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 begin by an Acknowledgement of Country. Noosa Council proudly acknowledges and respects Australia's First Nations people and their deep and abiding connection to this country. The Kabi Kabi People as the Traditional Custodians of the lands and waters of the Noosa area and we pay respect to the Kabi Kabi Elders who have come before us. Also pay respect to current and emerging leaders and their enduring commitment in pursuing a strong and healthy future for the First Nations people. Mayor, Brian Stockwell. In the gallery, like to acknowledge Councillor Karen Finzel. There is one apology, Councillor Tom Wegener is an apology for today. Presentation, there no deputations, so we'll go straight to the request of, excuse me, of confirmation of minutes. Can I have a second? Thank you. No discussion, all in favour? Presentations, deputations, there are none. Item 5, Reports for consideration of the Committee. We'll go straight to report 5.1, 51988.2770.02, application for minor change to a town planning consent or indoor entertainment, an 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 summary or time. Very much. 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 Master 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 has been relocated to the existing car park and then the car park will be reconstructed where the clubhouse is currently. Applications come to Council today because they are looking for a reduced, fairly substantial reduced 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 planning. Scheme requires 15 metres as a maximum for a single wall length the actual building is approximately 30. SPEAKER_02 03:05.890
So any questions? Frank Wilkie 03:11.350
We're looking at giving this relaxation for the front boundary because in front of the boundary there's also quite large road reserve and the purpose of these boundary setbacks is so that any structure does not negatively impact on the road frontage. Are you saying that because there's such an extensive road reserve perhaps you can quantify how large that is that impact is. Not an issue here? Amelia Lorentson 03:43.401
Sure so yeah you're correct so the McKinnon Drive road reserve is quite wide compared to what a normal so the actual setback sorry it's a minimum 20 it's yes the road way back from the road because of the road reserve and what are the plans for that road reserve? Do you have that landscape plan? So we do have a landscape plan that has been provided by our communities team. Frank Wilkie 04:46.800
What we're wanting, 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. Sara 05:00.360
Do you want me to respond to that? Soon as 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, ending the outcome of this approval. So the State appointed project managers are actually coordinating this South East Queensland and a lot of projects have already started that would want to commit to this as soon as possible. Brian Stockwell 05:37.114
So we can get the construction contractor waiting so which takes the landscaping past where the setback non-compliance is? Sara 05:44.414
This is all we've been provided at the moment. Can you imagine what that no, that, the, in context to the, let's do you say, the car parks to the left? That's actually where it is. Sorry, that doesn't actually indicate So this is the existing? This is existing, yeah. Brian Stockwell 06:04.824
Oh, okay. Because the car park is No, that's the Newton car parking area. That's what it looks like. Amelia Lorentson 06:15.494
That's the existing car parking area. Richard MacGillivray 06:18.014
Yeah the car park's- Oh yes, but an extra bay, yeah. Okay, I'm with you. Sorry. We haven't superimposed where the new building would be, but I guess- There's one less row of cars. Yeah. But you can see there's sufficient for additional planting there to provide further screening and we'll note in the report there is also a street view is in there. 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 limited vistas I guess of the structure as such particularly viewed from the street. Brian Stockwell 07:04.124
So that buffers the northern elevation. The eastern elevation is also what we might call plain which by there any plans way to buffer that it's mainly won't be that visible from the road but when you come into the sports complex it'll be a not necessarily an appealing site going across the car park into what is just the rear door of a very long wall. Amelia Lorentson 07:29.766
So I guess the expectation is that 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 is on an existing hard stand area so obviously be additional works required to either dig up the existing car park landscaping or planter boxes potentially but I think just in terms of what the structure is and what's existing I don't think I that it would be out of the community's expectations for this design Brian Stockwell 08:10.418
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 for, and I understand we're doing it for the netball I think we do need to do a bit more there with it the only other thing I can think of is to break it up as a little bit of as you say low fencing planter boxes something that takes away from looking at the back of the building basically from the car parts yeah from the main road in the car park yeah it's just going to look like that you're long wall so wrap some of that landscaping around so that it sort of shelters the views it is difficult to wrap the landscaping around from the side layout, but I just think it is 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 it'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 09:25.188
Yeah and just a clarification there is a the clubhouse is to the west of that car park this is the new layout look excuse me one person at a time Amelia Lorentson 09:39.149
Thank you um Sara um I'm referencing the performance outcome number 18 of the Recreation and Open Space Zone Code so there's non-compliance acceptable outcome number 18.1 but the application did comply with the corresponding performance outcome so performance outcome 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 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 if you're allowing some type of relaxation, there's still an opportunity obligation that or a requirement that the area is properly vegetated so that's specific to the front setback so we are getting some vegetation through that front setback I think in terms eastern elevation we 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 will be widened at some point whether that would be able to remain long term that's probably something that we can have a chat about and come back to Councillors with maybe some additional conditions. In terms of Noosa Council being the applicant, can you explain, my question is are there any additional measures that we put in place to ensure transparency and impartiality this process? Space? Richard MacGillivray 11:37.500
Part of is 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 hardstand there. I know this is a few gaps just on that Figure 4 where you could get some clustering of vegetation there. Could soften that appearance coming through off McKinnon Drive, which might help soften the impact when viewed from the entry to McKinnon Drive and to the site. Frank Wilkie 12:27.670
If we move this the general, perhaps in the meantime some of those conditions can be yes. Richard MacGillivray 12:33.668
Added to the recommendation. Yes, or even the landscaping plan could be maybe modified or tweaked. Brian Stockwell 12:40.868
In the condition of the landscaping, because you've got a general condition of that landscaping plan that you've specified. Yes. Yeah, yeah. 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 how we would any other developer when we are the applicant. I'll move it to general. Amelia Lorentson 13:05.731
Yep, I have another question, Sara. Regarding 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 that going to be managed? SPEAKER_02 13:30.288
So we do have a standard 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 think I saw Amelia Lorentson 13:44.430
Saw it. That's why I'm asking the question again. Condition 27 is the outstanding condition for protecting trees that are to be retained. Fantastic. Frank Wilkie 14:04.813
I've moved it to the Chair. Patrick Murphy 14:07.912
Are you also seeing some changes to the building in terms of materiality or colour to soften it? Or is it just landscaping? Brian Stockwell 14:21.252
I'd be looking at recommendations of what you think might be the best option that can effectively. Reduce When viewed on the entrance, can balkan appear on the other side? There's a couple of spots, as you say, where you could do it. You could perhaps have the part that hasn't got the ramp have a little bit of a fence to break up the height or something yeah okay that's it Richard MacGillivray 14:42.960
Thank you Councillors we can look doing that and bringing that back at general. Amelia Lorentson 14:48.402
Fantastic. Any further discussion or questions? All in favour? Thank you. Move now to item number 5.2 which is application for minor change to development approvals for seafood kiosk at 185 Weyba Road in Noosaville. From again on I'll ask Patrick or Tamara if they could give us an overview of the application in front of us. I also note that this application is also moving to the General Committee Meeting because of the significance of the matter. Sure, so the applicant seeks to amend two existing approvals. A 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 a bakery. They're proposing 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 time. So they're also proposing that two bakers will be on site from 4:30am. And 5 o'clock respectively and that SPEAKER_02 16:07.623
Front of the house staff. Will be starting at 6:00am. And 7:30am. There will also be third staff member that will come in on busier days. There's deliveries that are proposed for three times per week. So the applicant has advised that the residents of the dwelling that is on site will be the bakers as well, so they will be living site. At the moment, they're proposing parks to the rear of the property, which is existing already. No works are actually proposed to the building. Will remain as is externally. There are some internal building works, including an increase in the GFA to the kitchen. Other than that, 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 than a bakery under the scheme. That it was approved essentially, they're introducing a new use to the approval, and they're also increasing the impacts of the use by increasing, sorry, changing the operating hours, starting much earlier, having people on-site from 4:30am, proposing on-site dining from 6am, and also increasing the use area for the on 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 an other change because of those increased impacts and the fact that the use is different was approved. Patrick Murphy 17:45.454
Yes, that's a very important, I suppose, gateway that the application needs to be moved 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 aspect in this whole consideration. 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 that are not being afforded the right to view the application and make a submission. So that's, again, important to note that. Frank Wilkie 18:34.770
So, interesting an one, this is a site of its own, still its own residential? Yes. It's a medium density residential. It's in zone. It has these historic approvals which were. Did you get to the bottom of how they were issued in the first Patrick Murphy 18:51.933
Place? They were issued under. So it was under the 1973 scheme and they actually were recommended to be refused by officers who Council supported the application, notably didn't allow for on-site dining but it had to be taken away Frank Wilkie 19:09.406
And so is this the pivotal point of the staff recommendation is that it is not exchanging like for it is going from a seafood and tech wine. 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 early evening which the seafood takeaway operated under is now going to a start with 6am opening with the potential to attract customers very early hour. Potentially groups of cyclists and runners love patisseries after their morning run and so on and 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 change is proposed. They have input have a say on the change. That's correct. Patrick Murphy 20:17.048
That's entirely correct and to say it's just going from a seafood kiosk to a bakery is almost oversimplifying impacts because it comes down to this technical assessment under the planning scheme and when the application was originally approved the kiosk was a refreshments that is a subset of a refreshment service definition the service 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 it a substantially different development and the First Point there is does it involve a new use and yes it does and then though and then some of those other matters you were just talking about around the new impacts or increasing the severity of known impacts around potential 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 doesn't make the minor change test Frank Wilkie 21:32.850
So if it was like the so for example it was going to another from seafood kiosk takeaway to another one that these applicants wanted to put another seafood that-like and a minor change would be appropriate Patrick Murphy 21:50.575
Well they would have their existing approval that they would need to yeah so if they were going to operate in accordance with their existing approvals they could continue to do that okay make some minor changes to the internal arrangements or of the approved plans and that's something we could look at as a minor change but Frank Wilkie 22:08.931
Okay so because 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 22:21.231
In 1990 Council resolved to register a Caterer's Shop so the existing site has an existing non-conforming use as a Caterer's Shop can you explain the definition of Caterer's Shop under the 1985 Noosa Plan and can you also define um 2020 plan the Noosa Plan this seems like there's a history of definition so you can go back to Caterer's Shop Patrick Murphy 22:56.443
Yeah I don't have the caterer 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 like 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 23:27.122
So I've got a copy of what the 1985 Planning Scheme defines catering shop and it says any premises intended for use for the preparation by cooking or otherwise of light refreshments, takeaway meals or bread, cakes or pastry and the supply of such on sale to the public for consumption. Richard MacGillivray 24:03.163
Conforming use doesn't reassess an application for varied use from what's already approved and I think as Patrick alluded to, at the time when the registration was referred to, obviously a definition similar to or nested with what the approval use was referenced in that register, that doesn't authorise a approval all of a sudden becomes broader than what it actually was for, it's just the registration that there's an approval that's existing, 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 clearly as the letter outlined, it does refer back to what the actual lawful approval was for, which is the seafood kiosk. So I take the point that terminology is 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. Patrick Murphy 25:12.858
And notably what we're dealing with is an application to amend approvals, the TPCs, that relate back to kiosk use. That letter that we sent, that register, that is, again, it's not an approval, it's not something that can be amended. So, again, it's just an acknowledgement that there was, that use occurred on the site. Amelia Lorentson 25:34.015
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 wasn't an approval and that there to amend that MCU, and that they had to actually amend the approval. Essentially, it was just a list of uses that were existing that were lawful, that were non-conforming with the zoning at the time. The applicant applied to then amend actual approvals, which is where those definitions matter, I guess. The report notes are on the page. Okay. I'm so blind. Okay. On page seven. Yeah. The applicant did not seek any advice from Council on the proposal, either via a written advice or pre-lodgement meeting prior to lodging the minor change application. We met with the applicants myself and Mayor Wilkie applicant yesterday, and appears that what was told to us, and I've actually got some dates here, that 4th of May, 2023, 5th 11th that the applicant did actually seek advice. They, I think they 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 Is that correct? Patrick Murphy 27:30.493
Well, there was no formal written advice provided. 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. Was stated that there was issues, it 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. 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, opportunity, interrogation of the scheme definitions or anything like that. It was quite a high level back and forth. Frank Wilkie 28:29.742
Heard, if I can just 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 pre-lodgement-- it's quite Richard MacGillivray 28:52.689
Hard to provide advice, and as you're probably aware, there's complex sort of element to this proposal, noting the historical sort of approval, and you actually need to spend a fair bit of time, as Sara has on this, assessing and understanding the continuity those approvals in and the changes and all the history of that, and obviously from a phone call, very hard to provide a definitive response around a proposal without even plans or understanding the proposal in detail. The applicant, as I said, 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 opt. Lodge and be assessed, you know, as a minor change and that's obviously the path that's been ensued. Patrick Murphy 29:41.370
And on the basis that what they actually lodged was an application to amend the non-conforming use rights letter suggested me that the deeper dive day. 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. Frank Wilkie 30:01.186
May I ask a question, Madam Chair? You circulated some legal advice this morning from council's lawyers. Amelia Lorentson 30:08.646
Can you summarise what it's saying. Patrick Murphy 30:16.874
So, in terms of some context, we received a letter from an applicant's lawyer back in January of this 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 and likely that the applicant would present their legal argument relevant for us to get our opinion interrogated. And so we've done that. The letter from the applicant is, 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 to current day they're almost saying well it's really a food and drink outlet and we kind of don't need you know we this is if it is a food drink outlet we can just undertake this use it's sort of unstated that position and that's not correct because it ignores the facts that there are approvals that have been applied to the land and that those approvals have continuing force and effect and that so did 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 not the case that those approvals continue to have force and effect a copy was also provided to our lawyer and you know sought advice as to whether we were correct in 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 we're supporting our approach It even made comment that it supported a refusal of the proposed. And another change application is more appropriate well, by virtue of the fact that our conclusion that it's not a minor change, that was uncontroversial, therefore it would need to be another change. Amelia Lorentson 32:36.283
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. It the opinion. Patrick Murphy 33:00.008
And I know the advice that we've received has been received by a legal, you know, a solicitor who represents us in the planning. An environment court and it's certainly done Richard MacGillivray 33:16.093
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. 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 extra step to provide an additional opinion beyond officers view around that. Take your point, advice is but we wanted an independent piece of advice regarding how we come to that conclusion and the legal elements that apply to that test that's required. Brian Stockwell 34:22.376
Question. On the way here I was thinking about the various transitions that's been made and the various representations made. I think that four legislations later from when the original approval was, I think the lawful non-conforming use register came in with the sustainable Planning Act that came in memory early 1990 or late '89. Lawful non-conforming uses as you stated, they are specific to exactly what's there at moment. It's not a well that is defined as this and you can have anything that's defined as 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 what's probably important about what the next steps are because if the use has been abandoned then it's clear a full new mutton sugar change use. I'd 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 so at the time that unapproved use commenced did they abandoned the approved use so if you can have a look at that general that would be Amelia Lorentson 35:37.825
Good would you take into consideration the fact that the application was lodged in 2023 so you'd have to have you couldn't consider abandonment of use if an application's been stuck in Council waiting for approval. That's fair point. Brian Stockwell 35:57.417
The question is about whether it was abandoned at the time that a new use commenced just because wasn't approved. I don't know the answer to that. So that's a general question. Richard MacGillivray 36:10.229
We're happy to explore that. I 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 some further advice in general around the specifics, particularly the changes you're suggesting. Does that constitute abandonment? Frank Wilkie 36:33.418
In discussions yesterday, the front area is not enclosed. The applicant was saying that if they were concerned about sound escaping, they would consider soundproofing the front area. What implications would that have if they were to soundproof, enclose and soundproof the front area, the annex? Amelia Lorentson 37:00.186
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 at this point because there's no proposed changes to the existing building so I'm not sure whether that would potentially them over allowances in the scheme for plot ratio but something to have a look at SPEAKER_05_b 37:20.058
And there'd also be an element of setback because there should be a six metre setback that whilst acknowledging it is existing if that was a solid place at the front it certainly is contrary to the scheme's streetscape outcomes. Amelia Lorentson 37:39.530
In terms of higher intensity of use and greater impacts that a bakery is going to have is one of the arguments in the report. Has there been any discussions with the neighbours? Again we were there yesterday and adjoining the bakery will be the Baker and his wife and then I think the South Pacific to your right. And there's residential on your left. Has there been any discussions and can I if not can I request can Council speak to the neighbours? Is that possible before all the remaining Richard MacGillivray 38:21.580
Votes. Not really a problem. Appropriate for us to officers being engaging with I mean the applicants you know most welcome to engage with the residences they choose to do so but not really appropriate for the staff to be doing separate engagement with neighbouring properties that's the. But the applicant can. Yeah absolutely they team out I mean at the end of the day we're dealing with this as I guess a minor 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 assessable 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 39:05.775
Any further questions from the floor? I'll move that this report goes to the General Committee due to the significance of the issue. Can have a second, please? Thank you. All those, any further discussion, please? All those in favour? Thank you, Sara. Thank you, Tamara. Thank you, Patrick. Thank you, Richard. So we're up to six, reports for noting by the committee. 6.1, planning applications decided by delegated authority, July 2024. Confidential session. We're now. Oh, excuse me, we need. Sorry, excuse me. Can I have a mover and a seconder for 6.1? I'll move it, Madam Chair. 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. It's close to a record, Madam Chair. Sorry, Related Noosa Council Meetings
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