OPW16/0006 - APPLICATION FOR DEVELOPMENT PERMIT FOR OPERATIONAL WORKS 15 Blackbean Court, Black Mountain EXCAVATION, EXTRACTION OR FILLING BRINGING IN FILL, TOP SOIL AND GRASS

OPW16/0006 - APPLICATION FOR DEVELOPMENT PERMIT FOR OPERATIONAL WORKS 15 Blackbean Court, Black Mountain EXCAVATION, EXTRACTION OR FILLING BRINGING IN FILL, TOP SOIL AND GRASS

Document information

Author	Coordinator - Engineering, Mark Lewis
Planning & Infrastructure Department

Index	ECM / Application / OPW16/0006

Attachments	1.	Aerial Photo
2.	Site Inspection Photo

APPLICATION DETAILS
Applicant	Ms SM Cochrane
Proposal	Development Permit for Operational Work Excavation, Extraction or Filling - Bringing in Fill, Top Soil & Grass
Properly Made Date	27 January 2016
Information Request Date	29 January 2016
Information Response Date	19 July 2016
Decision Due Date	11 October 2016
Number of Submissions	Not applicable

PROPERTY DETAILS
Property Address	15 Blackbean Court, Black Mountain
RP Description	Lot 108 RP 907722
Land Area	6662m²
Existing Use of Land	Rural Settlement

STATUTORY DETAILS
SEQRP Designation	Rural Living Area
Locality	Tewantin
Zone	Open Space Recreation
Overlays	Bushfire, Environmental Enhancement
Assessment Type	Code

RECOMMENDATION
That Council note the report by the Coordinator Engineering to the Planning & Environment Committee Meeting dated 8 November 2016 regarding application OPW16/0006 for a  Development Permit Operational Works – Excavation, Extraction or Filling – Bringing in fill, top soil and grass at 15 Blackbean Court, Black Mountain and:
A.	Refuse the application for the following reasons:
1.	The applicant has not provided the additional information as described in Council’s Information Request necessary for the assessment of the application; and
2.	The works have the potential to block the overland flow of stormwater and cause damage to the subject site and the adjoining property which is contrary to the Noosa Plan.
B.	Direct the property owner to remove any unapproved structures and/or fill that affects the overland flow of stormwater.

REPORT
The application was submitted in a response to a complaint received by Council. The complaint concerned the placement of fill and the construction of retaining walls and fencing on 15 Blackbean Court that have the potential to block the overland flow of stormwater from 19 Blackbean Court on to the subject site.
There is a history of complaints regarding stormwater both between the individual property owners and between the property owners and Council. Council has previously advised the owner of the subject site in a letter dated 25 June 2015 that:
Council’s responsibilities associated with the discharge of stormwater on the adjoining property (No 19) stop at the end of the easement within that property; and
Damage resulting from re-direction of stormwater from the natural flow path which creates erosion or other nuisance to private property is considered a civil issue.
The works that are the subject of the application were undertaken by the owner of the subject site during December 2015 and January 2016 and do not comply with the ‘self assessable’ criteria of the Earthworks Code of the Noosa Plan.
Council sent an Information Request on 29 January 2016 requesting additional information sufficient to fully assess the application. Council’s Information Request reads as follows:
“Provide certification from a Registered Professional Engineer of Queensland (RPEQ) that states that the constructed works are in accordance with The Noosa Plan – Earthworks Code and Biodiversity Overlay Code or alternatively provide a plan prepared by an RPEQ that indicates the remedial works required to ensure that the works are in accordance with the codes.”
On 19 July 2016 Council received a response to the Information Request. The response consisted of a letter from a solicitor. It is noted that, on the same date, the applicant submitted a letter to the Director Infrastructure and Planning regarding the stormwater outlet within 19 Blackbean Court. The letters do not include any information to assist with the assessment of the application. The letters:
suggest that the drainage issues for 15 Blackbean Court have been created by Council’s failure to maintain the drainage system and the previous activities of the owner of 19 Blackbean Court.
request that Council refund the application fee and approve the works.
Council officers sought legal advice from its solicitor in regard to the submitted letters. After discussions with staff Council’s solicitor responded to the applicant’s solicitor concerning the letters sent to Council. The response includes:
in my view, the Council has no legal responsibility with respect to the drainage issues on your client’s land or the manner of drainage from the point of discharge from the easement on the adjoining land,
there is no “system of drainage” beyond the registered drainage easement, nor can an easement by necessity be implied in favour of the Council in these circumstances,
there is no requirement at law for the Council to maintain a drainage system, and
any liability on the part of the Council as alleged in your letter is denied.
Council is acting pursuant to its statutory obligations to process the application and in doing so has requested further information from your client in order that it can make a full assessment of the issues raised by the application, and
it is not appropriate for the Council to provide the development approval in the absence of relevant information. Nor is it appropriate for the application fee to be refunded.
CONCLUSION
The works undertaken by the owner of 15 Blackbean Court have the potential to block the overland flow of stormwater and cause damage to the subject site and the adjoining property and also adversely affect the native vegetation at the rear of the sites due to changes to runoff characteristics. The information submitted by the applicant has not addressed Council’s concerns and has not demonstrated that the works will not create any adverse impacts.
It is noted that the subject site and the adjoining properties are affected by building envelopes created as part of the original development. The building envelopes are located in the front portion of the sites. Due to the natural topography and the level of the stormwater outlet pipe the potential blockage of overland flow is unlikely to affect any dwellings or ancillary buildings and only impact on the rear of the site.

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT	8 NOVEMBER 2016

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PLANNING & ORGANISATION COMMITTEE MEETING REPORT	08 NOVEMBER 2016