2021-05-11 Planning & Environment Committee Meeting Agenda

PLANNING AND ENVIRONMENT COMMITTEE MEETING AGENDA   11 MAY 2021




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PLANNING AND ENVIRONMENT COMMITTEE MEETING AGENDA                                                              11 MAY 2021

                                                                                                            | McCullough
                                                                                                          -|Robertson

                               the Community Titles Scheme. The email stated the Body Corporate had not been consulted by
                               the applicant regarding the jetty. The Body Corporate appears to be operating under the
                               assumption a maximum of 2 jetties are allowed at Portside, and that any future proposed jetty
                               must be shared between all owners.

                       ZT      On 14 September 2020, the applicant responded to Council's information request. The Applicant’s
                               response involved a changed approach to the sharing of the proposed jetty:
                               (a)    the application was amended to be made by the owners of Lot 1 and Lot 2;
                               (b)    the location was changed so that the jetty was to be situated on the prolongation of the
                                      ‘common boundary between Lot 1 and Lot 2 (Lot 0 remained left off the DA Form 1
                                       location details);
                               (c)    the jetty will be the private property of the Applicants and will not be located within the
                                      common property for the Scheme;
                               (d)    the body corporate has no role in the maintenance or otherwise with respect to the
                                      administration of the jetty.
                       2.8     As a result of the proposed changes, the applicants submitted:
                               (a)    they no longer rely upon probable solution 12.6 of the Noosa Plan, but now rely on
                                      compliance with $12.7 (this was confirmed in P&E Law’s submissions to the Court at the
                                       review on 22.01.2021);
                               (b)    the position of the Body Corporate was irrelevant.

                       3       Refusal and Appeal

                       3.1     An internal memo from Council officers dated 26 October 2020 made the following key
                               comments:

                               (a)    the existing jetty at Portside does not satisfy the demand for vessels of the development
                                      and as such during busy periods vessels are unlawfully moored to the revetment wall,
                                      creating a risk to its structural integrity;
                               (b)     Portside has common property along the canal, and therefore Probable Solution 12.6 of
                                      the Watercourses Works Code is the applicable benchmark (not 12.7 as posited by the
                                      Applicants);
                               (c)    the proposal results in 2 jetties for the unit development and provides greater than 20m
                                      separation between jetties, and meets the prolongation provisions of the scheme, but
                                      access is restricted to the 2 dwelling units and therefore not sufficiently shared between
                                      owners;
                               (d)    while there may be some grounds to approve more than 2 jetties on this quantity of
                                      canal frontage, no overall plan has been submitted to Council to address how other unit
                                      owners will access the proposed jetty.
                       3.2     The delegated officer’s report relies on Probable Solution 12.6 of the Watercourses Works Code
                               to refuse the development application.
                       3.3     Council decided to refuse the application on 13 November 2020.

                       60909286v2    |  Legal opinion — Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020 3

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