In brief

The case of Andema Pty Ltd v Noosa Shire Council [2020] QPEC 46 concerned an appeal to the Planning and Environment Court (Court) against the decision of the Noosa Shire Council (Council) to refuse a development application for a material change of use of a single‑storey vacant grocery store facility into a three-storey mixed use retail, office, and commercial facility (Development Application), in respect of land at Peregian Beach (Site).

The Council carried out a code assessment and determined that the proposed development would result in unacceptable visual, design, and traffic impacts, and was non-compliant with the relevant assessment benchmarks in the Eastern Beaches Locality Code of the Noosa Plan 2006 Version No. 9 (Planning Scheme) because of the excessive bulk and scale of the proposed development.

The Court considered the following issues in assessing the Development Application under section 45(3) of the Planning Act 2016 and section 45 and section 46 of the Planning and Environment Court Act 2016:

Issue 1 – whether the built form of the proposed development is inappropriate.

Issue 2 – whether the proposed development provides sufficient car parks.

The Court observed that Issue 1 was required to be decided by reference to the whole of the proposed development considered in its relevant context, including the extent of the built form that will be visible to and impact on public space.

The Court held that the minimal punctuations in the solid form of the first level and the rooftop of the proposed development would create an impression of a "box-like structure” looming over the street, which would visually dominate the street, adjacent properties, and surrounding spaces.

In respect of Issue 2, the Court held that conditions could be imposed, such as a condition which limited the hours of use of the proposed rooftop bar in order to achieve compliance with the car parking requirements in the Planning Scheme.

The Court dismissed the appeal for the reason that the non-compliance with the built form requirements of the Planning Scheme were material and could not be complied with by the imposition of conditions.

Prior development approval over the Site

The Council granted a prior development approval over the Site in 2012 (Prior Approval), which supported the retail, office, and commercial mixed use proposed in the Development Application. The Prior Approval expired in June 2020, prior to being acted upon.

Whilst the Council was supportive of the use proposed by the Development Application, it was opposed to the Development Application because of non-compliance in respect of the built form, character, traffic and amenity requirements of the Planning Scheme.

Issue 1 – The built form of the proposed development would cause unacceptable visual impacts by visually dominating the surrounding area

The Court held that the non-compliance with the assessment benchmarks in the Eastern Beaches Locality Code of the Planning Scheme in respect of building height, plot ratio and storey levels were not material to its decision that the proposed development would cause unacceptable visual impacts to the area surrounding the Site.

The Court held that the following assessment benchmarks in the Eastern Beaches Locality Code of the Planning Scheme were material to its decision that the proposed development would cause unacceptable visual impacts to the area surrounding the Site:

(a)    Specific outcomes O6, O61(b) and O61(d) – The Court held that the proposed development was not consistent or compatible with the bulk and scale of the buildings on the land adjoining and nearby the Site because its bulk and scale would be excessive and would not positively contribute to the setting or street.

(b)    Specific outcome O4(c) – The Court held that the height and design of the proposed development presented a heavy, solid appearance, which would visually dominate the street, adjacent properties, surrounding spaces including a pivotal street corner, and the existing skyline.

(c)    Specific outcome O12(a) to (c) and probable solutions S12.1 and S12.2 – The Applicant conceded that the proposed development did not comply with specific outcome O12(c) and performance outcomes S12.1 and S12.2 because the proposed development incorporates a roof terrace and a flat roof structure and not a pitched or curved roof, and the Court held that the form of the roof would not contribute positively to the local skyline as required by specific outcome O12(a) nor would it complement the beachside character of the locality as required by specific outcome O12(b).

The Court observed, having regard to the intended character of the existing locality, that the proposed development presented an overdevelopment of the Site in its locational context and would have unacceptable visual impacts on the existing street.

The Court held that the nature of the non-compliance with the Planning Scheme went to more than the incidental features of the design of the proposed development, which could not be addressed by the imposition of conditions.

Issue 2 – The issue of sufficient car parks can be addressed by limiting hours of operation

The Court did not need to consider Issue 2 given its determination in respect of Issue 1. However, the Court observed that the alleged non‑compliance in respect of the provision of sufficient car parking and car parking that does not impact on existing landscaping or native vegetation could be remedied by the imposition of a condition, which limited the hours of operation of the rooftop bar.

Conclusion

The Court held that the non-compliance with the built form requirements of the Planning Scheme were material and was not persuaded by the matters raised by the Applicant, which the Applicant argued supported the Court exercising its discretion to approve the Development Application. The Court therefore dismissed the appeal.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

Related Articles