QUESTION
Assessment Question
Heritage Happy Regional Council has received a development application for a material change of use to convert an old tavern into a fast food outlet at the street level, with a drive through facility at the rear end and office facilities on the first floor. The existing tavern is an old Queenslander building situated on the corner of Main Street, the main urban road in the village of Montgomery. Whilst the plan involves a significant re-development of the interior and exterior of the building, the front façade will maintain the traditional Queenslander appearance of the building with only discrete modifications necessary to accommodate the fast food outlet. The developer is offering to make a financial contribution to help build a round-a-bout at the end of Main Street to help reduce existing traffic congestion and to facilitate the flow through of new traffic associated with its own drive through facility. It has also offered to make a significant financial contribution towards implementing the Tourism Policy and Plan for the Heritage Happy Region.
Montgomery is a small urban settlement within the Heritage Happy Region. It is a magnet for tourists who flock there to enjoy the carefully maintained, old world atmosphere that has been carefully maintained and preserved over the years. The site of the proposed application lies in the Commercial and Retail Enterprise Zone for Montgomery as stated in the Happy Heritage local planning scheme (made in 2008). The purpose of the Commercial and Retail Enterprise Zone is to foster commercial development in urban centres. The site is also subject to the Montgomery Heritage Character Overlay which states:
• Development in Montgomery should seek to preserve the special character and tourist appeal of Montgomery.
• Buildings of architectural interest should be carefully preserved and maintained wherever possible as these add to the special character of Montgomery.
The Heritage Happy Region’s local planning scheme states a number of desired environmental outcomes (DEOs) and includes a strategic plan. The DEOs include a statement that:
• Tourism, especially nature based tourism, is a major economic driver for the Heritage Happy Region and should be encouraged and fostered.
The Strategic Plan states Montgomery plays a special role in attracting and catering for tourists on all budgets and with a variety of needs and interests. A diverse tourism base should be encouraged in Urban Centres.
The Code on Office Facilities applies to this development. The overall purpose of this Code is “Office facilities provide safe, healthy and attractive work environments”. One of the performance criteria in this Code is that “Commuter parking does not compete unduly with residential or retail parking facilities”. An acceptable solution for this performance criterion is “Adequate parking for employees is supplied on site”. To accommodate the drive through facility, the current development application has no provision for on-site parking but there is a public car park within 300 metres of the tavern site.
Local residents are up in arms at the prospect of a fast food outlet being sited on Main Street in Montgomery. One national fast food fast chain already runs a small outlet in a back street of Montgomery. If this one goes ahead, where will it stop? This proposal threatens to destroy both the special character of Main Street and the economic viability of the numerous small, independently owned restaurants and cafes sited on Main Street. The development site is also within 250 metres of the local primary school and close to a bus stop used regularly by school kids. Parents of the school have signed a petition objecting bitterly to a junk food outlet being located so near the school.
You are the development committee for Heritage Happy Regional Council. Decide this application stating the applicable law and the grounds for your decision. Include in your answer an explanation of what consideration you gave to the concerns of submitters and the petition.
SOLUTION
Heritage Happy Regional Council has rejected[1] a development application involving material change in the use of an old tavern by converting it into a fast food outlet which will also provide a drive through facility at the rear end and to have office facilities on the first floor of the tavern (‘the development application’)
Heritage Happy Regional Council has rejected the development application on the basis that it does not comply with elements of the Heritage Happy Regional Council Planning Scheme of 2008 and the Code on Office Facilities of the Happy Heritage Region of Queensland. The complete impact assessment under the Sustainable Development Act 2009[2] was conducted by the Council to see the impact of the development application on the public, environment, safety and heritage and have finally reached to the conclusion that the development application be rejected. The reasons for the decision are as rendered below:
- The Development Plan as presented by the developer is not in compliance with the Heritage Happy Regional Council Planning Scheme, there are major changes which are proposed to be carried out in the tavern which will be completely changing the complete look of the building just to accommodate one food outlet also with drive through facility. This major change in an old building is also against the Heritage Happy Regional Council Planning Scheme.
- 2. The proposal for funding the round-a-bout on the main street by the developer has not been considered in this application as it a different construction and some other assessor will be examining the issue and concerns, if any raised by the modification on the main street.
- Sustainable Development and Planning Act 2009[3] state that there should not be any conflict between the Heritage Happy Regional Council Planning Scheme and the decision on the impact assessment and the office facilities code, unless there are enough ground to prove to justify that this compliance is not required. In this case there is no compliance.
- The Development Plan is also not in compliance with the Office Facilities Code. The purpose of the Office facilities Code is to provide safe, healthy and attractive work environment to the employees but there is no provision being made for the commuters parking to the office building which can be a painful experience for all coming to the office building. Presence of a public car parking within 300 metres of the tavern cannot satisfy the need of the office commuters. The Development Plan has not kept the employee safety and health in mind while chartering the Development Plan.
The local residents have filed a petition stating that the nearness of junk food joint to a school is not a healthy option.( http://www.austlii.edu.au,2012)
This concern of local residents is beyond the scope of the Sustainable Development and Planning Act 2009 and thus has not been considered while deciding this application.
- The village of Montgomery is popular among the tourists because of its age old charm and natural beauty but there is a fear with such developments plans are threatening as it will create congestion in the area, modify the old buildings.
- 6. Under Queensland Heritage Act 1992[4] the development application can be rejected if the cultural heritage development of the place can destroyed or reduced by such a development plan. The Development Plan suggests a many changes in the tavern as well as the surrounding area thus affecting the heritage property of the Montgomery.( http://dlgp.qld.gov.au,2012)
- 7. The Desired Environment Outcomes are also required to be fulfilled in the village of Montgomery to maintain the natural beauty of the place. The Sustainable Development Act under Section 346 A puts some environmental conditions offsets. By environmental offsets it is meant that the developer is required to work or to get engaged in such activities that can counterbalance the impacts of the development on the natural environment of the place.
The above reasons are to support the decision of refusal of the Heritage Happy Regional Council but in the event of the applicant not being satisfied with the reasons cited by the Heritage Happy Regional Council then it go in appeal to Planning and Environment Court[5]. Planning and Environment Court has the power to hear appeals arising out of the development applications and approvals.
Bibliography
Legislation
1. Sustainable Development and Planning Act 2009 (Qld)
2. Queensland Heritage Act 1992(Qld)
Others
- Australian Legal Information Institute, viewed on 10th may 2012,http://www.austlii.edu.au
- Queens Land Government, viewed on 10th may 2012,http://dlgp.qld.gov.au
[1] Section 335 of the Sustainable Development Act 2009
[2] Section 314 of the Sustainable Development Act 2009
[3] Section 232 of the Sustainable Development and Planning Act 2009
[4] Section 68(2) of the Queensland Heritage Act 1992.
[5] Section 461 of the Sustainable Development and Planning Act 2009
LB06
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