Negotiated Report (Representations made) MCU20 0146

REQUEST FOR NEGOTIATED DECISION REPORT
Author	Consultant Planner
Assessment Manager, Lisa Pienaar	Development Assessment

APPLICATION DETAILS
Application No.	MCU20/0146
Development Approval	Development Permit for Material Change of Use of Premises Dwelling and Secondary Dwelling in Riparian Buffer
Applicant	Tara Jane Morris Donovan James Biss
Representations Received On	6 July 2021
Number of Submissions for Original Application	N/A

PROPERTY DETAILS
Property Address	503 Middle Creek Rd Federal Qld 4568
RP Description	Lot 8 RP 835350
Land Area	15,430 m²
Existing Use of Land	Outbuilding

STATUTORY DETAILS
SEQRP Designation	Regional Landscape & Rural Production
Locality	Not applicable
Zone	Rural
Overlays	Biodiversity, Waterways and Wetlands (Areas of biodiversity significance, MSES Regulated Vegetation - Category R GBR riverine, riparian buffer area) Bushfire Hazard (Medium potential bushfire intensity, Potential impact buffer
Assessment Type	Representations made to original approval

background
A development approval for a Development Permit for Material Change of Use of Premises Dwelling and Secondary Dwelling in Riparian Buffer was issued on 25 June 2021.
The applicant suspended the appeal period and made representations on 6 July 2021 to the development approval conditions. The representations are detailed below but primarily relate to the setback requirement of the development to the creek (30m) and the rehabilitation area width (20m).
assessment
An assessment in relation to each of the submitted representations is provided below:
Condition 4
The development (including any balcony/deck areas) must be setback a minimum of 30 metres from the Middle Creek boundary.
That boundary referred is the waterway boundary.
Applicant’s Representation
The plans submitted and approved by Noosa Council, as outlined in Condition 2 of this approval, include setbacks to the Middle Creek boundary as follows:
Primary dwelling: minimum 30.382m setback to the north; and
Secondary dwelling: minimum 18.076m setback to the north-west and minimum 31.607m to the north.
In light of the above, the approved plans (noting Council have not included any plan annotations) and Conditions 4 and 9 of the Decision Notice are contradictory. The applicant seeks further clarification before commencing works
The applicant seeks a change to condition 4 to read as follows:
4. The development primary dwelling house (including any balcony/deck areas) must be setback a minimum of 30 metres from the Middle Creek boundary.
Assessment of Representation
Condition 3 of the development permit requires the approved plans to be amended to eliminate potential conflict with the  required amendments listed within the decision notice (including condition 4) and resubmitted to Council prior to issue of any Development Permit for Operational works.   When considering conditions 3 & 4 it is clear the Secondary dwelling forming part of the development does not comply with the minimum 30m setback to the Middle Creek boundary, and therefore is not approved in its current location.
The applicant’s desire is to amend Condition 4 to only require the primary dwelling house to be setback a minimum of 30m from the Middle Creek Boundary, despite the primary dwelling already being setback 30m.  The purpose of Condition 4 is to ensure the entire development (including the secondary dwelling) is setback a minimum of 30m from the middle creek boundary.   This is to allow sufficient revegetation/rehabilitation works to be carried out for a minimum of 20m from the Middle Creek boundary.   The minimum 20m requirement allows the applicant to have suitable buffer between the proposed development and the rehabilitation area to avoid potential conflicts between the land use of a dwelling and the rehabilitated area.   This was assessed in the original application by Councils Environmental Officer in consultation with the Noosa Shire – Waterways Assessment 2017, an assessment of Noosa waterways to inform the Noosa Plan and rehabilitation strategies when it was determined that that development located within the riparian buffer area should maintain a minimum 30m setback to the Middle Creek boundary.
The applicant has not demonstrated a need for the secondary dwelling to be located within the riparian buffer area which is required to be rehabilitated by the Biodiversity Overlay Benchmarks.  The applicants position that there is a contradiction between 20m and 30m listed within condition 4 and 9 is not agreed as demonstrated above.  The conditions in their current form do not allow for the secondary dwelling to be located within 30m of the Middle Creek Boundary and provide the applicant some flexibility as to whether they wish to undertake rehabilitation works between 20-30m setback from the Middle Creek Boundary.
Upon due consideration of the applicants’ representations, it is not agreed to amend Condition 4 as proposed by the applicant.

Condition 9
Provide a Rehabilitation Landscaping works plan for the development prepared by a suitably qualified person as part of an Operational Works application, including the following minimum specifications:
Rehabilitation of the Riparian Buffer area for a minimum of 20m from the middle creek boundary to achieve the floristic composition of Regional Ecosystem 12.3.1;
Landscape planting specifications in accordance with Landscaping Code and PSP 2 Landscaping;
A planting schedule of suitable locally occurring species, plant numbers and locations, reflective of the Regional Ecosystem 12.3.1;
Control of all environmental weeds of the site in accordance with best industry practice for environmental rehabilitation which does not result in bed or bank instability;
Avoid undesirable plant species identified in PSP2 Landscaping;
Planting densities must result in a stable channel over the long term and minimal potential for pest plant species.

Applicant’s Representation
In accordance with Condition 9 of the approval, a Rehabilitation Landscaping Works Plan is required for the approved development as a further Operational Works application. This condition requires rehabilitation of the riparian buffer area for a minimum of 20 metres, an appropriate landscape planting schedule and landscape density in accordance with the Landscaping Code and PSP2 Landscaping, and further the control of environmental weeds.
The applicant submits a preferred rehabilitation area within Figure 2 below that they consider provides a buffer width that is considerate of the approved infrastructure, whilst providing a superior outcome.

The applicant requests that condition 9 be amended to read as follows:
Provide a Rehabilitation Landscaping works plan for the development prepared by a suitably qualified person as part of an Operational Works application, including the following minimum specifications:
Rehabilitation of the Riparian Buffer area for a minimum of 20m from the middle creek boundary to achieve the floristic composition of Regional Ecosystem 12.3.1 in accordance with Figure 2;
Landscape planting specifications in accordance with Landscaping Code and PSP 2 Landscaping;
A planting schedule of suitable locally occurring species, plant numbers and locations, reflective of the Regional Ecosystem 12.3.1;
Control of all environmental weeds of the site in accordance with best industry practice for environmental rehabilitation which does not result in bed or bank instability;
Avoid undesirable plant species identified in PSP2 Landscaping;
Planting densities must result in a stable channel over the long term and minimal potential for pest plant species;
Assessment of Representation
Figure 2 provides for a rehabilitation area of 24m in width from the northern section of the site, decreasing to 16m in width and 20m in width in the north western section of the rehabilitation area (where the secondary dwelling is proposed to be sited) See Figure A below.

Figure A – width of rehabilitation area preferred by applicant.

The current condition requires a minimum width of 20m to be rehabilitated, this is to allow the applicant flexibility if they wish to the rehabilitation area to extend beyond 20m. The reduced width, in part, of 15m is not considered sufficient in order to provide sufficient rehabilitation of the riparian buffer area and comply with the Biodiversity Code benchmarks.  The applicant has justified the proposed reduced width as allowing for setbacks as detailed on the approved plans. However Condition 3 and Condition 4 of the permit require amended plans to be re-submitted to Council, as the secondary dwelling is not approved in its originally proposed location and a condition requires a 30m setback to the Middle Creek boundary for the entire development.

Therefore, it is not agreed to amend Condition 9, and if the applicant desires to rehabilitate beyond 20m width Condition 9 allows for this in its current form.

conclusion & reasons for decision
Upon consideration of the applicant’s representations it is decided not to agree to amend the Conditions 4 and 9.   The conditions in their current form are include to ensure adequate setbacks are achieved from the development to the Middle Creek waterway boundary and Council does not agree to reduce the setback of the development for reasons outlined within this report.
RECOMMENDATION
With regard to Application No. MCU20/0146, and the representations made, Council on 16 July 2021 decided to:
Refuse to the representations made for the following reasons:
The proposed changes do not comply with Overall outcomes 2 b), c), d), e), f), and g) of the Biodiversity, Waterways and Wetlands Overlay Code, as it does not provide for sufficient rehabilitation width of the riparian buffer area which limits avoidance of impacts on the ecologically important area of Middle Creek and it’s systems and processes.
The proposed changes do not comply with Performance outcome PO6 c) & d) of the Biodiversity, Waterways and Wetlands Overlay Code, as it does not allow for sufficient rehabilitation of the riparian buffer area and thus potentially limits the enhancement of Middle Creek waterway.

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in buffer area - as per setbacks in approved plans