Representations Received [As Published] · 142007.1173

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M2248 - 09
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The effect of sub-section 3.5.30 (2) is that the tests for lawfulness of conditions contained in
section 3.5.30 (1) cannot be overridden by the terms of the laws or policies which the assessment
manager or concurrence agency administers.

The relevant development application is for operational work which is in the nature of building
work. It is a particular species of development application confined to land below the high water
mark being “prescribed tidal work”.

As explained in the development application, the work involves refurbishment of an existing jetty
so that it may operate more effectively from a maritime operation and safety perspective. The
relevant code against which the operational work application is to be assessed is the Prescribed
Tidal Work Code (the Code). The Code provides assessment criteria and the matters it deals with
are amenity and aesthetics, public access, restriction of non-maritime use of tidal water, the
provision of infrastructure, allocation of water areas and design and safety requirements. The
intention behind the Code is to provide consistency in local government assessment of prescribed
tidal work across Queensland.

The assessment manager’s duty is to assess and decide the development application having
regard to the factual circumstances of the application against the requirements of the Code. The
assessment manager must approve the development application “if the assessment manager is
satisfied the application complies with all applicable codes whether or not conditions are required
for the development to comply with the codes.” (IPA section 3.5.13(2))

No conflict with the Code has been identified. In our view conditions may only be imposed to
ensure that the development complies with the Code. In other words, there must be a nexus
between the Code and the condition. It is our understanding that this is not a development
application where the assessment manager is being asked to impose conditions which overcome
conflict with the Code. Conditions may extend to both the operational work and any use of the
jetty structure as a consequence of the operational work. However this does not entitle the
assessment manager to treat the application as if it were a material change of use application and
to condition an approval on that basis by having regard to matters extraneous to the Code.

It is on the basis stated above that the following request to amend the conditions of approval is
submitted. For clarity, the condition is shown in italic text and our comments and suggested
amendments are shown in upright text.

Condition 3

The jetty shall be licensed with the Council upon completion of the structural work and be licensed
annually thereafter, The license may limit the number of vessels and their capacity in accordance
with this approval.

In our opinion this is not a valid condition. The licensing of the jetty may be required independently
under a local law. An obligation to obtain/renew such a license cannot be imposed as a condition
of an operational works application. The relevant local law will apply according to its terms
independently of the operational works permit. There would be on objection to this requirement
being relocated to the advisory notes section of the Decision Notice, but it should not remain as a
condition of the development permit.

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Condition 4

Vessels moored or operating from the structure shall not exceed for (4) vessels with a combined
capacity of 129 passengers.

The development application is for operational work. There is no material change of use involved.
The application must be assessed as an operational works application against the relevant Code.
The Council as assessment manager may impose conditions which are reasonably required by
the developments, or which are relevant to but not an unreasonable imposition on the
development. In this case the “development” is the operational work, and there is no material
change of use. The jetty structure is already used for the purpose of a commercial jetty. That use
exists and is not a consequence of the refurbishment.

It is accepted that the prescribed tidal work code refers in specific outcome 11.1 to parking
facilities. The acceptable solution states “the infrastructure for prescribed tidal work is consistent
with each relevant planning schemes standard.” The planning scheme standard requires car
spaces according to the floor area of the commercial premises, and the number of parking spaces
provided complies, based on the floor area of the building on the jetty.

Condition 4 purports to restrict or contro! the use which, in our view, is inappropriate in response
to a development application for operational work, the use being pre-existing. The relevant Code
concerns amenity and aesthetics, public access, restriction of non-maritime uses, provision of
infrastructure, allocation of water areas and design and safety matters. The Code is not
concerned with the size or passenger capacity of the vessels moored or operating from the
structure. The subject development application complies with the provisions of the Planning
Scheme regarding car parking in relation to the floor area of the commercial premises which is the
acceptable solution made relevant under the Code. In the circumstances it is difficult to
understand how a condition of the nature of condition 4, which purports to limit the number of
vessels and passenger capacity operating from the jetty would be lawful in response to the
operational works application, particularly as such a condition is not required for the purposes of
meeting the Code. It is requested that the condition be deleted as it is an unreasonable imposition
on the development.

Condition 5

A shuttle bus shall operate in association with each business that operates from the site in order
to bring passengers to and from the site. The shuttle buses shall be parked within the lease area
when not in use and not otherwise parked in Gympie Terrace or its associated parking areas.

For the same reasons ‘given in respect of Condition 4, a requirement that the relevant businesses
which will operate the vessels moored at the jetty each have a shuttle bus is not a reasonable or
relevant condition. The condition is not a condition which has any nexus with the Code.

It is requested that the condition be deleted as it is an unreasonable imposition on the
development.

Condition 7
Boat repair activities shall not be conducted from the structure.

This condition relates to the use of the jetty structure following refurbishment. St effectively
prohibits any boat repair activities. While the jetty is not a slipway, it is normal practice along the
river and in other similar localities for vessels to undergo routine maintenance and minor repairs,
which do not require the vessel to be slipped, while the vessel is stationary at its usual mooring.
The condition places an unreasonable restriction on the operation of the vessel which is unrelated
to the requirements of the Code against which the development application for operational work

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has been assessed. It is requested that the condition be deleted as it is an unreasonable
imposition on the development.

Condition 8
The rails to the abandoned slipway structure shall be removed prior to completion of the works.

The operation of the old slipway which exists within the leased area is not part of the current
development application for operational work. We cannot see any basis upon which the Council
can impose a condition requiring its removal. Such a condition is irrelevant to the subject matter of
the operational works application and has no nexus with the Code under which the application is
assessed. The issue the Council seems to be raising is that the use of the slipway has been
abandoned which even if it were true, there is no power for the Council to require the slipway
structure to be removed through a condition on the subject development application for
operational work. It is requested that the condition be deleted as it is an unreasonable imposition
on the development.

Condition 9
Wastewater and sullage shall only be disposed of at approved pump-out facilities.

This condition requires waste water and sullage from the relevant vessels operating from the jetty
to be disposed of at approved pump-out facilities. It needs to be borne in mind that the
development application is for operational work. It does not relate to the day to day operation of
the charter boat businesses which will utilise the jetty facilities. Ordinarily those businesses would
engage private contractors to take waste water and sullage from the vessels. Private waste
removal contractors are separately licensed under different laws with which they are required to
comply. Neither the operators of the charter boats nor the applicant for the operational works
approval has any means of controlling the activities of private waste contractors. If such private
waste contractors were to breach the law by wrongfully disposing of waste water and sullage
extracted from vessels at the subject jetty, of from other vessels, then presumably that contractor
would be the subject of legal action either by the Council or the Environmental Protection Agency
under the applicable laws. However, that is not a matter which is appropriate for conditioning in
response to this operational works application. It is requested that the condition be deleted as it is
an unreasonable imposition on the development.

If you require any further information please contact the writer.

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Yours faithfully,
JONES FLINT & PIKE

 

Cc: Heritage Jetties Pty Ltd