Attachment 3 - P and E Law Advice

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The following considerations arise from the description of the issue:

    1.   1000 m² minimum lot size;
    2.   consideration of bushfire, flooding and ecological constraints;
    3.   existing character; and
    4.   50 m setback to the national park for lots 4, 5 and 12.

The two points listed as “information required” are not actually requests for information. They are
requests for changes to the development application. That goes beyond the assessment manager’s
power and need not be responded to by changing the development.

APPLICATION

The subject application is for a development permit for reconfiguring a lot.

The application was made under the Noosa Plan 2006 (the Planning Scheme).

The application is code assessable in accordance with section 2.6.4 of the Planning Scheme and the
requirements of the Planning Act 2016.

The following codes apply:

    1.   Noosaville locality code;
    2.   Reconfiguring a lot code;
    3.   Landscaping code;
    4.   Engineering Works Codes; and
    5.   any applicable overlay codes.

The land is within:

    1. the Urban Footprint;
    2. the Urban Growth Management Boundary;
    3. the Priority Infrastructure Area;
    4. the Noosaville locality, Detached Housing Zone (applies to the area proposed to be
       subdivided); and
    5. the Noosaville locality, Open Space Conservation Zone (applies to the area proposed to be
       retained in Lot 12).

RECONFIGURING A LOT CODE – SPECIFIC OUTCOME O1

Under the subheading “Specific Outcome O1”, the assessment manager says that “the planning
scheme seeks a lot size of 1000 m²”.

A minimum lot size of 1000 m² is called up by Probable Solution 1.1 and Specific Outcome O1(a).

The Planning Scheme says the following about Probable Solutions:




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        2.8 Probable solutions for code assessable development

        2.8.1 A probable solution for a specific outcome provides a guide for achieving that outcome in whole
        or in part, and does not limit the assessment manager’s discretion under the IPA 4 to impose conditions
        on a development approval.

        2.8.2 Probable solutions identified in the Noosa Plan are not exhaustive and alternative solutions that
        achieve the outcomes and purpose of the applicable codes may be proposed by applicants.

In respect of code assessable development, the Planning Scheme says, at 2.6.4:

        (d) Code assessable development:
                   i. is to be assessed against all the assessment benchmarks identified in the assessment
                   benchmarks column;
                   …
                   iii. that complies with:
                            a. the overall outcomes of the code complies with the code; and
                            b. the probable solutions complies with the overall and specific outcomes of the code;
                   iv. is to be assessed against any assessment benchmarks for the development identified in
                   section 26 of the Planning Regulation 2017.

It is therefore clear that it is not strictly necessary to comply with the 1000 m² minimum lot size called
up by Probable Solution 1.1 and Specific Outcome O1(a). What is important, according to section 2.8.2
and 2.6.4(iii)(a), is achieving the outcomes and purpose of the applicable codes.

In that regard we note the following provisions which are also relevant to an assessment of the
appropriateness of the lot size and layout.

Reconfiguring a Lot Code, Specific Outcome O1 also refers to “lots having the appropriate area and
dimensions to provide for”, relevantly:

    1. the intended use;1
    2. a specified house site area;2
    3. siting and construction of buildings to minimise risk of soil erosion, landslide, flooding and
       bushfire;3
    4. retention of natural environmental values, including native vegetation;4
    5. on sloping sites (which this is not) - minimisation of earthworks or retaining walls.5

Relevant Overall Outcomes for the Reconfiguring a Lot Code are:

    a) lot sizes and dimensions that are appropriate for their intended use;




1
  subparagraph a
2
  subparagraph b
3
  subparagraph d
4
  subparagraph f
5
  subparagraph h

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    d) acceptable impacts on watercourses, drainage lines, wetlands and other environmentally
    sensitive areas;

    g) lots that avoid significant adverse effects on the natural environment and landscape and
    minimise the risk of hazards for people and property;

    l) residential development which is consistent with the developed character of its particular
    neighbourhood.

Noosaville Locality Plan:

    1. overall outcome (nn) (ii) and (iii), which seek to achieve a high level of residential amenity and
       consistency with the character of the particular neighbourhood;
    2. specific outcome O4, which seeks to protect the identity of the various residential
       neighbourhoods within Noosaville;
    3. specific outcome O7, which requires the density of development within the site area to be
       compatible with the surrounding development whilst having a low site impact to enhance the
       opportunity to maintain natural site characteristics, including native vegetation and natural
       land forms.

The proposed lots are of an orthodox size and shape for residential lots and contain sufficient area for
the construction of a house.

Provision has been made for flooding and bushfire considerations.

The proposed subdivision layout on the eastern side of Sail Street, matches the existing pattern of
development to the south and along Lake Weyba Drive.

The existing development on the west of Sail Street, to the south of the proposed development, has
an unusual subdivision layout. The lots are long and narrow. Consequently, buildings have been
constructed on and across lot boundaries. There is also little protection for the environmental values
of that area and little, if anything, in the way of bushfire protection, flood management and water
quality treatment.

By comparison, the proposed lots to the west of Sail Street have substantially wider frontages than
the existing lots to the south. They are shorter than the corresponding lots so that the land zoned
Open Space Conservation is not fragmented and can be managed by a single owner. Specific provision
has been made for bushfire protection through the use of Asset Protection Zones on the relevant lots.

In our opinion, the proposed development achieves the overall outcomes and purpose of the relevant
codes with respect to:

    1. providing lots of a size and shape which are suited to their purpose;
    2. addressing the constraints of the land from flood, bushfire and environmental values; and
    3. reflecting the character of the area.

Even assuming the Assessment Manager’s request to change the development was valid (which it is
not), we see no need to recommend such a change, given the circumstances and planning
considerations addressed above.



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RECONFIGURING A LOT CODE – SPECIFIC OUTCOME O5

The Assessment Manger identifies that proposed lots 4, 5 and 12 are closer than 50m to the adjoining
national park, measured to the north of the subject land.

Specific Outcome O5 states:
        O5 House site areas are—
        a) located at least 50m from any land including within a national park, conservation park, state forest
        reserve, nature refuge, coordinated conservation area or wilderness area; and
        b) not located on steep slopes.

Specific Outcomes are to be considered in the context of section 2.6.4(iii)(a) of the Planning Scheme
as noted above.

Specific Outcome O5 appears to have an error which makes its meaning unclear. Firstly, it requires
house site areas to be “located at least 50m from any land”. A literal reading of that provision creates
a nonsense. It then goes on to give examples, “… including within a national park, …”. The reference
to land ‘within a national park’ opens up the possibility that the provision applies to only some land
within a national park, rather than all national parks, all the time. At best, the provision is an unusual
and unclear way to express some sort of buffer or setback requirement.

It is difficult to identify an Overall Outcome in the Reconfiguring a Lot Code to aid in understanding
the provision. The closest is perhaps 14.181.2(b) “… ensure that any reconfiguring of lots results in
compatible relationships between land uses”. In that case, it would be a question of considering
whether there is any incompatibility between the two uses and, if so, whether any consequent
impacts can be managed only by a 50m setback or by other means.

The Assessment Manager did not identify any incompatibility in the information request, nor did it
identify any impact which required management. It seemed to only be looking at/for a technical non-
compliance with the quantitative requirement of the scheme.

We note that the national park is within the jurisdiction of the State of Queensland, not the Council.
The State has the capacity to manage interactions between the national park and adjoining
development through its referral triggers and subsequent assessment. It is not a matter the Council
needs to address.

We also note that existing development to the north along Lake Weyba Drive directly adjoins the
national park with little to no setback in some instances.

Finally, we note that the proposed development provides a setback of more than 10m to the proposed
building pads, which is either road reserve or the part of Lot 12 which is not proposed to be developed.
Across the boundary, within the national park, there is a mown grass fire break about 20m wide.
Together, this provides a setback in the order of 30m.

Even assuming the Assessment Manager’s request to change the development was valid (which it is
not), we see no need to recommend such a change, given the national park is a State matter and the
Council has not identified any need for the setback.

We trust this assists in considering your response to the information request.



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If you require any further information, please contact Andrew Williams on 5479 0155.

Yours faithfully




Andrew Williams LLB BBus(Accy)
Director - Maroochydore Office
e [email protected]




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