Plan. Sufficient grounds do
not exist for the Noosa Council to approve the DA, notwithstanding the fact that it fails
to meet these outcomes. In addition, the adverse traffic impacts generated by the DA
cannot be acceptably mitigated by the use of conditions.
v. NON-COMPLIANCE WITH OTHER RELEVANT LOCAL CODES
83. In relation to a range of other, applicable codes in the Noosa Plan, it is evident that the
applicant has failed to address the numerous and significant potential impacts of the
DA on the adjoining GSLC. The specific areas of non-compliance are set out in the
table provided at Annexure A.
C. SUFFICENT GROUNDS FOR COUNCIL TO JUSTIFY REFUSAL OF THE APPLCIATION
Section 326 of the SPA
84. Section 326(1)(b) of the SPA stipulates that a decision to approve a DA must not
conflict with a relevant instrument, including a planning scheme, unless ‘there are
sufficient grounds to justify the decision’. Accordingly, if the Noosa Council concludes
that the DA compiles with the Noosa Plan, it will nonetheless be incumbent on the
Noosa Council to refuse the DA if there are sufficient grounds to justify the refusal of
the DA, despite its compliance with the Noosa Plan.
85. Section 326(1)(b) of the SPA states:
326 Other decision rules
(1) The assessment manager's decision must not conflict with a relevant instrument
unless—
…
(b) there are sufficient grounds to justify the decision, despite the conflict;
or
…
86. The term “grounds” is defined in Schedule 3 of the SPA to mean matters of public
interest. It does not include the personal circumstances of the applicant, the owner of
the land or another interested party.
87. “Statutory Guideline 05/09 - Sufficient grounds for decisions that conflict with a
relevant instrument”, made under section 759(1)(a) of the SPA, states that an
assessment manager may refuse an application, even though the proposed
development complies with the relevant instruments, if there are sufficient grounds
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for refusing the development despite the fact that the decision would conflict with the
relevant instruments.
88. The guideline has been prepared under section 759(1)(a) of the SPA which says that
the Minister may make guidelines about matters to be considered by an assessment
manager (namely, the Council in this instance) in deciding whether there are sufficient
grounds to justify a decision that may conflict with a relevant instrument under
section 326 or 329.
Matters of public interest
89. “Matters of public interest” is not defined in the SPA, but case law20 states that it
should be considered to be a “broad concept”, the meaning of which needs to be
determined in the context of the SPA.
90. The purpose of the SPA is expressed in s 3:
...to achieve ecological sustainability by –
(a) managing the process by which development takes place, including ensuring the
process is accountable, effective and efficient and delivers sustainable outcomes; and
(b) managing the effects of development on the environment, including managing the
use of premises; and
(c) continuing the coordination and integration of planning at the local, regional and
State levels.
91. Pursuant to section 8(c) of the SPA, “Ecological sustainability” includes the
maintenance of the cultural, economic, physical and social wellbeing of people and
communities. Section 11(c) of the SPA further provides that the cultural, economic,
physical and social wellbeing of people and communities is maintained if well-serviced
and healthy communities with affordable, efficient, safe and sustainable development
are created and maintained.
92. Clearly, matters of public interest will therefore include matters such as health and
safety of the community, traffic impact issues and protecting the destruction of local
amenity.
93. Below are a number of the major matters of public interest that need to be taken into
consideration in this matter by the Noosa Council:
a) Adverse health impact on the community
20
Wood v Redland City Council [2011] QCA 242 at [21 – 22] and Hogan v Hinch [2011] HCA 4, per French CJ.
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Despite the applicant’s assertions that it has incorporated best practice into its
service station design by implementing a VR1 and VR2 recovery system to eliminate
benzene and other harmful emissions from adversely affecting the health of GSLC
students, their families and staff along with other users of the GSLC, this assertion
FAILS to take into account:
(i) Adverse health impacts that will occur from traffic emissions as a result of the
increased traffic using the service station in close proximity to GSLC, 24 hours
a day, 7 days a week;
(ii) A 2010 Spanish study in a reputable peer review journal showing that benzene
levels are harmful up to a radius of 50m. Here the distance between the fuel
dispensers and the GSLC toddler pool and the HPE Centre are 30 metres and
40 metres respectively;
(iii) The GSLC pool is an OPEN AIR facility. There is no sufficient buffer to absorb
the harmful air emissions, particularly when the wind is coming from the west
or south west;
(iv) That the WA EPA recommends a separation distance of 200 meters between a
service station operating 24 hours a day and a sensitive land use, which
includes a school; and
(v) Noosa temperatures are usually high and therefore the warmer conditions will
increase the amount of vapour release from the service station and emissions
from traffic.
Accordingly, the Noosa Council should refuse the DA outright given that, on present
scientific evidence and the precautionary principle, the DA cannot be acceptably
conditioned to mitigate the adverse health impacts outlined above.
b) Adverse traffic impact on the community
The DA will significantly increase the traffic on the Eumundi-Noosa Road and the
roundabout outside the GSLC in the event of queuing to access the proposed
site, adding to traffic congestion. Additionally, the stationary traffic backing up
along Goodchap Street will also have a potentially deleterious effect on the flow
of vehicles accessing the Noosa Hospital, including emergency vehicles.
The safety of cyclists (including GSLC students) using the cycle lane or the
adjacent pathway will be compromised, with an increased number of
encounters between bicycles and vehicles.
The volume of traffic along the Eumundi Noosa Road will make it difficult for
vehicles exiting the service station and wishing to cross into the far lane in order
to be in the correct lane to completely circle the Walter Hay Drive roundabout
so that they can travel in an easterly direction towards the Noosa river. This
currently is already very difficult to do at pick up and drop off times, let alone
with increased traffic.
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Whilst the QTraffic Report indicates that there will be no noticeable disruption
to traffic flow, we strongly disagree. Having a double driveway onto a main road
(that is, the Eumundi Noosa Road) just before the Walter Hay Drive/Eumundi
Noosa Road roundabout, coupled with approximately 200 hundred planned
entries per hour into the proposed service station/shop, will undisputedly
disrupt the traffic flow. In this regard, it is noted that the QTraffic Report
acknowledges that 75% of trade is expected to be existing users of the road, but
agrees that 25% of traffic will be new traffic, generated by the proposed shop
and service station.
Presently , a large number of cars travelling from Goodchap Road and turning
right at the roundabout at the GSLC entrance, veer across at speed into the left
hand lane in order for them be able to turn left into Walter Hay Drive. Adding a
busy access egress point there will require left turning traffic to swing out and
around to turn left, thus causing a road safety problem.
c) Destruction of local amenity
The proposed location of the service station directly adjoining an educational
facility, combined with the fact it will operate 24 hours a day, 7 days a week, will
destroy the local amenity enjoyed by the GSLC students and families.
The proposed development is in a neighbourhood largely surrounded by
community service and residential infrastructure. There is no industrial
infrastructure in the immediate vicinity and the proposed service station
building is completely out of character and does not integrate with the
surrounding natural and built environment, demonstrating that it is highly
incompatible with its adjoining land use.
In terms of visual quality, a service station located directly adjacent to the GSLC
will significantly reduce the aesthetical appeal of the school. In particular, the
service station itself and its associated advertising signage will be unsightly and
incompatible with the aesthetics of the image of the school.
d) Incompatible with surrounding land use
The subject site is currently located in an Industry zone. It is bound on two sides
by Eumundi-Noosa Road and Walter Hay Drive. The land which immediately
adjoins the proposed site is Community Uses zoned land, which is occupied by
the GSLC to the east and an electrical substation to the north. It is not
immediately adjoined by any land which has an Industry zoning.
Immediately adjoining the school as you progress along Walter Hay Drive is an
oval used for sporting and recreational purposes (zoned Open Space
Recreational) and a retirement village (zoned Residential Use).
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Given that the immediate land uses adjoining the site are for Community Use the
proposed service station development is not compatible with the surrounding
land use. For example, the proposed service station will provide constant
temptation for children to purchase fast foods and drinks (and other
inappropriate items) from the nearby shop.
The proposed development would only be considered compatible if it was
located across either the Eumundi Noosa Road or Walter Hay drive, from the
subject site, where the development is of a predominately industrial nature.
Noosa Plan- Zone Map 8 (Figure 1) clearly illustrates that the current zoning of
the site as Industry (purple) is mismatched with the zoning of the land which
immediately surrounds it, being community land uses (yellow). Accordingly, the
proposed service station does not represent a logical or sensible form of
development over the subject premises.
Figure1: Noosa Plan – Zone Map 8 (Source: Noosa Council)
e) Other planning grounds
94. Further guidance as to what the SPA envisages by way of “grounds” is contained in
“Statutory Guideline 05/09” referred to above. It provides non-exhaustive guidance
as to what may be considered in determining whether there are sufficient grounds to
justify a decision that conflicts with a relevant planning instrument. The following
grounds are set out in the guideline:
Relevant instrument is out of date
…
Example 2— The planning scheme is due for review and does not reflect current
planning trends and principles, such as design principles, methods for addressing
climate change or demographic shifts.
The relevant instrument is incorrect in terms of its substance or underlying
assumptions for the circumstances of the particular proposal.
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Relevant instrument inadequately addresses development
Relevant instrument does not anticipate specific or particular development
95. GSLC is situated on land which was once the site of the Noosa Drive-In and zoned
“rural”. The GSLC Primary School was opened on 28 January 1986. The zoning at this
point was changed to “special facilities” to encompass the school and church usage.
Throughout this time the site (Lot 30 SP170751) was a Noosa Council service depot
and was continuously zoned industrial.
96. An agreement was reached between GSLC and the Noosa Council in 2002 which
provided for the acquisition of 1.1ha of additional land, on which the HPE centre, extra
classrooms and a swimming pool are now located. At this time the entire GSLC site
(Lot 30 SP228052) was rezoned “community services”, however the proposed service
station site (L30 SP170751), now decreased in size, continued to be zoned industrial.
97. The Lutheran Church of Australia Queensland District purchased the site from the
Noosa Shire Council on 20 December 2007. The site shares a common boundary with
the HPE centre and GSLC open air toddler pool.
98. Accordingly, it was a matter of legacy rather than intent that the remainder of the
former Noosa Council depot, (the site), continued to be zoned “industry”. It is
submitted that at the time GSLC (Lot 30 SP228052) was rezoned “community
services”, the site (Lot 30 on SP 170751) should have also been rezoned “community
services” to ensure that ‘it would not be made available to other commercial
enterprises’21 which would be incompatible with the school and that the site would
continue to provide a buffer zone between the GSLC community services zone and the
nearby industry zone.
99. The Noosa Plan commenced in February 2006. The “life” of a local planning scheme is
limited to approximately 5 years and requires constant revision. It is submitted that,
in the circumstances, the Noosa Plan is out of date or incorrect to the extent that the
site remains zoned as industrial use and therefore incompatible with the GSLC
adjoining land use. Furthermore, with the site remaining an “industrial” land zone,
the Noosa Plan fails to adequately protect the health of GSLC students, families, staff
and public users of the school.
100. It cannot be argued by the applicant that there is community need given that there is
approval for a DA to construct a service station approximately 200m away at 139
Eumundi Noosa Road, Noosaville. Further, if a need did actually exist for an additional
service station in the Noosaville Locality, that need is not so great so as to allow it to
be located next to the GSLC and its open air swimming pool frequented by school
children and babies.
21
Counsellor Frank Pardon quoted in Gardner P, Noosa News, 9 December 2015.
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101. For the reasons set out above, the application should be rejected as there are
sufficient grounds of public interest to justify why it should not be approved, even if
the Noosa Council is of the view (which we do not accept) that the application
technically complies with the Noosa Plan.
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Annexure A
Specific Outcome of Code Applicant’s Assessment Submitter’s Assessment
RECONFIGURING A LOT CODE
O9 The subdivision layout is designed O9 Complies: Does not Comply
to facilitate linkages with adjoining The proposal will comply It is the applicant’s responsibility to establish
sites in the immediate area. where reasonably applicable. how the DA complies with the Code. The
applicant has not satisfied this criterion as no
details have been provided as to how the DA
achieves this specific outcome. The phrase
“reasonably applicable” is unclear and the
specific linkages with adjoining sites in the
immediate area have not been considered or
adequately addressed.
O10 Where the lots are to be used O10 Complies : Does not Comply
for Industrial business or Commercial Landscaped buffering has The layout does not provide for appropriate
business uses, the layout provides for been provided along all buffer areas, to mitigate possible impacts on
appropriate buffer areas, to mitigate boundaries adjoining the the adjacent GSLC. Landscape buffering is
possible impacts on nearby school to the east. insufficient and ineffective to mitigate the
residences or other noise sensitive negative impacts, including those of fugitive
uses emissions of the Development.
O12 An adequate and accessible S12.1- 12.2 Complies Does not Comply
water supply is provided for fire Will comply as applicable. It is the applicant’s responsibility to establish
fighting purposes. how the DA complies with the Code. The
applicant has not satisfied this criterion as no
details have been provided as to how the DA
achieves this specific outcome. The Applicant
has not adequately addressed the issue of
fire safety and its potential impacts,
particularly given the proximity of the
Development to the adjacent GSLC.
O32 Access easements are in S32.1 Complies Does not Comply
appropriate locations for safe access It is considered that the It is the applicant’s responsibility to establish
and egress, and supply appropriate proposed access easement how the DA complies with the Code. The
widths and levels of service for the has been designed in applicant has not satisfied this criteria as
number of vehicles that will utilise accordance with Sections 2 sufficient details have not been provided as
them and 3 of PSP5 Engineering to how the DA achieves this specific
Design Standards – Roads, outcome. The proposed access is not
Drainage and Earthworks. appropriate for the DA and does not provide
safe access and egress, nor does it provide
for the appropriate level of safety of school
children given its proximity to the GSLC
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Specific Outcome of Code Applicant’s Assessment Submitter’s Assessment
O33 Traffic generated by the S33.1 Complies Does not Comply
development is within the acceptable The development will comply It is the applicant’s responsibility to establish
capacity of external roads and does where reasonably applicable. how the DA complies with the Code. The
not have an adverse impact upon the applicant has not satisfied this criterion as no
functioning of the road network details have been provided as to how the DA
achieves this specific outcome. “Reasonably
applicable” is indeterminate. The DA has an
adverse impact upon the functioning of the
road network. The Applicant has failed to
provide objective evidence or argument to
show otherwise.
BUSINESS USES CODE
O20 Development is designed and O20 Complies Does not Comply
sited to avoid noise emissions that The proposed development It is the applicant’s responsibility to establish
unreasonably diminish the amenity of is suitably distance and how the DA complies with the Code. The
the area or surrounding uses. buffered through landscaping applicant has not satisfied this criteria as
from sensitive land uses. sufficient details have not been provided as
Further, as the site is located to how the DA achieves this specific
on a busy road and outcome. It is considered that the DA is not
roundabout, it is considered suitably distanced or buffered from the
that there will be no adjacent GSLC which is a sensitive land use.
worsening effects in terms of
noise. The applicant’s statement that “it is
considered that there will be no worsening
effects in terms of noise” is not supported
with objective evidence, such as detailed
studies showing existing background noise
levels and projected additional noise
generation, particularly given the DA’s
proximity to the noise sensitive study
environment of the GSLC.
O27 Buildings and structures are S27.1 Complies Does not Comply
designed to minimise opportunities The proposed development All such facilities are conducive to loitering
for vandalism. will incorporates a building and provide opportunities for concealment
design and layout which will which poses an unacceptable danger to the
provide for non-graffiti students going to and from the GSLC
friendly development, particularly in early mornings or evenings
structures and layout before or after extracurricular school
through design within an activities. Furthermore, the close proximity
absence of natural ladders, of such a facility poses and unacceptable risk
minimal unbroken vertical to the security of the GSLC premises and its
surface areas, CCTV students.
surveillance, a small retail
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Specific Outcome of Code Applicant’s Assessment Submitter’s Assessment
and fast food component
(not conducive to loitering), a
layout which will promote
passive surveillance over the
site, be well illuminated and
comprise minimal
opportunities for
concealment.
TABLE 14-15 SERVICE STATION
O76 Service stations are located only O76 Complies Does not Comply
where they are compatible with the It is considered that the The Development is completely incompatible
existing and proposed amenity and proposed development is with the existing and proposed amenity and
development of a neighbourhood suitably located, given that development of a neighbourhood.
and where they are appropriate given the immediate locality
the existing or likely future traffic comprises predominantly The contention by the Applicant that the
movements in the area. industry zoned land with a immediate locality comprises predominantly
variety of uses including industry zoned land with a variety of uses
retail and commercial. including retail and commercial is inaccurate.
The Property is not adjoined by other
Industry Zoned property. It is bounded on
two sides by Eumundi-Noosa Road and
Walter Hay Drive. The land which
immediately adjoins the Property is zoned
Community Uses, occupied by the GSLC to
the east and an electrical substation to the
north. Immediately adjoining the GSLC along
Walter Hay Drive is an oval used for sporting
and recreational purposes (zoned Open
Space Recreational) and a retirement village
(zoned Residential Use).
O79 Service stations ensure the S79.1-S79.2 Not Applicable Does not Comply
amenity of neighbouring residential The site does not adjoin a It is noted that the area immediately
areas is protected. residential use or zone. adjacent to the GSLC includes a retirement
village (zoned Residential Use) and significant
residential development, all of which are
impacted by the proposed Development.
O84 The layout of the site facilities S84.1- S85.1 Not Applicable Does not Comply
and vehicular accesses result in This outcome is directly applicable to the
unrestricted vehicle access to and application. It is the applicant’s responsibility
egress from the site. to establish how the DA complies with the
Code. The applicant has not satisfied this
criterion as no details have been provided as
to how the DA achieves this specific
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Specific Outcome of Code Applicant’s Assessment Submitter’s Assessment
outcome.
The Applicant fails to address this Objective
of the code. Vehicle access to and egress
from the site will be severely restricted by
existing vehicle and pedestrian traffic in the
area, who will typically be students from the
GSLC.
O85 The use of land for a service S84.1- S85.1 Not Applicable Does not Comply
station— a) does not impair traffic This outcome is directly applicable to the
flow or road safety; b) facilitates safe application. It is the applicant’s responsibility
and convenient movement to and to establish how the DA complies with the
from the site through the design and Code. The applicant has not satisfied this
arrangement of vehicular crossovers; criterion as no details have been provided as
and c) provides adequate, safe and to how the DA achieves this specific
functional on-site parking and outcome.
manoeuvring areas
NOOSAVILLE LOCALITY CODE
O1 Uses are located, designed and O1 Complies Does not Comply
operated to avoid significant adverse The proposed development The Applicant does not provide objective
changes to the light, air quality, includes all believed evidence or analysis to demonstrate
noise, accessibility or other necessary mitigation compliance and relies on ‘belief’.
conditions enjoyed by users of measures to ensure that the
associated, adjoining or nearby uses. amenity of adjoining uses is The Development is not located, designed or
maintained. can be operated to avoid significant adverse
changes to the light, air quality, noise,
accessibility and other conditions enjoyed by
users (particularly GSLC students and staff)
O4 The separate identities of the O4 Not Applicable Does not Comply
various residential neighbourhoods The area immediately adjacent to the School
remain important and distinct The subject site is not includes a retirement village (zoned
elements of the residential character residential neighbourhood. Residential Use) and significant residential
of Noosaville development all of which are impacted by
the proposed Development.
O7 The density of development O7 Complies Does not Comply
within the site area— The proposed development The proposed Development is not
is considered to be appropriately located on the subject site with
compatible with the suitable setbacks from the adjoining,
surrounding development. Community Use School
The proposed development
is appropriately located on
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Specific Outcome of Code Applicant’s Assessment Submitter’s Assessment
the subject site with suitable
setbacks from the adjoining
community use (school).
O9 Buildings and other structures are S9.1 Complies Does not Comply
appropriately designed and sited to— The proposed buildings and The proposed buildings and structures will
a) provide amenity for users of the structures are setback more detract from the amenity of users of the
premises as well as preserve the than 7m from the road adjoining GSLC; does not preserve the visual
visual and acoustic amenity of frontages in accordance with and acoustic amenity of the School and does
adjoining and nearby properties; b) Schedule 1- Minimum not provide adequate distance from the
provide adequate distance from Boundary Setbacks. adjoining School.
adjoining land uses;
O21 Buildings and other structures S21.1 Complies Does not Comply
use materials and finishes that The proposed materials are The proposed Development is in a
complement the Noosaville character acceptable as the site is in neighbourhood completely surrounded by
and integrate with the surrounding the Industry Zone, however Community Service.
natural and built environment the petrol station buildings There is no Industrial infrastructure in the
comprises a variety of immediate vicinity and the service station
materials and features such building is completely out of character and
as glazing and recessions to does not integrate with the surrounding
create visual appeal. natural and built environment.
O188 Uses are predominantly of an O188 Complies Does not Comply
industrial nature ordinarily expected It is considered that the The proposed Development is not in any way
in an industrial estate with ancillary proposed use is of an industrial nature nor is it an ancillary
uses compatible with industrial predominantly of an use, compatible with industrial businesses.
businesses. industrial nature. Service stations are ordinarily located in
areas of high commercial activity.
O196 Industrial development is O196 Complies Does not Comply
conducted in an environmentally All measures to ensure that The Application fails to address in any
responsible manner, operating environmental values are not objective detail how the DA can operate
without deleterious impacts on compromised have been without deleterious impacts on the
immediate, surrounding or incorporated immediate, surrounding or downstream
downstream communities, community, being the School. (Refer to the
environments and environmental Health Impact of the proposed Service
processes. Station at page 6 for further details).
LANDSCAPING CODE
O28 Landscaping of carparking areas O28 Complies Does not Comply
are designed to— It is considered that one The DA does not comply with the probable
a) reduced the visual impact of the advanced tree for every 6 solution. It is the responsibility of the
development; parking spaces is not applicant to demonstrate how alternative
b) provide for advanced canopy trees appropriate given that the solutions achieve the outcomes and purpose
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Specific Outcome of Code Applicant’s Assessment Submitter’s Assessment
to shade vehicles and to reduce car parking area is located of the codes. The applicant has not satisfied
reflected radiation; between the petrol building this criteria as sufficient details have not
c) ensure canopy trees are protected and the fuel court. It is been provided as to how the DA achieves this
from vehicle damage by providing considered that trees will specific outcome.
adequate sized garden beds; limit casual surveillance of
d) maximise opportunities for this area.
infiltration of rainwater on-site;
and e) minimise contaminated The site comprises 30%
runoff entering the stormwater landscaping. This is
system and watercourse. considered more than
suitable.
BUIDLING WORKS CODE
O18 Lighting associated with the use S18.1- S18.3 Not Applicable Does not Comply
or works does not have an adverse It is the applicant’s responsibility to establish
impact upon the amenity enjoyed by S18.4 Complies how the DA complies with the Code. The
users of adjoining or nearby premises All lighting will comply with applicant has not satisfied this criterion as no
nor do it cause unreasonable the relevant requirements details have been provided as to how the DA
disturbance to local fauna. where possible. achieves this specific outcome that lighting
associated with the use or works does not
have an adverse impact upon the amenity
enjoyed by users of adjoining or nearby
premises.
DRIVEWAYS & CAR PARKING CODE
O1 Vehicular access does not S1.1- S1.3 Complies Does not Comply
adversely impact on safety, capacity Vehicle access is considered It is the applicant’s responsibility to establish
and operations of the existing or to be compliant with the how the DA complies with the Code. The
planned road network, the proposed relevant requirements. The applicant has not satisfied this criterion as no
driveway, cycleways or pedestrian development will comply details have been provided as to how the DA
pathway systems. where applicable. achieves this specific outcome. The DA’s
vehicular access adversely impact on safety
of children using the pedestrian pathway to
and from the School. The proposed
Development will significantly increase the
amount of traffic using the access easement
and the Applicant fails to consider or address
how children will be able to safely cross the
access way to the service station in a safe
manner.
O4 Vehicular access does not S4.1 Complies Does not Comply
adversely impact on the capacity, The development will comply The current proposal will have a significant
operations and maintenance of the as required. adverse impact on the operation of the
existing road network in and around the
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Specific Outcome of Code Applicant’s Assessment Submitter’s Assessment
existing infrastructure; GSLC.
O7 Sufficient carparking is provided O7 Complies Does not Comply
to accommodate the number and The proposed development The DA does not comply with the probable
type of vehicles likely to be will provide 10 car parking solution. It is the responsibility of the
generated by the development spaces. Technically this is applicant to demonstrate how alternative
having regard to the specifics of the below the minimum solutions achieve the outcomes and purpose
use… according to Table 14-51 of the codes. The applicant has not satisfied
Vehicle Parking this criteria as sufficient details have not
Requirements. However, it is been provided as to how the DA achieves this
considered that 10 spaces specific outcome.
are suitable given the
ancillary nature of the
proposed petrol building. The
likely number of users of the
service will be there to refuel
their vehicles, which
comprises leaving the vehicle
at the fuel dispenser. The
amount of users specifically
using the site for the ancillary
shop component is
considered to be low. It is
there considered that 10
spaces is appropriate.
O9 Parking areas are located where O9 Complies Does not Comply
they will not unduly conflict with Car parking is located at the It is the applicant’s responsibility to establish
pedestrians and will not dominate front of the building, the how the DA complies with the Code. The
the streetscape. most suitable location for a applicant has not satisfied this criteria as no
service station use. details have been provided as to how the DA
achieves this specific outcome of parking
location not conflicting with pedestrians and
not dominating streetscape.
O11 Access and egress points do not S11.1 Complies Does not Comply
impact on the safety and operations Given the nature of the development and
of the road system proximity to the GSLC the proposed access
and egress point impact adversely on the
safety and operation of the Eumundi-Noosa
Road.
O14 Provision is made for pedestrian O14 Complies Does not Comply
and vehicular queues at conflict Can comply via condition It is the applicant’s responsibility to establish
points; where applicable. how the DA complies with the Code. The
applicant has not satisfied this criterion as no
details have been provided as to how the DA
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Specific Outcome of Code Applicant’s Assessment Submitter’s Assessment
achieves this specific outcome.
The Development will significantly affect
traffic on the Eumundi-Noosa Road, the
roundabout outside the School and
pedestrian children on the footpath entrance
in the event of queuing to access the
proposed Development.
The Applicant has provided no objective
analysis of the likely queuing frequency or
extent.
The adverse traffic impacts generated by the
DA cannot be acceptably mitigated by the
use of conditions.
O17 Car parking areas are O17 Complies Does not Comply
landscaped… Car parking areas have been Cannot be compliant as they do not meet the
suitably landscaped. requirements of the Landscaping Code
Objective O28.
Name of Submitter Address of Submitter Signature (if hard copy is
being submitted)
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Name of Submitter Address of Submitter Signature (if hard copy is being submitted) 37