Notice of Appeal (Sealed) 18Oct2018 · MCU17/0005

Page 2

a) has a total area of 23,500m?, approximately 4,000m? of which is intended to be
used for the proposed development;

b) is located at 113 Marara Street, Cooroy in the State of Queensland;

c) is described as Lot 2 on RP 225978;

d) adjoins Cooroy Creek;

e) is located adjacent to and west of the North Coast Rail line with significant
vegetation areas immediately to the south and west of the Land, with the

Cooroy township located further south beyond the bushland; and

f) includes 50% coverage by significant vegetation and a riparian waterway
running north/south through the Land.

Marara Street

53

The Land is accessed via Marara Street, a largely unsealed no-through road, which
connects to Maple Street via a priority controlled t-intersection.

Marara Street provides access to:
a) a residential dwelling at 49 Marara Street;
b) the Hope Central Church and associated residential dwelling on the Land; and

c) a small scale farm at the end of the cul-de-sac.

Existing Use of the Land

A

 

The existing use of the Land is a Place of Worship (the Hope Central Church) which,
together with its associated facilities, covers an area of approximately 945m”. The
proposed development is intended to occur on vacant land adjacent to the existing
church.

The town planning consent permit for the existing use, which was issued by the
Respondent in 1999 following an appeal, contains the following roadworks
requirements (as conditions):

a) construction of a Type 1 intersection at the intersection of Marara Street and
Mary River Road;

b) an 8 metre wide sealed formation for the first 50 metres of Marara Street;

c) construction of a 4 metre wide gravel road on the 8 metre formation with
sufficient passing places, varied to retain, where possible, all vegetation and
drainage structures;

a 4 metre wide sealed formation for a distance of 100 metres along the
frontage of the dwelling house at 49 Marara Street;

Page 3

e) a monetary contribution of $5,500 towards an intersection upgrade for Marara
Street/Mary River Road; and

f) provision of a total of 25 onsite car parks.

9. Those conditions have been complied with.

10. The church currently has a regular church service on Sundays from 9:30am — 1:00pm,
where up to 70 people typically attend (with an approved capacity of 250 people); and
a music lesson on Thursday evenings from 7:00 — 8:00pm, with 4 people attending.

Surrounding Land Uses

11. Residential development is located opposite the Land and on the other side of the rail
line.

12. Apart from a rural property with a house located approximately 150m from the
northernmost paintball field, there is only one other nearby rural property.

13. A residential dwelling house is built on land at number 49 Marara Street,
approximately 550m to the south from the southernmost paintball field.

Noosa Plan adopted on 28 October 2016 (replaced by the version adopted on 8 June 2018)
and the South East Queensland Regional Plan 2009 — 2031 (replaced by Shaping SEQ —
South East Queensland Report Plan 2017 adopted on 11 August 2017)

14. The Land is located in:

a) the Rural zone and Cooroy & Lake MacDonald Locality under both versions of
the Noosa Plan, and is subject to the following overlays under that Plan:

i. Biodiversity Overlay — Environment Protection Area and Riparian Buffer;

ii. Natural Hazard Overlay — Flooding and Bushfire (Potential Buffer and High
Potential); and

iii. Koala Habitat Areas Overlay — Remnant Habitat.
b) the Urban Footprint under both versions of the SEQ Regional Plan.

15. Under the Noosa Plan:

a) the proposed use falls within the definition of “Entertainment and dining
business - Type 2 Recreation, amusement and fitness”, within the primary use of
“Business Uses”; and is an inconsistent use in the Rural zone;

b) making a material change of use of premises for the proposed use in the Rural
zone is impact assessable development, requiring public notification and the
issue of a development permit.

 

Page 4

The Development Application

16.

17.

18,

19.

20.

21.

22.

23.

24.

In January 2017 the Appellant lodged the Development Application with the
Respondent.

In March 2017 the Appellant changed their proposal to include an indoor play centre.
That use has now been removed from the Appellant’s current proposal.

The Development Application was referred to the then Department of Infrastructure,
Local Government and Planning in respect of referral trigger “Schedule 7, Table 2, Item
15A - Railways”.

On 3 April 2017 the Department issued a concurrence agency response stating: “The
Department has no response in relation to the proposal”.

In response to the Respondent’s information request, the Appellant produced a traffic
report by Road Pro Engineering dated 7 August 2017.

Further investigations have been undertaken by the Appellant to address the
Respondent’s concerns regarding traffic.

The Development Application was publicly notified and 3 properly made submissions
were lodged with the Respondent.

On 20 September 2018, the Respondent decided to refuse the Development
Application. The reasons for refusal are as follows:

a) The proposed development is an inconsistent use in the Rural Zone and the
increase in traffic on Marara Street from the proposed development is not
contemplated by The Noosa Plan.

b) The proposed development is contrary to the Transport, Roads and Drainage
Code as the development will compromise the capacity and safety of Marara
Street.

c) The current condition of Marara Street is not capable of safely accommodating
any increase in traffic from the proposed development and a satisfactory
solution has not been identified to address the constrained sections of Marara
Street given the current road formation and environmental constraints.

d) A number of properly made submissions have been received raising valid
grounds of objection.

The decision was notified to the Appellant by way of a Decision Notice dated
21 September 2018.

Assessment of the Development Application

25,

 

The Development Application was assessed and decided by the Respondent under the
Sustainable Planning Act 2009. As the appeal was filed after commencement of the
Planning Act 2016 on 3 July 2017, the Court must assess and decide the Development
Application under the Planning Act 2016.

Page 5

26.

The Development Application should be approved in its entirety by the Respondent
subject to development conditions permitted under the Planning Act 2016, for the
following reasons:

a)

b)

c)

e)

f)

vi.

 

the proposed development complies with or can be conditioned to comply with
all of the relevant assessment benchmarks in the Noosa Plan, (including those
contained in the Rural Zone Code, Cooroy and Lake McDonald Locality Code,
the Business Uses Code, the Transport Roads and Drainage Code, and the
relevant Overlay Codes), with the exception of Specific Outcome 080 for the
Rural zone, which states: “The following defined uses and use classes are
inconsistent uses and are not located in the Rural zone — c) Entertainment and
dining business”;

the proposed development is located within the Urban Footprint under the SEQ
Regional Plan and complies with or can be conditioned to comply with the
relevant assessment benchmarks stated in that Plan;

to the extent, if any, to which the State Planning Policy adopted on April 2016
or State Planning Policy July 2017, Part E, adopted on 3 July 2017, is relevant,
the proposed development complies with or can be conditioned to comply with
the relevant assessment benchmarks stated in the State Planning Policy;

having regard to the whole of the planning scheme, the Noosa Plan, to the
extent relevant;

having regard to the existing urban/non-rural use of the Land and surrounding
land uses;

when assessed against or having regard to relevant matters, including:
the existing use of the Land and surrounding land;

the proximity of the Land to the railway line and to the Cooroy town
centre;

the lack of farming in the vicinity of the Land;
the Land’s limited suitability for rural activities due to its location;

there is a need for the proposed development, on the basis that it offers
a recreational option for residents which is not currently being offered;
and

to the extent the assessment benchmarks do not support the proposed
development at this location, the assessment benchmarks are not
relevant in light of changed circumstances, including the recent approved
staged expansion of the church on the Land; and

for the reasons set out in paragraph 27 below.

Page 6

Reasons for Refusal

27.

As to the reasons for refusal:

a)

b)

 

iii.

“The proposed development is an inconsistent use in the Rural Zone and the
increase in traffic on Marara Street from the proposed development is not
contemplated by The Noosa Plan.”

The peak demand from the existing church of up to 250 people is greater than
the peak demand from the proposed development of 20 players, plus three
staff members, at any one time.

Notwithstanding that the proposed development is an inconsistent use in the
Rural Zone, the development application should be approved on the basis of
the matters set out in paragraph 26 above. Any increase in traffic that arises
from the proposed development will not necessitate the upgrading of Marara
Street.

“The proposed development is contrary to the Transport, Roads and Drainage
Code as the development will compromise the capacity and safety of Marara
Street.”

The proposed development complies with or can be conditioned to comply with
the overall outcomes and specific outcomes for the Transport, Roads and
Drainage Code, in particular:

Marara Street is designed and constructed to satisfy its specified
functions (as an access street) and the proposed development will not
compromise that situation;

Marara Street is designed and constructed to be compatible with the
existing road network and hierarchy and to provide a safe environment
for vehicular traffic, pedestrians and cyclists, and the proposed
development will not compromise that situation;

Marara Street has the capacity to safely and efficiently accommodate
projected movements for the proposed development;

access to the proposed development does not compromise the function
of Marara Street as indicated in the road hierarchy (access street), and
does not adversely impact on the safety, capacity and operations of the
road system; and

Marara Street is designed to support the hierarchy and functional aspects
for an access street in a Rural area (identified in Sections 2 and 3 of PSP 5
Engineering Design Standards - Roads, Drainage and Earthworks), cater
for current traffic volumes and provide a safe environment for all users.
The proposed development will not compromise that situation.

“The current condition of Marara Street is not capable of safely accommodating
any increase in traffic from the proposed development and a satisfactory
solution has not been identified to address the constrained sections of Marara

6

Page 7

Street given the current road formation and environmental constraints.”

Marara Street, as an access street under PSP 5 Engineering Design Standards -
Roads, Drainage and Earthworks, is designed to cater for up to 100 vehicles per
day in a Rural area and, accordingly, is designed to accommodate the predicted
increase in traffic from the proposed development (calculated by the
Respondent as an increase from 55 vehicles per day to 80 vehicles per day). On
that basis, the proposed development will not have any impact on any
constrained sections of Marara Street.

d) “A number of properly made submissions have been received raising valid
grounds of objection.”

i. Traffic issues have been addressed above;

ii. Carparking requirements for the proposed development will be met by
use of existing onsite church parking; and

iii. Regarding increased noise, any concerns can be addressed by
imposition of development conditions permitted under the Planning Act

2018.
ZN a )
p&e La
Solicitors for the Appellant
18 October 2018

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 business 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.