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REC16/0015 Kenlynn Pty Ltd v Noosa Council - P&E Appeal No. 123/2017
I NICHOLSONS
Solicitors
Our Ref: PLB:BEF:62705
Contact: Paul Baynes! Briony Foxe
Direct E-Mail: [email protected] ! [email protected]
Direct Line: 0732263344
30 January 2017
Chief Executive Officer
Noosa Council
PO Box 141
TEWANTIN QLD 4565
EXPRESS POST &
EMAIL [email protected]
Dear Sir/Madam,
RE: KENL YNN PTY LTO V NOOSA COUNCIL
P&E APPEAL NO. 123/2017
We act on behalf of Kenlynn Pty Ltd.
We enclose by way of service, a copy of our client's Notice of Appeai, filed in the Brisbane
Planning and Environment Court on 16 January 2017. The grounds of appeal are contained in
the enclosed Notice of Appeal.
Oflh~ hunt & hunt legal group
Noosa Council
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Telephone: (07)32263944 Level12ANL House GPOBox454
Facsimile: (07)32213756 110EagleStreet BrisbaneOLD4001
ABN35 637220800 BrisbaneOLD 4001 AUSTRALIA
Liability limited by a scheme approved under Professional Standards Legislation
3969
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In the Planning and Environment Court No I 2:S /2017
Held at: Brisbane
Between: Kenlynn Pty limited ACN 009 842 826 Appellant
And: Noosa Council Respondent
NOTICE OF APPEAL
Filed on 16/01/2017.
Filed by: Nicholsons Solicitors
Service address: C/- Level 12, 110 Eagle Street, Brisbane QLD 4000
Phone: (07) 3226 3944
Fax: (07) 3221 3756
Email: [email protected]
Kenlynn Pty Limited ACN 009 842 826 of C/- Level 12, 110 Eagle Street, Brisbane
QLD 4000 appeals to the Planning and Environment Court at Brisbane against the
conditions imposed by the Respondent in respect of a development application ("the
Application") for Preliminary Approval and Development Permit to Reconfigure a Lot-
1 Lot into 2 Lots and Access Easement in relation to Lot 71 on MCH 2854 situated at
2 David Low Way, Castaways Beach ("the Land") and seeks the following orders or
other relief:
1. The Appe:;ll be allowed;
2. The Application be approved subject only to relevant and reasonable
conditions; and
3. Such further or other orders as this Honourable Court deems appropriate.
The grounds of appeal are:
1. The Land:
(a) is situated at 2 David Low Way, Castaways Beach, Queensland;
(b) is described as Lot 71 on MCH 2854;
(c) has an area of 9,677m';
(d) is located within the Eastern Beaches Locality, Detached Housing Zone under
the Chinchilla Shire Planning Scheme 2006 ("the Plan"); and
Nicholsons Solicitors
Level 12, 110 Eagle Street
BRISBANE QLD 4000
Tel: (07) 3226 3944
Fax: (07) 3221 3756
[email protected]
Sustainable Planning Act 2009 Version I April 2010
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(e) is located within an Environmental Protection Area, Coastal Protection Area,
Riparian Buffer Area and Coastal Management District.
2. On 13 June 2016, the Appellant lodged a properly made application ("the
Application") for Preliminary Approval and Development Permit to reconfigure a Lot
- 1 Lot into 2 Lots and Access Easement in relation to the Land.
3. On 27 June 2016 the Respondent issued the Applicant with an Acknowledgement
Notice from the Respondent.
4. On 16 September 2016 the Appellant received a decision notice from the
Respondent ("the Decision Notice") which:
(a) approved that part of the Application relating to the Preliminary Approval for a
Reconfiguration of a Lot - 1 Lot into 2 Lots and Access easement;
(b) approved the Appellant's reconfiguration plan, specifically identified as Plan
No. M2683 01, Revision B, dated 14 July 2016 prepared by JFOP Consultants
which identified the:
a. area intended to be protected by a vegetation covenant;
b. total area of each proposed new lot; and
c. indicative building envelope area on each proposed new lot as 800 m2
for new lot 1 and 670m2 for new lot 2; and
(c) included Condition 1 which required the Appellant to provide to the
Respondent:
"a. A site specific Bushfire Hazard Assessment prepared by a suitably
qualified person which either determines the site as a low bushfire risk or
provides recommendations of how bushfire risk can be managed. The
hazard assessment must avoid interference with vegetation in proposed
covenant areas and must comply with The Noosa Plan's Natural Hazards
Overlay Code.
b. An Effluent Disposal Report prepared by a suitably qualified person which
provides comment on the following:
i. the capacity of existing systems to operate as intended without
causing environmental harm; and
ii. evidence existing systems operate wholly within the lot they intend
to serve and accord with proposed covenant areas. "
prior to the Respondent approving that part of the Application relating to the
Development Permit for a Reconfiguration of a Lot - 1 Lot into 2 Lots and
Access easement ("Condition 1 of Decision Notice").
5. By letter to the Respondent dated 27 September 2016 the Appellant:
(a) suspended the applicants appeal period; and
(b) provided a Bushfire Hazard Assessment and Effluent Disposal Report
satisfying the Respondent's requirement under Condition 1 of Decision Notice;
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(c) provided an amended reconfiguration plan, specifically identified as Plan No.
M2683 01, Revision C, dated 12 September 2016 prepared by JFOP
Consultants which identified altered:
a. the area intended to be protected by a vegetation covenant; and
b. the indicative building envelope areas on each proposed new lot by
reducing them to 747 m2 for new lot 1 and 648 m2 for new lot 2 due to:
i. due to the change in the area intended to be protected by a
vegetation covenant; and
ii. the incorporation of the requisite setbacks set out under the
proposes Bushfire Hazard Assessment; and
(d) requested a Negotiated Decision Notice from the Respondent,
pursuant to section 366 of the Sustainable Planning Act 2009.
6. By email to the Respondent on 7 November 2016 the Appellant's town planner
provided a revised reconfiguration plan, specifically identified as Plan No. M2683
01, Revision D, dated 3 November 2016 prepared by JFOP Consultants which
identified an alteration of the common boundary between the new lots ("Revision
D Plan").
7. On 16 December 2016 the Appellant received a Negotiated Decision Notice from
the Respondent ("Negotiated Decision Notice") which included:
(a) Condition 3:
"3. Development undertaken in accordance with this approval must
generally comply with the approved plans of development. The
approved plans are listed in the following table and may be further
amended by these conditions.
I
Plan No. I Rev. Plan, prepared by Date
M268301 E Reconfiguration Plan (annotated), prepared by 02/12/2016
JFOP Consultants
M2683E A Engineering Concept - Site Distance & Driveway 09/06/2016
DR01 Plan, prepared by JFOP Consultants
(b) Condition 7:
"7. A vegetation protection covenant must be registered against the titles
of the properties over the area Vegetation Covenant on the Plan
M2683-01 B-RP.dwg pursuant to Section 97A of the Land Title Act 1994.
The covenant document and a survey plan must be submitted to
Council for endorsement prior to lodgement with the relevant titles
authority for registration of title. The covenant document must:
a. incorporate the requirements of this Decision Notice
b. include Noosa Council as Covenantee.
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c. reference Queensland Land Title Registry Standard Terms
Document No. 715597513"
8. Under Condition 3 of the Negotiated Decision Notice, the reconfiguration plan
approved, specifically identified as Plan No. M2683 01, Revision E,
Reconfiguration Plan (annotated), prepared by JFOP Consultants, dated 2
December 2016, which was not a plan prepared by JFOP Consultants at the
direction of the Appellant but as directed by the Respondent which increased and
modified the area intended to be protected by a vegetation covenant ("the
Annotated Plan").
9. The Annotated Plan and Condition 3 of the Negotiated Decision Notice is an
unreasonable imposition on the proposed development and is not reasonably
required in respect of the proposed development.
10. Condition 3 should not be imposed in its current form as the Annotated Plan is an
unreasonable imposition on the proposed development which:
(a) unnecessarily increases the area required to be protected by a vegetation
management covenant;
(b) does not take into account the area included within the protected area proposed
due to setback requirements under the Bushfire Hazard Assessment of the
Applicant;
(c) does not take into account the location of existing structures on the Land; and
(d) unreasonably reduces the building envelope areas of the new lots due to the
imposed configuration of the area required to be protected by a vegetation
management covenant.
11. In the circumstances, the Appeal should be allowed and the Application approved
subject only to relevant and reasonable conditions and that Revision Plan D be
approved.
I'J .It.dtp/?;QU 5
lfp~ellant
If you are named as a respondent in this notice of appeal and wish to be
heard in this appeal you must:
(a) within 10 business days after being served with a copy of this
Notice of Appeal, file an Entry of Appearance in the Registry where
this notice of appeal was filed or where the court file is kept; and
(b) serve a copy of the Entry of Appearance on each other party.
The Entry of Appearance should be in Form PEC - 5 for the Planning and
Environment Court.
If you are entitled to elect to be a party to this appeal and you wish to be
heard in this appeal you must:
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(a) within 10 business days of receipt of this Notice of Appeal, file a
Notice of Election in the Registry where this Notice of Appeal was
filed or where the court file is kept; and
(b) serve a copy of the Notice of Election on each other party.
The Notice of Election should be in Form PEC - 6 for the Planning and
Environment Court.