Negotiated Report (Representations made) MCU21 0228

REQUEST FOR NEGOTIATED DECISION REPORT
Author	Development Planner, Georgina Schramm
Development Assessment

APPLICATION DETAILS
Application No.	MCU21/0228 & OPW21/0364
Development Approval	Material Change of Use – Dual Occupancy, Office Operational Works – Roadwork, Drainage Work, Landscaping, Stormwater, Earthworks
Applicant	Altum Property Group C/- JFP Urban Consultants Pty Ltd
Representations Received On	11 August 2022
Number of Submissions for Original Application	Not applicable

PROPERTY DETAILS
Property Address	245 David Low Way Peregian Beach Qld 4573
RP Description	Lot 22 P 9315
Land Area	582.0000 m²
Existing Use of Land	Residential

STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Locality	Peregian Beach
Zone	Medium Density Residential
Overlays	Acid Sulfate Soils Overlay (5 metres AHD or Below (Area 1))
Assessment Type	Representations made to original approval

background
A Preliminary Approval for a Material Change of Use – Multiple dwelling (3 units) and Office, and Operational Works (Roadwork, Drainage Work, Landscaping, Stormwater and Earthworks) was issued on 4 April 2022.
The development is proposed to be carried out on land at 245 David Low Way, Peregian Beach, described as Lot 22 P9315, which is zoned Medium Density Residential. The subject site is identified as having the ability to accommodate a mixed use development of domestic scale and may include units and offices or health services.
A Preliminary Approval was issued on the basis that amended plans were required to include:
•	a step-free access to at least one of the units;
•	reduction of the vertical screen along the frontage of Unit 1 to achieve a greater setback; and
•	revised landscaping plans were required specific to the existing vegetation along the frontage of the lot.
The applicant suspended the appeal period and originally made representations on 20 April 2022 to the development approval conditions. The representations are detailed below but primarily relate to Conditions 2.1 and 2.2 which require amendments to the proposed development.
Following representations made on 20 April, the development application was delegated to Council for decision as the representations included a refusal component of development, relating to Conditions 2.1 and 5. The applicant requested the development application be deferred to allow for negotiation for a revised proposal, and extended the decision making period.
The applicant has amended the proposal from Multiple Dwellings (three small dwellings) and 80m2 Office, to Dual occupancy (two small dwellings) and 100m2 Office. The changes have resulted in the following changes to the overall design:
Changes to the landscaping plan, incorporating varying species. All species comply.
Minor variations to building setbacks relating to eaves of the building however, this does not introduce any new non-compliances or raise conflict with the corresponding Performance outcomes.
assessment
An assessment in relation to each of the submitted representations is provided below:
Condition 2 of the Preliminary Approval seeks:
2. 	Amended plans and associated reports must be submitted to Council prior to any further development applications being made and must include the following to the reasonable satisfaction of the Manager, Development Assessment:
One of the three (3) Multiple Dwelling units is to be:
i.	accessible by a safe, continuous and step free path of travel from the street entrance of the property or from a car parking space;
ii.	has a step-free entrance door with opening width of at least 820 millimetres; and
iii.	contains a bathroom on the entry level.
The depth of the vertical screen along the front façade of Unit 1 is to be reduced to 350mm; the outermost projection of Unit 1 is not to exceed 5.45 metres from the front property boundary.
Applicant’s Representation – Condition 2.1
Compliance with this condition requires the applicant to redesign the development to include a lift or remove 1 dwelling and change the approved multiple dwelling (3 units) to a Dual Occupancy. The proposal has been amended to change the use from Multiple Dwelling units to a Dual Occupancy. The change of use does not result in substantially different development and accordingly can proceed assessment in the representations period.
Assessment of Representation
Condition 2.1 was imposed in reference to Acceptable outcome AO9 of the Dual Occupancy and Multiple Dwelling Use Code. The applicant has proposed to reduce the density of development to two units, and therefore Condition 2.1 and assessment against Acceptable outcome AO9 of the Use Code is no longer relevant to the development.
It is agreed that that the change of use can proceed as assessment in the change representations report as a minor change following substantially different development test.
Condition 2 will be deleted.
Condition 19
The proposed change of use, has resulted in Condition 19 incorrectly referencing an elevation which is to be screened to uphold protection of privacy of the adjoining premises. Condition 19 will be amended to reflect the changed unit number.
Condition 30
The change of proposal subsequently impacts Condition 30, in regard to car parking allocations. The same number of spacings will remain, however with the increase of the Office space to 100m2, and the reduction in units will result in 3 spaces to be allocated to the residential component of development, 1 being for visitor use, with the remaining 5 spaces for the office component. Condition 30 will be amended to reflect the change.

Condition 2.2
The depth of the vertical screen along the front façade of Unit 1 is to be reduced to 350mm; the outermost projection of Unit 1 is not to exceed 5.45 metres from the front property boundary.
Applicant’s Representation
The projection of the vertical screen across the front facade of unit 1 was intended to provide access behind the screen for maintenance as well as additional articulation and shade for the ground floor tenancy. Council’s request to reduce the depth to 350mm is not practical for construction or ongoing building maintenance. Accordingly, if the setback must be reduced, it is proposed to incorporate a projection for the screen of 600mm, which results in a front setback of 5.4m. It is sought that condition 2.2 be amended as follows:
2.2	The depth of the vertical screen along the front façade of Unit 1 is to be reduced to 350 600mm; the outermost projection of Unit 1 is not to exceed 5.45 5.4 metres from the front property boundary
Assessment of Representation
The applicant seeks to reduce the setback by a further 50mm to achieve a setback of 5.4 metres in lieu of the conditioned 5.45 metres from the projection of the vertical screen to the front boundary. Figure 5 shows the fixed screen and the proposed projection which was conditioned to be reduced. The proposed change is considered reasonable and has been reflected in the revised plans, therefore Condition 2 will be deleted.

Figure 5 – Proposed Fixed Vertical Screen on the Upper Level of the Development
Currency Period
Condition 5
This development approval lapses if the use has not happened by 29 March 2028, unless an application to extend the currency period is approved by Council.
Applicant’s Representations
This requirement applies the default currency period under the Planning Act 2016. As such, it should be included in Section 3 of the Decision Notice titled “3. Currency period of approval”, not in the approval conditions, as this is not a “sunset clause” condition of a staged development.
Accordingly, we request that the currency period be included in Section 3 of the Development Permit and the Condition be Deleted.
Assessment of Representations
The Planning Act 2016 s85 outlines that the currency period of a development approval relating to a material change of use is for a period of 6 years after the approval starts to have effect, or the period stated for that part of the approval. Council imposes a standard condition relating to the currency period of the development to avoid ambiguity regarding the currency period of development and the date the approval will lapse.
The applicant’s representations are not agreed to and condition 3 should remain but amended to the date of decision i.e. 18 August 2028 to ensure the currency period remains consistent with the Planning Act 2016.
Landscaping Works Representations
Condition 46
Development undertaken in accordance with this approval must generally comply with the approved plans of development. The approved plans are numbered 188-002-002-B, 188- 002-100, 188-002-200-201, 188-002-300 (as annotated by Council), 188-002-301-302 & 188-002-40 prepared by Bax Engineering, dated 7 February 2022. These plans must be amended in accordance with these conditions.
Amended plans and associated reports must be submitted to Council prior to any further development applications being made and must include the following to the reasonable satisfaction of the Manager, Development Assessment:
A revised Landscaping Plan relative to plan numbered, 1622_L01-01_03 & 1622_L03-01_03, is to be provided for approval detailing:
The existing vegetation between the proposed fence along the road boundary of Lot 22 P9315 and the kerbside must be assessed by a qualified person* and retained, and protected where possible.
Where mature trees are to be removed, reasonable grounds must be given by the qualified person*, and substituted with additional Baeckea virgata or Banksia integrifolia with a minimum pot size of 100L or greater.
Applicant’s Representation
In conjunction with the applicant’s representations an Arborist Report and revised Landscaping Plans have been provided to address Condition 46 of the Operational Works Preliminary Approval. The supporting documentation addresses the reasons for Preliminary Approval for the Operational Works.  As such, we request that Council approve the Arborist report and amended landscape plans, and delete Condition 46, which is no longer relevant.
Assessment of Representation
It is agreed that the revised Landscaping Plan and Arborist Report adequately addresses the condition.  Accordingly, the Arborist Report may be conditioned as an approved document, and the revised Landscaping Plans conditioned as approved plans.  Condition 46 may be amended to include the supporting document and revised landscaping plans as approved plans of the development.
Condition 15
Any street fencing must be set back an average of 1 metre from the front property boundary. Any fencing on the front boundary must not exceed a maximum height of 1.8m.
Applicant’s Representation
To enable greater flexibility and to facilitate the preservation of the existing trees and landscaping at the front of the site, it is requested that Condition 15 be amended as follows:
Any street fencing must be set back an average of at least 1 metre from the front property boundary. Any fencing on the front boundary must not exceed a maximum height of 1.8m.
Assessment of Representation
It is agreed to change the wording to include ‘at least’ as it does not change the intent of the condition to ensure that fencing is setback 1 metre at a minimum.
Condition 16
The area of land between the fence and the front property boundary must be densely landscaped to screen any fencing from the street.
Applicant’s Representation
In consultation with the architect, it is considered impractical to completely screen all fencing when viewed from the street. Accordingly, we request Condition 16 be amended to include the word obscured, as outlined below:
The area of land between the fence and the front property boundary must be densely landscaped to screen obscure any fencing from the street.
Assessment of Representation
It is understandable that there will be elements of the fence that need to be visible such as a letterbox, or signage. It is agreed to change the wording of condition 16 as per the applicant’s representations.
Condition 22
All landscape works must be maintained generally in accordance with the approved design for the life of the development.
Applicant’s Representation
This condition includes the same wording and intent as Condition 21, as such, it is requested that Condition 22 be deleted.
Assessment of Representation
Both landscaping conditions 21 and 22 are similar and work towards achieving the same outcome.  Therefore condition 22 may be deleted.
Condition 23
All mature trees within the road reserve must be retained in accordance with the approved landscape plan unless prior written authorisation from Council is gained for removal.
Condition 24
The existing vegetation between the proposed fence along the road boundary of Lot 22 P9315 and the kerbside must be assessed by a qualified person* and retained, and protected where possible.
Applicant’s Representation
Condition 23 appears to be a repetition of Condition 24. Accordingly, it is requested that Condition 23 be removed.  The vegetation across the front of the site has been assessed by an Arborist. (refer to Appendix E). The Arborist report recommends that all the mature trees in the front verge be retained where possible. In light of this, it is requested that Condition 24 be amended as follows:
The existing vegetation in the road reserve between the proposed fence along the road boundary of Lot 22 P9315 and the kerbside must be assessed by a qualified person* and retained in accordance with the approved landscape plans, and protected where possible
Assessment of Representation
Following receipt of the revised landscaping plan and arborist report, it is agreed that Condition 23 is removed as the findings of the report state that all trees in the road reserve are suitable for retention. In addition to the requested amendments to Condition 24 above, the following amendments are recommended to ensure the trees are not removed from the road reserve without approval from Council, and for greater clarity, Conditions 24 and 25 are to merge as the two conditions refer to the existing vegetation in the road reserve. It is recommended that Conditions 24 and 25 are merged as follows:
24. 	The existing vegetation in the road reserve is to be retained and managed as per the findings and recommendations of the Arborist Report prepared by Arboriculture Contractors Australia Pty Ltd, dated 27 April 2022. A qualified person* must be present if works are occurring within the Tree Protection Zone.
Should one of the mature trees be removed, reasonable grounds must be given by the qualified person*, and substituted with additional Baeckea virgata or Banksia integrifolia with a minimum pot size of 100L or greater.
Condition 26
A minimum of one (1) street tree with a minimum pot size of 100L is to be provided along the frontage of the lot, setback at least 1 metre from the kerb in the road reserve verge, and are of a species that do not impact on services.
Applicant’s Representation
In accordance with the recently prepared Arborist Report for the site, all mature trees in the front verge are considered to be in good health and recommended for retention.
The retention of this vegetation is also captured through Condition 25 (where possible) and therefore, Condition 26 is considered superfluous. The retention of the existing vegetation is also considered an appropriate means of maintaining the current streetscape without the need for an additional street tree. The widening of the footpath as required by Condition 33, together with the requirement to retain existing vegetation (Condition 25), precludes the ability to provide an additional street tree. Accordingly, it is requested that this condition be deleted.
Assessment of Representation
It is agreed that this condition may be deleted given the retention of existing vegetation in the road reserve.
Condition 27
A revised Landscaping Plan relative to plan numbered, 1622_L01-01_03 & 1622_L03-01_03, and findings specific to Conditions 24 and 25 are to be provided for approval. The revised plan is clearly identify the vegetation within the front boundary setback and road reserve which are to be retained and supplementary plantings.
Applicant’s Representation
The subject landscape plans have been amended in accordance with the recommendations of an Arborist report and general intent of Conditions 24 and 25 of the Preliminary Approval. Accordingly, it is requested that Council review and approve the revised set of landscape plans, as provided (and captured by Condition 1) and delete the condition.
Assessment of Representation
Condition 27 can be removed as the revised Landscape Plan adequately includes the landscaping requirements. The Arborist Report and the revised Landscape Plan can be included as an approved document.
Condition 35
The site must be provided with a stormwater drainage system connecting to a lawful point of discharge.  The works must be undertaken generally in accordance with the “Site Based Stormwater Management Plan” – Reference number 188-002-001, Revision A prepared by BAX Engineering dated 3 February 2022 and must include:
the deletion of the connection from the proposed infiltration pit to the existing infiltration pit in the adjoining property, and
any modifications to the proposed infiltration pit necessary due to the deletion of the abovementioned connection
The amended plans must be submitted to Council at least 5 business days prior to the pre-start meeting.
Condition 35 is imposed pursuant to s145 of the Planning Act 2016 being non-trunk infrastructure.
Applicant’s Request
To avoid delays at plan sealing, we seek confirmation that the amendments to the stormwater management system required by this condition achieve a lawful point of discharge to Council’s satisfaction.
Council Comment
Based on the information provided, on the understanding that the stormwater works are to be wholly contained within the site, the development will achieve a lawful point of discharge.
Condition 47
The Currency Period for this development approval lapses if the development has not substantially started by 29 March 2028, unless an application to extend the currency period is approved by Council.
Applicant’s Representation
The currency period for the operational work aspects of the development aligns with the default period under the Planning Act 2016 and is not a sunset clause for a staged development. As such, it should be included in Section 3 of the Decision Notice, not as a Condition of approval. Please delete the Condition.
Assessment of Representation
In considering the operational works component of the development is not considered high risk, and relevant engineering standards are not tabled to be amended, Condition 47 can be deleted and the higher order currency period of the material change of use is appropriate to apply.
Conditions 56 and 79 – Administrative errors
All works must be constructed and work procedure undertaken in accordance with:
c.	The approved plans/documents and conditions detailed in this Decision Notice
d.	All relevant Noosa Council Planning Scheme Policies, standard drawings, standard specifications and guidelines
e.	The latest version of the Healthy Waterways document “Water Sensitive Urban Design Technical Design Guidelines for South East Queensland” for all water quality devices to be constructed on site
As Constructed Plans and ADAC XML Files (Council)
Prior to acceptance of civil works to become Council assets “On Maintenance”, satisfactory “As-Constructed” records must be submitted to Council. The bundle of “As Constructed” information shall include:
a.      As-Constructed Engineering Drawings. Data is to be submitted in an electronic drawing file format (.dwg), with all plans clearly endorsed “As-Constructed”, along with the accompanying hardcopies (PDFs of the As-Constructed .dwg drawing files), and;
ADAC XML Digital File. ADAC File format (ADAC - Asset Design As Constructed) prepared in accordance with industry standards and recorded in “MGA - UTM56 / GDA94” projection.
Please Note: Further information and advice relating to the as-constructed drawing presentation, as-constructed survey capture and associated guidelines for preparation of a compliant ADAC XML digital file are available on the webpage titled “As-Constructed Guidelines” and accessible at the Noosa Council Website: Planning & Development / Development Tools & Guidelines / As-Constructed Guidelines.
The “As-Constructed” drawings will require certification by a:
iii.   Qualified experienced Civil Engineer (RPEQ) confirming design intent and conformance with applicable standards and specifications, along with the relevant descriptions of assets, services and structures and;
iv.	Licensed Surveyor in regard to the cadastral and locational information, levels and applicable survey datum.
The data must be in accordance with Council’s “Planning Scheme Policy 6 – Engineering Design Standards”, and fully detail the levels for all engineering works including but not limited to the drainage network and structures, finished ground and pavement surface levels.
Applicant’s Representation
Condition 56 and 79 include a minor topographical error. It is requested that the conditions be updated.
Assessment of Representation
The number sequencing of the two conditions is incorrect and is agreed to be amended.
conclusion & reasons for decision
The proposal seeks to change the Preliminary Approval to a Development Permit for the Material Change of Use and Operational Works. As the applicant has adequately addressed Condition 2 it is recommended that Council approve this request in respect to the Material Change of Use component.
The applicant has otherwise satisfactorily resolved matters relating to the Operational Works component, with a number of other minor variations to conditions sought agreed to.
RECOMMENDATION
With regard to Application No. MCU21/0228 & OPW21/0364 for a Development Permit for a Material Change of Use – Dual Occupancy, Office, and Operational Works (Roadwork, Drainage Work, Landscaping, Stormwater, Earthworks), situated at 245 David Low Way Peregian Beach, described as Lot 22 P9315, and representations made, Council on 18 August 2022 decided to:
Approve to amend conditions 1, 3, 5, 15, 16, 19, 24, 30, 46, 56, 79 of the Preliminary Approval, to read as follows:
PLANNING
When Conditions must be Complied With
1. 	Development undertaken in accordance with this approval must generally comply with the approved plans of development. The approved plans are listed in the following table unless otherwise amended by these conditions.
Plan No.	Rev.	Plan/Document Name	Date
1622-DA02	08	Floor Plans, prepared by Blackburn Jackson	8 August 2022
1622-DA03	07	Elevations, prepared by Blackburn Jackson	8 August 2022
1622-DA04	07	Section, prepared by Blackburn Jackson	8 August 2022
1622-DA05	07	Section, prepared by Blackburn Jackson	8 August 2022
1622-DA06	07	Landscape Area Plans, prepared by Blackburn Jackson	8 August 2022
1622-DA07	08	Site Cover & Height, prepared by Blackburn Jackson	8 August 2022
1622-DA08	07	Materials & Finishes, prepared by Blackburn Jackson	8 August 2022
1622-DA09	07	Perspectives, prepared by Blackburn Jackson	8 August 2022
1622_L01-01_05	05	Landscape Notes & Schedules, prepared by Blackburn Jackson (Annotated by Council)	10 August 2022
1622_L03-01_05	05	Landscape Planting Plans, prepared by Blackburn Jackson(Annotated by Council)	10 August 2022
1622_L07-01_01	01	Landscape Details, prepared by Blackburn Jackson	19 May 2022
Nature and Extent of Approved Use
3. 	The approved Dual Occupancy is compromised of two (2) small dwellings, and office, in accordance with the use definitions under Noosa Plan 2020.
Currency Period
5. 	The development approval lapses if the use has not happened by 18 August 2028, unless an application to extend the currency period is approved by Council.
Fencing and Walls
Any street fencing must be set back an average of at least 1 metre from the front property boundary. Any fencing on the front boundary must not exceed a maximum height of 1.8m.
The area of land between the fence and the front property boundary must be densely landscaped to obscure any fencing from the street.
Protection of Privacy
The upper level balcony (BAL 1) located on the southern building face of Unit 2 must include either balcony planter boxes, balustrading or fixed external screens, positioned in such a way to obscure direct views into the habitable room windows or private open space areas of the adjoining property.
Landscaping Works
24.    The existing vegetation in the road reserve is to be retained and managed as per the findings and recommendations of the Arborist Report prepared by Arboriculture Contractors Australia Pty Ltd, dated 27 April 2022. A qualified person* must be present if works are occurring within the Tree Protection Zone.
Should one of the mature trees are to be removed, reasonable grounds must be given by the qualified person*, and substituted with additional Baeckea virgata or Banksia integrifolia with a minimum pot size of 100L or greater.
Car Parking
A minimum of eight (8) car parking spaces must be provided and marked on the site and made available and accessible at all times while the use is open for business. The works must include in particular:
The small dwellings component of the development is to have available three (3) parking spaces, one (1) space is to be available for visitors of the residential use, which are clearly marked for that purpose and accessible at all times for visitor use.
The office is to have available five (5) parking spaces, which are clearly marked for that purpose.
dimensions, crossfalls and gradients in accordance with Australian Standard AS2890: Parking Facilities.
OPERATIONAL WORKS
Approved Plans
When conditions must be complied with
Development undertaken in accordance with this approval must generally comply with the approved plans of development. The approved plans are listed in the following table unless otherwise amended by these conditions, where there is conflict between the approved plans and conditions of approval, the condition prevails.
Plan No.	Rev.	Plan/Document Name	Date
188-002-002-B	B	General Notes prepared by Bax Engineering	7 February 2022
188- 002-100	B	Site Layout Plan prepared by Bax Engineering	7 February 2022
188-002-200	B	Earthworks Layout Plan prepared by Bax Engineering	7 February 2022
188-002-201	B	Earthworks Sections prepared by Bax Engineering	7 February 2022
188-002-300	B	Grading & Drainage Layout Plan (as annotated by Council) prepared by Bax Engineering	7 February 2022
188-002-301	B	Pavement Layout Plan prepared by Bax Engineering	7 February 2022
188-002-302	B	Sign & Line Marking Layout Plan prepared by Bax Engineering	7 February 2022
188-002-401	B	Drainage Longitudinal Section prepared by Bax Engineering	7 February 2022
-	-	Arborist Tree Assessment Report by Arboriculture Contractors Australia Pty Ltd	27 April 2022
1622_L01-01_05	05	Landscape Notes & Schedules, prepared by Blackburn Jackson (Annotated by Council)	10 August 2022
1622_L03-01_05	05	Landscape Planting Plans, prepared by Blackburn Jackson (Annotated by Council)	10 August 2022
1622_L07-01_01	01	Landscape Details, prepared by Blackburn Jackson	19 May 2022
During Construction
Engineering
56. 	All works must be constructed and work procedure undertaken in accordance with:
The approved plans/documents and conditions detailed in this Decision Notice
All relevant Noosa Council Planning Scheme Policies, standard drawings, standard specifications and guidelines
The latest version of the Healthy Waterways document “Water Sensitive Urban Design Technical Design Guidelines for South East Queensland” for all water quality devices to be constructed on site
As Constructed Plans and ADAC XML Files (Council)
79. Prior to acceptance of civil works to become Council assets “On Maintenance”, satisfactory “As-Constructed” records must be submitted to Council. The bundle of “As Constructed” information shall include:
As-Constructed Engineering Drawings. Data is to be submitted in an electronic drawing file format (.dwg), with all plans clearly endorsed “As-Constructed”, along with the accompanying hardcopies (PDFs of the As-Constructed .dwg drawing files), and;
ADAC XML Digital File. ADAC File format (ADAC - Asset Design As Constructed) prepared in accordance with industry standards and recorded in “MGA - UTM56 / GDA94” projection.
Please Note: Further information and advice relating to the as-constructed drawing presentation, as-constructed survey capture and associated guidelines for preparation of a compliant ADAC XML digital file are available on the webpage titled “As Constructed Guidelines” and accessible at the Noosa Council Website: Planning & Development / Development Tools & Guidelines / As-Constructed Guidelines.
The “As-Constructed” drawings will require certification by a:
i.	Qualified experienced Civil Engineer (RPEQ) confirming design intent and conformance with applicable standards and specifications, along with the relevant descriptions of assets, services and structures and;
ii.	Licensed Surveyor in regard to the cadastral and locational information, levels and applicable survey datum.
The data must be in accordance with Council’s “Planning Scheme Policy 6 – Engineering Design Standards”, and fully detail the levels for all engineering works including but not limited to the drainage network and structures, finished ground and pavement surface levels.
Delete conditions 2, 22, 23, 25, 26, 27, 47.
Refuse to amend change requested in regard to Condition 5 for the following reasons:
The Planning Act 2016 allows Council as the assessment manager to condition the currency period for the application in a development approval and the condition clearly articulates when the approval lapses.
Note the report is provided in accordance with Section 63(5) of the Planning Act 2016.

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