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Decision under section 62 of the Transport Infrastructure Act 1994 - 2310-37453 SRA

Attached to the e-mail MCU23/0112 & DBW23/0095 - SARA Response with conditions.

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    Our ref        TMR23-041031
    Your ref       N/A
    Enquiries      Philip Daniels



                                                                                                     Department of
    17 June 2024                                                                                     Transport and Main Roads



        Decision Notice – Permitted Road Access Location
                                      (s62(1) Transport Infrastructure Act 1994)
                          This is not an authorisation to commence work on a state-controlled road1

    Development application reference number MCU23/0112, lodged with Noosa Council involves
    constructing or changing a vehicular access between Lot 2RP196994, the land the subject of the
    application, and Kin Kin Road (Road number: 141), locally known as Pomona Kin Kin Road (a state-
    controlled road).


    In accordance with section 62A(2) of the Transport Infrastructure Act 1994 (TIA), this development
    application is also taken to be an application for a decision under section 62(1) of TIA.

    Applicant Details
     Name and address                          Richard and Sandra Mathison C/- Brennan Planning Pty Ltd
                                               44 Maple Street
                                               Cooroy QLD 4563
    Application Details
     Address of Property                       1073 Pomona Kin Kin Road, Kin Kin QLD 4571
     Real Property Description                 2RP196994
     Aspect/s of Development                   Development Permit for Material Change of Use to Convert
                                               Existing Dwelling House to Short-term Accommodation


    Decision (given under section 67 of TIA)
    It has been decided to approve the application, subject to the following conditions:


No. Conditions of Approval                                                             Condition Timing

1    The Permitted Road Access Location is located between Lot                         At all times.`
     2RP196994 and Pomona Kin Kin Road at approximate Longitude
     152.879140, Latitude -26.277899 between Lot 2RP196994 and
     Pomona Kin Kin Road, the state-controlled road in accordance
     with Attachment D - Permitted Road Access Location.
2    (a) Road access works must be provided at the Permitted Road                      Prior to the commencement
     Access Location and comprise:                                                     of the use of the Road
                                                                                       Access Works and to be


    1 Please refer to the further approvals required under the heading ‘Further approvals’

    Program Delivery and Operations                                      Telephone +61 7 5451 7055
    North Coast Region / Maroochydore Office                             Website    www.tmr.qld.gov.au
    Floor 1, 50 Wises Road Buderim QLD 4556                              Email      [email protected]
    PO Box 1600 Maroochydore QLD 4558                                    ABN: 39 407 690 291
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Page 2

No. Conditions of Approval                                                 Condition Timing

            A rural property driveway with a minimum width of 5.5m;       maintained at all times.
             and
            Sealed from a pavement edge to the property boundary.

     (b) The road access works must be designed and constructed in
     accordance with:
          the Department of Transport and Main Roads Standard
            Drawing 1807 Rural Property Access Type A; and
          the Department of Transport and Main Roads Road
            Planning and Design Manual (RPDM), 2nd edition.
3    Direct access is prohibited between Pomona Kin Kin Road and           At all times.
     Lot 2RP196994 at any other location other than the Permitted
     Road Access Location described in Condition 1.


    Reasons for the decision
    The reasons for this decision are as follows:
           a) The vehicular access must not compromise safety of the users of the state-controlled
              road network or any other transport infrastructure.
           b) The vehicular access must be consistent with the functional requirements of the state-
              controlled road.

    Please refer to Attachment A for the findings on material questions of fact and the evidence or
    other material on which those findings were based.

    Information about the Decision required to be given under section 67(2) of TIA
    1. There is no guarantee of the continuation of road access arrangements, as this depends on
        future traffic safety and efficiency circumstances.

    2. In accordance with section 70 of the TIA, the applicant for the planning application is bound by
       this decision. A copy of section 70 is attached as Attachment B, as required, for information.

    Further information about the decision
    1. In accordance with section 67(7) of TIA, this decision notice:
           a) starts to have effect when the development approval has effect; and
           b) stops having effect if the development approval lapses or is cancelled; and
           c) replaces any earlier decision made under section 62(1) in relation to the land.

    2. In accordance with section 485 of the TIA and section 31 of the Transport Planning and
       Coordination Act 1994 (TPCA), a person whose interests are affected by this decision may
       apply for a review of this decision only within 28 days after notice of the decision was given
       under the TIA. A copy of the review provisions under TIA and TPCA are attached in
       Attachment C for information.




                                                                                                 Page 2 of 11

Page 3

3. In accordance with section 485B of the TIA and section 35 of TPCA a person may appeal
   against a reviewed decision. The person must have applied to have the decision reviewed
   before an appeal about the decision can be lodged in the Planning and Environment Court. A
   copy of the Appeal Provisions under TIA and TPCA is attached in Attachment C for information.

Further approvals
The Department of Transport and Main Roads also provides the following information in relation to
this approval:

1. Road Access Works Approval Required – Written approval is required from the department to
   carry out road works that are road access works (including driveways) on a state-controlled road
   in accordance with section 33 of the TIA. This approval must be obtained prior to commencing
   any works on the state-controlled road. The approval process may require the approval of
   engineering designs of the proposed works, certified by a Registered Professional Engineer of
   Queensland (RPEQ). Please contact the department to make an application.

If further information about this approval or any other related query is required, the North Coast
Region Corridor Management team should be contacted by email at
[email protected] or on (07) 5451 7055.

Yours sincerely




Lena Hobson
Senior Town Planner



Attachments: Attachment A – Decision evidence and findings
             Attachment B - Section 70 of TIA
             Attachment C - Appeal Provisions
             Attachment D - Permitted Road Access Location




                                                                                              Page 3 of 11

Page 4

                                          Attachment A

                             Decision Evidence and Findings

Findings on material questions of fact:

     The objective of the Transport Infrastructure Act 1994 (TIA) requires the establishment of
      a road regime that is safe and efficient.
    Section 62 of the TIA provides for the Chief Executive of the Department of Transport
      and Main Roads (TMR) to make decisions about permitted road access locations
      between particular land and a state-controlled road.
    The development application is for a Development Permit for a Material Change of Use
      to Convert Existing Dwelling House to Short-term Accommodation.
    The proposal includes an access to the state-controlled road from Lot 2RP196994 and is
      an application under section 62A of TIA.
    The proposed development is adjacent to Pomona Kin Kin Road, a state-controlled road
      (Kin Kin Road / 141).
    Pomona Kin Kin Road is not declared a limited access road.
    There is no local road access available.
    Pomona Kin Kin Road is rural road with a table drain at the subject site frontage. There
      are two lanes of traffic, one in each direction with a double centre line (broken at the
      access location) and a posted speed limit of 70km/hr at the access point.
    The Annual Average Daily Traffic at the access point was listed as 1072 (2021) with 525
      gazettal and 547 against gazettal direction with a heavy vehicle percentage of 16%.
    Sight distances at the access location are limited by vegetation and road alignment.
     The assessment demonstrated that the minimum sight distance requirements were met
       at the access location.
    To ensure vehicles can safely enter and exit the state-controlled road the access must
      be upgraded to the minimum rural driveway standard.
    The proposed development can be effectively implemented without significant impacts to
      the safety and efficiency of the state-controlled road network with the conditioned access
      requirements.

Evidence or other material on which findings were based:

 Title of Evidence /     Prepared by             Date              Reference no.   Version/Issue
 Material
 Transport                                       Reprint current
                         Queensland
 Infrastructure Act                              from 19           -               -
                         Government
 1994                                            February 2024
                                                 Reprint current
                         Queensland
 Planning Act 2016                               from 26 April     -               -
                         Government
                                                 2024
 Vehicular access to     Department of
 state-controlled        Transport and Main      2023              -               -
 roads policy            Roads




                                                                                       Page 4 of 11

Page 5

                       Department of
Guide to Traffic
                       Transport and Main    2018          -            -
Impact Assessment
                       Roads
                       Department of
Road Planning and
                       Transport and Main    2021          -            2nd Edition
Design Manual
                       Roads
Confirmation Notice    Noosa Council         10 Oct 2023   MCU23/0112   -
                                                           &
                                                           DBW23/0095
Town Planning          Brennan Planning      Aug 2023      N/A          -
Assessment Report      Pty Ltd
Appendix A – Plans     Richard Mathison      23 Aug 2023   N/A          -
of Existing Dwelling
Appendix B – New       G.J. Gardner Homes    13 Jul 2023   GJGG430718   REV G
Dwelling Plans
Traffic Impact         Auxilium Consulting   12 Apr 2024   N/A          REV 3
Assessment             Pty Ltd
Email to SARA –        Jaro Bauleka –        04 May 2024   N/A          -
Applicant response     Auxilum Consulting
to TMR review
Traffic Impact         Auxilium Consulting   03 Jun 2024   N/A          REV 4
Assessment             Pty Ltd




                                                                            Page 5 of 11

Page 6

                                          Attachment B

                                        Section 70 of TIA


                                                                   Transport Infrastructure Act 1994
                                                             Chapter 6 Road transport infrastructure
                                                       Part 5 Management of State-controlled roads



70   Offences about road access locations and road access works, relating to
     decisions under s 62(1)
     (1) This section applies to a person who has been given notice under section 67 or 68 of a
         decision under section 62(1) about access between a State-controlled road and adjacent
         land.
     (2) A person to whom this section applies must not—
         (a) obtain access between the land and the State-controlled road other than at a location
            at which access is permitted under the decision; or
         (b) obtain access using road access works to which the decision applies, if the works do
            not comply with the decision and the noncompliance was within the person’s control; or
         (c) obtain any other access between the land and the road contrary to the decision; or
         (d) use a road access location or road access works contrary to the decision; or
         (e) contravene a condition stated in the decision; or
         (f) permit another person to do a thing mentioned in paragraphs (a) to (e); or
         (g) fail to remove road access works in accordance with the decision.
     Maximum penalty—200 penalty units.
     (3) However, subsection (2)(g) does not apply to a person who is bound by the decision
         because of section 68.




                                                                                            Page 6 of 11

Page 7

                                            Attachment C

                                         Appeal Provisions

                                                                      Transport Infrastructure Act 1994
                                                                        Chapter 16 General provisions




485 Internal review of decisions
      (1) A person whose interests are affected by a decision described in schedule 3 (the original
          decision) may ask the chief executive to review the decision.
      (2) The person is entitled to receive a statement of reasons for the original decision whether
          or not the provision under which the decision is made requires that the person be given a
          statement of reasons for the decision.
      (3) The Transport Planning and Coordination Act 1994, part 5, division 2—
          (a) applies to the review; and
          (b) provides—
              (i)    for the procedure for applying for the review and the way it is to be carried out;
                     and
              (ii)   that the person may apply to QCAT to have the original decision stayed.


485B Appeals against decisions
      (1) This section applies in relation to an original decision if a court (the appeal court) is stated
          in schedule 3 for the decision.
      (2) If the reviewed decision is not the decision sought by the applicant for the review, the
          applicant may appeal against the reviewed decision to the appeal court.
      (3) The Transport Planning and Coordination Act 1994, part 5, division 3—
          (a) applies to the appeal; and
          (b) provides—
             (i)     for the procedure for the appeal and the way it is to be disposed of; and
             (ii)    that the person may apply to the appeal court to have the original decision
                     stayed.
      (4) Subsection (5) applies if—
          (a) a person appeals to the Planning and Environment Court against a decision under
              section 62(1) on a planning application that is taken, under section 62A(2), to also be
              an application for a decision under section 62(1); and
          (b) a person appeals to the Planning and Environment Court against a decision under the
              Planning Act on the planning application.



                                                                                                Page 7 of 11

Page 8

       (5) The court may order—
           (a) the appeals to be heard together or 1 immediately after the other; or
           (b) 1 appeal to be stayed until the other is decided.
       (6) Subsection (5) applies even if all or any of the parties to the appeals are not the same.
       (7) In this section—
original decision means a decision described in schedule 3.
reviewed decision means the chief executive’s decision on a review under section 485.




                                                                                             Page 8 of 11

Page 9

                                                          Transport Planning and Coordination Act 1994
                                                     Part 5, Division 2 – Review of Original Decisions



31   Applying for review
     (1) A person may apply for a review of an original decision only within 28 days after notice of
        the original decision was given to the person under the transport Act.
     (2) However, if—
         (a) the notice did not state the reasons for the original decision; and
         (b) the person asked for a statement of the reasons within the 28 days mentioned in
             subsection (1)
         the person may apply within 28 days after the person is given the statement of the reasons.
     (3) In addition, the chief executive may extend the period for applying.
     (4) An application must be written and state in detail the grounds on which the person wants
        the original decision to be reviewed.


32   Stay of operation of original decision
     (1) If a person applies for review of an original decision, the person may immediately apply for
         a stay of the decision to the relevant entity.
     (2) The relevant entity may stay the original decision to secure the effectiveness of the review
         and any later appeal to or review by the relevant entity.
     (3) In setting the time for hearing the application, the relevant entity must allow at least 3
         business days between the day the application is filed with it and the hearing day.
     (4) The chief executive is a party to the application.
     (5) The person must serve a copy of the application showing the time and place of the hearing
         and any document filed in the relevant entity with it on the chief executive at least 2 business
         days before the hearing.
     (6) The stay—
         (a) may be given on conditions the relevant entity considers appropriate; and
         (b) operates for the period specified by the relevant entity; and
         (c) may be revoked or amended by the relevant entity.
     (7) The period of a stay under this section must not extend past the time when the chief
         executive reviews the original decision and any later period the relevant entity allows the
         applicant to enable the applicant to appeal against the decision or apply for a review of the
         decision as provided under the QCAT Act.
     (8) The making of an application does not affect the original decision, or the carrying out of the
         original decision, unless it is stayed.



                                                                                               Page 9 of 11

Page 10

     (9) In this section—
relevant entity means—
         (a) if the reviewed decision may be reviewed by QCAT—QCAT; or
         (b) if the reviewed decision may be appealed to the appeal court—the appeal court.


35   Time for making appeals
     (1) A person may appeal against a reviewed decision only within—
         (a) if a decision notice is given to the person—28 days after the notice was given to the
             person; or
         (b) if the chief executive is taken to have confirmed the decision under section 34(5)—56
             days after the application was made.
     (2) However, if—
         (a) the decision notice did not state the reasons for the decision; and
         (b) the person asked for a statement of the reasons within the 28 days mentioned in
             subsection (1)(a);
         the person may apply within 28 days after the person is given a statement of the reasons.
     (3) Also, the appeal court may extend the period for appealing.




                                                                                         Page 10 of 11

Page 11

Attachment D

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