Up the garden path on Pelican Street

It felt like déjà vu. I had seen it on previous occasions when I was a councillor – Noosa Council planners recommending refusal of a long-negotiated proposal after initially reassuring applicants they might succeed.

The rejection was made in a hurry following considerable expenditure by the applicant, Tewantin businessman Chris Wright’s company Doonella Street Pty Ltd. It left a distinct impression that yet another applicant had been led up the garden path because council planning staff had not acted in good faith, some councillors had held sway over others, and a majority of councillors had allowed themselves to be swayed.

I was dismayed by the decision and went to the Council reports to find out what the story was. I discovered that the Doonella Street development had first been approved in July 2015 for 16 residential units . The land was sold to Mr Wright in 2016 who the following year had received Council approval to instead build 10 residential units and 762 sqm of commercial space.

Two years later, in 2019, the State Government entered into a contract with Mr Wright to buy the land for social housing, much needed in the Shire. But despite this, Council staff advised that a wholly residential scheme would not be allowed on the mixed use site. As a result, the State Government withdrew its offer. Not for the first time had the bureaucratic driven out the necessary.

The 2020 Noosa Plan changed the zoning to mixed residential/non-residential supporting Tewantin centre’s predominant business function (“predominant” being an important word as we shall see).

A non-existent planning scheme amendment

Towards the end of 2020, Mr Wright advised council staff that a substantial oversupply of commercial properties in Tewantin meant the 762 sqm non-residential space requirement for the Doonella Street development would be unviable. The market situation bears out his contention; by October this year it was reported Tewantin had no less than 108 vacant commercial properties for lease.

In February this year Mr Wright sought a change to the approved development, requesting the commercial space be reduced by 75 percent to just 198 sqm and the number of residential units be increased from 10 to 19, four of which would be reserved for special disability accommodation.

Council had voted in support of Mayor Clare Stewart’s call for more affordable housing and social housing in the Shire and in March voted that amendments to the Noosa Plan be prepared, including rezoning the Doonella Street properties to incorporate small affordable dwellings and social housing.

This seemed to augur well for the applicant, and negotiations with council staff proceeded along those lines.

Councillor due diligence truncated

Under the Council’s development assessment policy, councillors are forbidden from communicating with applicants until the staff assessment is placed on the agenda for discussion at a Council meeting.

Routinely, these reports are available two weeks before the Ordinary Meeting at which decisions are made, allowing time for discussion at committees and for councillors to work through complex proposals and confer with applicants if they want to further explanations.
But for some reason, the Doonella Street report was available only a week before September’s Ordinary Meeting. Councillors were told if they did not make a decision at the Ordinary Meeting, under the Planning Act the application would be deemed approved. If more time was needed, Council could not defer the decision. The Act only allows the applicant to request a deferral.

Diligent councillors seek to be fully familiar with applications before making decisions. As a councillor I found taking the time to meet with applicants was fair to them and instructive to me. It was also my experience that most councillors did not avail themselves of such opportunities. It seems that in this case Mr Wright offered a briefing to each councillor but only Crs Stewart and Lorentson responded.

A sting in the tail

During negotiations, Council staff initially suggested the applicant sign an infrastructure agreement locking in the four special disability units in perpetuity in line with the proposed Noosa Plan amendment which had not yet been drafted nor exposed to the mandated public consultation and State Government review, actions that must be taken before a planning scheme can be changed.

The Council’s solicitor advised council that, as the proposed rezoning was not yet part of the Noosa Plan, Mr Wright would need to formalise compliance by signing a deed containing relevant conditions, drafted at the applicant’s expense.

Mr Wright duly paid $5,000, scrutinised the 11 conditions and found two of them unacceptable – one required paying a $500,000 bond to be held by the Council for 10 years (later reduced to $100,000 for five years) and another incorporating the four disability units on one title. He indicated he would proceed if the two conditions were removed.
At September’s General Committee meeting, Crs Lorentson and Stewart moved a motion to do away with the two conditions and request Mr Wright to seek to defer a Council decision until its next meeting. But Crs Brian Stockwell and Frank Wilkie successfully moved to keep all the conditions in place. Trouble loomed.

The refusal

Three days later at the Ordinary Meeting, councillors were told that Mr Wright – having attended the meeting where the two onerous conditions were reinstated – had exercised his right to not seek deferral of the decision. Council then voted six to one to refuse the development application, with only Cr Lorentson dissenting, arguing the units would meet the Council’s affordable housing objective.

Cr Stewart had voted against the application, even though she later told the Courier-Mail the decision “pained” her because the development of affordable and social housing was needed.

So, in spite of many months negotiating a proposal to create more affordable and social housing in Noosa, Council refused the proposal on the basis that it did not comply with the Noosa Plan which mandated providing ‘predominant’ business use in a mixed residential-business zone. The view was taken that not just the precinct, but also each lot within it, must predominantly provide for business use. This was not a requirement of the Noosa Plan, merely the opinion of some staff and councillors.

Thus a proposal to establish affordable and social housing in the Tewantin town centre was rejected. Council was effectively telling the applicant to revert to the 2017 approval to build 10 residential units and 762 sqm of commercial space, which Mr Wright believed would be unviable.

According to the Courier-Mail, when he heard of the decision, Mr Wright, a Tewantin resident of 16 years, “slammed Council for refusing his proposal” and said he was “preparing to take Noosa Council to court”. He will need to pay the Council a $5,000 fee to do this, and – if mediation does not result in a settlement – expose himself and the Council to hundreds of thousands of dollars in legal costs. Mr Wright lodged his appeal on Wednesday 13 October.

It appears Noosa Council had done it again: first seeming to be amenable to a worthwhile proposal, then negotiating for many months, towards the end imposing burdensome conditions, and finally rejecting yet another project that would have benefited the community.