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22-040 Final Decision (1)
Attached to the e-mail Operational Works Application OPW22/0305 - 21 Wesley Ct Noosa Heads - Email 1 of 2.
Development Tribunal – Decision Notice Planning Act 2016, section 255 Appeal Number: 22-040 Appellant: RG Strategic Australia Respondent: Stewart Magill (Pure Building Approvals) (Assessment Manager) Co-Respondent: Noosa Shire Council (Concurrence Agency) Site Address: 21 Wesley Court, Noosa. described as Lot 42 on Crown Plan N21843 ─ the subject site Appeal Appeal under Section 229 and Schedule 1, Table1, Item 1(a) of the Planning Act 2016 against Stewart Magill’s refusal of a Building Development Application (reference Noosa Council RAB 21/0259). (For clarity, the Assessment Manager (Stewart Magill of Pure Building Approvals) refused the proposed building works citing the reason as the onerous conditions imposed by the Referral Agency (Noosa Shire Council) for a carport within the front boundary set back. The Refusal Notice cites the reason for refusal being solely because of the Council condition requiring the door to the proposed carport be removed). Date and time of hearing: Thursday 29 September 2022 at 11.30 am Place of hearing: The subject site Tribunal: Derek Kemp – Chair Henk Mulder – Member Present: Russell Green of the Appellant Stewart Magill (Pure Building Approvals), Assessment Manager Jon Day (Pure Building Approvals) Matt Anderson of Noosa Shire Council, Co-Respondent Jarrod Yostle of Noosa Shire Council (observer)
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Decision:
The Development Tribunal, in accordance with section 254(2)(c) of the Planning Act 2016
replaces the decision of the Assessment Manager to ‘refuse’ the Building Development
Application (Noosa Council RAB 21/0259) with a decision that the Development Permit for
Building Work (RAB 22/0259) be approved, with the following conditions:
a) A ‘minimum’ set back of 0.2 metres of the outermost part of the carport from the
front property boundary.
b) The sides of the carport not to be enclosed or otherwise screened with louvers,
slats, battens etc.
c) The maximum building height of the carport not to exceed 3.183 metres above
the finished level of the slab.
d) Such other conditions, as the assessment manager reasonably requires to
ensure compliance with the building assessment provisions.
.
Background
The Subject Site
1. The subject site is a nominally rectangular level block with a site area of 834 square
metres, a 19.5 metre frontage and a slightly wider, curved rear boundary. The
existing residence is a single storey detached dwelling in a ‘Y’ shaped configuration
with one extent of the configuration facing the street at an angle and having a
setback of 6.5 metres at its nearest proximity. A single vehicle carport currently
exists by the entry walkway, with the remaining area under roof and facing the street
utilised as a spare bedroom. The remaining area of the setback to the street
frontage is occupied by an in-ground pool.
2. The subject site is situated towards one end of Wesley Ct, which constitutes a short
street with a cul-de-sac at both ends. That part of the Wesley Ct surrounding the
subject site contains similar or larger residences, with a significant component of
solid masonry fencing to the street boundary.
3. The subject site also has a 1.8 metre high solid masonry fence with a 1.8 metre high
‘solid’ vehicle and pedestrian entry gate along the full length of the property
boundary fronting Wesley Ct.
The Proposal
4. The proposal is for an ‘open carport’ located in the front setback of the existing
dwelling with a roller door. (Reference Kidd & Co Plans SD 103, SD 401, SD 501
stamped RAB21/0259, dated 9/05/2022 by the Noosa Shire Council as the ‘plans
accompanying the concurrence agency response’).
Assessment of the Application
5. On the 6 December 2021 Pure Building Approvals requested the Noosa Shire
Council ‘Referral Agency Response’ for the proposed works.
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6. On the 21 December Noosa Shire Council issued a ‘Further Information Request’
that inter alia stated:
7. Amended plans were submitted to the Noosa Shire Council by Pure Building
Approvals identified as the Kidd & Co Plans SD 103, SD 401, SD 501 without
amendment number or amendment date, and stamped RAB21/0259 and dated
9/05/2022 by the Noosa Shire Council, being the ‘plans accompanying the
concurrence agency response’.
8. The amendments included a significant reduction of the proposed carport roof pitch
from matching the existing residence’s roof pitch of nominally 20º to that of 10º; a
relocation of the carport to the west of the original proposal which minimally reduced
the length of the carport due to the angled street boundary; the introduction of a
masonry wall at the Eastern corner, and modifying the carport door proposed from a
roller door type to a tilt panel type whilst maintaining the width of the opening.
9. It is noted the stamped drawings indicate an existing 2.0 metre high masonry front
fence, whereas it was acknowledged on site that the existing masonry fence to be
retained is 1.8 metres.
10. The Noosa Shire Council ‘Referral Agency Response’ dated 9 May 2022
recommended ‘approval’ of the proposed building works ‘subject to conditions’ that::
Refusal of the Application
11. On the 18 July 2022 a ‘Decision Notice Refusal’ was issued by the Assessment
Manager (Stewart Magill of Pure Building Approvals) that inter alia stated the ‘Details
of refusal’ as (sic):
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12. That ‘Decision Notice Refusal’ stated ‘Reasons for the refusal’ as:
13. For clarity, the ‘Referral Agency’ (the Noosa Shire Council) directed the Assessment
Manager to ‘Approve’ the proposed development subject to conditions that included
no panel or tilt door, a minimum front set back and a maximum height condition –
that are now the subject of this appeal.
Nearby Developments
14. The property immediately to the east of the subject site (19 Wesley Ct) is a single
storey residence with an enclosed garage that is indicatively set back 6.0 metres
from the street with a 1.8 metre high wall to the entry driveway perimeter and the
remainder of the street boundary.
15. The next property to the east (17 Wesley Ct.) is a two storey residence with a
garage built up very close to the front property boundary using a vertical batten
screened door and accompanying overhead parapet, adjacent to a 1.8 metre high
masonry wall facing the street.
16. The property further to the east (11 Wesley Ct), near the end of the cul-de-sac, is a
single storey residence with a 1.5 metre high masonry wall and solid timber fence
and a garage, using a tilt panel door, built up very near to the front property
boundary
17. The property immediately to the west of the subject site (23 Wesley Ct) is a two
storey residence with a 2.0 metre high masonry front boundary wall, with a garage
under construction set back approximately 6 metres, with a return wall extending
from near the front boundary at 2 metres high rising in height to approximately
3 metres towards the existing dwelling and garage.
18. The property further to the west (25 Wesley Ct) is a single storey residence, with a
triple garage with roller doors set back approximately 4.5 metres, with a 2.0 metre
high masonry front boundary wall.
Material Considered
19. The material considered in arriving at this decision comprises:
(1) ‘Form 10 – Notice of Appeal/ Application for Declaration’, being the
grounds for appeal lodged with the Tribunals Registrar on 26 July 2022.
(2) Correspondence accompanying the appeal lodged with the Tribunals
Registrar on 26 July 2022. This includes:
a. The letter from Pure Building Approvals to the Noosa Shire
Council dated 6 December 2021 requesting its Referral Agency
response that inter alia sought to address the issue of non-
compliance with the Noosa Shire Planning Scheme ‘Noosa Plan
2020’ - ‘Low Density Residential Code’
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b. The letter to the Registrar from Pure Building Approvals dated 26
July 2022 which included advice on the owner’s response to the
Council conditions and the ‘Decision to Refuse’ notice.
(3) The response from the parties to the Tribunal’s request for advice
confirming the appellant also objected to the conditions concerning the
front set back and the proposed maximum height of the proposed carport
(Reference the email responses received by the Registry on 15
September 2022).
(4) Planning Act 2016.
(5) Noosa Shire Planning Scheme ‘Noosa Plan 2020’ - ‘Low Density
Residential Code’
(6) The Queensland Development Code, MP 1.2 March 2010.
(7) Verbal representations at the Tribunal Hearing on 29 September 2022.
(8) The email from Jon Day of Pure Building Approvals to the Tribunal
clarifying their client’s position after the Hearing (received by the Registry
on 29 September 2022).
Findings of Fact
20. The Tribunal finds that the Referral Agency (Noosa Shire Council) did not direct the
Assessment Manager (Stewart Magill of Pure Building Approvals) to ‘Refuse’ the
Building Development Application (reference Noosa Council RAB 21/0259).
21. The Tribunal finds that the Assessment Manager (Stewart Magill of Pure Building
Approvals) ‘Refused’ the Building Development Application (reference Noosa
Council RAB 21/0259) citing the reason that the Referral Agency (Noosa Shire
Council) condition that there be no roller/panel lift door was an unacceptable
condition.
22. The Tribunal finds that the matters considered in reaching its Decision against this
‘refusal’ would be the same as those considered if the Assessment Manager had
‘Approved’ the Building Development Application (reference Noosa Council RAB
21/0259) and the Appellant had appealed against the Council’s ‘Referral Agency’
conditions (Noosa Shire Council ‘Referral Agency Response’ dated 9 May 2022).
Reasons for the Decision
23. The relevant part of the Noosa Shire Planning Scheme ‘Noosa Plan 2020’ - ‘Low
Density Residential Code’ is the ‘Performance Outcome’ PO9 that states:
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24. The Tribunal noted that the Noosa Shire Council had no objection to the proposed
carport at the proposed location provided it meets the following conditions (Noosa
Shire Council ‘Referral Agency Response’ dated 9 May 2022 recommended
‘approval’ of the proposed building works ‘subject to conditions’):
25. The Tribunal noted that all of the properties within the eastern extent of the cul-de-
sac within the streetscape on both sides of the street, visible to the subject property,
all had solid timber or masonry walls and gates at, or exceeding, 1.8 metres high.
26. The Tribunal noted that the significant majority of properties in this streetscape had
garages or carports with roller or tilt doors, or were located behind solid gates at
least 1.8 metre high (with the one exception of 17 Wesley Ct. which has a garage
with a vertically screen tilt door built up to the front property boundary).
27. In terms of PO6(a) the Tribunal formed the opinion that the high level of amenity and
visual and acoustic privacy being sought in this part of Wesley Ct. was by high
masonry walls, solid fences, high solid screen gates and garage and carport doors.
28. In terms of PO6(f) the Tribunal formed the view that the prevailing streetscape in this
part of Wesley Ct. was characterised by high masonry walls, solid fences, high solid
screen gates and garage and carports with predominantly solid doors.
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29. For clarity, the Tribunal formed the opinion that the proposed maximum height of the
proposed carport of 3.183 metres above the slab level and the proposed roller or tilt
door to the proposed carport are acceptable and meet the Noosa Shire Planning
Scheme ‘Low Density Residential Code’ ‘Performance Outcome’ PO9.
30. In the circumstances, the Tribunal is satisfied that the Appellant has established that
the appeal should be upheld subject to the condition that the minimum set back of
0.2 metres (200 mm) of the outermost part of the carport from the front property
boundary.
Derek Craven Kemp
Development Tribunal Chair
Date: 26 October 2022
Appeal Rights:
Schedule 1, Table 2, item 1 of the Planning Act 2016 provides that an appeal may be made
against a decision of a Tribunal to the Planning and Environment Court, other than a decision
under section 252, on the ground of -
(a) an error or mistake in law on the part of the Tribunal; or
(b) jurisdictional error.
The appeal must be started within 20 business days after the day notice of the Tribunal decision
is given to the party.
The following link outlines the steps required to lodge an appeal with the Court.
http://www.courts.qld.gov.au/courts/planning-and-environment-court/going-to-planning-and-
environment-court/starting-proceedings-in-the-court
Enquiries:
All correspondence should be addressed to:
The Registrar of Development Tribunals
Department of Energy and Public Works
GPO Box 2457
Brisbane QLD 4001
Telephone (07) 1800 804 833
Email: [email protected]
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