Council Planning Negotiated Report MCU21 0146 · MCU21/0146

MCU21/0146 – REPRESENTATONS TO A DEVELOPMENT PERMIT FOR A MATERIAL CHANGE OF USE – MULTIPLE DWELLINGS (90 DWELLINGS) AT 28 EENIE CREEK ROAD, NOOSAVILLE
Document information

Author	Patrick Murphy, Coordinator Planning
Environment and Sustainable Development Department

Index	ECM/ Application/ MCU21/0146

Attachments	Nil

APPLICATION DETAILS
Applicant	Stockwell Development Group Pty Ltd
Development Approval	Material Change of Use - Multiple dwelling
Representations Received on	28 July 2022
Number of Submissions for Original Application	1
PROPERTY DETAILS
Property Address	Noosa Civic 28 Eenie Creek Rd Noosaville Qld 4566
RP Description	Lot 3 SP 246584
Land Area	31.73 Hectares Future lots 17 – 19 = 10,109m2
Existing Use of Land	Undeveloped portion of the Shire Business Centre
STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Zone	Major Centre Zone Environmental Management Zone
Precinct	High Density Residential
Local Plan Code	Noosaville Local Plan Area
Overlays	Land Subject to Acid Sulfate Soils - 5 metres AHD or below - Above 5 metres AHD to 20 metres AHD Biodiversity, Waterways and Wetlands Overlay Bushfire Hazard Overlay - High Potential Bushfire Hazard - Potential Impact Buffer
Assessment Type	Representations made to original approval
executive summary
The applicant makes representations to conditions regarding the use of the study rooms and performance bonds. The applicant maintains that the condition regarding the study is unlawful and that there is no planning purpose for the condition. It is not agreed that the condition is unlawful as it was imposed in accordance with the Sustainable Building Design Code, with the code included in the planning scheme after the scheme was reviewed and approved by the state. However, the amended unit layout and proposed windows and wall openings for the room are an improvement and reasonably comply with PO8 of the Sustainable Building Design Code.
The representations also relate to the 2 performance bond conditions. It is agreed that the wording of one of the conditions could be improved by providing clarity on the timing of the bond’s release. It is recommended that the condition requiring a performance bond associated with the retention of vegetation be deleted on the basis that the remaining performance bond can be called upon for non-compliance with these conditions.
RECOMMENDATION
That Council note the report by the Coordinator Planning to the Planning & Environment Committee Meeting dated 6 September 2022 regarding representations made in relation to MCU21/0146 for a Development Permit for Material Change of Use - Multiple dwelling (90 small dwelling units) situated at Noosa Civic 28 Eenie Creek Road Noosaville and:
A.	Agree to amend condition 14 to read as follows:
Security in the Form of a cash bond or trading bank guarantee to the sum of $50,000 must be submitted to Council, to secure performance of all conditions of this approval, prior to a pre-start meeting. The cash bond or trading bank guarantee will be returned on performance of the conditions of approval, related to the final inspection, 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.
B. 	Agree to delete conditions 5 and 53.
C.	Issue an updated Infrastructure Charges Notice
D.	Note the report is provided in accordance with Section 63(5) of the Planning Act 2016.

REPORT
background
A development approval for a Material Change of Use – Multiple Dwellings was issued on 21 June 2022.
The applicant suspended the appeal period on 30 June 2022 and made representations on 28 July 2022 to the development approval conditions.
The representations are detailed below but primarily relate to the use of the study rooms, and the performance bonds.
assessment
An assessment in relation to each of the submitted representations is provided below:
Condition 5
The study rooms must not be used as a bedroom with these rooms to have at least one wall with a maximum height of 1.5 metres or limited to sliding doors, concertina doors or the like. Study rooms are rooms detailed on the plans which do not include a bed within the furnishings.
Applicant’s Representation
The following image demonstrates the proposed internal design of the units previously identified as being one bedroom with a study, it is now proposed that these rooms contain 2 bedrooms.

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”.
Fifthly, the Building Code of Australia establishes criteria and standards for a range of things, including the structural adequacy of buildings, the fire resistance of buildings and criteria for the health and amenity of residents. Those criteria and standards have application across Australia. It is difficult to understand in those circumstances why it would be concluded that the rooms, the subject if Condition 5, are habitable rooms but otherwise not suitable as a bedroom when the Building Code of Australia does not draw that distinction.
Finally, even assuming that Condition 5 may be lawful in the sense required by s65(i) of the PA, a planning purpose for the disputed condition does not exist in the Noosa Plan 2020.
Assessment of Representation
The original condition was included in response to the requirements of PO8 of the Sustainable Building Code which states:
Development –
orientates buildings and windows to make the most of prevailing winds, natural ventilation and cross breezes;
maximises shade to east and west walls;
contains an open and permeable built form that connects indoor and outdoor spaces in an integrated design;
retains existing vegetation and natural shading where possible;
incorporates passive building design to reduce the need for auxiliary heating and cooling;
uses low toxic internal and external building materials;
uses natural light rather than artificial light, and may include skylights, atriums and light wells;
contains a minimum of two openings per habitable room;
provides a minimum floor to ceiling height of 2.7 metres; and
enables efficient operation and use of the building.
The proposed rooms, with doors and sliding window, are considered to comply with the requirements of PO8 as two openings are provided, and the window allows natural light into the room via windows adjacent to the balcony.
Whilst it would be preferred that the openings were provided to two different walls and for the window to be located on the face of the building the proposed design reasonably complies with the requirements of PO8.
Accordingly, it is recommended that the condition be deleted.
This requires an updated Infrastructure Charges Notice to reflect the change of 16 of the 1-bedroom units to 2 bedroom units.

Condition 14
Security in the Form of a cash bond or trading bank guarantee to the sum of $50,000 must be submitted to Council, to secure performance of all conditions of this approval, prior to a pre-start meeting. The cash bond or 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.
Applicant’s Representation
We conclude that Condition 14 is neither reasonable nor relevant as prescribed under the Planning Act 2016 and should be removed. The condition is ambiguous in terms of release as conditions are required to be maintained for the duration of the development.
Discussions with the applicant have clarified that the primary concern relates to their perception that there is no clarity on when the bond will be released as the conditions relate to the duration of the development.
Assessment of Representation
The proposed condition is a standard condition that is applied to development approvals which involve significant works. Planning Scheme Policy 5 - Performance bonds notes that the bonds are used as an incentive to a developer to construct properly or develop in accordance with the conditions of approval. However, it is not intended that the bond be retained for the life of the development. It is recognised that the condition could be re-worded to provide greater clarity that it is not intended for the bond to be kept for the life of the development as follows:
Security in the Form of a cash bond or trading bank guarantee to the sum of $50,000 must be submitted to Council, to secure performance of all conditions of this approval, prior to a pre-start meeting. The cash bond or trading bank guarantee will be returned on performance of the conditions of approval, related to the final inspection, 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.

Condition 53
Prior to the prestart meeting, a bank guarantee or a bond of $30,000 must be lodged as security for the protection of the tree/s identified for retention in the conditions of this approval. The bond:
a)	may be drawn upon by Council in its entirety if any one tree identified for retention is damaged to the point where the tree cannot be saved (as confirmed by the project arborist and agreed in writing by Council)
b) 	will be returned upon practical completion of all the operational works relating to this development.
Applicant’s Representation
We conclude that the condition is not reasonable and propose the following amendment:
Prior to the prestart meeting, a bank guarantee or a bond of $30,000 must be lodged as security for the protection of the tree/s identified for retention in the conditions of this approval. The bond:
a) 	may be drawn upon by Council in its entirety if any one tree identified for retention is damaged to the point where the tree cannot be saved (as confirmed by the project arborist and agreed in writing by Council); and
b) 	the tree cannot be rehabilitated elsewhere on the site via new stock at a replanting ratio of 1:2 (in a location to be agreed to in writing by Council).
The bond will be returned upon practical completion of all the operational works relating to this development (where a) and b) above are met).
Assessment of Representation
The condition seeks to preserve existing vegetation, which is to be retained within the covenant area and the Environmental Management and Conservation Zone. The protection of this vegetation is important noting the proximity of the works from these areas and the potential risk for this vegetation to be damaged. Trees in these areas are mature trees and consequently have a high value and not able to be replaced like for like and therefore the recommended condition is considered appropriate. The proposed inclusion of a replanting option (ratio 1:2) does not provide a satisfactory performance benchmark for the protection of the existing vegetation. Notwithstanding, upon further review it is considered that the performance bond as detailed at condition 14 is satisfactory to address non-compliance with conditions requiring the retention of existing vegetation. Accordingly, it is recommended that condition 53 be deleted.

conclusion & REASONS FOR DECISION
The application makes representations to conditions regarding the use of the study rooms and performance bonds. The applicant maintains that the condition regarding the study is unlawful and that there is no planning purpose for the condition. It is not agreed that the condition is unlawful as it was imposed in accordance with the Sustainable Building Design Code, the code was included in the planning scheme after the scheme was reviewed and approved by the state. However, the amended unit layout and proposed windows and wall openings now comply with PO8 of the Sustainable Building Design Code.
The representations also relate to the 2 performance bond conditions. It is agreed that the wording of one of the conditions could be improved by providing clarity on the timing of the bond’s release. It is recommended that the condition requiring a performance bond associated with the retention of vegetation be deleted on the basis that the remaining performance bond can be called upon for non-compliance with these conditions.
Departments/Sections Consulted:
	Chief Executive Officer		Community Services		Corporate Services
	Executive Officer		Community Development		Financial Services
	Executive Support		Community Facilities		ICT
			Libraries & Galleries		Procurement & Fleet
			Local Laws		Property
			Waste & Environmental Health		Revenue Services
					
	Executive Services	x	Environment & Sustainable Development		Infrastructure Services
	Community Engagement		Building & Plumbing Services		Asset Management
	Customer Service	x	Development Assessment		Buildings and Facilities
	Governance		Economic Development		Civil Operations
	People and Culture		Environmental Services		Disaster Management
			Strategic Land Use Planning		Infrastructure Planning, Design and Delivery
					

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT	6 SEPTEMBER 2022