Planning & Environment Committee - 10 September 2024
Date: Tuesday, 10 September 2024 at 9:30AM
Location: Noosa Shire Council Chambers , 9 Pelican Street , Tewantin , QLD 4565 , Australia
Organiser: Noosa Shire Council
Duration: 00:40:21
Synopsis: Weyba Rd bakery not a minor change; new application and public notification required, Legal advice backs refusal, Butler St clubhouse relocation needs setback relaxation with landscaping.
Meeting Attendees
Committee Members
Brian Stockwell Amelia Lorentson Frank Wilkie Non-Committee Members
Executive Officers
Chief Executive Officer Larry Sengstock Director Development & Regulation Richard MacGillivray Director Community Services Kerri Contini Director Strategy & Environment, Kim Rawlings (Via Microsoft Teams) Apologies (Did Not Attend)
AI-Generated Meeting Insight
Key Decisions & Discussions Amelia Lorentson: Confirmed attendance/apologies and moved directly to two planning items; both were elevated to General Committee for fuller scrutiny (Items 5.1, 5.2; 00:00). Frank Wilkie: Moved Item 5.1 to General Committee; carried unanimously (Minutes 5.1; 13:02). Amelia Lorentson: Moved Item 5.2 to General Committee “due to the significance of the issue”; carried unanimously (Minutes 5.2; 14:48). Tara: Item 5.1 seeks a minor change to relocate/extend the Netball Clubhouse at Butler St due to road widening and prior flood damage; key non-compliances are front setback reduction (20 m required; 6.9 m proposed to McKinnon Dr) and 30 m wall length vs 15 m code (5.1; 01:56–03:11). Richard MacGillivray: Noted effective building distance from carriageway is ~30 m given a wide 22 m reserve, with additional frontage landscaping planned to soften visual impact (5.1; 03:55–04:12). Brian Stockwell: Sought design/landscaping measures to break up the plain, long eastern elevation visible from the internal car park and entry road (5.1; 07:08–09:24). Amelia Lorentson: Queried performance outcome compliance (Recreation and Open Space Zone Code PO18) and pressed for vegetation outcomes commensurate with setback relaxation (5.1; 09:35–10:40). Richard MacGillivray: Supported conditioning for further landscaping clusters to soften entry views; officers to tweak landscape plan/materiality before General (5.1; 11:37–12:46, 14:44). Patrick Murphy: Confirmed contractor is ready to start Butler St works pending approvals; state PMs coordinating with other SEQ projects (5.1; 05:03). Tara: For 185 Weyba Rd, applicant seeks to convert a historic seafood kiosk to a bakery with earlier hours, on-site dining, and staff starting 4:30–5:00am; officers recommend refusal because it is not a “minor change” (new use and increased impacts) (5.2; 15:26–17:45). Patrick Murphy: Clarified “minor change” fails the substantially different development test (new use; heightened noise/parking); another change is required with public notification (5.2; 17:45–21:51). Frank Wilkie: Summarised amenity shift from afternoon/evening kiosk to early-morning patisserie attracting groups (cyclists/runners), triggering notification rights (5.2; 19:00–22:21). Council Officers: Legal advice obtained independently supports that approvals/conditions have continuing force and the application is not a minor change; refusal supported (5.2; 30:17–32:34). Brian Stockwell: Asked officers to examine whether the historic lawful use was abandoned when unapproved sit-down dining commenced, affecting current rights (5.2; 34:23–35:40). Council: Noted delegated authority decisions for July 2024; carried unanimously (Item 6.1; Minutes 6.1; 40:05). Contentious / Transparency Matters Amelia Lorentson: Queried additional transparency/impartiality measures since Council is the Butler St applicant; officers brought Item 5.1 to Council, not under delegation, “in the public interest” (5.1; 11:18–12:26). Brian Stockwell: Warned Council must hold itself to the same non-compliance/design standards as any developer (5.1; 12:46–13:02). Amelia Lorentson: Challenged report note that bakery proponent sought “no advice,” citing phone calls in May 2023; officers confirmed informal calls occurred but no formal pre-lodgement/written advice and no clear endorsement of a minor change (5.2; 26:07–28:30). Patrick Murphy: Emphasised community notification rights are central because impacts materially differ from the kiosk approval (5.2; 17:45–20:17). Legal / Risk Patrick Murphy: Under the Planning Act minor change test, the bakery introduces a new use and exacerbates known impacts (hours, noise, parking), thus is “substantially different development” requiring another change and public notification (5.2; 17:45–21:33). Richard MacGillivray: Historic approvals and their conditions retain continuing force; the non-conforming use register is evidentiary, not an approval, and does not broaden use rights (5.2; 24:03–25:33). Council Officers: Independent legal advice validates refusal posture and rejects applicant legal theory that conditions fell away or that current use nests to modern “food & drink outlet” definitions (5.2; 30:17–32:34). Brian Stockwell: Requested legal check on abandonment of use, which could extinguish prior rights and necessitate a full material change pathway (5.2; 34:23–35:40). Tara: Soundproofing or enclosure to mitigate noise could trigger GFA/plot ratio and setback non-compliances, compounding risk (5.2; 37:00–37:38). Planning Scheme, Zoning & Changes of Use Tara: Butler St clubhouse: setback non-compliance vs AO; officers rely on PO compliance via deep frontage setback and new landscaping to meet visual amenity/outlook objectives (5.1; 01:56–04:18, 09:35–10:40). Tara: Weyba Rd site sits in Medium Density Residential; historic kiosk approvals from the 1970s–80s constrain operations, and shifting to bakery with on-site dining changes use and intensity (5.2; 15:26–17:45, 19:00–21:33). Patrick Murphy: “Like-for-like” internal tweaks could be minor; wholesale use-shift is not (5.2; 21:33–21:51). Amelia Lorentson: Historic “caterers shop” register entry does not authorise broader uses; legal position anchors to actual approved kiosk TPCs (5.2; 22:21–25:33). Environmental Concerns & Landscaping Amelia Lorentson: Queried tree retention and construction protection; officers cited conditions restricting removal to within 3 m of footprint and tree protection conditions (5.1; 13:05–14:02). Brian Stockwell: Pushed for eastern elevation softening via low fencing/planter boxes; officers to refine landscape plan within constraints of hardstand and future road widening (5.1; 07:30–12:46). Noise, Parking & Amenity Impacts (Weyba Rd) Tara: Proposed early starts (4:30–5:00am staff; 6:00am opening) and on-site dining raise noise/parking impacts without customer parking provision, diverging from kiosk approval (5.2; 15:26–17:45). Frank Wilkie: Highlighted early-morning patronage patterns (e.g., cyclists) affecting residential amenity, reinforcing need for public notification (5.2; 19:00–22:21). Tara: Any soundproofing solution may further conflict with plot ratio and front setback/street interface outcomes (5.2; 37:00–37:38). Richard MacGillivray: Officers declined direct neighbour canvassing; proper forum is impact assessment with public notification (5.2; 38:45–39:06).
Official Meeting Minutes
MINUTES Planning & Environment Committee Meeting Tuesday, 10 September 2024 9:30 AM Council Chambers, 9 Pelican Street, Tewantin Committee: Crs Amelia Lorentson (Chair), Brian Stockwell, Frank Wilkie, Tom Wegener “Noosa Shire – different by nature” PLANNING & ENVIRONMENT COMMITTEE MEETING MINUTES 10 SEPTEMBER 2024 1. ATTENDANCE & APOLOGIES COMMITTEE MEMBERS Cr Brian Stockwell Cr Amelia Lorentson Cr Frank Wilkie NON COMMITTEE MEMBERS Cr Karen Finzel EXECUTIVE Chief Executive Officer Larry Sengstock Director Development & Regulation Richard MacGillivray Director Community Services Kerri Contini Director Strategy & Environment, Kim Rawlings (via Microsoft Teams) APOLOGIES Cr Tom Wegener 2. CONFIRMATION OF MINUTES Committee Resolution Moved: Cr Brian Stockwell Seconded: Cr Frank Wilkie The Minutes of the Planning & Environment Committee Meeting held on 6 August 2024 be received and confirmed. Carried unanimously. 3. PRESENTATIONS Nil. 4. DEPUTATIONS Nil. 5. REPORTS FOR CONSIDERATION OF THE COMMITTEE PLANNING & ENVIRONMENT COMMITTEE MEETING MINUTES 10 SEPTEMBER 2024 5.1. 51988.2770.02 APPLICATION FOR A MINOR CHANGE TO A TOWN PLANNING CONSENT FOR INDOOR ENTERTAINMENT AND EXTENSION OF AN INDOOR ENTERTAINMENT - 31 BUTLER STREET, TEWANTIN The following material was presented to the meeting in relation to this item: Landscape Plan – refer to Attachment 1 to the Minutes Committee Recommendation Moved: Cr Frank Wilkie Seconded: Cr Brian Stockwell That Planning & Environment Committee Agenda Item 5.1 be referred to the General Committee for further consideration. Carried unanimously. 5.2. 51981.3345.01 & 51984.3154.01 APPPLICATION FOR A MINOR CHANGE TO DEVELOPMENT APPROVALS FOR A SEAFOOD KIOSK AT 185 WEYBA ROAD, NOOSAVILLE Committee Recommendation Moved: Cr Amelia Lorentson Seconded: Cr Frank Wilkie That Planning & Environment Committee Agenda Item 5.2 be referred to the General Committee due to the significance of the issue. Carried unanimously. 6. REPORTS FOR NOTING BY THE COMMITTEE 6.1. PLANNING APPLICATIONS DECIDED BY DELEGATED AUTHORITY – JULY 2024 Committee Recommendation Moved: Cr Frank Wilkie Seconded: Cr Brian Stockwell That Council note the report by the Development Assessment Manager to the Planning and Environment Committee Meeting dated 10 September 2024 regarding applications that have been decided by Delegated Authority during the month of July as per Attachment 1. Carried unanimously. 7. CONFIDENTIAL SESSION Nil. 8. MEETING CLOSURE The meeting closed at 10.11am.
Meeting Transcript
Amelia Lorentson 00:00.000
Welcome to the planning and environment meeting. I'd like to declare the meeting officially open and I'd like to begin by an acknowledgement of two countries. Noosa Council proudly acknowledges and respects Australia's First Nations people and their deep and abiding connection to this country. We recognise the Kabi Kabi people as the traditional owners of the lands and waters of the Noosa area and we pay respect to the Kabi Kabi elders who have come before us. We also pay respect to current and emerging leaders and their enduring commitment in pursuing a strong and healthy future for the First Nations people. Attendance, I'd like to welcome Mayor Wilkie, Deputy Mayor Brian Stockwell. in gallery, I'd like to acknowledge Councillor Karen Finzel. There is one apology, Councillor Tom Wegener is an apology for today. Presentation, there are no presentations, there's no deputations, so we'll go structure the reports. Minutes. Oh, excuse me. Confirmation minutes. Can I have a second? Thank you. No discussion, all in favour? Presentations, deputations, there are none. Item 5, reports for consideration of committee. We'll go straight to report 5.1, 51988.2770.02, application for Application for a minor change to a town planning consent for indoor entertainment and extension of an indoor entertainment at 31 Butler Street in Tewantin and I'll now move to Patrick if you would like to give us an overview or a summary or time thank you very much. Tara 01:56.187
Alright, so this application is seeking a minor change to the existing 1988 approval for the Netball Clubhouse at the Butler Street Sports Complex. So in 2020 Noosa Council endorsed the Noosa District Sports Complex. Plan which did include an upgrade to this facility. The existing Netball Clubhouse has had some flood damage previously and council is looking to widen the internal north-south road through the sports complex. So as a result the clubhouse will need to be relocated to make that widening available so the clubhouse is being relocated to the existing car park and then the car park will be reconstructed where the clubhouse is currently. So the applications come to council today because they are looking for a reduced fairly substantial setback. So the scheme requires 20 metres. They're looking for 6.9 to the McKinnon Drive frontage. So that's the main issue to discuss and the length of the building. So the planning scheme requires 15 metres as a maximum for a single wall length. The actual building is approximately 30. questions? Frank Wilkie 03:11.880
We're looking at giving this relaxation for the front boundary because in front of the boundary there's also quite a large road and the purpose of these boundary setbacks is so that any structure does not negatively impact on the road frontage. Are you saying because you have such an extensive extensive road reserve perhaps you can quantify how large that is that that impact is not an issue? Tara 03:43.499
So yeah you're correct so the McKinnon Drive road reserve is quite wide compared to what a normal road reserve is so the actual the actual setback, sorry, it's minimum 20. Richard MacGillivray 03:55.377
It's 22 metres. Yes, the road reserve is 20 metres. So it'll be set back approximately nearly 30 metres from the actual road edge. Yes. And then council also has a landscape plan to do do some landscaping across that frontage within the road reserve. Frank Wilkie 04:12.337
So it's quite a fair way back from the road. Correct. Because of the road reserve. Yes. And what are the plans for that road reserve? Tara 04:18.957
So we do have a, do you have that landscape plan? So we do have a landscape plan that has been provided by our communities team. Frank Wilkie 04:46.660
While we're waiting, just a question. If this is approved in this meeting round, how soon could the construction begin? Do you have any ideas? It's a much needed clubhouse upgrade. SPEAKER_04 05:03.315
We have, there's a contractor already engaged to start construction. I've been informed this morning that planning and building is already being submitted, pending the outcome of this approval. So the State appointed project managers are actually coordinating this project with two other projects in South East Queensland, and the other projects have already started. They would like to commence this as soon as possible. So as soon as we can get the construction contractor waiting for the road to go. Brian Stockwell 05:37.399
So is there a second page which takes the landscaping past where the setback on This compliance is all we've been provided at the moment, the car is? SPEAKER_04 05:48.754
Parks to the left, that's actually where it is, so that doesn't actually indicate where it really is. Tara 06:01.074
So this is the existing? This is existing, yeah. Brian Stockwell 06:05.974
Because the car park is... No, that's the new car parking layout. SPEAKER_04 06:15.360
That's the existing car parking layout. Yeah, the car park's... Richard MacGillivray 06:20.360
Oh, yeah, but an extra bay Brian Stockwell 06:22.940
Yeah okay, I'm with you, sorry. Richard MacGillivray 06:24.080
We haven't superimposed where the new building will be, but I guess... There's one less row of cars. Yeah, but you can see there's sufficient additional planting there to provide further screening, and we'll note in the report there is also a street view is in there 9 as well, so that's the existing landscaping shown, so this will be in addition to that as well, further planting will be undertaken as well, so there'll be... that buffers the northern elevation. Brian Stockwell 07:08.004
The eastern elevation is also what we might call plain. Is there any plans in any way to buffer that? It won't be that won't be that visible from the road, but when you come into the sports complex, it'll be not necessarily an appealing site going across the car park into what is just the rear door of a very long wall. Tara 07:30.846
So I guess the expectation of the community for what a clubhouse would look like, it's similar to what's existing at the moment. so in terms of articulation there is a ramp and some windows along that eastern facade there's limited availability to do any landscaping because it is on an existing hard stand area so obviously be additional works required to either dig up the existing carpark landscaping or planter boxes potentially but I think just in terms of what the structure is and what's existing I don't think that it would be out of the community's expectations for this design. Brian Stockwell 08:11.238
We try and it's our application and we're not doing a good job you know in terms of that's well it looks good to the course to the car park you know is that the standard we set for and I understand we're doing it for the netball I think we do need to do a bit more there were the only other thing I can think of is to break it up with a little little bit bit of, of as you say, low fencing planter boxes, something that takes away from looking at the back of the building, basically. Amelia Lorentson 08:42.656
From the car park? Yeah, from the main road in, the car park. It's just going to look like you're looking at the back of a long wall. Sort of wrap some of that landscaping around so that it sort of shelters the views. Brian Stockwell 08:54.876
Yeah, it's difficult to wrap the landscaping around from the side layout. I just think it's fairly easy fix to take some of the scale and bulk of it over, you know, like, we know we're doing it for the netball court, but we are approving an application by council that's got non-compliance. And one of the non-compliance is the length of the wall. So I think we need to look at it from a design perspective and say, well, what, how can this, without adding too much cost, improve the outlook? Frank Wilkie 09:24.984
And just a clarification, the clubhouse is to the west of that car park. This is the new layout. Amelia Lorentson 09:35.884
Tara, can I, excuse me, one person at a time, thank you. Tara, I'm referencing the performance outcome number 18 of the Recreation and Open Space Zone Code. So there's non-compliance with acceptable outcome number 18.1, but the application did comply with the corresponding performance outcome. So performance outcome initially and this sort of ties in with what Councillor Stockwell's referring to is that the buildings and structures are appropriately sited so as to provide, allow for landscaping and the retention of existing trees, help protect the natural character and visual amenity, maintain the open space. So wouldn't that support the argument that Councillor Stockwell is making? That we, given that we are relaxing, we're allowing some type of relaxation, there's still an obligation that, or requirement, that the area that the area is properly vegetated. Tara 10:40.414
So that's specific to the front setback so we are getting some vegetation through that front setback I think in terms of the eastern elevation. Figure 4 shows where it's actually located so in terms of getting additional landscaping to screen it, at the moment it is constrained because of the car park that's remaining. There's potential perhaps for some landscaping along the internal road but noting that that will be widened at some point so whether that would be able to remain long term, that's probably something that we can have a bit of a chat about and come back to. Amelia Lorentson 11:18.626
In terms of Noosa Council being the applicant, can you explain, my question is are there any additional measures that we put in place We put in place to ensure transparency and impartiality in this process. Richard MacGillivray 11:37.911
Part of the reason was we brought the application to council for consideration. Whilst officers could be within their delegations to make a decision in the abundance of caution and in the public interest, we brought this for full transparency and discussion by councillors. In terms of the point, I think there could be an opportunity for council to explore with the applicant further landscaping that could be conditioned potentially, particularly in the areas where there is some capacity where there's no arch down know there's a few gaps just on that figure four where you could get some clustering of vegetation there which could soften that appearance coming through off McKinnon Drive which might help soften the impact wind from the entry to McKinnon Drive into the site. Frank Wilkie 12:26.883
So if we move this to the general perhaps in the meantime some of those conditions can be added to the recommendation? Richard MacGillivray 12:35.483
Yes or even the landscaping plan could could be maybe modified or tweaked. And you've conditioned it on the landscaping? Because you've got a general condition about the landscaping plan that you've specified? Brian Stockwell 12:46.144
Yes. As I said, I don't want to put any roadblocks in front of progress, but we have to be very careful not to treat this any different to developer, you know, when we are the applicant. Frank Wilkie 13:02.864
I'll move it to Jen. Amelia Lorentson 13:05.624
Yep, I have another question, Tara. Regarding the landscaping works and the retention of trees under condition 25, I think it is, the removal of this vegetation is restricted to within three metres of the building footprint. My only question is how is that going to be managed? Tara 13:30.300
So we do condition around the retention of trees when construction is happening on site where they need to be protected. I'm not sure if that's included as a standard condition, I don't have the condition. I don't think I saw it, that's why I'm asking the question. Condition 27 is the outstanding condition for protecting trees that are to be retained. Fantastic. Amelia Lorentson 14:02.680
Mayor Wilkie, would you like to move to the general? I've moved it to the general, we just need a second chair. Patrick Murphy 14:10.400
Can I just, let me clarify, are you also seeing some changes to some changes to the building in terms of materiality or colour to soften it? Or is it just landscaping? I'd be looking at recommendations of what you think might be the best option that can effectively reduce the appearance of Baltham Square. We've viewed on the entrance coming off. There's a couple of spots, as you say, where you could do it. Perhaps have the part that hasn't got the ramp have a little bit of a fence to break up the height or something. Thank you, councillors. Richard MacGillivray 14:44.742
We can look at doing that and bringing that back. Fantastic. Amelia Lorentson 14:48.902
Any further No, thank you, Chair. All in favour? Thank you. We'll move now to item number 5.2, which which is application process. Application for a minor change to development approvals for a seafood kiosk at 185 Weyba Road in Noosaville. Again, I'll ask Patrick or and Tara if they could give us an overview of the I also note that this application is also moving to the general committee meeting because of the significance of the matter. Tara 15:26.378
Sure, so the applicant seeks to amend two existing approvals. A minor change minor change has been lodged for both approvals that were issued in the 80s, so they're approximately 40 years old. The applicant is seeking to convert the existing fish and chip shop to bakery. They're proposing to operate from 6:00am. to 5:00pm. Wednesday to Sunday with the potential to increase to seven days a week. They've advised that there will be five staff on site at a maximum at any one So they're also proposing that two bakers will be on site from 4:30am. and 5 o 'clock respectively and that front of house staff will be starting at 6:00am. and 7:30am. There'll also be a third staff member that will come in on busier days. There's deliveries that are proposed for three times per week after 8:00am. So the applicant advised that the residents of the dwelling that is on site will be the bakers as well so they will be living on site. At the moment they're proposing two car parks to the rear of the property which is existing already. No works are actually proposed to the building. The building will remain as is externally. There are some internal building works including an increase in the GFA to the kitchen. Other than the other major change at the moment is proposing on-site dining. So council officers are recommending refusal for this application noting that the original approval was for a kiosk which is a differently defined use. then a bakery under the scheme that was approved under so essentially they're introducing a new use to the to the approval and they're also increasing the impacts of the of the use by increasing sorry changing the operating hours starting much starting much earlier having people on site from 4:30am. proposing on-site dining from 6:00am. and also increasing the use area for the on-site dining and not providing any car parking on site for customers. So at the moment the recommendation is for refusal because the application is not considered a minor change it is considered another change and it's considered another change because of those increased impacts and the fact that the use is different to the use that was approved. Patrick Murphy 17:45.818
That's a very important, I suppose, gateway that the application needs to be moved through. to move through and be satisfied before you can consider the merits of the actual proposal. So if it's another change, it means that the application would require notification. That's a very important... That's a very important aspect in this whole consideration. Irrespective, even if it didn't require notification, it would still need to go through the right process, the other change process, but I think that's very important that we have members of the community. community that are not being afforded the right to view the application and make a submission, so that's again important to note that. Questions? Council? Thank you. So, interesting interesting one, one, this this is still zone residential. It's a medium density residential. It's in a medium density residential zone. It has these historic approvals, which were, did you get to the bottom of how they were issued in the first place? They were issued under, so it was under the 1973 scheme and they actually were recommended to be refused by officers per council. Frank Wilkie 19:00.981
Supported the application but notably didn't allow for on-site dining but it had to be taken away and so is the pivotal point of the staff recommendation is that it is not exchanging like for like, it is going from a seafood takeaway. Seafood takeaway to a patisserie which a lay person would see as just another food and drink outlet or commercial use but the change in hours from say mid-afternoon to early evening which the seafood takeaway operated under is now going to a start at 6am opening with the Thank With the potential to attract customers at a very early hour, potentially groups of cyclists and runners love patisseries after their morning run and that's that's likely to have an impact on the residential amenity and therefore it ought to be another change which would involve public notification to signal to that neighbourhood that this changes. change is proposed and they have input, have a say on the change. That's correct. Patrick Murphy 20:17.032
That's entirely correct. And to say it's just going from a seafood kiosk to a bakery is simplifying the impacts because it comes down to this technical assessment under the planning scheme and when the application was originally approved the kiosk was a refreshment... is a subset of a a subset of a refreshment service definition. The preparation of the baked goods fell under a service shop definition. So they're two completely uses and one of the things we have to look at with the minor change, one of the elements is, is it a substantially different development? And the first point there is, does it involve does it involve a new use? And yes, it does. And then some of those other matters that you were just talking about, Mayor, around the new impacts or increasing the severity of known impacts around noise and car parking. These are also another elements that will determine whether a change is a substantially different development. And we consider that there is an exacerbation of known impacts. And therefore it is it is a substantially different development doesn't make the minor change test. Frank Wilkie 21:33.103
So if if it was like the like so for example it was going to another from a seafood kiosk takeaway to another one that these applicants wanted to put another seafood takeaway similar operating hours that would be like the like and would be like-to-like and a minor change would be appropriate? Patrick Murphy 21:51.104
Well they would have their existing approval that they can rely on. So if they were going to operate in accordance with their existing approvals they could continue to do that. If they were going to make some minor changes to the internal arrangements of the approved plans then that's something that we could look at as a minor change. Frank Wilkie 22:08.865
Okay so because this new this new use has different operating hours the potential to impact on a residential neighbourhood it ought to be a other change and be publicly notified. That is correct. Thank you. Amelia Lorentson 22:21.425
In 1990 council resolved to register a caterers shop so the has an existing non-conforming Noosa as a caterers shop. Can you explain the definition of caterers shop under the 1985 Noosa Plan? And can you also define 2020 plan, the Noosa Plan? It seems like there's a history of definition so can you go back to caterers shop? Patrick Murphy 22:56.621
Yeah, I don't have the caterers shop definition handy. However, that was a registration of a non-conforming use. It wasn't an approval. It was just a registration. Council at that time has obviously decided to use that term but what that non-conforming use letters said was that it had to operate in accordance with the approvals and conditions that were issued under the TPCs. So it again it constrained it back to what had been approved by council. Amelia Lorentson 23:27.040
So I've got a copy of what the 1985 planning scheme defines catering shop and it says any premises used or intended for use for the preparation by cooking or otherwise of light refreshments takeaway meals or bread cakes or Richard MacGillivray 24:03.302
Performing use doesn't doesn't reassess an application for a very useful what's already approved and I think as Patrick alluded to the at the time when that registration was referred to obviously a definition similar to or nested approval that's existing that's functioning and it's lawful and it's captured on our register of non-conforming uses at the time so it doesn't just because it's registered with that terminology which is a broader nesting doesn't give it broader use rights and and clearly as the letter outlined it does refer back to what the actual lawful approval is for which is the seafood kiosk so I take the point that that terminology broader in nature but legally it doesn't authorise all of a sudden a cater shop can happen because it's just a registration of a lawful conforming use which is specifically the seafood kiosk and notably what we're dealing with is an application to amend approvals the TPC's that relate back to the kiosk use that letter letter that we sent, that register, that is, again, it's not an approval. Patrick Murphy 25:25.869
It's not something that can be amended. So, again, it's just an acknowledgement that there was, that use occurred on the site. Tara 25:33.989
I just add, when the application was originally lodged, it was lodged to amend the non-conforming use register. Through the process, it was communicated to the applicant that that wasn't an approval and that there was no way to amend Hence, they had to actually amend the approvals. So, essentially, it was just a list of uses that were existing that were lawful, that were non-conforming with designing at the time. So, the applicant applied to then amend the actual approvals, which is where those definitions sort of matter, I guess. Amelia Lorentson 26:07.070
Yes, the report notes are on the page. I'm just sort of blind. Okay, on page seven. That, page seven, yep. the applicant did not seek any advice from council on the proposal, either via a written advice or a pre-lodgement meeting prior to lodging the minor change application. education. We was told to us, and I've actually got some dates here, that 4th of May 2023, 5th of May 2023, 11th of May 2023, that the applicant did actually seek advice. I think they called planning. called planning, and they did seek advice as to what application was required to be lodged. They also called again and requested feedback on the application, and the advice that they were given was that it was a minor change, and they proceeded and paid the applications, understanding that it was a minor change. Is that correct? Well, there was no formal written advice provided. Patrick Murphy 27:33.598
There was no formal pre-lodgement meeting that occurred. We've become aware that our coordinator of planning did have some emails and conversations with the applicant. Now, those conversations were actually, it was stated that there were issues that wasn't clear. It was never advised to make a minor change and that was the right application. The coordinator was actually saying there's some real challenges with what you're looking to do here and it was the applicant that suggested you just put a minor change and then see how it ran through the process. So that's probably not accurate in terms of how it's been framed to you. I'd suggest that they were very informal discussions, there was no plans provided, there was no opportunity, there's no interrogation of the scheme definitions. It was quite a high level back and forward. Frank Wilkie 28:30.704
If I can just clarify what I heard, they said they made phone calls, but there was an acknowledgement that there wasn't any formal written advice or pre-lodgement meetings, so this statement is also correct. They did make contact via phone call, which was acknowledged yesterday, but not via... It's quite hard to provide advice, and as you're probably aware, there's a complex sort of element to this proposal, noting the... sort of approval, and you actually need to spend a fair bit of time, as Tara has, on this assessing and understanding the continuity of those approvals and the changes and all the history of that, and obviously from a phone call, very hard to provide a definitive response. provide a definitive response around a proposal without even plans or understanding the proposal in detail. The applicant has always had the opportunity to get something formal in writing through written advice, which is where a fair amount of work would have been required to provide that advice at that stage. Is that the correct application to proceed? But the applicant decided to decided to opt to lodge and be assessed as a minor change and that's obviously the path that's been ensued. And on the basis that what they actually lodged was an application to amend the non-conforming use rights letter. letter suggested to me that the deeper dive hadn't occurred at that point from the applicant around what approval was actually applied to the site and the process that was really needed to be undertaken. May I ask a question? You circulated some legal advice this morning from Council's lawyers. Can you summarise what it's saying? Patrick Murphy 30:17.252
So, in terms of some context, we received a letter from an applicant's lawyer back in January of year. We reviewed that letter and provided a written response in early February, mindful of the fact that this was coming to a Council meeting. We thought it was pertinent to... would present their legal argument we thought it was relevant for us to get our opinion interrogated and so we've done that the letter from the applicant is it's it takes an approach where it seems to be saying going back to the actual land uses and then the transitional provisions through different forms of legislation and how those approvals and definitions have been transferred to the current day they're almost saying well it's really a food and drink outlet and we kind of If it is a food and drink outlet, we can just undertake this use. It's sort of unstated, that position. And that's not correct because it ignores the fact that there are approvals that have been applied to the land. that those approvals have continuing force and effect. And that so do the conditions of the approval. And I think that was part of their argument as well, was that the conditions actually fell away. And so the advice is that that's not the case, that those approvals have force and effect. A copy of the officer's report was also provided to our lawyer and, you know, sought advice as to whether we were correct in terms terms of our assertion that it was not a minor change and the response was that it looked at how we came to that position and it said our conclusion in that regard was uncontroversial. So it was supporting our approach in that regard. It even made comment that it supported a refusal of the proposed. Frank Wilkie 32:22.604
And that another change application is more appropriate? Well, yeah, by virtue of the fact that our conclusion that it's not a minor change, that it was uncontroversial, therefore it would need to be another change. Amelia Lorentson 32:34.113
Can I ask, legal advice is legal opinion, and I think the applicant also has legal advice and, again, legal opinion. So, what I'm saying is... it can be debated, the opinion. Patrick Murphy 32:59.974
And I know that the advice that we've received has been received by a legal... you know, a solicitor who represents us in the Planning and Environment Court and has certainly Yeah, I think it's important to highlight we recently... so notwithstanding, as Patrick said, the advice provided in response to their original legal advice, officers were very comfortable that they disagreed with that advice and gave stated reasons why they had that view. We took an extra additional step recently and sought independent legal advice just to validate again our position our position and reasoning, and that advice has come back supporting officers' reasons that it is substantially different development and is not a minor change, and also one step further supporting the recommendation for refusal. So we took that took that extra step to provide an additional opinion beyond officers' view around that. Take your point, advice is advice, but we wanted an independent piece of advice regarding how we've come to that conclusion and the legal elements that apply to... test that's required. Brian Stockwell 34:23.200
On the way here, I was thinking about the various transitions that's been made and the various representations made. I think we're four legislations later from when the original approval was. I think the lawful non-conforming use register came into the Sustainable Planning Act, which came into memory early 1990 or late '89. on. Lawful non-conforming uses, as you stated, they are specific to exactly what's there at the moment. It's not a, well, that is defined as this and you can have anything that's defined as that. That was really clear at the time. Then the question is, when, if that approval, has that approval lapsed and whether the use Yeah. And this was probably important about what the next steps are, because if the use has been abandoned, then it's clear it's a, it's a full new mature change of use. I just like for general to have a look at that. Particularly from the case that we've heard that at some stage the use did transfer to another use, which was providing sit down seating to eat your meal there. at the time that that unapproved use commenced, did they abandon the approved use? So at the Peace. So if you can have a look at that before the general, that would be good. Amelia Lorentson 35:40.156
Would you take into consideration the fact that the application was lodged in 2023, so you couldn't consider an abandonment of use if an use if an application's been stuck in council waiting for approval. That's a fair point. The question is about whether it was abandoned at the time that a new use commenced, and just because a new use wasn't approved, I don't know the answer to that. So that's a general question. We're happy to explore that. think on the face of it, the, you know, this is a form of the view that the existing use hasn't been abandoned, notwithstanding we're assessing an application, you know, for a different use, but we can look at that further and come back with Frank Wilkie 36:40.069
The applicant was saying that if there was a concern about sound escaping, they would consider soundproofing the front area. What implications would that have if they were to soundproof Tara 37:00.338
From a planning scheme perspective, it's increasing the GFA, so we need to look at plot ratio and things like that, which haven't really been assessed. there's no proposed changes to the existing building, so I'm not sure whether that would potentially tip them over the allowances in the scheme for plot ratio, but something to have a look at. Patrick Murphy 37:20.186
And there'd also be an element of setback, because there should be a six metre setback, whilst acknowledging it is existing, if that was a solid place at the front. Place at the front, it certainly is contrary to the scheme's streetscape outcomes. Amelia Lorentson 37:38.064
In terms of higher intensity of use and greater impact, impacts that a bakery is going to have, this is one of the arguments in the report. Has there been any discussions with the neighbours? Again, we were there yesterday and the joining of Adjoining the bakery will be the baker and his wife and then I think the South Pacific's to your right and there's residential on your left. Has there been any any discussions and can I, if not, can I request, can council speak to the neighbours? Is that possible before ordinary meetings? It's not really appropriate for us officers to be engaging with, I mean the applicants, you know, most workers, I mean the applicants, you know, most workers, I mean the applicants, you know, most Richard MacGillivray 38:45.980
Change at this stage, so we're assessing the material that's provided to us. As Patrick alluded to, our view is that it should be another change or a new impact accessible application, which would require public notification, so we would receive formal submissions through that process, which would be the normal way of seeking community feedback on a proposal. Amelia Lorentson 39:06.200
Any further questions questions from the floor? No? From the floor, no? Okay. I'll move that this report goes to the general meeting due to the significance of the issue. Can I have a second, please? Thank you. All those, any further discussion? All those in favour? Great. So... Thank you, Tara. Thank you, Tara. Thank you, Patrick. Thank you, Richard. So, we're up to now item 6, reports for noting by the committee. 6.1, planning applications decided by delegated authority, July 2024. I'm going to go back to Confidential session. We're now... Oh, excuse me. Sorry, excuse me. Can I have a mover and a seconder for 6.1? Frank Wilkie 40:05.338
I'll move it, Madam Chair. Amelia Lorentson 40:06.618
Thank you, seconder. Councillor Stockwell, no discussion. All in favour? Thank you. There are no confidential sessions and I now declare the meeting closed at 10.13am. Related Noosa Council Meetings
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