Negotiated Report (Representations made) OPW20 0017 · OPW20/0017

REQUEST FOR NEGOTIATED DECISION REPORT
Author	Monkeith Kadhum
Development Assessment

APPLICATION DETAILS
Application No.	OPW20/0017
Development Approval	Development Permit for Operational Work - Landscaping
Applicant	David Austin Dunworth
Representations Received On	13 August 2020
Number of Submissions for Original Application	Not Applicable

PROPERTY DETAILS
Property Address	46 Plover St Peregian Beach Qld 4573
RP Description	Lot 16 P 9313
Land Area	506 m²
Existing Use of Land	Existing Dwelling
Zone	Detached Housing
Overlays	Land Slide Hazard
Assessment Type	Representations made to original approval

background
A development approval for a Development Permit for Operational Work - Landscaping was issued on 19 June 2020
The applicant suspended the appeal period and made representations on 13 August 2020 to the development approval conditions. The representations are detailed below.
assessment
An assessment in relation to each of the submitted representations is provided below:
Condition 3
Proposed private pedestrian ramp, two riser steps and 500mm vegetation buffer/fall barrier within the road reserve must be constructed in accordance with the approved plan and the and relevant conditions of this approval; and must comply with the following:
The 500mm vegetation buffer must well established and maintained to achieve effective long-term fall barrier; and be certified accordingly prior the final inspection by Council.
The current owners and any subsequent owners are responsible for all ongoing maintenance of the proposed pedestrian ramp, two riser steps and 500mm vegetation fall barrier necessary to ensure their safe performance for the life of the development.
The current owners and any subsequent owners are wholly responsible for all public liabilities attributed to the proposed pedestrian ramp, two riser steps and 500mm vegetation fall barrier (*).
(*) refer to property notes.
Applicant’s Representation
Condition 3(c) requires the owner and any future owner to obtain public liability insurance for the life of the development. Our Client is of the view this condition is unreasonable and onerous considering the following:
Council has approved the revised design for works in the verge, which incorporates new and additional safety measures;
The existing unapproved works have existed for many years without incident;
The likelihood of incident is extremely remote, considering that the verge is not a pedestrian thoroughfare as there is a footpath on the opposite side of the road;
There are numerous other incidences of unapproved works in the road reserve in this street alone, not to mention others existing across the whole shire (Reference is made to Figure 1 of the submitted Representation Document);
The condition is unlikely to absolve Council of responsibility for the verge space in the very unlikely chance of an incident resulting in litigation;
Council already has public indemnity insurance and therefore any duplication of this insurance is unwarranted; and
The additional ongoing cost is unreasonable and a considerable burden to place on the owner and future purchasers.
Applicant’s Requested Change
Applicant request deletion of sub-condition 3 (c)
Assessment of Representation
Agree to requested deletion of sub-condition 3 (c).

Condition 4
Given the hazards to the public associated with the existing unauthorised and unapproved works within the public road reserve, the proposed upgrading works of this permit must be completed within three (3) months starting the day that this development approval takes effect.
Applicant’s Representation
This condition seems to supersede the Planning Act’s standard currency period requirements adopted in Condition 2. Condition 4 is inconsistent with the intent of the Planning Act, which prescribes that development permits for operational works have a currency period of 2 years.
Any safety hazard associated with the existing works is considered negligible and the risk of injury to anyone using the verge is extremely remote, particularly considering the works have existed for several years without incident and a public footpath is provided on the opposite side Plover St. Further, the applicant is committed to rectifying the non-complying works via this approval in a timely fashion.  Therefore, to avoid a conflict with Condition 2, we request that a 2-year currency period be imposed which is reasonable and consistent with the standard requirements for operational works approvals under the Act.
Applicant’s Requested Change
Applicant requested that Condition 4 be deleted.
However following communication with the applicant it was agreed that this condition be amended to provide 6 months in lieu of 3 months to complete the works (refer to email dated 14/09/2020 from JFP Urban Consultants).
Assessment of Representation
The existing unauthorised and unapproved private works within the road reserve are contrary to Council’s practices and need to be rectified to be in compliance with Council’s policies and guidelines. As agreed, this condition is be amended to provide 6 months in lieu of 3 months to complete the works.
As such it recommended that the condition shall be amended as follow:
Given the hazards to the public associated with the existing unauthorised and unapproved works within the public road reserve, the proposed upgrading works of this permit must be completed within six (6) months starting the day that this development approval takes effect.

Condition 5
Certificates demonstrating currency of public liability insurance and works insurance covering the works must be submitted to Council prior to the prestart meeting. The principal contractor is also responsible to ensure that any subcontractors also have the appropriate insurance and public liability documentation.
Applicant’s Representation
This condition is ambiguous, so to clarify and avoid any unnecessary duplication it is suggested that the condition be amended to ensure that the principal contractor and their sub-contractors are appropriately insured to undertake the works.
Applicant’s Requested Change
Applicant requests amending Condition 5 as follow:
The principal contractor must provide Council certificates of currency for public liability insurance and works insurance covering the works prior to the prestart meeting. The principal contractor is also responsible to ensure that any subcontractors also have the appropriate insurance and public liability documentation.
Assessment of Representation
Agree to requested change to Condition 5.

Condition 8
A Construction Management Plan is required to be submitted to Council at or prior to the prestart meeting and must specifically address the following:
Traffic Management during all aspects of the construct phase including:
Appropriate traffic control signage in accordance with the Manual of Uniform Traffic Control Devices (MUTCD), and without impacting on local traffic flows and safety.
Maintenance of safe pedestrian access across the frontage of the site both during daily construction and after daily construction has ceased.
Proposed fencing to the site during the construction phase of the development.
Adequate parking arrangements for construction workers.
Maintenance and protection of water quality and existing drainage lines through the construction site through the implementation of appropriate erosion and sediment control measures.
Applicant’s Representation
The works are considered to be minor and some of these items may not be relevant to the subject works.  Therefore, we request that the condition be amended to include ‘where appropriate’ to provide flexibility where required. Amend typos for legibility.
Applicant’s Requested Change
A Construction Management Plan is required to be submitted to Council at or prior to the prestart meeting and must specifically address the following, where appropriate:
Traffic Management during all aspects of the construct phase including:
Appropriate traffic control signage in accordance with the Manual of Uniform Traffic Control Devices (MUTCD), and without impacting on local traffic flows and safety.
Maintenance of safe pedestrian access across the frontage of the site both during daily construction and after daily construction has ceased.
Proposed fencing to the site during the construction phase of the development.
Adequate parking arrangements for construction workers.
Maintenance and protection of water quality and existing drainage lines through the construction site through the implementation of appropriate erosion and sediment control measures.
Assessment of Representation
Agree to requested change to Condition 8.

Condition 15
The existing street trees near the road’s edge of bitumen must be removed by suitably qualified or experienced person. Any replacement trees must only be provided after consultation and written consent from Council.
Applicant’s Representation
We strongly oppose the removal of the existing and established street trees.  These street trees provide important amenity and are consistent with other existing street trees on the 4 adjoining properties to the south and surrounding area (Refer to photo 1 below).   In addition, these street trees assist by deterring the public from parking on the verge. Removing or replacing the established street trees would facilitate unlawful parking on the verge, which will also result in damage to the verges landscaping and block visibility of oncoming traffic.  Even Council have acknowledged this through the placement of a pole to the north the site to prevent verge parking (refer to photo 2 below), notwithstanding the area is marked with a yellow line.  .
Applicant’s Requested Change
We request that the condition be deleted, to avoid cars parking on the verge and worsening avoidable safety concerns for all road users.
Assessment of Representation
As suggested in the applicant’s representation these trees planted by applicant to deter (or rather obstruct) public parking along this section of the road. This unauthorised initiative is unlawful, unacceptable and may force parked vehicles to encroach onto the traffic lane, also, poses a potential to obstructing and damaging doors of parked cars. Additionally, the root system of existing planted trees can damage road pavement and surface and create ongoing maintenance issues to Council. The existing trees must be removed and any replacement trees (or pollards) need to be assessed in consultation with Council.
Applicant was advised that Council is unwilling to delete or amend this condition. Applicants has accepted Council’s position in this regard (refer to email trail dated 14/09/2020 from JFP Urban Consultants).
It is recommended that this condition shall remain unchanged.

Condition 16
The verge is to be modified such that the maximum crossfall for the verge is 5%, except in the location of a pathway where the maximum crossfall is to be 2.5%.
Applicant’s Representation
The condition implies that the whole verge may need to be ripped up and reshaped to accommodate Council’s preferred verge profile.  This verge shape is natural and has existed for many years.  It is also consistent with other existing verge profiles occurring in the area (Refer to photo 2).  We consider that the requirement is an unreasonable imposition which may require a new retaining wall, which are seen as an unnecessary and expensive burden.  Any re-shaping works involving retaining walls could potentially exacerbate Council existing safety concerns by introducing a trip hazard, particularly prior to the plantings being established.
It is reiterated that the existing works have been in place for many years without incident. The existing verge does not contain any significant slopes that would trigger a foreseeable risk to personal safety.
Applicant’s Requested Change
Applicant is requested that condition 16 is deleted as follows.
Assessment of Representation
It is clear from site inspections and available data on record that the natural ground levels have been altered due to the construction of the dwelling and the unapproved steps. However following communication with the applicant it was agreed that this condition is to be amended to be better suit the exiting verge’s settings and requirements (refer to email dated 14/09/2020 from JFP Urban Consultants). It agreed that the condition be amended as follow:
The road verge along the frontage of the site is to be modified such that the maximum crossfall is 5% for an 1.0m-1.5m strip abutting the road pavement with the remaining balance width of the grassed verge be smoothly graded down to proposed finish levels of the new landscaping works and the new access ramp without posing any fall and/or trip hazards to road’s users.

conclusion & reasons for decision
RECOMMENDATION
With regard to Application No. OPW20/0017, and the representations made on 13 August 2020, Council on 15 September 2020 decided to:
A.	Agree to delete sub-condition 3 (C).
B.	Agree to amend Conditions 4, 5, 8 and 16 as follow:
Given the hazards to the public associated with the existing unauthorised and unapproved works within the public road reserve, the proposed upgrading works of this permit must be completed within six (6) months starting the day that this development approval takes effect.
The principal contractor must provide Council certificates of currency for public liability insurance and works insurance covering the works prior to the prestart meeting. The principal contractor is also responsible to ensure that any subcontractors also have the appropriate insurance and public liability documentation.
A Construction Management Plan is required to be submitted to Council at or prior to the prestart meeting and must specifically address the following, where appropriate:
Traffic Management during all aspects of the construct phase including:
Appropriate traffic control signage in accordance with the Manual of Uniform Traffic Control Devices (MUTCD), and without impacting on local traffic flows and safety.
Maintenance of safe pedestrian access across the frontage of the site both during daily construction and after daily construction has ceased.
Proposed fencing to the site during the construction phase of the development.
Adequate parking arrangements for construction workers.
Maintenance and protection of water quality and existing drainage lines through the construction site through the implementation of appropriate erosion and sediment control measures.
The road verge along the frontage of the site is to be modified such that the maximum crossfall is 5% for an 1.0m-1.5m strip abutting the road pavement with the remaining balance width of the grassed verge be smoothly graded down to the finish levels of the proposed new landscaping works and new access ramp without posing any fall and/or trip hazards to road’s users.
C.	Council refuses to delete or amend Condition 15 for the following reasons:
The proximity of the existing trees to the road’s edge of bitumen can damage road pavement and surface and create ongoing maintenance issues to Council. Also, they can cause obstruction and potential of damage to parked cars.
Note the report is provided in accordance with Section 83(9) of the Planning Act 2016.

Attachments below:
Photos 1 and 2 (Provided by applicant for the representation to Condition 15)
Attachments Photos 1 and 2 (Provided by applicant to representation for Condition 15):

Photo 1 – Example of existing tree on 4 adjoining properties to the north

Photo 2 – Pole to prevent parking on the verge

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