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 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 00:00.040
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 Country. Noosa Council 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. 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. Attendants, I'd like to welcome Mayor Wilkie, Deputy Mayor Brian Stockwell. In the gallery, I'd like to acknowledge Councillor Karen Finzel. There is. Apology. One apology. Councillor Tom Wegener is an apology for today. Presentation, there are no presentations. There's no deputations. So we'll go straight to the. Oh, excuse me. Confirmation of minutes. Can I have a minute and a second? Thank you. No discussion. All in favour? Presentations, deputations, there are none. Item five, reports. For consideration of the committee. We'll go straight to report 5.1, 5 51988.27.2770.02, application for a minor change to a town for 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 a summary or time. Tamara 01:57.660
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 so the 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. Scheme applies 15 metres as a maximum for a single wall length the actual building is approximately 30 so any questions Frank Wilkie 03:08.412
They were we're would look looking at giving this relaxation for the front boundary because in front of the boundary there's also quite a large road reserve and the purpose of these boundary setbacks is so that any structure does not negatively impact on the 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. Tamara 03:43.561
Sure. 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 setback, back, I don't, it's sorry, it's a minimum 20. It's 22 metres, I think, isn't it? 22 Metres, yes. The road reserve is 20 metres, so it'll be set back approximately nearly 30 metres from the actual road edge, and then Council also has a landscape plan to do some landscaping across that frontage within the road reserve. Frank Wilkie 04:12.648
So it's quite a fair way back. What the are the plans for that rate reserve Tamara 04:18.251
So we do have a landscape plan that has been provided um by our communities team Frank Wilkie 04:47.162
While we're waiting just a question if this is approved in this meeting about how soon could the construction begin it's a much-needed clubhouse upgrade yeah as Patrick Murphy 05:03.126
Soon contractor already engaged to start construction I've been informed this morning that planning and building of the original is already being submitted ending the outcome of the disapproval so the State appointed project managers are actually coordinating this two other projects in South East Queensland and a lot of projects have already started that would like to commit to this as soon as possible. So as soon as we can get the construction contractor waiting for the word to go. Brian Stockwell 05:37.635
So is there a second page which takes the landscaping past where the setback non-compliance is? Tamara 05:44.650
This is all we've been provided at the moment. Is to the left? That's actually where it is? Sorry, it doesn't actually indicate where it is? So this is the existing? Frank Wilkie 06:03.285
Is existing, yeah. Oh, okay. Because the car park is. No, that's the new car parking area, that's how it looks. That's the existing car parking area. Richard MacGillivray 06:18.234
Yeah, the car park's. Oh, yeah, but an extra bay, yeah, okay, I'm with you, sorry. We haven't superimposed the new building in B, but I guess. One less row of cars. 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 from the street Brian Stockwell 07:04.497
So that buffers the northern eastern elevation is also what we might call plain which by the there any plans in any way to buffer that it's mainly it 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 so Tamara 07:31.224
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 not an existing hardstand area so there will obviously be additional works required to either dig up the existing car park to do 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 08:11.284
Yeah 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 we set is that the standard set 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 looking at the back of the long wall so wrap some of that Richard MacGillivray 08:52.032
Landscaping around so that it sort of shelters the views it Brian Stockwell 08:55.395
Is difficult to wrap the landscaping around from the site layout but I just side um but think fairly 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 it's got non-compliance and one of the non-compliance is the length of the wall so I think we need so 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 09:25.719
Yeah and just a clarification there is a the clubhouse is to the west of that car park this is the new layout Amelia Lorentson 09:35.469
Excuse me one person at a time thank you um tara 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 allowing some type of relaxation, there's opportunity there's still an obligation that or a requirement that the area is properly vegetated Tamara 10:40.754
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. 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 so 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 terms of, when you say what with do maybe you some mean additional by conditions. Amelia Lorentson 11:19.097
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 in this process? What do you use for our space? Richard MacGillivray 11:38.466
We're region. Part of reason the 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 which 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 12:27.539
We move so if this to the perhaps in the meantime some of those conditions can be added to the recommendation. Richard MacGillivray 12:35.729
Yes, or even the landscaping plan could be maybe modified or tweaked. Brian Stockwell 12:41.249
In the condition of the landscaping, because you've got a general condition about landscaping plans that you've specified. 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- Yeah. Applicant. I'll move it to general. Amelia Lorentson 13:05.731
Yep, I have another question, tara. 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. Only question is one of the questions how is that going to be managed? Tamara 13:30.871
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 condition. I don't think I 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. Amelia Lorentson 14:02.150
Fantastic, Leah Mayor Wilkie would like to move. Frank Wilkie 14:05.116
I've moved it to- we just need a second and a chance. Patrick Murphy 14:11.013
Can I just clarify, are you also seeing 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 what you think might be the best option that can effectively reduce the appearance of bulk and scale. Richard MacGillivray 14:34.290
There's a couple of spots as you say where you could do it and 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. Thank you, Councillors. We can look at doing that and bringing that back at general. Amelia Lorentson 14:48.543
Fantastic. Any further discussion or questions? No, all in favour? Thank you. Move now to item number 5.2, which is application for a minor change to development approvals for a seafood kiosk at 185 Weyba Road in Noosaville. From again, I'll ask again, 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. Tamara 15:26.600
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 to 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 front of the house staff. Will be starting at 6:00am. And 7:30am. There will also be a third staff member that will come in on busier days. There's deliveries of proposals. That are proposed for three times per week after 8:00am. 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 on site. 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. Will remain as is externally. There are some internal building works, including an increase in the GFA to the kitchen. Than that, 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 than a bakery under the scheme. That it was approved under. 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 17:46.062
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 18:37.211
Is still his own record. Zone residential? Yes. 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 Patrick Murphy 18:52.147
Place? They were issued under. So it was under the 1973 scheme and they actually were recommended to be refused by officers Council the application, but notably didn't for allow for on-site dining but it had to be taken away Frank Wilkie 19:09.573
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 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-April. Afternoon to early evening, which the seafood takeaway operated under, is now going to a start with 6am opening with the potential to attract customers at a 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. And they have input have a say on the change. That's correct. Patrick Murphy 20:16.834
That's entirely correct and to say it's just going from a seafood kiosk to a bakery is almost oversimplifying 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 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 will increase 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 a substantially different development doesn't make the minor change test so Frank Wilkie 21:33.853
If it was like the so for example it was going to another from a seafood kiosk takeaway to another one that these applicants wanted to put another seafood-through there, similar operating takeaway similar operating hours that would be like- and a minor change would be appropriate Patrick Murphy 21:51.559
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 if they were going to make some minor changes to the internal arrangements or of the approved plans and that's something that we could look at as a minor change but Frank Wilkie 22:09.658
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 Amelia Lorentson 22:21.028
Thank you in 1990 Council resolved to register a catering 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 22:56.717
Yeah I don't have the caterer 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 like 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 23:27.794
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 pastry and the supply of such on sale to the public for consumption. Richard MacGillivray 24:03.303
Conforming use doesn't reassess an application for a 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 be becomes broader than what it actually was for, it's just the registration that there's an 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 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 25:13.593
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. Tamara 25:34.176
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 the actual approvals, which is where those definitions matter, I guess. Amelia Lorentson 26:08.275
The report notes, I think, are on the page. Thank you. Conforming use. I'm so blind. Okay. On page seven. Yeah. That 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. We met with the applicants, myself and Mayor Wilkie met with the applicants yesterday and it appears that what 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 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 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? Patrick Murphy 27:30.514
Well, there was no formal written advice provided. 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 issues, that 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. 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 was no interrogation of the scheme definitions or anything like that. It was quite a high level back and forth. Frank Wilkie 28:31.214
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. I my for they did make contact via phone call, which was acknowledged yesterday, but not via pre-lodgement-- Richard MacGillivray 28:52.496
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 historical 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 approaches. Approvals 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. 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 with is that the correct application to proceed, but the applicant decided to opt to lodge and be assessed, you know, as a minor change and that's obviously the path that's been ensued, so. Patrick Murphy 29:42.399
And on the basis that what they actually lodged was an application to amend the non-conforming use rights letter, suggested to me that the deeper dive hadn't occurred that 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 30:01.730
May I ask a question? Mayor, question matter 10. You circulated some legal advice this morning from council's lawyers. Can you summarise what it's saying? It's 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, 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, 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 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 facts that there are approvals that have been applied to the land, and 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 not the case, that those approvals continue to have force and effect. A copy of the officer report was also provided to our lawyer and sought advice as to whether you know, sought we were correct in terms of our assertion that it was not a minor change. And the response 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 32:22.710
And that another change application is more appropriate Patrick Murphy 32:27.301
Yeah yeah, by virtue of the fact that our conclusion that it's not a minor change, that was uncontroversial, that therefore it would need to be another change or in the flow from before it flows from that. Amelia Lorentson 32:38.827
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 32:59.555
I don't 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 has certainly done it. Richard MacGillivray 33:15.972
I think it's important to highlight where we you 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 one recommendation. Step further supporting the recommendation. For refusal. 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 34:23.841
Question. On the way here I was thinking about the various transitions that's been and the various representations made I think the formal letter 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 the 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 it's a full have new mature change of use. I just like for general 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 before the general. Amelia Lorentson 35:37.486
Before that would be good would him to kiss it? 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. Brian Stockwell 35:56.726
That's a fair point. The question is about whether it was abandoned at the time that a new use commenced just because a new use wasn't approved. I don't know the answer to that. So that's a general question. Richard MacGillivray 36:10.329
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 36:34.121
In discussions yesterday, the front area is not enclosed. And 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? Tamara 36:58.874
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 the allowances in the scheme for plot ratio, but something to have a look at. Patrick Murphy 37:20.685
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 37:40.693
In terms of higher intensity of use and greater impacts that a bakery is going to have, one of the arguments in the report. 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 ordinary meetings? Richard MacGillivray 38:21.744
No, it's not really appropriate for us officers being engaging with, I mean, the applicants, you know, most welcome to engage with the residents as they choose to do so, but not really appropriate for staff to be doing separate engagement with neighbouring properties. That's the applicants. But the applicant can reach out? Yeah, absolutely. Out absolutely they can reach 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 39:07.036
Any further questions from the floor? No. I'll move that this report goes to the General Committee due to the significance of the issue. Can I have a second please? Thank you. All those, any further discussion? All those in favour? Thank you tara. Thank you Tamara, thank you Patrick, thank you Richard. So we're up to 6, 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. Related Noosa Council Meetings
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