Minor Change Council Report 51987.2951.01

51987.2951.01 – minor change to a development approval for additions to a detached house to include a swimming pool, deck and other structures seaward of the coastal building line situated at 42 seaview terrace, sunshine beach

Document information

Author	Development Planner, Glen Conforti
Environment and Sustainable Development Department

Index	ECM / Application / 51987.2951.01

Attachments	1 	Coastal Building Line Review

APPLICATION DETAILS
Application No.	51987.2951.01
Development Approval	Town Planning Consent TPC 1918 for a dwelling in a Sand Dune Problem Area.
Applicant	M Design
Request Received On	19 September 2018

PROPERTY DETAILS
Property Address	42 Seaview Tce Sunshine Beach Qld 4567
RP Description	Lot 57 RP 81810
Land Area	592m²
Existing Use of Land	Detached House

STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Locality	Eastern Beaches
Zone	Detached Housing
Overlays	Biodiversity Overlay  - Environmental Protection Natural Hazards Overlay – Landslide hazard area Natural Hazards Overlay – Low potential acid sulfate soils Natural Resources Overlay – Coastal Protection Area
Assessment Type	Minor Change to Development Approval

RECOMMENDATION
That Council note the report by the Development Planner to the Planning & Environment Committee Meeting dated 11 December 2018 regarding Application No. 51987.2951.01 to make a minor change to an existing approval for additions to a detached house to include a swimming pool, deck and other structures seaward of the coastal building line situated at 42 Seaview Tce, Sunshine Beach and:
A.	Refuse the change for the following reasons:
The proposal does not comply with the Planning Scheme in force at the time of the original approval, given the extent of excavation and vegetation removal.
The proposal does not comply with the Natural Resources Overlay Code for Coastal Protection as it has the potential to adversely impact on natural coastal processes.
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.
The proposal does not comply with the Biodiversity Overlay Code as vegetation is proposed to be removed within the Environmental Protection Overlay placing the integrity and resilience of the foreshore at risk.
B.	Note the report is provided in accordance with Section 63(5) of the Planning Act 2016.

REPORT
PROPOSAL
The applicant seeks to change an existing development approval for additions to the existing detached house. The proposal seeks to construct 2 new in ground water tanks, approximately 48m² of decking and a 13.4m x 4.4m swimming pool and a set of stairs seaward of the coastal building line. The swimming pool is proposed with a setback of 6m from the seaward boundary. The applicant seeks to retain 6m of vegetation from the seaward boundary. Figures 1 and 2 provide a plan view and section of the proposal. The Coastal Building Line is generally 15m from the seaward boundary, however, background of the Coastal Building Line is provided in section 2.1 of this report.

Figure 1 – Plan view including the coastal building line in pink and the line of the existing building in blue. The blue line represents the existing portion of the dwelling cantilevered seaward of the Coastal Building Line.

Figure 2 – Cross section showing the new pool, water tank and decking and the existing cantilevered portion of the dwelling.
The applicant has provided the following documents in support of the development:
Coastal Building Line Review - 42 Seaview Terrace, Sunshine Beach, prepared by Omtrek Engineering Planning Environment (provided as Attachment 1);
Supporting Document, prepared by Reel Planning Urban and Rural Strategies;
Alteration to Existing Detached Dwelling – 42 Seaview Terrace, Sunshine Beach 4567, prepared by RG Strategic.
site details
Background
Council approved Development Approval 51987.2951 (TPC 1918) for a dwelling in a Sand Dune Problem Area (Coastal Management Control District) on 7 July 1987.
The development was approved up to 9m in height and with a front setback variation. A small portion of the upper level living room and balcony cantilevered between 2.5m and 3.5m seaward of the Coastal Building Line, noting the intrusion seaward of the Coastal Building Line is limited to the cantilevered portion. Figure 3 below is the original plan showing the extent of the encroachment and Figure 4 shows the Coastal Building Line, the subject site and surrounding properties.

Figure 3 – Original plan showing between 2.5m and 3.5m cantilevered structure into the 15m ‘no building zone’.

Figure 4 –Coastal Building Line (purple line), subject site (highlighted in yellow) and surrounding properties.
As shown in Figure 4, the majority of development on the eastern side of Seaview Terrace has some form of building work seaward of the Coastal Building Line. As reference for Section 3 of this report, it is important to provide background to other development affected by the Coastal Building Line on the seaward side of Seaview Terrace which is provided in Table 1 below.
Table 1 – Background of development on lots affected by the Coastal Building Line on the seaward side of Seaview Terrace
Address in Seaview Terrace	Development Approval	Date of Decision	Comments
The blue rows represent development assessed under the State Coastal Management Plan* provisions.
38	2005132004.240114	11 July 2005	No development seaward of the Coastal Building Line.
40	51993.271	1993	DA File misplaced. Building plans indicate development approximately 3m to 4m seaward of the Coastal Building Line.
42			Subject site – background provided above.
44	No DA records for original dwelling		Original dwelling appeared (from aerials) to comply with the Coastal Building Line setback.
	MCU12/0159	9 January 2013	A portion of the building, a deck and pool (pool setback 4m – 5.7m from rear boundary) approved seaward of the Coastal Building Line. Third party referral to DEHP. Alignment of neighbouring property was considered in the assessment.
	MCU15/0023	5 June 2015	A greater setback to the pool (4.9m to 6.5m from rear boundary) and a reduction of building forward of the Coastal Building Line when compared to the previous approval.
46 - 48	132005.2200	27 February 2007	The application was subject to the State Coastal Management Plan*. For context an extract from the planners report is provided below— The State Coastal Management Plan contains specific provisions relating to erosion prone areas when undertaking development assessment. The State Coastal Management Plan, Policy 2.2.2 applies to Erosion Prone Areas. For existing developed areas in the erosion prone area, the limit for new buildings is the building alignment of neighbouring properties. Further development is only to occur landward of this alignment. The proposed dwelling house is primarily located landward behind the 15 metre building setback line from the rear boundary. Although small sections of the house and the proposed pool extend within this setback, the development does not occur seaward of the neighbouring dwelling to the north or the existing deck on the site which is to be retained.
50	132004.4743	2005	The proposal is seaward of the Coastal Building Line and was subject to the State Coastal Management Plan, Policy 2.2.2. The assessment is similar to the neighbouring 46-48 Seaview Terrace.
52	131998.982104 15246 DA	14 December 1998	Extension to existing dwelling seaward of the Coastal Building Line. Referral to the Beach Protection Authority. Consideration of neighbouring properties alignment.
54	No DA on file		
56	132005.901	29 November 2005	The proposal is seaward of the Coastal Building Line and was subject to the State Coastal Management Plan*, Policy 2.2.2. The assessment was similar numbers 46-48 & 50 Seaview Terrace.
58	51996.2025 (04632 TP)	23 August 1996	A cantilevered deck seaward of the Coastal Building Line resulting in a 6m setback to the seaward boundary. Referral to the Beach protection Authority.
60	131999.982760	12 July 1999	Dwelling seaward of the Coastal Building Line. Extensions to an existing house built prior to the 1980’s.
62	132004.4920	26 November 2004	Dwelling seaward of the Coastal Building Line. The proposal was subject to the State Coastal Management Plan*, Policy 2.2.2. The assessment was similar to numbers 46-48, 50, & 56 Seaview Terrace.
64	No DA except for an extension to the carport		The existing dwelling appears to extend approximately between 2m to 3m seaward of the Coastal Building Line.
*The State Coastal Management Plan commenced in February 2002 and ended in February 2012 and was replaced by State Planning Policy 3/11: Coastal Protection (2 Dec 2013). Since 2013 various State Planning Policies have lapsed or been repealed.
The site is also within an Erosion Prone Area and Coastal Management District as shown below in Figures 5.

Figure 5 – Current QLD Government mapping of the Erosion Prone Area on the left and Coastal Management District on the right.
The lot is also affected by Council’s new Coastal Hazards – Erosion Prone Area mapping. The modelling was undertaken in accordance with the Queensland Government Coastal Hazard Technical Guide. Modelling for Erosion Prone Area 1% AEP storm event consists of three future planning horizons– the years 2040, 2070 and 2100, as well as present day conditions, for a comparison. The modelling outputs were completed and signed off in February 2018 by the relevant representative of the QLD State Government ensuring the modelling was in accordance with the State guidelines. Figure 6 below shows the subject site and the newly modelled erosion prone areas.

Figure 6 – New mapping of Erosion Prone Area 1% AEP storm event, current, 2040, 2070 & 2100.
The new modelling shows the N.E. corner of the site is currently affected. The modelling suggests that by 2040, within the life of this development, approximately 75% of the site is affected by coastal erosion in a 1% AEP storm event.
As background for this report, the QLD Government Guideline: State Development Assessment Provisions State Code 8: Coastal development and tidal works provides information on the intent of the Coastal Building Line and the concept of coastal processes are provided below:
Coastal Building Line
Coastal building lines are declared in those areas that are already developed for urban purposes and are highly vulnerable to coastal erosion. The intent of the coastal building line is to:
provide a common alignment for building work;
set back development from the coastline which reduces the erosion risk to people and property;
provide space on the lot seaward of the development for construction of future erosion control structures wholly on the lot and not on State land.
Generally, no building work, including houses, sheds or swimming pools, would be permitted seaward of a coastal building line. Only works for the protection of existing buildings from sea erosion, such as seawalls, would be permitted seaward of a coastal building line.
Coastal Processes
Coastal processes are the natural processes occurring on the coast and in tidal water including:
wind, waves, tides and currents which transfer energy to the coast and drive other processes;
sediment transport to and along the coast;
sediment accumulation or erosion onshore and offshore which builds or destroys landforms including foreshores, beaches, dunes, delta plains;
the growth and spread of plants and succession of plant communities, especially where plants have a specific role in trapping sediment and building landforms (mangrove and dune colonizing grasses) and stabilizing sediments against erosion;
changes in sea-level both temporary and permanent from weather events and climate change.
Surrounding Land Uses
The site adjoins detached houses to the north and south and to the west across Seaview Terrace. The site slopes steeply to the east adjoining north Sunshine Beach dog beach.
assessment
Instruments for Statutory Assessment
Under the Planning Act 2016 the application;
must be assessed against, all matters the responsible entity would or may assess against or have regard to, if the change application were a development application; and
another matter that the responsible entity considers relevant; and
must assess against, or have regard to, the matters that applied when the development application was made and;
may assess against, or have regard to, the matters that applied when the change application was made.
The following codes from the Noosa Plan are applicable to this development:
Biodiversity Overlay Code
Natural Resources Overlay Code
Detached House Code
Statutory Process
The applicant has requested to make a minor change to a development approval under s78 of the Planning Act 2016. An application for a minor change to a development approval can only be made in circumstances where a change would constitute a ‘minor change’.
The proposed change to the development approval requested by the applicant is determined to constitute a minor change on the grounds that:
the development would not result in substantially different development as the additions are considered part of the detached house;
the change does not include prohibited development;
the change would not require the application to be referred to an additional referral agency or cause a referral agency to have regard to new mattes prescribed by regulation;
where the original application was code assessable, the change would not cause the application to become impact assessable.
Statutory Instruments
The proposal seeks to construct a deck, rainwater storage tanks, stairs and a swimming pool seaward of the Coastal Building Line resulting in a setback of 6m from the seaward boundary. The Coastal Building Line is generally 15m from the seaward boundary as shown in Figure 1 in Item 1 of this report.
State Development Assessment Provisions
Section 81 (2) (e) of the Planning Act 2016 permits the responsible entity to assess applications against matters considered relevant. In this instance, it is considered the State Development Assessment Provisions: State Code 8 is relevant as it provides up to date and clear assessment provisions for development in the coastal environment and for lots affected by the Coastal Building Line.
Furthermore, the State Development Assessment Provisions: State Code 8 is applicable when the Development Permit for Building Works is referred to the State Assessment and Referral Agency (SARA) as a Concurrence Agency, which is the next step for the subject proposal, should it be approved.
The relevant outcomes of the State Code 8 for development in an erosion prone area is provided below.

The State Code 8 seeks that there is no development seaward of the Coastal Building Line except for coastal protection work.
For guidance as to how to comply with the State Code 8 the guideline indicates the following:
Applications… should demonstrate that the proposed development is located landward of the coastal building line; or
1. 	justify why the proposed development cannot be located landward of the coastal building line; and
2. 	demonstrate how development seaward of the coastal building line is protected from coastal erosion both now and in the future.
The proposal is not coastal protection work. The applicant’s proposed 6m setback has relied upon:
the alignment of neighbouring properties which are the result of repealed legislation and policy; and
information from a previous analysis report undertaken by BMT WBM (2013), “Coastal Processes Study for the Sunshine Coast” prepared for the Sunshine Coast Regional Council indicating potential erosion at the northern end of Sunshine Beach is currently very low.
The applicant also indicates that due to “the dune elevation it is not feasibly possible to locate future coastal protection works within the property boundaries. This effectively negates the need for a coastal building line to constrain development for coastal management purposes.”
It is considered the applicant has not justified why the proposal cannot be located landward of the Coastal Building Line. The applicant suggests the swimming pool and the proposed 6m landscaped setback is not sufficient to protect the development in the event of erosion and the Coastal Building Line is essentially meaningless in this instance.
Furthermore, the lot is highly vulnerable to coastal erosion and it is imperative to provide the maximum buffer to the sea to minimise the risk to coastal erosion. The 15m Coastal Building Line setback provides this buffer and ensures the development is more resilient to coastal erosion and sea level rise as climate change occurs.
Superseded Noosa Planning Scheme
The 1985 Noosa Planning Scheme (pre Integrated Planning Act version) was in force at the time of the original approval. Provisions in the superseded Planning Scheme required that on land in a sand dune problem area—
(a) 	No person shall on land included in a sand dune problem area or steeply sloping land—
(i) 	concentrate water on any part thereof;
(ii) 	carry out any drainage works thereon or effect any alteration to existing drainage works;
(iii) 	carry out any excavation, filling or any other earthworks;
(iv) 	clear the land of any existing vegetation;
except with the consent of the Council and in accordance with the conditions, if any, to which such consent is subject.
Under the superseded Planning Scheme, the dwelling was approved with 2 balconies cantilevered between 2.5m and 3.5m seaward of the Coastal Building Line resulting in no excavation seaward of the Coastal Building Line. The Planner’s report indicates a ‘15m no building zone’ and allowed a front setback dispensation given the sites constraints; topography and the presence of the Coastal Building Line.  Considering the extent of excavation and the removal of vegetation for the in-ground water storage tanks and the swimming pool, the subject proposal does not comply with the Planning Scheme in force at the time of the original approval.
The Noosa Plan
Biodiversity Overlay Code
Approximately 7m to 8m of the rear of the property is affected by the Biodiversity Overlay with Environmental Protection.
The proposal seeks to remove some vegetation within the Environmental Protection area for the building works. Specific Outcome O1 of the Biodiversity Overlay is relevant and is provided below:
Environmental Protection Area & Environmental Enhancement Area Vegetation & Riparian Buffer Area
O1 Vegetation of local origin on premises identified as—
a) 	Environmental Protection Area or Riparian Buffer Area on the Biodiversity Overlay Maps OM1.1 to OM9.1, is retained and conserved in its present form or improved to ensure its ongoing contribution to the natural resources and biological diversity of the Noosa Shire; …
Given the proposal is to remove some vegetation within the Environmental Protection area it is considered not to comply with this Outcome and therefore assessed against relevant Overall Outcome 13.7.2 d), which reads:
Development is managed so as to avoid, or where avoidance is not practicable, minimises or mitigates the impacts upon the Shire’s biodiversity values and natural resources, including—
vi 	coastal resources and values including coastal foreshores, near shore marine environments, beaches, dunes, rocky headlands, beaches and river mouths;
The Overall Outcome seeks to avoid, minimise or mitigate the development’s impact on the coastal foreshores. It is considered by removing vegetation within the Environmental Protection Overlay is not avoiding or minimising impacts on coastal resources and places the coastal foreshore integrity at risk.
Natural Resources Overlay Code – Coastal Protection
It should be noted that development that is consistent with the specific outcomes complies with the Natural Resources Overlay Code.
The relevant Specific Outcomes of the Natural Resources Overlay Code – Coastal Protection are provided below:
O18 The siting and design of development and materials used within the Coastal Protection Area, as identified on the Natural Resources Overlay Maps, do not cause any significant adverse impacts on the coastal resources of the location nor interrupt the natural cycles of erosion and accretion of foreshore areas and beaches.
O20 Buildings and other structures including swimming pools and retaining walls do not extend seaward of the coastal building line except—
a) 	uncovered and unenclosed cantilevered balconies that do not extend greater than 3m seaward of the coastal building line; and
b) 	are setback a minimum of 6m from the seaward boundary (See Figure 13.7).

The proposal does not comply with Specific Outcome O18 as it is considered the development seaward of the Coastal Building Line has the potential to interrupt the natural cycles of erosion and accretion of the beach. Furthermore, the proposal does not comply with Specific Outcome 20 as the new development does not comply with the 15m setback of the coastal building line.
Given the proposal does not comply with the Specific Outcomes, the following Overall Outcomes for the Natural Resources Overlay Code are applicable:
13.42.2 The overall outcomes sought for the Natural Resources Overlay Code are—
f) 	for Coastal Protection Areas, development —
i 	does not adversely impact upon natural coastal processes; and
ii 	is designed and sited to protect the natural beach experience and visual amenity enjoyed by residents and others.
It is pertinent that new climate change information and modelling has highlighted that within the life of this development serious erosion may occur and risk life and property.
Erosion prone areas should be retained in their natural state where they can act as a buffer between land uses and the beach to allow the natural coastal processes to occur, without the need for intervention to protect human life and property. It is considered the proposal will adversely impact on the coastal processes as a 6m landscaped setback is not sufficient to minimise the risk of erosion.
While some of the dwellings on the seaward side of Seaview Terrace are constructed seaward of the Coastal Building Line, they complied with the statutory instruments in force at the time. The neighbouring property to the north was approved in 2012 with a third party referral to the equivalent of SARA (State Government), and again approved in 2015; the assessment considering the alignment of the neighbouring property. Since that time new information of climate change effects on coastal processes have been modelled and more accurately depict the risk of erosion to the subject property as shown in Figure 6 in section 2.1.
Furthermore, it should be noted that State g\Government planning for coastal areas has changed over time. For example, between 2002 and 2012 State Planning Policy allowed for development seaward of the coastal building line providing it did not protrude seaward of the neighbouring properties building alignment. Whereas, the current State Development Assessment Provisions are much more restrictive, not permitting development seaward of the coastal building line except for coastal protection works. This highlights the Queensland State Government statutory planning instruments recognise the importance of the risks of climate change and updated information available.
Risk & liability
There will be increasing pressure for property owners to seek protection for their built assets to combat erosion impacts. Who is responsible and who should cover this cost has some case law, but is still not clear yet.
Climate change presents considerable uncertainty in terms of severity and frequency of hazard. Council as assessment manager has a duty of care to give full consideration to coastal erosion and sea level rise risks. While a planning scheme might provide for a particular type of development to occur, the assessment manager must consider whether the design and siting of that development is compatible with the risk and that any coastal risks have been appropriately mitigated.
Advice from LGAQ and King and Co advise that Council has a duty of care to consider best available information at the time of assessing the development application.
cONSULTATION
Referrals
The application was forwarded to the following internal Council specialists:
Principal Strategic Planner
Ecologist
Project Coordinator – Flooding, Coastal and Foreshores
Project Coordinator – Climate Change Adaptation
Their assessment forms part of this report
conclusion & reasons for decision
The 15m Coastal Building Line setback allows for the natural landscape to be the first line of storm protection and buffering. Providing the maximum buffer from the sea will ensure that future development is more resilient to coastal erosion and sea level rise as climate change effects arise. Furthermore, the 15m setback preserves the integrity and structure of the frontal dune for longer in the face of increased storm frequency, intensity and erosion without the need for coastal protection works.
The proposed 6m setback does not provide sufficient natural landscape buffering in this highly vulnerable erosion prone area. The 6m setback does not minimise the risk to erosion and allows for potential impacts on and interference with coastal processes.
The subject property and surrounding properties are within a Coastal Management District, an Erosion Prone Area and affected by the Coastal Building Line. Repealed policy and past assessment has resulted in development forward of the Coastal Building Line. However, new knowledge about coastal erosion including new erosion prone area modelling in accordance with State guidelines, highlights the need to take a strong position in ensuring that development does not encroach seaward of the Coastal Building Line to minimise risk to hazards.
The development is not in accordance with the relevant statutory planning instruments including The Noosa Plan’s Biodiversity Overlay Code, Natural Resources Overlay Code for Coastal Protection and the superseded Noosa Planning Scheme. The proposal raises significant planning concerns and is recommended for refusal for the following reasons:
1.	The proposal does not comply with the Planning Scheme in force at the time of the original approval, given the extent of excavation and vegetation removal.
2	The proposal does not comply with the Natural Resources Overlay Code for Coastal Protection as it has the potential to adversely impact on natural coastal processes.
3 	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.
4. 	The proposal does not comply with the Biodiversity Overlay Code as vegetation is proposed to be removed within the Environmental Protection Overlay placing the integrity and resilience of the foreshore at risk.

Departments/Sections Consulted:
	Chief Executive Officer		Community Services		Corporate Services
	Executive Officer		Community Development		Financial Services
	Executive Support		Community Facilities		ICT
			Libraries & Galleries		Procurement & Fleet
			Local Laws		Property
			Waste & Environmental Health		Revenue Services
					
	Executive Services	X	Environment & Sustainable Development	X	Infrastructure Services
	Community Engagement		Building & Plumbing Services		Asset Management
	Customer Service	X	Development Assessment		Buildings and Facilities
	Governance		Economic Development		Civil Operations
	People and Culture		Environmental Services		Disaster Management
		X	Strategic Land Use Planning	X	Infrastructure Planning, Design and Delivery
					

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT	11 DECEMBER 2018

[Attachment: image1.png (image text)]
[COASTAL BUILDING LINE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A PROPOSED PLAN [LINE OF EXISTING BUILDING aera


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LEGEND x

& lates

‘Az Property Label
‘Az Roadhlames labels
& Coastal Hazards
& Erosion Prone Ares 1
Current
2040 (1),
2070 (1)
2100 (1),

 

AEP storm

& base

AV Local Government Areas
AV Noosa

Other LGA,

Land Parcels

 

 

 


[Attachment: image7.png (image text)]
 

PO1 Development does not occur in the erosion
prone area unless the development:
1. is one of the following types of development:
. coastal-dependent development; or
b. temporary, readily relocatable or able to
be abandoned; or
essential community infrastructure; or
d__ redevelopment of an existing permanent
building or structure that cannot be
relocated or abandoned: and
2._cannot feasibly be located eisewhere

   

 

ered

'No acceptable outcome is prescribed.

 

PO2 Development other than coastal protection
work:

   

impacting on coastal proce:
2. ensures that the protective function of landforms
and vegetation is mi

 

No acceptable outcome is prescribed.

 

 

constructed to minimise the impacts from coastal

erosion by:
1. locating the development as far landward as
practicable; or

2. where itis demonstrated that 1 is not feasible,
mitigate or otherwise accommodate the risks
posed by coastal erosion.

PO4 Development does not significantly Increase

the risk or impacts to people and property from

coastal erosion.

 

No acceptable outcome is presctibed.

No acceptable outcome Is prescribed.

 

POS Development other than coastal protection
‘work avoids directly or indirectly increasing the
severity of coastal erosion either on or off the site.

No acceptable outcome is prescribed,

 

 

PO6 In areas where a coastal building line is
present, building work is located landward of the
coastal buil @ unless coastal protection
‘work has been constructed to protect the
development.

 

 

No acceptable outcome is prescribed.

 

 

 

 


[Attachment: image8.png (image text)]
Coastal Builohing Line

  
     

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Figure 13.7