Developer faces question about non-compliant project
A SHOWDOWN looms over a new Mooloolaba high rise building which has been built at odds with its Sunshine Coast Council development approval.
It is believed all of the units in Aria's Breeze apartments on the corner of the Esplanade and Meta Street have been sold off-the-plan on the basis of the unapproved layout for which the developer is now seeking retrospective approval.
The removal of covered scaffolding, with the development close to completion, has revealed the extent of alterations to the approval.
The council approved on August 12, after the fact, minor changes to the ground floor and basement but has to date refused to ratify significant alterations to its built form and setbacks.
The original approval had already made a number of concessions based on an architectural design it considered would deliver a landmark building at the entry to the Mooloolaba tourism precinct
The council now has to decide whether to prosecute the breach itself under legislation that provides for fines up to $200,000 and rectification to the original design or to defend any attempt by the developer to appeal council's decision to give retrospective approval, a move which would effectively leave a final outcome to the courts.
On September 1 Aria, through its representative Cardno, submitted a new development application that reflected changes it said could address concerns about the built form.
The submission argued the changes would achieve the outcomes of the original refusal, a position council officers have rejected.
In their response to the fresh application which is available on PDOnline council's planners found:
"the original application's compliance with the Planning Scheme requirements relating to bulk, scale and setbacks was marginal and was only supported on the basis of the design outcomes, and was at the upper limits of officer's discretion to support the application.
It is considered that the proposed changes relating to the kitchen expansion into the balcony area and other changes to the building façade (balustrades) are not supportable.
The requested changes would impact on the liveability of units, as they would result in a significant reduction in the private open space (balcony) of the affected units and impact the building facade".
If an approval was granted council planners say only the ground and top floor units of the 57 in the complex would comply with the planning scheme's private open space requirements.
The council had in its original approval allowed smaller balconies at the back of the building on the basis the majority of the units at the front of the building facing the esplanade had balconies exceeding the minimum, which would contribute to an improvement to the façade of the building.
That approval also agreed to a site coverage of 56% compared with the Sunshine Coast Planning Scheme's stipulated 40% maximum site cover after, in its original application, the developer had successfully argued the concession be allowed as majority of the units had large open balconies which contributed to the building façade.
Planning portfolio head Christian Dickson said process had not been followed with the developer effectively seeking forgiveness after the fact.
"The process is there for a reason," he said.
"The developer says it does very nice projects around Queensland and has won national awards so it's assumed it knows exactly what it's doing.
"It asks the question was it making mistakes or producing outcomes to their benefit."
Cr Dickson said if the council was to approve what was effectively a "brazen act" it would raise questions about the strength of the Planning Scheme.
"It doesn't sit well with me," he said. "The community wants assurance approvals will be delivered as stated.
"I have never seen a developer to this degree step outside approval conditions."
Cr Dickson said while the council has previously required non-complying homes and sheds to be demolished he had not seen it for a building of the size of Breeze.
"Council has no choice but to send a message otherwise others will push," he said.
He said the council had to stand up and send an ironclad message developers had to follow the rules.
Cr Dickson said applications for development outside the planning scheme should not be achieved without justification or community benefit.
"Height and setbacks are sensitive elements of the planning scheme," he said.
"You do not flaunt the planning scheme in this way. Regardless of the reason developers have to follow process.
"Don't build then beg forgiveness."
Division Four Councillor John Connolly would not comment beyond saying a process had been put in place to review submissions before council.
However in a later press release he claimed "reviews of approvals such as that carried out at Aria Breeze are a normal part of council's processes".
The Sunshine Coast Daily put a number of questions to Aria in an email, left phone and text messages and put calls through to the company's Brisbane headquarters but received no response.
Inquiries included why amendments were not sought through established processes before construction, why the building was not constructed to its approval, what steps the developer intended to bring the building into compliance and the status of contracts signed by unit purchasers.
Planners who have spoken with the Daily say the community is in danger of inheriting a constructed multi-storey building that is located on a visually prominent site in Mooloolaba where the architectural form of the building is substantially different to the approved development plans in a way that contradicted the primary justification for the development.
The situation raises serious questions about how the private certifier could approve building plans that were different to the council approval.
The council says the private certifier has "amended their approval to remove the additional building elements that were not approved by Council".
Certifiers are obliged by regulation to satisfy themselves before issuing an approval that the building accords with the relevant requirements of the original planning approval, including layout, sizes, dimension, and relevant conditions.
Those that fail to do so can face serious penalties and consequences.
A delegated officer's report justifying approval of the original design said the site defined the beginning of high rise development on the Mooloolaba Esplanade.
"The appearance of the built form addressing the northern approach is considered to be of importance," the report stated.
"The appearance of the proposed development as expressed by the submitted perspective is regarded as providing an appropriate response to its location as a signature building at a gateway entry point.
"Council's urban design specialist considers that the proposed building presents a well-defined articulated façade composed of curvilinear balconies, which have alternating offsets to the Mooloolaba Esplanade and other frontages (First and Meta Streets). The balconies surpass 4.5m in depth at certain points. The site cover is mitigated by these treatments which off-sets the building's massing by emphasising its smaller parts."
The council says the developer now has two options.
It can either lodge an appeal with the Planning and Environment Court to the council's refusal to retrospectively approve the alterations or it can submit a further request to change the approval, and address the built form and setback issues.
The second of those options would ultimately be determined by a decision by councillors on the floor of the chamber.
The original approval issued on July 11, 2014, for 58 multiple dwelling units relied on the unique curvilinear design of the building including large balconies to justify reduced setbacks to Mooloolaba Esplanade.
The outcome was considered acceptable because it would deliver a landmark building on a small but key site.
By June 21 this year, with the building nearing completion, the developer submitted a request to the council to amend the original approval with which it no longer complied.
The request did not become a properly made application until August 11.
It sought, substantially after the event, to seek retrospective approval for the design and setback alterations.
The council assessed the new application on August 12, approving the changes made to the ground floor which deleted a unit, relocated the service vehicle parking space and altered the basement design and landscaping.
It refused to legitimise changes to the upper floor levels that it found had resulted in reduced balcony sizes, reduced setbacks to the main building line and unacceptable changes to the overall built form of the building.
A SEPTEMBER 1 developer submission to Sunshine Coast Council contended the reconfigurations would increase the functionality and liveability of the unit occupant's space.
It said extension of the kitchen spaces would not reduce privacy and view corridors of adjacent apartments, nor the openness of the balconies presenting to Mooloolaba Esplanade.
It said the approved largely solid balustrading was a dominant element.
"Council's Delegated Authority Report indicates that the approval of the setbacks was provided due to the combination of a well-articulated façade featuring prominent curvilinear balconies with largely open balcony edges and alternating offsets to the frontages, in conjunction with the balcony depths," the submission said.
"All of these elements are maintained, notwithstanding some reduction of the average balcony depth."