Notice of Appeal (sealed) 31Jan2023

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2.

a. is located at 11¢ Church Road, Pomona;
b. is described as Lot 4 on SP 301620;
c. hasan area of 1.85 acres; and

d. is within the planning scheme area of the Noosa Plan 2020 (the Planning
Scheme).

Under the Planning Scheme, the Land is:
a. in the Medium Density Residential Zone;
b. within the Pomona Village Local Plan area;
c. subject to the following overlay mapping, wholly or partly:
i. Biodiversity, Waterways and Wetlands Overlay, for:
1. Waterways;
2. MSES Regulated Vegetation — Category R GBR Riverine;
3. Riparian Buffer Area; and
4. MSES Regulated Vegetation — intersecting a watercourse;
ii. Bushfire Hazard Overlay (for Potential Impact Buffer);

iii. Flood Hazard Overlay (for Waterways and Flooding and Inundation
Extent); and

iv. Landslide Hazard Overlay: (for Moderate Hazard Area and High
Hazard Area).

THE APPLICATION

3.

 

The subject application is for a Development Permit for Material Change of Use
(Multiple Dwelling x 20) and Operational Works (Clearing Vegetation) (the
Application).

The Application was properly made on 4 March 2022 as confirmed by Council’s
Confirmation Noticed dated 18 March 2022, and given the application number
MCU22/0031 & OPW22/0062.

The Application is code assessable.

On or about 31 March 2022, the Council issued an Information Request.

On 8 August 2022, the Appellant responded to the Information Request.

The Decision Period for the Application ended on 21 December 2022.

On 23 December 2022, the Appellant issued Council a Deemed Approval Notice.

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10. On 23 December 2022, Council responded to the Deemed Approval Notice and
issued a Decision Notice, which states that on 21 December 2022, Council decided to
refuse the Application.

11. The reasons for refusal provided by the Decision Notice lists a multitude of alleged
non-compliances with the Planning Scheme, which can be distilled into the following
issues:

a. whether the Application has demonstrated that the development complies
with PO2(c), PO2(b), PO7, POS and PO11 of the Water Quality and Drainage
Code (Stormwater Quality and Drainage);

b. whether the Application has demonstrated that the development complies
with PO1, PO3, POS and PO10 of the Flood Hazard Overlay Code (Flooding);

c. whether the development complies with PO22 and AO22.1 of the Medium
Density Residential Zone Code (Earthworks);

d. whether the development complies with PO1, PO3, POS, PO6, PO9, and
PO10 of the Biodiversity, Waterways and Wetlands Overlay Code
(Environmental Impacts);

e. whether the development complies with PO14 of the Medium Density
Residential Zone Code (Design); and

f. whether the development complies with PO7 of the Hinterland Villages
Local Plan Code (Character).

THE APPEAL

12. The Appellant appeals against the Council’s decision to refuse the Application.

Stormwater Quality and Drainage

13. The development complies, or can be conditioned to comply, with the assessment
benchmarks of the Planning Scheme’s Water Quality and Drainage Code mentioned
in Council’s reasons for refusal.

14, In the event of any noncompliance (which is not admitted), the Court ought to
exercise its discretion to approve the development taking into account the
following:

a. the development has a lawful point of discharge, being the existing drainage
line and culverts under Church Street on the eastern boundary of the Land;

b. the development includes a stormwater treatment system, which is
integrated with the landscape, to treat the quality of stormwater and
achieve the necessary load-based reduction targets; and

c. the development will not result in any unacceptable stormwater quality or
drainage impacts.

 

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Flooding

15. The development complies, or can be conditioned to comply, with the assessment
benchmarks of the Planning Scheme’s Flood Hazard Overlay Code mentioned in
Council’s reasons for refusal.

16. In the event of any noncompliance (which is not admitted), the Court ought to
exercise its discretion to approve the development taking into account the
following:

a. the development is designed to adequately minimise the risk of flooding on
site; and

b. the development would not create unacceptable adverse impacts for
neighbouring properties, including downstream properties.

Earthworks

|
| 17. The development complies, or can be conditioned to comply, with PO22 of the
| Medium Density Residential Zone Code.

18. In the event of any non-compliance (which is not admitted), the Court ought to
exercise its discretion to approve the development taking into account the
following:

a. the development is appropriately designed in response to the constraints of
the site, taking into account the intended use of the Land;

b. the development will not result in unreasonable adverse visual amenity
impacts;

c. the is no adverse impact which arises as a consequence of any non-
compliance with PO22 (if found).

Environmental Impacts

13. The development complies or can be conditioned to comply, with the assessment
benchmarks of the Biodiversity, Waterways and Wetlands Overlay Code referred to
by Council in its reasons for refusal.

14. In the event of any non-compliance (which is not admitted), the Court ought to
exercise its discretion to approve the development taking into account the
following:

a. the development is sensitive to the waterway and riparian buffer on the
southern portion of the Land;

b. the development will result in the rehabilitation of the Land, which
predominantly contains disturbed habitat, with cleared areas and non-
remnant vegetation dominated by invasive or introduced species;

c. the development will enhance ecological connectivity within and adjacent to
the Land; and

 

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d. the recommendations contained in the Ecological Assessment Report dated
8 July 2022, which was submitted with the Application.

Design

15. The development complies, or can be conditioned to comply, with the PO14 of the
Planning Scheme’s Medium Density Residential Zone Code.

16. In the event of any non-compliance (which is not admitted), the Court ought to
exercise its discretion to approve the development taking into account the
following:

a. the development will present an attractive frontage to Church Street and
will be landscaped including revegetation of the waterway along the
southern boundary;

b. the view of the development from the street and from the south is largely
screened by existing and proposed vegetation; and

c. the development’s design is sympathetic to the surrounding development
and positively contributes to the locality by advancing the Planning
Scheme’s intention for the Land to be used for medium density residential
development.

Character

17. The development complies or can be conditioned to comply with PO7 of the
Planning Scheme’s Hinterland Villages Local Plan Code.

18. In the event of any non-compliance (which is not admitted), the Court ought to
exercise its discretion to approve the development taking into account the
following:

a. the buildings, structures and landscaping proposed by the Application are
sympathetic to the existing character of the area having regard to Planning
Scheme’s intention for the Land to be used for Medium Density Residential
development; and

b. the development will be partially screened by both existing vegetation
fronting Church Street and the proposed rehabilitation of the Riparian Buffer
Area.

Resolution of the Appeal

19. The proposed development complies, or can be conditioned to comply, with the
relevant assessment benchmarks.

20. To the extent of any non-compliance (which is not admitted), the Application should
be approved because the development:

a. is consistent with the Planning Scheme intentions for the land and is in
substantial compliance with the relevant assessment benchmarks;

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a

 

b. represents a logical extension of the existing community;

c. is an efficient use of the Land;

d. provides for logical and efficient infill development of an unutilised site;
e. satisfactorily responds to the constraints on the land;

f. satisfactorily responds to the existing and intended character of the area;

g. would rehabilitate the waterway on the Land and enhance ecological
connectivity within and adjacent to the Land;

h. can occur without any adverse impacts or unacceptable town planning
consequences; and

i. will benefit the community.

21. The Application ought to be approved subject to lawful and necessary conditions.

LET

P&E Law
Solicitors for the Appellants
Dated: 31 January 2023

 

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.