Notice of Appeal_(Sealed)_1Dec2015 (PAE00394436-004)

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(ii) in the Agricultural Land Conservation Area; and
(iii) subject to a Biodiversity (Riparian Buffer & Environmental Protection)
overlay;

e) is in the Regional Landscape & Rural Production area in the South-East Queensland
Regional Plan;

f) was a turf farm, with associated sheds and detached house; and

g) has recently had a greenhouse, approximately 2 hectares, constructed on it for the
purpose of growing tomatoes.

The Proposed Development

2) The proposed development is a code assessable Material Change of Use-Cultivation Type
2-Intensive (Greenhouse) and Reconfiguration of A Lot (Access Easement) intended to
regularise the use of the constructed greenhouse in the area of the former turf farm in a
rural zone.

The Application

3) On or about 4 June 2015 the Appellant applied for a development permit for a material
change of use for Cultivation-Type 2 Intensive for crops within 3 greenhouses to be
constructed over 2 to 4 years.

4) The Application was given the Respondent's reference number MCU 14/0039.
5) The Application was code assessable.
6) An information request was issued on 25 June 2014.

7) A response was provided addressing the matters raised in the information request under
section 354 of the Sustainable Planning Act 2009 (SPA) and limiting the application to
regularise the existing greenhouse, (1 only) limit the impacts of the use to the scale of the
maximum operation of the turf farm and including a safer alternative access. (the
Application)

8) The provision of a safer alternative access required the inclusion in the application of a
Reconfiguring a Lot (Access Easement).

The Decision

9) Bya letter dated 26 November 2015 the Respondent issued its Decision Notice approving
the Application subject to conditions.

10) The Decision Notice included condition 1:

1. Unless otherwise stated, all conditions of this Decision Notice must be complied with
prior to the use commencing, and then compliance maintained at all times while the use
continues.

11) Condition 1 should be amended:
a) The use has commenced.
b) The condition should be amended as follows:

1. Unless otherwise stated, all conditions of this Decision Notice must be complied
fii with within three months of the date of this approval, and then compliance
ENV S
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maintained at all times while the use continues.

 

5. Security in the form of a cash bond or trading bank guarantee to the sum of $20,000
must be submitted to Council, to secure performance of all conditions of this approval,
prior to the issue of a Development Permit for Operational Works. The cash bond or

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trading bank guarantee will be returned on performance of the conditions of approval
less any costs incurred by Council in respect of enforcing performance of this permit.
Council reserves the right to call upon the bond or guaranteed sum to effect compliance
with conditions.

13) Condition 5 should be deleted.

a) This condition is not reasonable or relevant and is an unreasonable imposition on the
development.

b) The condition is penal in nature.

c) The condition is for the purpose of operational works and has no application to the
material change of use or reconfiguration of a Lot (Access easement).

d) If the bond is appropriate for the purpose of an operational works permit, which is not
conceded, then it can be appropriately conditioned upon that approval.

14) The Decision Notice included condition 6:

6. All grow media, grow bags and plants within the greenhouse shall be raised above the
10% AEP flood level. Any structures supporting the crop (including the building frame)
shall be designed to withstand minimum velocities associated with a 1% AEP Flood.
Certification confirming the heights and strength of the structures must be submitted
to Council from a suitably qualified professional (RPEQ) prior to the issue of an
Operational Works approval. The elevated planting system must be installed prior to
planting the next crop.

15) Condition 6 should be deleted on the basis that:

a) The condition is not reasonable or relevant and is an unreasonable imposition on the

development.
PARTICULARS

(i) | the Stormwater Management Plan-02 report number SC 15-0070\R 003370
issued June 2015 (the SMP) provides for the protection of the environment from
potential pollutant loads from the Land;

(ii) the cost of elevating the grow bags and plants above the 10% AEP flood level on
stands able to withstand a 1% AEP flood is excessive and estimated between
$300,000 to $400,000.

{iii) | to enable pickers to reach high fruit further infrastructure will be required;

b) The condition, as part of the Development approval, has failed to have proper regard
to the lawful use of the Land and adjoining lands.

PARTICULARS

(i) the Land is in the Rural zone;
(ii) | the Land is in the Agricultural Land Conservation Area;
(iii) | the Land was used as a turf farm for the previous 30 years;
(iv) fertilisers were applied for the purpose of the turf farm;
(v) herbicides were applied for the purpose of the turf farm;
(vi) agriculture is an as of right use in the Rural zone;
ar (vii) tomatoes could be grown on every part of the Land previously utilised for a turf
VSN farm without an approval;
S <b \ (viii) the impacts of the proposed use are consistent with the lawful use of the Land.

    

c) The condition is not imposed as a consequence of the development as the impacts of
the proposed use are consistent with the lawful use of the Land.

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16) The Decision Notice included condition 7.

7. The use must be undertaken in accordance with the Flood Management Plan RO1 vO02, by
Water Technology and dated 31/08/2015, subject to the following amendments;

a. A nominated flood warden be on site at all times during operation hours of the facility;

b. A contingency for a flood refuge area must be defined in the strategy in the event that
persons become trapped on site. The flood refuge area should be suitable for safe
refuge during an extreme flood event.

c. Flood warnings issued by the Bureau of Meteorology and/or Council must be added as
a trigger, in addition to the site's flood gauge.

The amendments must be incorporated into an amended Flood Management Plan which
must be submitted to Council prior to the issue of an Operational Works approval.

17) Condition 7 should be amended as follows:

7. The use must be undertaken in accordance with the Flood Management Plan RO1 v02,
by Water Technology and dated 31/08/2015.

a) This condition is not reasonable or relevant and is an unreasonable imposition on the
development.

PARTICULARS

(i) the Flood Management Plan RO1 v02, by Water Technology and dated 31/08/2015
(the FMP) adequately addresses flood mitigation and no further amendments are
required;

b) The condition, as part of the Development approval, has failed to have proper regard
to the lawful use of the Land and adjoining lands.

PARTICULARS

(i) the Land is in the Rural zone;

(ii) | the Land is in the Agricultural Land Conservation Area;

(iii) | the Land was used as a turf farm for the previous 30 years;

(iv) fertilisers were applied for the purpose of the turf farm;

(v) herbicides were applied for the purpose of the turf farm;

(vi) agriculture is an as of right use in the Rural zone;

(vii) tomatoes could be grown on every part of the Land previously utilised for a turf
farm without an approval;

(viii) the impacts of the proposed use are consistent with the lawful use of the Land.

c) The condition is not imposed as a consequence of the development as the impacts of
the proposed use are consistent with the lawful use of the Land.

18) The Decision Notice included condition 9.

9. An access driveway to service the existing dwelling must be provided extending from the
formation of Lake Macdonald Drive this to the property boundary. The works must be
undertaken in accordance with an Operational Works approval and must include in

— Mj particular a driveway crossover generally in accordance with IPWEAQ standard drawing
2" 056.

=o =) 19) Condition 9 should be deleted:

a) this condition relates to an existing dwelling that utilises the access which is seeking to
require an operational works approval for driveway crossover.
b) the condition is not required as a consequence of the development application.

 

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20) The Decision Notice included condition 13.

13. A minimum of 30 car parking spaces must be provided on the site for the agricultural
use. The works must be undertaken in accordance with an Operational Works approval
and must include in particular:

a. a carparking area constructed with a suitable “all weather” surface that can cater for
the effects of occasional inundation by flood waters.

b. a carparking area that does not create any additional flooding on any adjoining
property.
21) Condition 13 should be amended.

a) The condition should be amended as follows:
“Car parking is to be provided within the site”.

b) This condition is not reasonable or relevant and is an unreasonable imposition on the
development.

PARTICULARS

(i) sufficient car parking is available on site near the packing shed;

(ii) the development does not create a need for the construction of 30 “all weather”
car parks.

(iii) the construction of a car park will result in an impairment of that land for future
agricultural, cultivation or other rural uses.

(iv) the location of carparking may change over time as the use of the land changes
and so it is not practical to construct a permanent car park on this land.

c) The condition, as part of the Development approval, has failed to have proper regard
to the lawful use of the Land and adjoining lands.

PARTICULARS

(i) the Land is in the Rural zone;

(ii) | the Land is in the Agricultural Land Conservation Area;

(iii) | the Land was used as a turf farm for the previous 30 years;

(iv) fertilisers were applied for the purpose of the turf farm;

(v) herbicides were applied for the purpose of the turf farm;

(vi) agriculture is an as of right use in the Rural zone;

(vii) tomatoes could be grown on every part of the Land previously utilised for a
turf farm without an approval;

(viii) the impacts of the proposed use are consistent with the lawful use of the Land.

d) the condition is not imposed as a consequence of the development as the impacts of
the proposed use are consistent with the lawful use of the Land. However the
Appellant accepts the imposition of the amended condition.

22) The Decision Notice included condition 16.

16. The use must be undertaken in accordance with the Stormwater Management Plan Rev

a, by O2 Environmental and dated 07/10/2015, subject to the following amendments;

a. the infiltration basin must be located outside of the Riparian Buffer Area;

b. The proposed filter media basin must be designed to hold water for no longer than
the time period modelled in the MUSIC model Stormwater Management Plan Rev a,
by O2 Environmental and dated 07/10/2015. Where groundwater recharge is
expected, a Geotechnical Engineer must provide certification to confirm that the

 

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permeability of soils underlying the proposed location for the media filtration system
exceed the proposed permeability of the filter media treatment system.

c. Include an Operational Phase Water Quality Monitoring Plan, prepared in accordance
with the Environmental Protection (Water) Policy 2009 Monitoring and Sampling
Manual. The Operational Phase Water Quality Monitoring Plan must be sufficient to
demonstrate that a flood event does not cause the release of fertiliser, prescribed
water contaminants, or other nutrient laden waters from the operation of the
Greenhouse into surrounding waterways. Monitoring methods must not put any
lives at risk during a flood event.

The amendments must be incorporated into an amended Stormwater Management
Plan and submitted to Council prior to the issue of an Operational Works approval.

23) Condition 16 should be amended.

a)

b)

)

d)

e)

 

the condition is not reasonable or relevant and is an unreasonable imposition on the
development as a consequence of the development.

the condition should be amended to:

16. The use must be undertaken in accordance with the Stormwater Management Plan
Rev a, by O2 Environmental and dated 26/6/2015 (the SMP), except for the
requirement for water quality treatment from the roof area of the greenhouse.

The consequences of the development do not warrant the removal of the infiltration
basin out of the riparian buffer area.

PARTICULARS

(i) it has been excavated in an area that was cultivated for the growing of grass and
the removal of turf for sale from the previous use as a turf farm.

(ii) it is constructed outside the drip line of any riparian vegetation.

(iii) it did not require the removal of any native vegetation.

(iv) it is within the mapped riparian buffer area on the Biodiversity (Riparian Buffer &
Environmental Protection) maps.

The consequences of the development do not warrant the construction of the filter
media basin for water quality treatment.

PARTICULARS

(i) The hydroponic irrigation system is a closed system.

(ii) As the system is located in a greenhouse rainfall and overland flows cannot
convey nutrients to the receiving watercourse under normal conditions.

(iii) In a significant rainfall event the potential for harm is minimal.

(iv) The sediment and nutrient loads exiting the site will reduce considerably as a
result of the proposed changes in land use.

(v) The SMP fails to recognise that the nutrient deposition by airborne contamination
on the roof of the greenhouse is the same amount as would be deposited on the
ground without the greenhouse.

(vi) The filter media basin is designed to strip those nutrients before they enter the
catchment.

Paragraphs c. and d. of proposed condition 16 lack finality.

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24) The Decision Notice included condition 17.

17. Water quality monitoring results must be analysed by a suitably experienced water
quality specialist and identify whether or not nutrient increases within the receiving
waterways were associated with the release of nutrients from the Greenhouse during
a flood event. The analysis must be provided to Noosa Council officers within 30
business days following inundation of the site Greenhouse with flood waters.

25) Condition 17 should be deleted.

a) the Appellant repeats and relies upon those matters dealing with the stormwater
condition 16 above.

26) The Decision Notice included condition 18.

18. Where the results of the Operational Phase Water Quality Monitoring demonstrates
there are nutrient increases associated with the release of nutrients from the use
during a flood event, the operator must identify and rectify the cause of the release,
and include appropriate mitigation works to prevent future releases in flood events as
far as practicable. The operator then must demonstrate to Council that appropriate
measures have been incorporated into operations, to prevent a release of nutrients to
the receiving waters in future flood events.

27) Condition 18 this should be deleted.

a) the Appellant repeats and relies upon those matters dealing with the stormwater
condition 16 above.

28) The Decision Notice included condition 19.

19. All earthworks must be undertaken in accordance with an Operational Works
approval, and contained entirely within the site, unless written permission from the
respective landowner(s) is provided to Council.

29) Condition 19 should be deleted on the basis that:

a) This condition is not reasonable or relevant and is an unreasonable imposition on the
development and is not required as a consequence of the development.

PARTICULARS

(i) the greenhouse is constructed;

(ii) conditions 11 and 12, which are not disputed, deal with the construction of the
access driveway through lot 2 on SP 108094;

(iii) conditions 20 and 21 deal with the removal of the bunds; and

(iv) there are no other earthworks proposed.

30) The Decision Notice included condition 20.
20. Bund 1 & 2 indicated on the Site Layout Plan drawn by Water Technology and

dated 01/07/2015 must be removed and the existing levels reinstated within 2
weeks of this approval date.

a) This condition is not reasonable or relevant and is an unreasonable imposition on the
development.

 

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PARTICULARS

(i) the condition does not provide for sufficient time to properly plan for the removal
of bunds 1 & 2;

b) the condition should be amended as follows:

20. Bund 1 & 2 indicated on the Site Layout Plan drawn by Water Technology and
dated 01/07/2015 must be removed and the existing levels reinstated within 2
months of this approval date.

32) The Decision Notice included condition 21.

21. Bund 3 as indicated on Site Layout Plan drawn by Water Technology and dated
01/07/2015 must be relocated a minimum of 5m away from the root zones of the
existing vegetation adjacent the creek. The new bund and area between it and the
waterway shall be revegetated with suitable species and densities in accordance with
Planning Scheme Policy 3 — Landscaping Plants & Guidelines. The earthworks and
landscaping must be undertaken in accordance with an Operational Works approval
and be lodged within 1 month of the Material Change of Use approval date.

33) Condition 20 should be amended.

a) This condition is not reasonable or relevant and is an unreasonable imposition on the
development.

PARTICULARS

(i) the condition does not provide for sufficient time to properly prepare an
application for the removal of bund 3;

b) the condition should be amended as follows.

21. Bund 3 as indicated on Site Layout Plan drawn by Water Technology and dated
01/07/2015 must be relocated a minimum of 5m away from the root zones of the
existing vegetation adjacent the creek. The new bund and area between it and the
waterway shall be revegetated with suitable species and densities in accordance
with Planning Scheme Policy 3 — Landscaping Plants & Guidelines. The earthworks
and landscaping must be undertaken in accordance with an Operational Works
approval and be lodged within 3 months of the Material Change of Use approval
date.

34) The Decision Notice, in relation to the Reconfiguration of a Lot (Access Easement) included
condition 1.

1. Unless otherwise stated, all conditions of this Decision Notice must be complied with
prior to the use commencing, and then compliance maintained at all times while the
use continues.

35) Condition 1 should be amended.

a) The use has commenced.
o WE y,%) The condition should be amended as follows:

 

    

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1. Unless otherwise stated, all conditions of this Decision Notice must be complied with
within three months of the date of this approval, and then compliance maintained at all
times while the use continues.

p&e Law
Solicitors for the Appellant
Dated: 1 December 2015

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:
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(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.

Notice of this appeal is to be given to:

Chief Executive Officer
Noosa Council

PO Box 141
TEWANTIN QLD 4564

Chief Executive

Department of State Development, Infrastructure and Planning
PO Box 15009

CITY EAST QLD 4002

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