Attachment 3 - P and E Law Advice

                                                                                              16 November 2020


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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