Negotiated Report (Representations made) MCU22 0128

REQUEST FOR NEGOTIATED DECISION REPORT
Author	Development Planner, Georgina Schramm
Development Assessment

APPLICATION DETAILS
Application No.	MCU22/0128
Development Approval	Material Change of Use - Dwelling house
Applicant	Paul Francis Cajetan Desouza Janelle Kay Desouza
Representations Received On	22 December 2022
Number of Submissions for Original Application	Not applicable
Reviewed by	Nadine Gorton 2.2.2023

PROPERTY DETAILS
Property Address	178 Davis Rd Cootharaba Qld 4565
RP Description	Lot 7 SP 115866
Land Area	112700.00 m² / 11.27 ha
Existing Use of Land	Vacant – Rural

STATUTORY DETAILS
SEQRP Designation	Regional Landscape and Rural Production
Zone	Rural
Precinct	Not Applicable
Local Plan Area	Not Applicable
Overlays	Agricultural Land Biodiversity, Waterways and Wetlands Bushfire Hazard Landslide Hazard
Assessment Type	Representations made to original approval

background
A development approval for a Material Change of Use - Dwelling house was issued on 6 December 2022.
The applicant suspended the appeal period on 21 December 2022 and made representations on 22 December 2022 to the development approval conditions. The representations are detailed below but primarily relate to the bond amount conditioned and the landscaping buffering between the residence and adjoining premises.
The applicant extended the decision making period by 3 business days to allow for ample time to consider the proposed amendment to the representations made in regard to Condition 9.
assessment
An assessment in relation to each of the submitted representations is provided below:
Condition 5 - Performance Bond
Security in the form of a cash bond or trading bank guarantee to the sum of $20,000 must be submitted to Council, to secure performance of all conditions of this approval, prior to the issue of a Development Permit for Building Works. The cash bond or trading bank guarantee will be returned on performance of the conditions of approval less any costs incurred by Council in respect of enforcing performance of this permit. Council reserves the right to call upon the bond or guaranteed sum to effect compliance with conditions.
Applicant’s Representation
The requirement for a $20,000 cash bond for a Dwelling House is onerous. This amount is typically required for a removal house which has considerable risk to roads, public liability and Council assets. As such, we request that this condition is amended to reflect the proposal for a new Dwelling House … for an amount of $5,000.
Assessment of Representation
Condition 5 was imposed to provide a means of comply with conditions of approval which seek to have a developer carry out work. In this instance, the bond amount was informed by ensuring compliance with work being carried out in accordance with Geotechnical Report, rehabilitation works, and providing a landscaped buffer between the proposed dwelling and adjoining premises.
On further review of the nature of the proposal and similar developments in proximity to the area, the representation is agreed to in part only. A reduction of the bond amount to $10,000 is considered reasonable and remains compliant with the Planning Scheme Policy – Performance Bonds. A bond amount of $5,000 is not considered incentive to carry out works in respect of the approximate cost of complying with the conditions i.e. geotechnical certification, rehabilitation etc.
Condition 5 will be amended as follows:
5. 	Security in the form of a cash bond or trading bank guarantee to the sum of $10,000 must be submitted to Council, to secure performance of all conditions of this approval, prior to the issue of a Development Permit for Building Works. The cash bond or trading bank guarantee will be returned on performance of the conditions of approval less any costs incurred by Council in respect of enforcing performance of this permit. Council reserves the right to call upon the bond or guaranteed sum to effect compliance with conditions.

Condition 9 – Ecological & Landscaping
Screening vegetation must be planted along the common boundary with Lot 5 SP139163 in accordance with Council’s Planning Scheme Policy PSP2 - Landscaping.  The planted vegetation must have a mature height of not less than 4 metres and form an effective buffer to screen the agricultural use and enhance the rural character of the site.
Applicant’s Representation
This is an onerous request for the property owner for the sake of an adjoining farm. The applicant understood the implications of purchasing a property adjoining an existing farm. The impacts of the chemical spray, if any, should be under the obligation of the existing farm operation, not adjoining land owners, particularly in this case with their own dwelling house separating the farm from the applicant’s property. The location of the dwelling house was sited as far as practical from the northern boundary (which is what ultimately triggered the Council assessment). There was an option to locate the house in the clear area further to the north, which is closer to the farm. If this was the case, a development application would not have been triggered.
The vast majority of the property is restricted due to koala habitat and bushfire requirements, and the applicant has limited usable area available. Placing further restrictions seems excessive and will detract from the amenity and use of the property. Any restrictions placed on the fence line impinge on that goal and it has the potential to devalue the site. Extensive rehabilitation has already been conditioned by Council to offset the removal of any tree onsite. Further to this extensive landscaping of a residential standard will be undertaken by the applicant around the grounds at their leisure and over the course of many years. This should not form part of the approval for a single dwelling family house. As such, it is requested that this condition is deleted.
Following conversations with the applicant on Wednesday the 25th and Monday 30th of January, the applicant seeks to amend the representations in respect of Condition 9. Should the condition not be deleted as a whole, a reduced length immediate to the length of the dwelling is proposed as an alternative.
Assessment of Representation
The applicant’s request to delete Condition 9 is refused, due to the following reasons:
Condition 9 is derived from a setback relaxation between the sensitive receptor and adjoining Agricultural Land which is a bona fide rural activity, and in consideration of the extent of earthworks on a sloping site.
The control of impacts such as chemical spray, odour etc. is not wholly under the obligation of the existing farm operations as the development is seeking a relaxation to the identified Agricultural Land Conservation Area. The landholder is seeking to locate a sensitive receptor in proximity to an existing lawful use which is identified has having the potential to be susceptible to such rural activities. Relaxation of the setbacks includes reference to managing impacts of adjoining rural premises, such as through conditioning of a landscaped buffer.
While rehabilitation has been conditioned, the areas of rehabilitation are not located between the dwelling and adjoining premises  and do not address the corresponding Performance outcomes (AO2, AO8 and AO15) of the Rural Zone Code.
A reduced length of the landscaping buffer immediate to the dwelling would not adequate address spray, odour, drift, however a reduced length has been agreed to.
The applicant’s alternative representation to Condition 9 being a reduced length of the vegetative buffer to be immediate to the dwelling would not adequately address spray, odour and drift, however a reduced length of screening has been agreed to. A landscape buffer of 110 metres from the area of intensification to the eastern portion of the dwelling will be reflected in amendments to Condition 9.
The landscape buffer will uphold the intent of the corresponding Performances outcomes by softening the development from the adjoining northern premises and assist in mitigating any impacts consequence of the reduced setback, see below concept plan.

Condition 9 will be amended as follows:
9. 	Screening vegetation must be planted 2 metres setback from the common boundary with Lot 5 SP139163 for a minimum length of 110 metres from the north western corner of the allotment to the front of the Dwelling House in accordance with Council’s Planning Scheme Policy PSP2 – Landscaping. The planted vegetation must have a mature height of approximately 4 metres and form an effective buffer to screen the agricultural use and enhance the rural character of the site.

conclusion & reasons for decision
The proposed development generally complies with the requirements of the planning scheme and does not raise any significant issues that cannot be addressed by reasonable and relevant conditions. The application is therefore recommended for approval.
The report is provided in accordance with Section 63(5) of the Planning Act 2016.
RECOMMENDATION
With regard to Application No. MCU22/0128, and the representations made, Council on 30 January 2023 decided to:
A.	Amend Conditions 5 & 9 to read as follows:
5. 	Security in the form of a cash bond or trading bank guarantee to the sum of $10,000 must be submitted to Council, to secure performance of all conditions of this approval, prior to the issue of a Development Permit for Building Works. The cash bond or trading bank guarantee will be returned on performance of the conditions of approval less any costs incurred by Council in respect of enforcing performance of this permit. Council reserves the right to call upon the bond or guaranteed sum to effect compliance with conditions.
9. 	Screening vegetation must be planted 2 metres setback from the common boundary with Lot 5 SP139163 for a minimum length of 110 metres from the north western corner of the allotment to the front of the Dwelling House in accordance with Council’s Planning Scheme Policy PSP2 – Landscaping. The planted vegetation must have a mature height of approximately 4 metres and form an effective buffer to screen the agricultural use and enhance the rural character of the site.

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