2022-09-06 Planning & Environment Meeting Agenda

PLANNING & ENVIRONMENT COMMITTEE MEETING AGENDA                                6 SEPTEMBER 2022


The applicant advises:
It is intended that the room the subject of Condition 5 can be used for a variety of habitable
purposes at the occupant’s or owner’s discretion, including as a study, media room, napping or
guest bedroom or as a dedicated bedroom for an occupant.
The design of the room allows large sliding windows to capture natural light and ventilation to the
space from adjoining rooms and areas. That window measures 2,300mm long by 600mm high with
an area of 1.382m2 for a room of 9.6m2. A 1,500mm high wall provides both privacy and the
required acoustic rating for occupants’ comfort.
Assessed against the Building Code of Australia, the rooms which Condition 5 seeks to regulate,
qualify as habitable rooms which are able to be used for all the purposes proposed, including a
bedroom.
For the reasons we discuss below, we think that Condition 5 is both unlawful or alternatively not
imposed for a proper planning purpose that can be properly discerned from the Noosa Plan 2020.
There are a few things to note.
First, for the purpose of section 65(1)(b) of the PA, we are unable to discern a change that the
proposed development is likely to produce for which the condition might be considered reasonable
response.
Secondly, whilst a condition may nevertheless be relevant if it maintains proper standards in local
development or in some other legitimate planning sense, we have been unable to discern such a
purpose from a review of the Noosa Plan 2020.
The Council identifies PO8 of the Sustainable Building Design Code as the genesis for Condition
5 and this is disagreed.
The Sustainable Building Design Code does not specifically refer to bedrooms, as opposed to other
habitable rooms, in its provisions. That outcome is to be contrasted with other assessment
benchmarks within the Noosa Plan 2020.
As for PO8 of the Sustainable Building Design Code, there is no element which could be said to
be a proper foundation for Condition 5 because:
5. most of the provisions of PO8 are focussed on considerations other than internal elements of a
building – PO8(a), (b), (c), (d) and (f); and
      of the elements of PO8 that contain reference or could be reasonably said to apply to internal
      elements of a building, all apply equally to whether the room is used for a bedroom or some
      other habitable space, for example PO8(e), (g), (h) and (i).
PO8 expressly envisages that some internal rooms may not have an external opening given the
provisions of PO8(g) which says development “uses natural light rather than artificial light, and may
include skylights, atriums and light wells”.
Thirdly, even if the requirement could be said to be relevant in the sense required by section
65(1)(a) of the PA, it is an unreasonable imposition on the use of the units because the room
qualifies as a habitable space under the Building Code of Australia and what owners and occupiers
might think is appropriate amenity for a bedroom will depend on their preferences and choices.
Some may view the fact that the room does not have external openings as an advantage for
sleeping, either in the day or at night, given it is further removed from external influences of noise
and light. Others might take a different view.
Fourthly, whilst the views of Council are entitled to consideration, it is difficult to see how the
subjective views are entitled to weight in the imposition of a condition of this kind. The Court has
remarked that “the ‘planning purpose’ of a condition is not ascertained from some preconceived
general notion of what constitutes planning. The planning purpose underlying the exercise of the
condition power in any given case is to be ascertained from the PA, and the documents to which
regard must or may be had, in the assessment of the application”.


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