06/0823 - Proposed change to development approval · 132006.823.04

Section 2

Mr Wakefield Sykes.
Solicitor
Sunshine Coast Regional Councit

1 July 2009

 

¢ Kerri Coyle agreed to hold off processing the refusal to allow for further discussion with you
about your advice.

«® When asked whether an application for material change of use, if made, was likely to be
approved, Kerri Coyle indicated initially that she would be inclined to refuse it. The basis of her
position was that the requirement that the resort not be used for the purpose of permanent
residential accommodation reinforces the Council’s position that the accommodation should be
only for visitors. .

e Kerri Coyle offered a comment that the Hastings Street traders would be better off with holiday
visitors.

e Kerri Coyle indicated that she might have a different view if Viridian were prepared to nominate
in a condition where the restriction on permanent residency would not apply.

Based upon the above discussion, Viridian proposes to withdraw the current request to change the
development approval and make a fresh request. The fresh request contains additional items which
require adjustments to the approved plans, and to some of the conditions. The proposed condition
now expressly identifies the units which may be used for both short and long term residence.

Our client does not propose to wait until the Sustainable Planning Bill is enacted and commences,
because the timing is uncertain. Consequently the request is being made under sections 3.5.24 and
3.5.33 of the IPA on the basis that if section 3.5.33 is not applicable to some of the changes, they
will fall for consideration under section 3.5.24. This is consistent with the conventional view that
where section 3.5.33 is not applicable the proposed change to a condition, being a change to a
“development approval”, which includes conditions, may be dealt with under section 3.5.24.

| have requested Bob Borger to separately provide you directly with a copy of the new request for
changes which | understand will be lodged with the Council more or less contemporaneously with
this letter. | ask that you read the enclosed advice of 7 November 2008 in conjunction with my
comments below.

As discussed in my letter of 7 November, | do not regard the change to condition 23 as giving rise to
the start of a new use, nor as materially changing the scale or intensity of the approved use.
Therefore the change does not give rise to assessable development. However, because the request
now involves some minor changes to the approved plans, the request will need to be considered
under section 3.5.24 in respect of those matters.

In my view all of the changes to the plans are “minor” within the meaning of section 3.5.24, and the
changes to the other conditions now proposed do not give rise to assessable development.

The purpose of this letter is not to discuss the other changes to the approved plans or the
conditions, other than condition 23. Those changes speak for themselves in terms of the Council's
ability to deal with them under the request. Rather, this letter focuses on the changes concerning
the restriction imposed by condition 23 which involves the 39 villas and 15 penthouses identified in
the request submitted by my client. ,

Condition 23 is now proposed to read as follows:

“The Resort (comprising the Restaurant and Conference Room Facility Building V, Health
Spa, Resort Accommodation Buildings (dwelling units & accommodation units), Reception
Area and Shop) shall be operated and maintained as a Resort. The resort shall operate in
accordance with the defined use of ‘Visitor Accommodation — Type 4 Conventional’ in the
Noosa Plan which provides for predominately short term visitor accommodation. Villas in
Buildings A, B, C, E and F, Penthouse Unit numbers —

7417, 8601, 8602, 7501, 7502, 7503, 7504, 4201, 4202, 4301, 4302, 4401, 4402, 4501,
4502 and the Managers Unit number 8201 as shown on Plan of Survey SP190823 may be
occupied on a short or long term basis. All other dwelling units in the Resort may be
occupied only for short term visitor accommodation. The community management

3082523 1.D0C Page 2 of 5

Section 3

Mr Wakefield Sykes
Solicitor
Sunshine Coast Regional Council

1 July 2009

 

statement for any or all bodies corporate having control of the Resort or any part thereof
shail incorporate this condition.”

The relevant issues for consideration by Council are:

1. Does the change introduce the start of a new use, or a material change in the scale or
intensity of the use of the 39 villas and 15 penthouses?

2. If the answer to question 1 is “no” (which in my view is the correct answer), does the change
result in any other form of assessable development? Again, the answer to this question is
“no” in my view, given that the relevant dwelling units are exactly the same before and after
the change.

3. Lastly, if the Council asserts that the answers to these questions are “yes” such that this
aspect of the request then falls for consideration under section 3.5.24, would the change be
likely to give rise to adverse submissions. Again, for the reasons given in my advice of
7 November, and below, the answer to this question is “no”.

These matters were fully addressed in my letter of 7 November 2008 however, for completeness, in
addition to the matters discussed in that letter | make the following observations:

1. Under the Planning Scheme “visitor accommodation” is defined by reference to two things —
design and predominant use. As previously mentioned we are concerned here with large
self-contained dwelling units within a resort, which are designed for independent living,
although they are equally capable of being occupied by visitors on a short-term basis. The
proposed change is to facilitate intermittent semi-permanent occupancy of these units by
their owners, or relatives and friends of owners, in addition to the units being made available
through the resort's letting pool.

2. Condition 23 has its genesis in a similar condition of the earlier development approval issued
by the Court, which reflected our client’s arguments and expert opinion about the economic
benefits of the resort to Noosa generally. This condition appears to have been the
motivation for the specific zoning of the subject site for visitor accommodation. However the
zoning does not place an absolute restriction or prohibition on the use of dwelling units for
more than short-term accommodation. The predominance test in relation to use by visitors
remains. Viewed in that light, condition 23 is more restrictive than the zoning.

3. The evident basis for the imposition of the condition, and the zoning, was and remains the
need to support Noosa’s core economic base, namely tourism. This is reflected in a number
of the provisions of the current Planning Scheme. The proposed development will
undoubtedly strengthen significantly Noosa’s tourism focussed economic base. The
question that is relevant in this context is whether the use of the large villas and penthouses
for intermittent semi-permanent residence purposes would detract from those economic
benefits. This gives rise to a number of subsidiary questions discussed in the following
paragraphs.

4. To what extent will the nominated semi-permanent occupancy units be held out of the hotel
letting pool, or be occupied by other than tourists or holiday makers? There is clear
anecdotal evidence that the majority of the villas and penthouses will remain available for
letting. This is what has occurred for the adjoining 23 Viridian residences, and it occurs in
other unit complexes in and around Hastings Street. There is no reason to think that the
owners of the Viridian villas and penthouses would behave any differently in the way they
use these units.

5. For those units that are occupied semi-permanently, how will the spending patterns of those
unit owners be different from the spending patterns of tourists and holiday makers? Are they
less likely to use the restaurants, bars and shops in Hastings Street? in reality, for those
occupants Hastings Street will be akin to their local centre. The shops, bars and restaurants
will be within walking distance and will be used for recreational and/or shopping purposes
where travel by car is not necessary or desired. Why wouldn't semi-permanent occupants

3082523_1.D0C Page 3 of 5

Section 4

Mr Wakefield Sykes
Solicitor :
Sunshine Coast Regional! Council

41 July 2009

 

use those facilities in that way? There seems no practical reason why those shops, bars and
restaurants would be used any differently to shops, bars and restaurants situated close to
residences at Noosa Junction, Noosaville or Tewantin. There is simply no logic to the
proposition that those shops, bars and restaurants would not be patronised in the normal
way. Further, the owners/occupiers of those villas and penthouses are likely to have the
financial capacity to patronise the shops, bars and restaurants in Hastings Street. If the
contrary argument is that those occupants will use their vehicles to go to Noosa Junction or
Noosa Civic to buy food and groceries, etc., then that is no loss to Hastings Street because
visitors using the short-term accommodation units are unlikely to make weekly shopping-type
grocery purchases, and longer term holiday makers staying in the larger self-contained units
are likely to have a car and use it to go to either Noosa Junction or Noosa Civic to buy meat,
seafood and other specialist food products. Similarly they would use their vehicles to go to
other retail outlets for which there is no equivalent in Hastings Street such as the Farmers’
Markets. Hastings Street does not really cater for grocery and food shopping for longer term
holiday makers who prefer to holiday in a self-contained unit so that they do not have to dine
out all of the time.

6. What is the likely percentage of “leakage” of non-grocery/food away from the shops in
Hastings Street? Put another way, how does banning semi-permanent occupancy of larger
villas and penthouses benefit the shops in Hastings Street? The answer is that the impact
on those Hastings Street traders will be negligible and any escape expenditure will be
captured elsewhere in Noosa anyway so there is no loss to Noosa’s tourism economic base.
$o, when all of these factors are analysed it gets down to an argument over a few percent of
a very small pool of dollars which are going to be spent in Noosa anyway. Indeed, the
rigidity currently inherent in condition 23 is probably economically counter-productive in
terms of ensuring that investment in these units is captured, and that there is diversity at the
higher end of the accommodation market.

7. Consequently, | see no basis at all for thinking that the proposed change to condition 23 is
likely to provoke an adverse submission from Hastings Street traders, and if not from those
traders, who would be likely to object? Plainly the Council can form an opinion that adverse
submissions are unlikely and thus support the proposed changes to the condition.

If the Council continues to maintain its opposition to the proposed change to condition 23 and in
effect forces Viridian to make a development application for a new development permit for material
change of use, which would be impact assessable and open to submissions, nothing worthwhile will
be achieved because, on any reasonable view of the facts and circumstances involved here, there
would be no sustainable basis for refusing such a development application. The difference in the
use is merely semantic or definitional. There is, in reality, no actual difference in the use of the land.
In truth, such an application is really about the condition and not about the use, and ought to be
determined in the context of a request to change the development approval rather than through the
process of making a fresh development application. | fail to see how there is any point in the
Council putting Viridian to the expense of a new application when what it is trying to do is attract
investment to Noosa in a very difficult economic environment, and deliver product diversity at the
higher end of the accommodation market, which will benefit the economy of the Noosa sub-region.

Lest it be suggested that if such an application is made it would be in conflict with the Planning
Scheme, let me emphasise that the facts are that the conflict is merely definitional or semantic and
will not be a real conflict in any practical sense. If it is a conflict at afl, which | doubt, it is a negligible
one. As is the case with the vast majority of dwelling units in Noosa Heads and the vast majority of
the units within the Viridian Resort, the 55 villas/penthouses will in the main be occupied by their
owners only for holidays in Noosa, and otherwise will be placed within the letting pool. Condition 23
as it now stands is a disincentive to investment in the units and thus investment in Noosa, for no
corresponding economic benefits either to Hastings Street or Noosa as a whole. As mentioned
above, condition 23 in its current form is economically counter-productive with respect to the large
villas and penthouses which have been designed and approved by Council for independent living.

3082523_1.DOC Page 4 of 5

Section 5

Mr Wakefield Sykes
Solicitor
Sunshine Coast Regional Council

4 July 2009

 

Lastly, | ask you to pause for a moment and think about the development application you are
suggesting Viridian should make. How is the start of the new use to be described? It is difficult, if
not impossible, to identify the change in use because in reality nothing material is going to change.
The resort will continue to be used predominantly for short term visitor accommodation.

| am available to discuss any aspect of this letter and my previous letter and would be happy to talk
to you. Obviously, my client wants to know as soon as possible whether the Council will accept the
new request.to change the development approval.

| look forward to hearing from you.

Yours faithfully

We iwttls>
HopgoodGanim Lawyers
Contact: David Nicholls
Partner
T 07 3024 0368
F 07 3024 0068
E [email protected]

3082523_1.D0C Page 5 of 5

Section 6

aan

7 November 2008 Hopgood Ganim

Chief Executive Officer € © > ¥
Sunshine Coast Regional Council

PO Box 141

Tewantin QLD 4565

LAWYERS

Our Ref: 0739930 - David Nicholls

 

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Dear Sir/ Madam
Viridian Noosa Resort

We act for Leighton Properties Pty Ltd and have been instructed to correspondence with the Council
in relation to its reply of 31 October 2008 to our client's request to change the development permit
for the Viridian Noosa resort. Our client's letter requested a change to the development approval
specifically with respect to condition 23 of the approval which prevents the use of dwelling units
within the resort for permanent occupancy. The Council’s response in effect asks our client to make
a completely fresh application for material change of use in order to achieve removal of the
permanency restriction on the. 54 villas and penthouses referred to in your correspondence. Our
client believes, and we agree, that this objective can be achieved through changing the development
approval and that a fresh application for material change of use is not necessary.

The current development approval for the Viridian Resort permits a number of multi-unit dwellings to
be constructed which are designed for independent living. That is to say, by design and operation
there is nothing to distinguish those dwelling units from a penthouse or villa situated in some other
development where there is a mixture of both permanent and short term residents, i.e. holidays
lettings.

The introduction to the “visitor accommodation” subset of residential uses in the definition section of
the Planning Scheme defines “visitor accommodation” as follows:

‘Visitor accommodation means accommodation that is designed and predominanily
used for visitors to the shire and where social, recreational and dining services may be
provided for visitors by owners or staff. The term includes the following types: ... “

The 54 villas and penthouses identified in your correspondence with the Council have not been
designed for visitors. They have been designed as conventional large home units which can be
used for independent living with the option of being included within the jetting pool for the resort.

However the approved use in the development permit is described as “Visitor Accommodation —
Type 4 Conventional (Resort)”.

This use is defined as follows:

“Type 4 Conventional — two or more dwelling units or accommodation units, for the
purpose of providing short-term visitor accommodation. The use may include
common recreation or dining facilities and includes an ancillary dwelling unit for on-site
manager. The use: includes a guest house, visitor hostel, motel, resort and serviced rooms,

Level 8 Waterfront Place, 1 Eagle Street T +617 3024 0000
Brisbane Qld 4000 Australia F +617 3024 0300
PO Box 7822, Watertront Place Qld 4001 Australia E contactus(@hopgoodganim.com.au www.hopgoodganim.com.au

2581459 1.D0C

Section 7

Sunshine Coast Regional Council
7 November 2008

he

 

but does not include visitor accommodation Type 1 Home Hosted or Type 3 Rural as
separately defined.”

The specific form of use is supported by condition 23 of the development permit which is in the
following terms:

"23. The Resort (comprising the Restaurant and Conference Room Facility Building V,
Health Spa, Resort Accommodation Buildings (dwelling units & accommodation units),
Reception Area and Shop) shall be operated and maintained as a Resort. The
accommodation in the Resort will not be used for the purpose of permanent residential
accommodation, with the exception of the Manager’s Accommodation. The resort shall
operate in accordance with the defined use of ‘Visitor Accommodation — Type 4
Conventional’ in the Noosa Plan which provides for short term visitor accommodation.
The community management statement for any or all bodies corporate having contro!
of the Resort or any part thereof shail incorporate this condition.”

Our client wishes to remove the permanent residency restriction on the $4 villas and townhouses
and has written to the Council requesting a change to the development permit through attering
condition 23. However our client did not see to change the description of the permitted use in the
development permit. In our view, our client needs to do both of these things in order to effectively
remove the restriction on permanent residency, because otherwise condition 23, once amended, will
be inconsistent with the approval.

In our view it is necessary to change the land use description so that it reads as follows:

“1.1 Visitor Accommodation Type 4 Conventional (Resort) in respect of (insert number)
1 bedroom and 2 bedroom dwelling units described as {insert plan references) and
Multiple Housing Type 4 Conventional (Resort) in respect of 54 2 bedroom and
3 bedroom dwelling units described as (insert plan references).”

Concurrently condition 23 should be changed to exciude the villas and penthouses from the
restriction on permanent use. Preferably those villas and penthouses should be referenced to unit
numbers on the approved plans rather than by introducing another pian, as suggested in the land
use description above.

We have advised our client that these requests should be made in accordance with ss 3.5.24 and
3.5.33 of the Integrated Planning Act 1997 (IPA) respectively and the requirements of those two
sections need to be complied with carefuily. The request should be made on the forms used by the
Council for those purposes accompanied by owners’ consents and should follow. exactly the
processes set out respectively in each of the sections.

We now turn to the issue of whether the Council has jurisdiction to process such requests under

- $8 3.5.24 and 3.5.33 for the above purposes. We will deal with s. 3.5.24 first. The pre-condition to
the use. of that section to change a development approval is that the change is a “minor change”.
This involves an analysis of the effect of the alteration proposed. !n this regard we make the
following observations:

1. Nothing will physically change in terms of the built form. The relevant villas and penthouses
have been designed for independent living and their design remains exactly the same.
Therefore they will function in the same way and will house the same number of people.

2. The change does not introduce any new use. The use before and after remains that of a
dwelling unit used for residential purposes within a resort.

There are no changes to the parking or traffic circulation facilities.
There are no new works proposed.

There are no amenity impacts as a result of the alteration either on or off the site.

oak Ww

No use is removed or deleted because although 54 units may be permanently occupied, they
remain available to the resort through the letting pool and are likely to be predominantly
operated in that way notwithstanding the change.

2581459_1.D0C Page 2 of 5

Section 8

Sunshine Coast Regional Council
7 November 2008

 

7. There is no change in the intensity of the use or the site population density.
8. There is no visual change to the development in any respect.
9. There are no external impacts.

What, then, is the effect of the change? It is a very limited effect in our opinion. It would mean that
the 54 affected dwelling units could be:

* occupied by permanent residents, i.e. full-time owner occupiers;

¢ occupied by semi-permanent residents, i.e. owner occupiers who put their unit into the
resort rental pool for part of the year;

e occupied by resort guests all or most of the time because the unit is put into the letting pool
all or most of the year.

These consequences involve only a slight variation in the use, in our opinion. They do not involve
starting a new use, nor do they invoive a material change in the scale or intensity of the use.

In particular, in terms of the definition of “minor change” in Schedule 10 of the IPA the variation
wouid not result in:

¢« any requirement to refer the application to additional concurrence agencies;
« the assessment level changing from code to impact assessment;
¢ any person being caused to make a submission objecting to the proposal.

Turning to s. 3.5.33 which concerns changing development conditions, for the same reasons the
change to the wording of condition 23 does not give rise to any assessable development in the form
of a material change of use being either the start of a new use or a material change in the scale or
intensity of the use. It cannot be said that the change results in a different development proposal
such as requires development approval preceded by the normal assessment process. The Court’
has held that in respect of $3.5.33(1}(b), the approach to be adopted:

“should be understood to mean that the proposed changes to any condition of approval would
not give rise to a form of development that was so different to the original as to require
independent assessment as assessable development within the meaning of the Act.”

We note the Council's view expressed in its letter of 31 October 2008 that “the request seeks to
introduce a new use”. In response to that assertion we make the following points:

1. Firstly, for the reasons outlined above, no new use is proposed. The use is exactly the same
despite the different definitional treatment of multiple dwellings in the Planning Scheme.

2. Secondly, the question of “minor change” must be approached in accordance with the
definition of that term in Schedule 10 of the Act, rather than from the perspective of the
Planning Scheme’s definitions. In that regard the touchstone is whether the change would
attract submissions objecting to it. Bearing in mind the originally advertised and assessed
proposal, plainly it would not, in our opinion. On no rational view of the nature and effect of
the proposed change would it be thought that a hypothetical potential objector? would object
to an impact assessabie application incorporating solely this change. Consequently s. 3.5.24
of the IPA is capable of operating for the purposes intended here. In any event, whether the
proposed change is likely to attract an adverse submission that was not provoked by the
proposal in its original form is but one of the number of considerations the Council should

" Rose Bay Developments Pty Ltd v Bowen Shire Council & Anor [2001] QPELR 340; Rhema
Management Services Pty Ltd & Anor v Noosa Shire Council [2000] QPELR 15

? Ausbuild Pty Ltd v Redland Shire Council (2001) QPELR 409 at [11]; Sinnamon v Miriam Vale
Shire Council (2003) QPELR 195 at 198; Ryan & Anor v Brisbane City.Council & Ors (2005) QPELR
544 at [10]

2581459_1.D0C Page 3 of 5

Section 9

Sunshine Coast Regional Council
7 November 2008

 

have regard to in considering the materiality of the change in the intensity or scale of the use
originally approved.”

3. Lastly, because in a legal sense there is no start of a new use or intensification of an existing
use, there is no material change of use and therefore no assessable development arising.
Consequently, s. 3.5.33 of the IPA is also capable of operating.

The definition of “use” in the IPA includes incidental and necessarily associated uses. It is necessary
to establish some inevitable or unavoidable connection between the new or different activity and the
primary use for the former to be categorised as “necessarily associated with the latter”. * The
proposed change continues the primary residential use and as such must attract categorisation as
being necessarily, unavoidably and inevitably associated with the primary use.

The existence or otherwise of a material change of use is a question of fact and degree which is:
determined by examining the relevant circumstances. ° Similarly, the question of whether a change
of conditions constitutes a substantially different development is also one of fact and degree. ® The
materiality of the change is decided in the context of the IPA and the relevant planning instruments,
the question of whether or not there will be a material change of use “is not answered by trawling
through the various definitions in the planning scheme”. 7 Consequently i in our opinion, a definitional
change alone cannot give rise to a material change of use.

An example of how the Court will approach this question is found in His Honour Judge Newton's
reasoning in Herston Kelvin Grove Residents Action Group Inc. v. Brisbane City Council (2001)
QPELR 382 at 395. That case involved premises which were used for a convalescent home and
later a nursing home. Then the use changed to the housing of mentally disabled people. In this
context His Honour said:

“With respect to the question of whether there has been the start of a new use of the
premises, it is relevant to note that the original convalescent home probably mainly housed
and cared for people disabled by physical iliness or injury, while the nursing home mainly
housed and cared for people disabled by age-related conditions, and the present use
mainly houses and cares for people disabled by intellectual or psychological disabilities.
The common threads, therefore, may be said to include residence, care and disability. ...”

“.,. In the context of the history of uses on the site | have formed the opinion that the
current use is best described as a variation of the previous uses but that it cannot be
accepted to be anew use...”

In our opinion, parallel reasoning applies in the present circumstances. in fact, the proposed
changes are even less distinguishable than those involved in the Herston Kelvin Grove Residents
case.

Further consideration of determinative issues as to whether a proposal amounts to a “material
change of use’ within the IPA arose in Gorrie & Anor v Mackay City Council & Anor [2002] QPEC
074. In this case His Honour Judge Quirk found that a proposal to erect a roof covering over a
bowling green did not amount to a material change of use. In doing.so, His Honour observed that:

“... The question whether or not there has been a material change of use is not answered by
trawling through the various definitions in the Planning Scheme. This was done in this
case and a debate was opened as to whether the proposal would lead to the Ciub’s activities
becoming “indoor entertainment”. The exercise was, | believe, a distraction.”

“The real issue is whether the proposal, if put into effect, would lead to a change in the
intensity or scale of the use of the premises and if so whether the change would be material.
In dealing with matters of this kind a measure of commonsense is called for. A sensible

3 , Martin v Whitsunday Shire Council & Anor [2001] QPELR 348

, Morgan- Phoenix v Gold Coast City Council [2007] QPEC 31

5 Martin v Whitsunday Shire Council [2001] QPELR 348; Maroochy Shire Council v Barnes [2001]
QPELR 475 at [47], citing the Herston Kelvin Grove case

» Matus and Another v Cairns City Council & Anor (1981) QPLR 106 at 108

? Gorrie v Mackay City Councif [2003] QPELR 328 at [7]

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Section 10

Sunshine Coast Regional Council
7 November 2008

 

 

appreciation of this case leads inescapably to the conclusion that, even if the proposed shelter
is erected, essentially the use of the Club premises remains the same, that use being for lawn
bowling on a green that can accommodate no more than 64 players at the one time.”

The dichotomy between the definitions of “multiple housing’ and “visitor accommodation’ and its
application to the subject land appears to reflect a policy decision by the Council to discourage
permanent residency in proximity to Hastings Street, notwithstanding the fact that there are
numerous existing multiple dwelling buildings with no such restrictions which continue to contribute
to the tourist accommodation pool. The distinction does not, however, change the nature of the use,
nor does it preclude those policy issues from being considered in the context of dealing with
requesis to change the development approval in the manner proposed. The simple point to be
made here is that it is unnecessary for a fresh application for a development permit for material
change of use over the whole development to be made in order for the Council to decide whether
the permanent residency restriction ought to be lifted in respect of the 54 villas and penthouses.

The requests under ss 3.5.24 and 3.5.33 need to be re-made in the correct form. However before
doing so we understand that our client wishes to discuss the content of this letter with the Council.
Consequently we understand that this letter will be hand delivered to the Council by our client.

Yours faithfully

Wel bstt>

HopgoodGanim Lawyers

Contact: David Nicholis
Partner
T 07 3024 0368
F 07 3024 0068
E [email protected]

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