OPW15/0195 - Negotiated Decision Notice

Officer:	Conor Neville
Direct Telephone:	07 53296287
Our Reference:	OPW15/0195
Your Reference:

12 February 2016

Body Corp Elandra Settlers Cove Cts37351
C/- Archers Bcm Pty Ltd
PO Box 1191
MOOLOOLABA  QLD  4557

Dear Sir/Madam

Negotiated Decision Notice
Sustainable Planning Act 2009
I refer to your application and the representations you made in respect to the decision notice. On 12 February 2016 Council decided your representations.
Details of the decision are as follows:
application details
Application No:	OPW15/0195
Street Address:	Elandra Settlers Cove 6 Serenity Cl NOOSA HEADS  QLD  4567
Real Property Description:	SP 188261
Planning Scheme:	The Noosa Plan (16 September 2013)
Decision details
Council on 2 November 2015 decided to issue the following type of approval:
Development permit for operational work - clearing of native vegetation under the planning scheme
In relation to representations, Council on 12 February 2016 decided to:
A.	Refuse to change Condition 1 as:
the removal of up to 30% of the canopy of Tree 1 is not warranted as Tree 1 is not touching the building and the request is premature.
The pruning of the tree group for promoting lawn growth or understorey growth is not warranted and not supported by approved management plans.
B.	Approve a change to Condition 2.
C.	Refuse to change Advisory Notes 2 and 3 as:
The advisory note 2 provides information clarifying the importance of the vegetation in the covenant area with relation to the lawn area
The advisory note 3 is factual and highlights the need to protect habitat and food resources of the koala.
Relevant period of approval
The relevant period for this development approval is 2 years starting the day that this development approval takes effect.
assessment manager conditions
The vegetation listed in these conditions located in the covenant area A on SP188261 is permitted to be interfered with to the extent described below
Tree 2 (Allocasuarina littoralis /She Oak) southern limb overhanging the lawn area can be removed to a suitable point on the main trunk and the limb disposed off offsite. All works to be in accordance with AS4373-2009 Pruning of Amenity Trees.
Tree 3 (Elaeocarpus obovatus / Hard Quandong) can have root pruning occurring and installation of root barrier wholly located outside of the covenant area. All works to be in accordance with AS4373-2009 Pruning of Amenity Trees.
Tree 4 (Eucalyptus tereticornis / Blue Gum) southern limb overhanging the lawn area can be removed to a suitable point on the main trunk and the limb disposed off offsite. All works to be in accordance with AS4373-2009 Pruning of Amenity Trees.
Tree 5 (Dead Allocasuarina littoralis /She Oak ) and other dead trees may be removed from the covenant area. Root plates are to left in-situ for bank stability.
No clearing of vegetation, apart from vegetation identified in condition 1, is permitted to be interfered with, unless in accordance with a written approval from Council.
referral agencies
Not Applicable
Advisory notes
The following notes are included for guidance and information purposes only and do not form part of the assessment manager conditions:
Weed species noted during the application assessment in the covenant area including Asparagus Ferns (Asparagus sp.), Umbrella Trees (Schefflera actinophylla) and Moses in the Cradle (Tradescantia spathacea), - their control at this early stage would be financially beneficial due to their low density and it is a requirement of the covenant terms to keep the area free of environmental weeds.
Pruning of vegetation in the covenant area for the purpose maintaining adjacent lawn areas is not supported by the covenant or the biodiversity overlay code.
Tree 1 is an active koala food tree with fresh koala scats and scratches evident. Koalas are a listed species under the Nature Conservation Act 1992 and the Environment Protection and Biodiversity Conservation Act 1999 and are listed as Vulnerable species at a state and commonwealth level. Protection of their habitat and food resources is essential for koalas to persist into the future.
property notes
Not Applicable
preliminary approval overriding planning scheme
Not Applicable
further development permits required
Not Applicable
self assessable codes
The following codes for self-assessable development related to the development approval issued under this Decision Notice must be complied with.

Not Applicable
submissions
Not Applicable
reasons/grounds for approval
Not Applicable
RIGHTS OF APPEAL
You are entitled to appeal against this decision. A copy of the relevant appeal provisions from the Sustainable Planning Act 2009 is attached.
During the appeal period, you as the applicant may suspend your appeal period and make written representations to Council about the conditions contained within the development approval. If Council agrees or agrees in part with the representations, a “negotiated decision notice” will be issued. Only one “negotiated decision notice” may be given. Taking this step will defer your appeal period, which will commence again from the start the day after you receive a “negotiated decision notice”. (Refer to Part 8 “Dealing with decision notices and approvals” - Division 1 “Changing decision notices and approvals during applicant’s appeal period” of the Sustainable Planning Act 2009.)
OTHER DETAILS
If you wish to obtain more information about Council’s decision, electronic copies are available on line at www.noosa.qld.gov.au, or at Council Offices.

DECISION NOTICE HISTORY Original Decision Notice 2 November 2015 Negotiated Decision Notice 12 February 2016, Refused a change to Condition 1, Approve a change to Condition 2 & refused to change to Advisory Notes  2 & 3.

Yours faithfully

Conor Neville
Environment Officer

Enc: Appeal Rights

	Appeal Rights SUSTAINABLE PLANNING ACT 2009 & SUSTAINABLE PLANNING REGULATION 2009

The following is an extract from the Sustainable Planning Act 2009  (Chapter 7).
MATERIAL CHANGE OF USE, RECONFIGURING A LOT & OPERATIONAL WORKS

Division 8 	Appeals to court relating to development applications and approvals

461 	Appeals by applicants
(1) 	An applicant for a development application may appeal to the court against any of the following—
(a) 	the refusal, or the refusal in part, of the development application;
(b) 	any condition of a development approval, another matter stated in a development approval and the identification or inclusion of a code under section 242;
(c) 	the decision to give a preliminary approval when a development permit was applied for;
(d) 	the length of a period mentioned in section 341;
(e) 	a deemed refusal of the development application.
(2) 	An appeal under subsection (1)(a), (b), (c) or (d) must be started within 20 business days (the applicant’s appeal period) after—
(a) 	if a decision notice or negotiated decision notice is given—the day the decision notice or negotiated decision notice is given to the applicant; or
(b) 	otherwise—the day a decision notice was required to be given to the applicant.
(3) 	An appeal under subsection (1)(e) may be started at any time after the last day a decision on the matter should have been made.

462 	Appeals by submitters—general
(1) 	A submitter for a development application may appeal to the court only against—
(a) 	the part of the approval relating to the assessment manager’s decision about any part of the application requiring impact assessment under section 314; or
(b) 	the part of the approval relating to the assessment manager’s decision under section 327.
(2) 	To the extent an appeal may be made under subsection (1), the appeal may be against 1 or more of the following—
(a) 	the giving of a development approval;
(b) 	any provision of the approval including—
(i) 	a condition of, or lack of condition for, the approval; or
(ii) 	the length of a period mentioned in section 341 for the approval.
(3) 	However, a submitter may not appeal if the submitter—
(a) 	withdraws the submission before the application is decided; or
(b) 	has given the assessment manager a notice under section 339(1)(b)(ii).
(4) 	The appeal must be started within 20 business days (the submitter’s appeal period) after the decision notice or negotiated decision notice is given to the submitter.

463 	Additional and extended appeal rights for submitters for particular development applications
(1) 	This section applies to a development application to which chapter 9, part 7 applies.
(2) 	A submitter of a properly made submission for the application may appeal to the court about a referral agency’s response made by a prescribed concurrence agency for the application.
(3) 	However, the submitter may only appeal against a referral agency’s response to the extent it relates to—
(a) 	if the prescribed concurrence agency is the chief executive (environment)—development for an aquacultural ERA; or
(b) 	if the prescribed concurrence agency is the chief executive (fisheries)—development that is—
(i) 	a material change of use of premises for aquaculture; or
(ii) 	operational work that is the removal, damage or destruction of a marine plant.
(4) 	Despite section 462(1), the submitter may appeal against the following matters for the application even if the matters relate to code assessment—
(a) 	a decision about a matter mentioned in section 462(2) if it is a decision of the chief executive (fisheries);
(b) 	a referral agency’s response mentioned in subsection (2).

464 	Appeals by advice agency submitters
(1) 	Subsection (2) applies if an advice agency, in its response for an application, told the assessment manager to treat the response as a properly made submission.
(2) 	The advice agency may, within the limits of its jurisdiction, appeal to the court about—
(a) 	any part of the approval relating to the assessment manager’s decision about any part of the application requiring impact assessment under section 314; or
(b) 	any part of the approval relating to the assessment manager’s decision under section 327.
(3) 	The appeal must be started within 20 business days after the day the decision notice or negotiated decision notice is given to the advice agency as a submitter.
(4) 	However, if the advice agency has given the assessment manager a notice under section 339(1)(b)(ii), the advice agency may not appeal the decision.

465 	Appeals about decisions relating to extensions for approvals
(1) 	For a development approval given for a development application, a person to whom a notice is given under section 389, other than a notice for a decision under section 386(2), may appeal to the court against the decision in the notice.
(2) 	The appeal must be started within 20 business days after the day the notice of the decision is given to the person.
(3) 	Also, a person who has made a request under section 383 may appeal to the court against a deemed refusal of the request.
(4)	An appeal under subsection (3) may be started at any time after the last day the decision on the matter should have been made.

466 	Appeals about decisions relating to permissible changes
(1) 	For a development approval given for a development application, the following persons may appeal to the court against a decision on a request to make a permissible change to the approval—
(a) 	if the responsible entity for making the change is the assessment manager for the application—
(i) 	the person who made the request; or
(ii) 	an entity that gave a notice under section 373 or a pre-request response notice about the request;
(b) 	if the responsible entity for making the change is a concurrence agency for the application—the person who made the request.
(2) 	The appeal must be started within 20 business days after the day the person is given notice of the decision on the request under section 376.
(3) 	Also, a person who has made a request under section 369 may appeal to the court against a deemed refusal of the request.
(4)	An appeal under subsection (3) may be started at any time after the last day the decision on the matter should have been made.

467 	Appeals about changing or cancelling conditions imposed by assessment manager or concurrence agency
(1) 	A person to whom a notice under section 378(9)(b) giving a decision to change or cancel a condition of a development approval has been given may appeal to the court against the decision in the notice.
(2) 	The appeal must be started within 20 business days after the day the notice of the decision is given to the person.

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PO Box 141		P. (07) 5329 6500	[email protected]	
	TEWANTIN  QLD  4565	F. (07) 5329 6501	www.noosa.qld.gov.au
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OPW15/0195

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