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In the Planning and Environment Court No. 3\26 of 2015
Held at: Brisbane

Between: NOOSAVILLE MEDICAL AND PROFESSIONAL Appellant
CENTRE PTY LTD

And: NOOSA COUNCIL Respondent

NOTICE OF APPEAL

Filed on 07/08/2015

Filed by: Thomson Geer

Service Address: Level 16, Waterfront Place, 1 Eagle Street, Brisbane QLD 4000
Phone: (07) 3338 7500

Fax: (07) 3338 7599

Email: [email protected]

NOOSAVILLE MEDICAL AND PROFESSIONAL CENTRE PTY LTD of c/- Thomson Geer,
Level 16, Waterfront Place, 1 Eagle Street, Brisbane in the State of Queensland hereby appeals
to the Planning and Environment Court at Brisbane against the Respondent's decision, dated 13
July 2015, granting, in part, the Appellant's request to change a development approval for land
formally described as Lot 3 on SP264909 pursuant to section 369 of the Sustainable Planning
Act 2009 (SPA) and seeks the following orders or Judgment:

a) the appeal be allowed;
b) the Respondent's decision of 13 July 2015 be set aside;

c) the Appellant's request to change the development approval for Lot 3 on SP264909 be
granted, subject to lawful conditions;

d) costs of the proceeding; and

e) any athier orders the Court deems appropriate.

The grounds of appeal are:

4 The Land is:
1.1. formally described as Lot 3 on SP264909; and
1.2 located at 90 Goodchap Street, Noosaville.

2 On or about 7 March 2008 the Respondent, by way of Negotiated Decision Notice,
approved the Appellant's development application for a development permit for material
change of use for Commercial Business Type 1 Office & Type 2 Medical, Retail Business

 

Notice of Appeal THOMSON GEER

Filed on behalf of the Appellant Level 16, Waterfront Place

Form PEC-1 1 Eagle Street
BRISBANE QLD 4000

Tel: (07) 3338 7500

Fax: (07) 3338 7599

Email: [email protected]
DX: 134 Brisbane

Our Ref:MFM:3752191

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10

1

Qe
Type 1 Local & Type 2 Shop, Education Type 3 Adult and Entertainment & Dining
Business Type 1 Food and Beverage (the development approval).

The development approval was granted subject to conditions.

On 21 November 2008, the Sunshine Coast Regional Council resolved to change the
development approval under the Integrated Planning Act 1997 by:

4.1. approving a change to conditions 1, 7, 8, 12, 15, 36, 38 and 55;
4.2 approving a change to Advice Conditions 2 and 3; and
4.3 including additional conditions of approval.

On 16 March 2010, the Sunshine Coast Regional Council resolved to make a permissible
change to the development approval by including additional condition numbers 65, 66
and 67.

On 11 February 2011, the Sunshine Coast Regional Council resolved to make a
permissible change to the development approval by extending the relevant period in
condition 19 to 17 February 2014 (the Amended development approval).

On 10 November 2014 the Appellant lodged a permissible change request under SPA
with the Respondent seeking:

7.1 changes to conditions 1, 7, 8, 10 to 12, 36 and 38 of the Amended development
approval; and

7.2 to delete condition 15 of the Amended development approval (the permissible
change request). :

The changes the subject of the permissible change request satisfy section 367 of SPA in
that the changes:

8.1 Would not result in a substantially different development;
8.2 Would not require referral to any additional concurrence agencies;

8.3 Would not trigger a new requirement for impact assessment, as the development
application has always required impact assessment;

8.4 Would not be likely to cause a person to make a properly made submission
objecting to the proposes changes; and

8.5 Would not result in the introduction of any prohibited development into the
proposal.

By way of notice dated 13 July 2015, the Respondent granted, in part, the permissible
change request.

The Appellant takes no issue with the Respondent's decision to change conditions 7, 8
and 38 of the Amended development approval.

The Appellant takes no issue with the Respondent's decision to delete condition 15 of the
Amended development approval.

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12 The Respondent's decision with respect to the changes proposed to conditions 1, 10, 11,
12 and 36 is wrong in law and contrary to proper planning for the reasons identified in
paragraphs 13 to 20 below.

Conditions 1, 10 and 36

13. Conditions 1, 10 and 36 of the Amended development approval, properly construed,
require the construction of a multi-deck carpark and the provision of 395 carparks to
service the approved material change of use.

14 — Acondition requiring the provision of 395 carparks and a multi-deck Carpark are:
14.1 No longer lawful conditions for the purpose of section 345 of SPA; or

14.2 Further in the alternative, conditions which, are in the exercise of the discretion, no
longer an appropriate town planning and traffic engineering response to the
approved material change of use.

Particulars

14.3 The conditions in their current form require the construction of a multi-deck carpark
and the provision of 395 car parking spaces on the subject land for the material
change of use approved.

14.4 The use of the land in accordance with the Amended development approval does
not require the provision of 395 carparks to accommodate parking demand.

14.5 An appropriate provision of carparks having regard to proper traffic engineering
principles and the demand generated by the approved material change of use is
355 carparks. ‘

14.6 Appropriate provision can be made on the subject land for 355 carparks absent the
multi-deck carpark.

14.7 The cost of constructing the multi-deck carpark is estimated to exceed $3,000,000.

14,8 The cost of constructing the multi-deck car park is an unreasonable imposition on
the development given paragraphs 14.5 to 14.7 and thereby unlawful.

14.9 Further or in the alternative, the facts alleged in paragraphs 14.3 to 14.8 above
favour an exercise of the discretion to change conditions 1, 10 and 36 in the
manner sought by the Appellant.

Condition 11
15 Condition 11 of the Amended development approval is the following terms:

“A verification survey of the building is to be carried out by a Licensed Surve yor
and a certificate lodged with Council at completion of the work confirming
compliance with the maximum allowable building height as required either by the
conditions of the approval of the Planning Scheme".

16 The maximum building height of the Amended development approval:

16.1 is controlled by condition 10 of that approval by reference to approved plans and
empirical measures; and

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als

16.2 is not controlled by the “planning scheme”.

Given the clear terms of condition 10 of the Amended development approval, there is no
legitimate town planning reason which warrants condition 11 requiring a survey to be
submitted which demonstrates compliance with the maximum building heights in the
planning scheme.

In the premises, condition 11 ought be amended to delete reference to a requirement that
a survey be submitted to the Respondent demonstrating compliance with the maximum
building height provided in the planning scheme.

Condition 12

19

20

21

Condition 12 of the Amended development approval specifies the permitted total
maximum use area for the approved material change of use.

Condition 12 ought be amended to reflect the development has, in fact, been constructed
on the subject land and the precise use areas can be identified in accordance with the
following:

12. The development is permitted a total maximum use area of 6,054m’ with
each individual use permitted the following maximum use area at any one
time:

12.1 Education Type 3 Adult (Student Contact) - 1,400m*

12.2 Retail Business Type 2 Shop and Salon and Entertainment and
Dining Business Type 1 Food and Beverages — 236m* (including
outdoor dining)

12.3 Retail Business Type 1 — Local — 100m*
12.4 The remaining use area being available for:
e Commercial Business Type 1 - Office
e Commercial Business Type 2 - Medical
e Education Type 3 - Adult
In the premises:

24.4 the decision of the Respondent to grant the permissible change request in
part was wrong;

21.2 the permissible change request should be approved in full, subject to lawful
conditions; and

21.3 the Appeal should be allowed.

Thomson Geer

Solicitors for the Appellant

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N.B If you are named as a Respondent in this Notice of Appeal and wish to be heard
in this appeal you must:

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

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

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

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

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

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

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

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