3476_001 · MCU18/0015

Page 2

Page 3

11 January 2019

The Assessment Manager
File MCU18/0015

Noosa Council

PO Box 141

Tewantin Qid 4565

Via Email — [email protected]

SUBMISSION IN RESPONSE TO DEVELOPMENT APPLICATION - MCU18/0015 & RAL18/0001

Development Application for Combined Application Comprising (1) Material Change
of Use (Multiple Housing Type 4 conventional (12 units) & 3 x Detached House)
(Council Ref: MCU18/0015) & Reconfiguring a Lot 1 (subdivision into 4 Residential
Lots and 1 Open Space Lot) (Council Ref: RAL18/0001: David William Neate

This letter is a submission under the Planning Act 2016 in response to the development application over Lot
27 on RP89506 and is an attachment to the Notice of Submission form — Part 3 Details of Submission.

We strenuously object to this application.

Grounds

1. Easement and Access

It would appear the development application has proceeded on the erroneous assumption that certain
rights are granted under easements.

The proposed Lot Reconfiguration Plan PL.O2 shows access to lots 3 and 4 over and across the
Scheme land. There is no internal access from Attunga Heights to these lots. The engineer's
report (cl 4, Access) supporting the proposed development states access for lots 3 and 4 will
be taken from the existing Alma Way road construction located within the Pepper's Noosa
Resort and Villas development and that existing access easements (and rights) exist to facilitate
this arrangement.

It is our understanding that this assumption is incorrect.
We draw Council’s attention to the terms of easement as set out in the registered easements in favour of
Lot 27 on RP 87506:

Page 4

Easement L
Clause 11 states:

The benefit and effect of this easement is agreed to be postponed, and the Grantee agrees that it shail have
no right to exercise any of the rights referred to in this easement, until a development approval is granted,
and the development is completed, for the Dominant Tenement.

For the purposes of this clause and this easement the following words have the following meanings:

¢ "development approval" means such an approval or approvals including a ministerial approval and
conditions of approval by the Sunshine Coast Regional Council in final format enabling the Grantee
to immediately and lawfully proceed with construction of improvements as approved, including in
accordance with conditions of approval on the Dominant Tenement;

e improvements being completed in accordance with the requirements of the Sunshine Coast
Regional Council and a Certificate of Classification issuing in relation to use if required or applicable;

e "completed" shall mean practical completion of construction (including completion of construction
of a stage of development, ff a staged development is approved and constructed in stages, if
applicable) in accordance with the term as is usually used, and in the case of any uncertainty, as
evidenced by the issue of a Certificate of Classification for such improvements by the Sunshine Coast
Regional Council, if required or applicable, and otherwise as reasonably determined by the Grantor's
Architect;

e in the case of any uncertainty the issue of a Certificate of Classification following Development
Approval shall be taken to be the date upon which the Grantee may use and enjoy the rights and
benefits conferred by this easement, if a Certificate of Classification is required or applicable, and
otherwise, as reasonably determined by the Grantor's Architect.

Easement M & P
Clause 8 states:

The benefit and effect of this easement is agreed to be postponed, and the Grantee agrees that it shall have
no right to exercise any of the rights referred to in this easement, until a development approval is granted,
and the development is completed, for the Dominant Tenement.

For the purposes of this clause and this easement the following words have the following meanings:

® "development approval" means such an approval or approvals including a ministerial approval and
also conditions of approval by the Sunshine Coast Regional Council in final format enabling the
Grantee to immediately and lawfully proceed with construction of improvements as approved,
including in accordance with conditions of approval on the Dominant Tenement;

e improvements being completed in accordance with the requirements of the Sunshine Coast
Regional Council and a Certificate of Classification issuing in relation to use if required or applicable;

e "completed" shall mean practical completion of construction (including completion of construction
of a stage of development, H a staged development is approved and constructed in stages, if
applicable) in accordance with the term as is usually used, and in the case of any uncertainty, as

Page 5

evidenced by the issue of a Certificate of Classification for such improvements by the Sunshine Coast
Regional Council if required or applicable and otherwise as reasonably determined by the Grantor's
architect;

e in the case of any uncertainty the issue of a Certificate of Classification following Development
Approval shall be taken to be the date upon which the Grantee may use and enjoy the rights and
benefits conferred by this easement if the Certificate of Classification is required or applicable, and
otherwise as reasonably determined by the Grantor's architect.

Should there be a development approval, any development approval must ensure that the development
conditions do not conflict with the terms of Easements L, M and P on SP207304.

Any approval should be conditioned so that the approved uses of land in the Viridian Noosa Community
Titles Scheme 41478 can continue to comply with conditions of the development approval applying to the
Scheme Land, without additional burdens or costs imposed on the Body Corporate and consistent with the
terms of easements granted.

2. Other Matters

If Council approves the application (insofar as it relates to proposed lots 3 & 4) (and which we submit it
should not) we note as follows:

Easements P and M on SP207304 are each 6 m2 in area and are registered for access purposes for garbage
enclosures and landscaping and for the storage of refuse bins. Council should condition any approval to
include the following in relation to the following matters:-

Easement M on SP207304 is to be allocated so as to benefit proposed Lot 3 only;

Easement P on SP207304 is to be allocated so as to benefit proposed Lot 4 only;

No garbage is to be stored in these easements from others lots in the approved development;

No construction plant, equipment, materials or associated construction waste is to be stored within these
easements (or elsewhere within the Viridian Noosa Community Titles Scheme 41478) at any time;

As required by the existing conditions within the schedule for the respective easements, the developer
should submit to the Body Corporate, for its approval, full details of the proposed enclosure design,
construction, and materials, screening landscaping and the like.

Easement L on SP207304 comprises an area of 8241m2 for the purposes of access over common property.
The Council should condition any approval to include the following matters:

a. Easement L on SP207304 is to be allocated so as to benefit Proposed Lot 3 and 4 only
and not any other lot in the approved development;

b. Those motor vehicles using Easement L must comply with all conditions in the
schedule of the registered easement which includes, but by no means limited to, the
following:

i. all motor vehicles using Easement L must meet T44 and W& loadings in
accordance with Australian Bridge design Code;
ii. any buses using Easement L to be limited to 22 seats capacity shuttle buses;
iii. delivery vehicles for provisions, linen, etc, using Easement L are to be limited
rigid vehicles not exceeding 11 metres in fength;

Page 6

iv. garbage removal vehicles using Easement L are subject to the requirements of
Noosa Council from time to time, to be limited to standard garbage trucks
and/or standard vehicles for delivery/removal of garbage compactors;

v. service, garbage and delivery vehicles using Easement L may operate only
between (and may not operate outside) the hours of 8:00am to 5:00pm
Monday to Saturday, unless otherwise required by Noosa Council;

vi. motor vehicles, machinery, building materials and the like are not stored or
parked in the easement or on the Servient Tenement (i.e. Viridian Noosa CTS)
during construction.

Gs Council should condition any development on the basis that no vehicles may use
Easement L for construction of any approved development.

d. The plan in Annexure A ~ Maintenance Area in the existing registered easement
document should be amended to reflect the approved development over the
proposed development site. This Annexure should also be amended to show Area A
that is within the easement and not include part of the gazetted road in Morwong
Drive. All alterations to the easement document are to be approved by the Body
Corporate and made at no cost to the Body Corporate.

Any combined development approval should include conditions that ensure that:-

A. Any emissions of noise, dust and lighting during construction and subsequent
ongoing use of the approved development does not create nuisance for guests and
visitors to the scheme land.

B. Any security and safety lights during construction and for the ongoing use of the
approved development are to be positioned and orientated and designed so as not
to create a nuisance for guests and visitors to the scheme land as well as the
surrounding ecosystem.

C. No construction is to be undertaken on the approved development over weekends
or on any public holidays.

3. Environmental Issues

The developer is seeking 3 separate lots for detached houses and these are not in keeping
with the bulk of the development off Attunga Heights as they will be totally isolated from
the rest of the development with no formal access to either the rest of the buildings nor the
street address of 27 Attunga Heights. These lots border Morwong Drive and Alma Way
which our development has assiduously protected during construction and maintained and
enhanced ever since, it remains a buffer to the road access off Viewland Drive and is a haven
for birdlife and other native fauna for the whole precinct.

The lots are proposed to be in gullies and to straddle sloping land off Morwood Drive and
Alma Way which is currently covered with substantial trees of the same varieties which
populate the creek or waterway for the full extent of the development. This application
seeks to totally destroy a substantial part of that vegetation and will be a major visual and

Page 7

Page 8

environmental interruption to the creek landscape continuum which currently exists. Koalas
still exist in this arear and the habitat will be destroyed should this application gain approval.

The Noosa Plan presciently makes the case in ‘Community Vision’, Clause 1.4.1 (d)
Environmental excellence, sustainability and this proposal makes a comprehensive mockery
of that clear intention. Also, in Clause 1.4.4, council states unequivocally that it has
‘commitment to environmental excellence’. Again, it is difficult to agree that this siting of a
house lot within the creek zone meets that important criterion of the Plan.

4. No properly made application

We understand the application is not properly made. The proposed development relies on access from
common property of Viridian Noosa CTS 41478 (lot 900 on SP 207311) (Scheme land). The application
does not include any reference to the Scheme land.

If the application is determined to be properly made then, so far as the application relates to the
creation of proposed lots 3 and 4, the application should be refused for the reasons set out above

Summary
We are committed to opposing the development application. It is inappropriate development (so far

as relates to proposed lots 3 and 4) and cannot rely on any express (or implied) rights which the
applicant seeks to substantiate with the easements identified in this submission.

Yours Sincerely

7 : ie P '
KL peut x (fr w 9 ON

Join Gowdie and Jane Gowdie