20220728 Ltr Negotiated Decision Notice 17-19 Noosaville

Condition 14 of the development approval requires the payment of a $50,000 performance bond. This
condition is unnecessarily onerous and is intended to ensure the fulfilment of all conditions of
approval. The bond amount will be returned less any costs incurred by the Council in respect of
enforcing performance of any condition. The condition is silent on how costs are to be calculated and
justified by the Council which is problematic, specifically those conditions which are ongoing and to
be maintained.

We note compliance with conditions of approval is a legal requirement imposed on all applicants.
Non-compliance gives rise to enforceable rights and there are a number of options that are available
to Council in that event.

There are conditions that must be satisfied prior to commencement of use, whilst others are
operational conditions and are ongoing. The wording of this condition in its current form creates
confusion as to how this could be reasonably satisfied, particularly if the fulfilment of some
conditions is an ongoing obligation which will extend to the future owners of individual units.

Conclusion

We request that Condition 14 be removed on the basis that:

   •   Condition 14 is neither reasonable nor relevant as prescribed under the Planning Act 2016.

   •   There are other conditions in the package that require performance bonds for specific works
       (condition 53) where there is additional protection required for a particular aspect of
       development;

   •   Noosa Council has the required powers to enforce compliance of conditions, without the need
       for a performance bond.


Condition 53

We request amendment to Condition 53 of the conditions package

Condition 53, says:

    “Prior to the prestart meeting, a bank guarantee or a bond of $30,000 must be lodged as security for
   the protection of the tree/s identified for retention in the conditions of this approval. The bond:

   a) may be drawn upon by Council in its entirety if any one tree identified for retention
      is damaged to the point where the tree cannot be saved (as confirmed by the
      project arborist and agreed in writing by Council)
   b) will be returned upon practical completion of all the operational works relating to
      this development”.

Discussion

Condition 53 of the development approval requires the payment of another bond as security to ensure
the protection of trees on the site.

Whilst we do not object to the performance bond for the protection of trees and recognise the
importance of fulfilling the requirement of this condition, the current wording of the condition is too
rigid and does not account for contingencies such as accidental tree removal arising from site works.