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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.

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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”

 

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Page 2

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

 

 

Page 3

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,

 

Page 4

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.

 

 
   

 

 

 

 

 

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Hea 1 PI wore a. Say .
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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

 

 

 

 

 

 

 

Page 5

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

 

 

Page 6

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

 

 

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