Notice of Appeal 04 09 19

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The Land

4. The Land:

has frontage to Seaview Terrace, Noosa;
adjoins at the rear boundary the Sunshine Beach coastal reserve;
has an area of 589 m?;
is in the planning scheme area of the Noosa Plan and contained in:
i. the area of the Eastern Beaches Locality Plan;
ii. the Detached Housing zone; and

iii. is mapped on Eastern Beaches Natural Resources Overlay (Map
OMA.5) as a coastal protection area.

by Government Gazette dated 4 November 1972 was included in the Beach
Erosion Control District Map;

is within the erosion prone areas identified by the Beach Protection
Authority Map SC3370F being within 125 m inland from the Seaward toe of
the frontal dune;

is in a Coastal Management District mapped under the Coastal Protection
and Management Act 1995;

is dissected by a coastal building line mapped under the Coastal Protection
and Management Regulation 2017 for the purpose of section 66 of the
Coastal Protection and Management Act 1995;

slopes from Seaview Terrace (28 m AHD) to the rear of the property (21 m
AHD);

is improved by an existing dwelling for which building approval was given in
1973 and was the subject of additional building work for which building
approval was given in 1995; (the approved building works)

and the approved building works as constructed extend beyond the coastal
building line; and

is 1 of a significant number of premises along Seaview Terrace on which
Dwelling houses are constructed proximate to the rear boundary seaward of
the coastal building line.

Proposed Building Works

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A building works application was made to Project B. A, building certifiers for the
building works. (the proposed building works)

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5: The proposed building works was referred by Project B. A. to the Department of State
Development, Manufacturing, Infrastructure and Planning under section 56 of the PA.

6. Project B. A. received a referral agency response under section 56 of the PA for
building work coastal development seaward of a coastal building line.

Ts The response required the imposition of conditions to limit the building footprint for
the proposed building works so that it would not exceed the footprint of the approved
building works.

8. The Applicant is required to comply with the conditions of the referral agency under
section 56 (1) (b) (i) of the PA.

The Application
9. The Application for the proposed building work was properly made on 28 June 2019.
Level of Assessment

10. Carrying out building work is code assessable development as a consequence of the
Land being included in the coastal protection area on the Eastern Beaches Natural
Resources Overlay (Map OM4.5).

Reasons for Refusal

11. By Decision Notice dated 20 August 2019 the Respondent refused the
application for the following reasons:

1. The proposal is in conflict with the assessment benchmarks of the State Planning
Policy as it proposes development in an Erosion Prone Area and Natural Hazard Area
and presents an unacceptable risk to people and property from coastal processes,
including the projected impacts of climate change.

2. The proposal is contrary to the provisions of the Planning Scheme in that it
proposes development:

a. in the Landslide Hazard Area thereby placing people and property at risk
and does not maintain the natural processes and protection function of land
forms and vegetation contrary to the provisions of the Building Works Code.

b. that is not sited to minimise risk to users, contrary to the Building Works
Code.

c. in the Coastal Protection Area extending seaward of the Coastal Building
Line and is likely to adversely impact upon natural coastal processes contrary
to the requirements of Schedule 1 of Noosa Plan and the Natural Resources
Code.

d which does not protect the dunal area and natural environmental nor
maintain the safety of people and works contrary to the Overall Outcomes
for the Eastern Beaches Locality.

 

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3. The proposal is contrary to the provisions of the draft Planning Scheme in that it
proposes development:

a. in the Coastal Protection Area extending seaward of the Coastal Building
line and does not allow for natural fluctuations of the coast and foreshore to
occur, including allowance of climate change.

b. which has not been sited to minimise the risk from coastal processes as
the development has not been located as far landward as practicable to
ensure people and property are not at risk from coastal hazards and avoid
the need for additional coastal protection works.

4. Recent modelling carried out by the Council indicates significant erosion is likely to
occur in the future which may threaten life and property should the proposed
development proceed.

5. Given the site is affected by the Coastal Building Line and is located in a highly
vulnerable erosion prone area, the proposed 6m setback is not sufficient to minimise
the risk of erosion.

Compliance with relevant assessment benchmarks

12.

13.

The proposed building work complies with the relevant assessment benchmarks of
column 2 of Tables 14-44 - 14-46 of the Building Works Code in the Assessment Table
7.10 in relation to siting requirements as:

a. The siting of the proposed building work is in compliance with s1.1 of the
Building Works Code as:

i. s1.1 of the Building Works Code requires compliance with setbacks
identified in Schedule 1;

ii. Schedule 1 specifically provides for conditions of an existing approval
to prevail to the extent of any inconsistency over the relevant tables
in Schedule 1;

iii. | the approved building works were constructed in 1973 and required
approval under s44 of the Beach Protection Act 1968;

iv. an application for the permit under the Beach Protection Act 1968
was required to be made to the Local Government;

v. the local government was required to forward the application to the
Beach Protection Authority;

vi. the Beach Protection Authority could grant the permit subject to
such terms and conditions as the Authority deems fit; and

b. The proposed building work otherwise complies with all other relevant
assessment benchmarks of column 2 of the Building Works Code.

The proposed building work complies with the relevant assessment benchmarks of
column 1 of Tables 14-44 - 14-46 of the Building Works Code in the Assessment Table

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7.10 in relation to siting requirements as it:

a. provides amenity for the users of premises and preserves the amenity of the
adjoining and nearby land uses;

b. does not remove any vegetation that provides a buffer to adjoining uses;

c, allows for landscaping between buildings;

d. maintains the visual continuity and pattern of buildings particularly in
relation to the coastal building line;

e. does not visually dominate the street;
f is not adjacent to any watercourse;
g. does not interrupt the natural cycle of erosion and accretion of the

foreshore area as:

iii.

vi.

vii.

the proposed building works must comply with the referral agency
conditions requiring construction within the footprint of the
approved building works;

the angle of repose of the frontal dune system will not permit
construction of works to protect the property to occur within the
property boundary even if the building were setback in the manner
the Respondent seeks;

the proposed building work is an improvement on the approved
building work in that it is set back further from the rear boundary;

all of the allotments along Seaview Terrace are built to the same rear
alignment and if works become required to protect property they
would form part of a contiguous linear protection;

the Respondent has recently approved similar development seaward
of the building setback line at 50 Seaview Terrace, 52 Seaview
Terrace and 56 Seaview Terrace;

the referral agency for the building works has assessed the proposed
building works against the State development assessment provisions
and indicated the building work should not be prevented from
proceeding because it will occur partly seaward of the coastal
building line subject to conditions constraining the development to
the existing approved building work footprint; and

there is no greater risk to person or property in allowing the
development to proceed than in requiring the existing house to be
retained and not re-developed.

14. \\The proposed building work complies with the relevant assessment benchmarks of
columns 1 and 2 of Tables 14-44 - 14-46 of the Building Works Code in the Assessment
Table 7.10 in relation to stability requirements as a site specific geotechnical report

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15.

16.

17.

18.

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20.

 

has been provided in compliance with s7.2 of the Building Works Code.

The proposed building work complies with the relevant assessment benchmarks of the
Natural Hazards and Natural Resource Overlay as it complies with the relevant overall
outcome as it does not adversely impact upon natural coastal processes as set out in
paragraph 14(g).

Overall outcome O20 of Table 13.20 has been overtaken by the presence of the
approved building work on Land, and each of the approvals to 50 Seaview Terrace, 52
Seaview Terrace and 56 Seaview Terrace and the Appellant relies upon matters set
out in paragraph 14 (g).

The Overall Outcomes for the Eastern Beaches Locality is not a relevant assessment
benchmark.

The State Planning Policy only applies the assessment benchmarks of Part E to
assessable development as matters to which regard must be had, by local
government.

The proposed building work complies with the assessment benchmarks of Part E of
the State Planning Policy provisions in relation to building in the erosion prone area
as:

a. Part E specifically accommodates minor redevelopment which includes the
demolition and replacement of a dwelling house;

b. the referral agency was required to assess the proposed building work
against Part E assessment benchmarks;

ic the referral agency required conditions be imposed that were to avoid or
minimise adverse impacts on coastal resources;

d. requires the minor redevelopment to mitigate risk to people and property to
an acceptable or tolerable level; and

e. subject to the imposition of those conditions the proposed building works
comply with the assessment benchmarks of the State Planning Policy in
relation to minor redevelopment in the erosion prone area.

The development in all of the circumstances ought to be approved.

 
   

P&E Law
Solicitors for the Appellant
4 September 2019

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If you are named as a respondent in this notice of appeal and wish to be heard in
this appeal you must:

(a) within 10 business days after being served with a copy of this Notice of
Appeal, file an Entry of Appearance in the Registry where this notice of
appeal was filed or where the court file is kept; and

(b) serve a copy of the Entry of Appearance on each other party.

The Entry of Appearance should be in Form PEC - 5 for the Planning and
Environment Court.

If you are entitled to elect to be a party to this appeal and you wish to be heard in
this appeal you must:

(a) within 10 business days of receipt of this Notice of Appeal, file a Notice of
Election in the Registry where this Notice of Appeal was filed or where the
court file is kept; and

(b) serve a copy of the Notice of Election on each other party.

The Notice of Election should be in Form PEC - 6 for the Planning and Environment
Court.