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20181085 Signed Letter by email to Noosa Council - Applicant's Response to First Information Request
Attached to the e-mail Response to Information Request - Application Number OPW20/0114 - Bezencon - Portside Noosa Waters Advice - 20181085.
Our Ref: MJK:SLS:20181085 Council Ref: OPW20/0114 14 September 2020 Unit 2 ‘Office Quay” 2 Akeringa Place Chief Executive Officer, Noosa Council . . Mooloolaba PO Box 141 PO Box 246 Tewantin, QLD 4565 Mooloolaba Qld 4557 . A 107 5406 280 Attention: Mark Lewis 1:07 5106 1280 F: 07 5302 6817 By email: [email protected] [email protected] vw.stratumbegal.com.au ABH: GO 169 323 693 Dear Mr Lewis Response to Information Request Application Number OPW20/0114 Thank you for the first Information Request in relation to our clients’ Application OPW20/0114, This is the Applicant’s response under Rule 13.2(a) of the Development Assessment Rules. tssue 1 — Compliance with Existing Approvals The existing approvals for the Portside development are as follows: 1, Town Planning Consent Permit — TPC 2713 (multiple dwelling of 20 units) issued 21 September 1994 2. Building Approval BA1959/94 3, Jetty Approval - dated 22 February 1995 Approval 00276 (material change of use) included condition 22 which required that a further application in accordance with Council’s (then) current policy was submitted for a jetty approval. A subsequent application was made, being application 19590, An approval issued and Condition 11 of that approval confirmed that only one jetty was approved for the development. That jetty was constructed and, is located in accordance with the following: 1. the Queensland Globe extract attached (Annexure ASC15) which shows the “T” Jetty located at the end of a common property walkway; 2. that strip of common property is visible on BUP103414 (Annexure ASC6) between Lots 13 and 21 on BUP103414; and 3. the location of the Jetty at the end of the common property walkway relative to the adjacent exclusive use areas is more readily visible on the exclusive use plan “A” on page 8 of 9 of the currently recorded Community Management Statement for the Scheme {ASC9). The information requested in relation to the issue raised is “demonstrate how the proposed jetty achieves compliance with the existing approvals” This email and any attachments are confidential and may be privileged too. If you receive it by mistake then please let us know and don’t use the email or any attachment. We don’t waive any copyright, confidentiality or privilege In this email or any attachment.
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Noosa Council 2 14 September 2020 Jetties in the Noosa Waters Estate were previously controlled under Chapter XX! of Noosa Council bylaws with an approval required from Council for their construction. A Local Planning Policy (Planning Scheme Policy No 5. Private Jetties, Wharves, Pontoons & Boat Ramps) was adopted on 7 February 1991 (and modified several times the last modification being 11 September 1997) and detailed design criteria for jetties, wharfs, pontoons and boat ramps. The jetty approval referred to by Council was approved under this bylaw and is considered to be a works approval and not a development permit. The existing jetty has been constructed in accordance with the permit and therefore the approval has been completed. There is no legal ability to, or requirement to, change this works approval. The bylaw and Planning Policy No 5 no longer exist and have been replaced in the now superseded Noosa Plan 2006 (under which the application was lodged) by the Watercourses Works Code with jetties defined as Prescribed Tidal Works and requiring an application to Council. Assessment against this new Code is alf that is required. The proposed jetty therefore does not affect the existing jetty works approval. Issue 2 ~ Access Administration and Body Corporate Involvement Our client now amends this Application to address both this issue and issue 3 below. The Application is amended in line with the new documents now enclosed: 1. Joint Application — the Application is now made by the Owner of Lot 1, Australian Sunrise Citrus Pty Ltd as Trustee, and the Owner of Lot 2 being Richard Allan Wright and Prudence Crownson Wright (title search of Lot 2 attached as ASC16). This is confirmed at the end of this correspondence and the revised DA Form 1 attached. 2. The location of the Finger Jetty has been changed, so that it Is now situated on the common boundary of Lots 1 and 2, or more particularly their exclusive use courtyards adjoining the Noosa Waters Canal (Lot 502 of RP839224) in accordance with the revised plans attached (Annexure ASC17) being Kunkel Building Design project number 20.046 revision E. These amendments have been made with a view to the Applicants no longer relying upon probable solution $12.6 for the purposes of Part 14 (assessment benchmarks and requirements for development for a stated purpose or of a stated type) of the Noosa Plan and instead now relying upon probable solution $12.7. The implications of the change will be further addressed under issue 3 below. For the purposes of this issue it is noted that probable solution $12.7 does not require the consent to administration by, or indeed any involvement of, the Body Corporate for the Scheme in the Jetty’s approval, installation or maintenance, Accordingly, the Applicants regard this issue within the Information Request as having been rendered otiose by virtue of the amendment of the Application as described above. For Council’s further information and assistance, however, as regards this Application, the installation and maintenance of the Jetty, and the role of the Body Corporate: 1. for reasons previously provided the Body Corporate is not required to consent to the making of this Application whether in its’ original or amended form; 2. the Jetty is not going to be installed on the common property of the Scheme; and
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Noosa Council 3 14 September 2020
3. as the Jetty will be the private property of the Applicants and will not be located within the common
property for the Scheme the Body Corporate has no role in the maintenance or otherwise with
respect to administration of the Jetty.
Issue 3 - Canal Frontage Issues
The issue raised is that in Council’s view the units within Portside each control the area between the unit
and the canal frontage through their exclusive use areas. Accordingly, in Councils’ view “the development
functions in the same manner as a development where the unit owners each own their frontage to the
canal”,
Council has requested that the Applicants demonstrate how the proposed Jetty achieves specific outcome
012 or is in accordance with probable solution $12.7 of the Watercourses Works Code.
By virtue of the amendments to the Application made within this correspondence the specific outcome O12
is now achieved by compliance with probable solution $12.7.
That probable solution requires the following:
“for unit developments where each unit has its’ own individual canal frontage —
a. a joint Application with the adjoining Owner is made (Council is unlikely to support a Jetty
Application for the exclusive use of one unit Owner); and
b. Jetties are constructed as follows —
i. the Jetty is shared between 2 unit Owners;
fi. the Jetty straddles the common boundary of the 2 units;
iii. Jetty heads and pontoons are not constructed; and
iv. Fencing between the 2 properties is set back a minimum of 1 metre from the revetment wall
to allow for efficient access to the Jetty by both Owners (Refer Figure 14-38).”
As to the above the requirement in sub-paragraph (a) is met — the Application is now a joint application
made by both of the Owners of Lots 1 and 2 on BUP103414,
Likewise, requirements (b)(ii) and (iii) are satisfied by virtue of the proposed design. That is the location of
the Jetty has now been moved to the common boundary and no Jetty Heads or Pontoons are being
constructed; see the revised Kunkel Plans attached as ASC17.
In relation to requirement (b)(iv) we are instructed that there is no fence between the Lots at the canal
frontage and instead there is a hedge. We are instructed that the distance from the outside edge of the
revetment wall to the beginning of the hedge is at least a meter,
As to the final requirement, being $12.7(b){i), the Applicants have entered into a Licence Agreement,
conditional upon grant of the necessary approvals and installation of the Jetty, which recognises joint
ownership of the Jetty, joint responsibility for maintenance, and grants a reciprocal licence between each
of the 2 Lot Owners of the “landing area” at the end of the proposed Jetty. This is to ensure that the Lot
Owners are able to access the end of the Jetty from their exclusive use courtyards,
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Noosa Council 4 14 September 2020 For the purposes of $12.7 the Applicants submit that whilst the canal fronting land is common property, it is the subject of exclusive use (see By-Law 12 of the currently recorded Community Management Statement on page 4 of 9 of Annexure ASC9) which in turn, and for the reasons provided in our letter of 7 July 2020 means that for the purposes of the Planning Act 2016, the Applicants are the “Owners” of the exclusive use courtyards. Accordingly, the unit development is more closely aligned with the style of unit development referred to in probable solution $12.7 than $12.6, Conclusion The Applicants thank you for consideration of the information provided within this response to your information Request. The Applicants now request in accordance with the Development Assessment Rules you proceed to determination of the amended Application. Yours faithfully STRATUM LEGAL PTY LTD a Contact: Michael Kleinschmidt Legal Practitioner Director +61 07 5406 1282 [email protected] Individual liability limited by a scheme approved under professional standards legislation. |, Kerree Ann Bezencon, Director of Australian Sunrise Citrus Pty Ltd as Trustee, for and on behalf of that company authorise the making of the amended Application attached, made by virtue of this correspondence and the letter of Stratum Legal dated 7 July 2020 (with all attachments) to the Noosa Council. yo Hea 1 PI wore a. Say . Pn 7 Kerree Ann Bezencon Date |, Richard Allan Wright authorise the making of the amended Application attached, made by virtue of this correspondence and the letter of Stratum Legal dated 7 July 2020 (with all attachments) to the Noosa Council, Lh. Ara afer cl ATL OG AZO Richard Allan Wright Date
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Noosa Council 5
14 September 2020
|, Prudence Crownson Wright authorise the making of the amended Application attached, made by virtue
of this correspondence and the letter of Stratum Legal dated 7 July 2020 {with all attachments) to the
Noosa Council,
Prudence Crownson Wright
IS [OG] 2o2e
Date
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Noosa Council 6 14 September 2020 TABLE OF ANNEXURES Annexure Number | Annexure Document Stratum Legal Letter 7.7.20 ASCL Company Search Australian Sunrise Citrus Pty Ltd ASC2 DA Form 1 ASC3 QLD Globe ASC4 Kunkel Plans ASC5 QLD CMS Search ASC6 BUP 103414 ASC7 Part 14 Assessment Criteria (Codes) (1) ASC8 Common Property Title Search ASCO Community Management Statement ASC10 Lot 1 Title Search ASC11 North Point Brisbane [2012] QBCCMCmr 355 ASC12 Ballada Pty Ltd v North Point Brisbane & Anor [2013] QCATA 184 ASC13 Engineering Certification ASC14 Engineering Drawings Stratum Legal Letter dated 14.9,20 ASC15 Qld Globe ASC16 Title Search Lot 2 ASC17 Revised Kunkel Plans