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102995-10 Permissible change request
Attached to the e-mail REC12/0014.02 Change to existing approval - Bunnings Noosaville.
Our Ref: PR102995-10
Your Ref: REC12/0014
Date: 3 November 2015
ATTN: Mark Lewis
Noosa Council
PO Box 141
Tewantin QLD 4565
Via email: [email protected]
Dear Mark
RE: REQUEST TO CHANGE DEVELOPMENT APPROVAL - SECTION 369 OF SPA
178 EUMUNDI NOOSA ROAD, NOOSAVILLE (LOT 101 ON SP241371, FORMALLY
LOT 80 ON SP211687)
We act for Bunnings Properties Pty Ltd regarding an existing development approval (NC Ref:
REC12/0014) for the above mentioned site. The approval is a:
Development Permit for Reconfiguring a Lot (1 into 2 and Park)
The development approval was originally issued by Council on 16 March 2012, and extended as
set out in the ‘Compiled Decision Notice’ dated 17 March 2014.
Under Section 369 of the Sustainable Planning Act (SPA), we write to Noosa Council, as the
responsible entity, to make a permissible change to this development approval. We provide
details below.
1. Proposal:
CHANGE TO CONDITION 9:
Under the ROL Approval Condition 9, regarding Earthworks states:
“Earthworks
Certification of the earthworks undertaken on the lots provided by a RPEQ must be submitted
to Council prior to the sealing of the survey plan. The certification must include:
(a) Certification that the works have been undertaken in accordance with the provisions
of AS 3798 ‘Guidelines on Earthworks for Commercial and Residential
Development’
(b) Test results as required by AS 3798,
(c) Certification of the quality and uniformity of the materials.”
Certification for earthworks has been provided to Council for the earthworks undertaken over
proposed lot 101 (the Bunnings Warehouse site) and the new road. RPEQ certification has not
been provided for earthworks on proposed lot 102. We understand that Council’s interpretation of
the condition is that, certification is still required.
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To resolve this, we propose amendment to condition 9 to provide for an either / or scenario:
allowing the option to provide an earthworks certification for lot 102 OR registering a covenant
over the lot.
We provide suggested new wording for the condition below:
“9.1 Certification of the earthworks undertaken on the lots provided by a RPEQ must be
submitted to Council prior to the sealing of the survey plan. The certification must include:
(a) Certification that the works have been undertaken in accordance with the provisions of AS
3798 ‘Guidelines on Earthworks for Commercial and Residential Development’
(b) Test results as required by AS 3798,
(c) Certification of the quality and uniformity of the materials.
This certification must be lodged with any Development Permit for Building Works to the
Building Certifier.
OR
9.2 An as alternative to condition 9.1, at the time of lodgement of the survey plan with the
Department of Natural Resources and Mines, register a covenant pursuant to section 97A of
the Land Title Act 1994 over proposed allotment 102 (“Covenant Lot”). The covenant must
be in accordance with the following:
(a) For the purpose of the preservation of the Covenant Lot and any buildings to be
constructed on the Covenant Lot, so that it may be used for industrial or commercial
purposes without the risk of subterranean soil movement that could render the Covenant
Lot unfit for industrial or commercial use;
(b) All “development” (as defined in the Sustainable Planning Act 2009, regardless of the
level of assessment) must comply with the requirements of the “Report on Geotechnical
Investigation: 178 Eumundi-Noosa Road, Noosaville” prepared by Douglas Partners and
dated 7 September 2015 (Project Ref: 33984.02);
(c) Prior to any Development Permit for Building Works and associated earthworks for the
Covenant Lot, the allotment owner must obtain certification from a suitable qualified
geotechnical engineer stating that the proposed works are appropriate for the Covenant
Lot. This certification must be lodged with any Development Permit for Building Works to
the Building Certifier.
(d) The certification described in 9.2(c) must make reference to, and be in accordance with
the requirements of the “Report on Geotechnical Investigation: 178 Eumundi-Noosa
Road, Noosaville” prepared by Douglas Partners and dated 7 September 2014 (Project
Ref: 33984.02); and
(e) The covenant must be in favour of Noosa Council.”
This request is supported by a Geotechnical Report as prepared by Douglas Partners Pty Ltd
dated 7 September 2015, as requested by Noosa Council. Refer to Attachment A.
INDEMNITY:
Pursuant to the advice received from Mark Lewis via email correspondence to Jason Eden), we
understand that Council sought ongoing indemnity that protects Council from any action from the
current owners or any subsequent owners.
Legal advice sought by Bunnings Properties Pty Ltd indicates that an approval condition cannot
require an indemnity.
95D60E9.docx Page 2
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We understand Council's desire for the indemnity in the conditions, to ensure that it is protected
for future legal liability, however the registration of the covenant on Lot 102 will ensure that
Council is sufficiently protected and indemnified from risk.
That is, the covenant will attach to Lot 102 at the time of registration and identifies the
geotechnical requirements necessary to achieve long term stability of the site. If the requirements
of the covenant (set out in the geotechnical report attached to the document) are satisfied, and
subsequently there are stability issues for the purchaser, then it is Douglas Partners who is liable,
not Council.
Refer to Section 4 of the Coors Chambers Westgarth Lawyers advice on compliance with
conditions of ROL Permit included in Attachment B.
2. Permissible Change Test
The following table demonstrates that the proposed change is consistent with the permissible
change test under Section 367 of SPA.
Tests under Section 367 of SPA
Permissible Change tests Comments
The change to the approval does not result The proposal does not result in a substantially
in a substantially different development, or different development – exactly the same
development would be approved (1 into 2 lot
reconfiguration).
This is further confirmed below, where the
proposal’s consistency with the State’s
guideline for identifying ‘substantially different
development’ has been demonstrated.
If the application for the approval were If the application were remade, the application
remade including the change, the would not require referral to additional
application would not require referral to concurrence agencies. Development
additional concurrence agencies. authorised by the approval is unchanged.
If the application for the approval were The original application was not subject to
remade including the change for an impact assessment. The proposed amendment
approval for assessable development that does not alter the level of assessment.
previously did not required impact
assessment – require impact assessment.
For an approval that previously required The application was previously subject to code
impact assessment – not be likely, in the assessment.
Council’s opinion, to cause a person to
make a submission objecting to the
proposed change.
The change to the approval does not cause The proposed amendment does not introduce
development to which the approval relates any prohibited development.
to include any prohibited development.
Further to the above, Statutory Guideline 06/09 – Substantially different development when
changing applications and approvals provides guidance to assist in determining whether a
change may constitute substantially different development and whether a change is therefore a
minor change.
102995-10 Permissible change request v2.docx Page 3
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Substantially Different Development Test
‘Substantially Different’ includes: Consideration of the proposed changes
Involves a new use with different or The proposed amendments do not introduce a
additional impacts new use.
Results in the application applying to a new The proposed amendments do not introduce
parcel of land new land to the application.
Dramatically changes the built form in terms The proposed amendment will not alter the
of scale, bulk and appearance built form or appearance of the development.
The nature of the development authorised by
the approval does not change.
Changes the ability of the proposal to The nature of the development authorised by
operate as intended. For example, reducing the approval is unchanged.
the size of a retail complex may reduce the
capacity of the complex to service the
intended catchment
Removes a component that is integral to the The amendment is to condition wording only
operation of the development and does not remove any components of the
development.
Significantly impacts on traffic flow and the The proposed amendments will not affect the
transport network, such as increasing traffic traffic flow or the transport network to the site
to the site. in any manner.
Introduces new impacts or increases the The proposed amendments will not increase
severity of known impacts the severity of any existing development
impacts.
Removes an incentive or offset component No incentive or offset components are being
that would have balanced a negative impact removed.
of the development
Impacts on infrastructure provision, location Civil infrastructure demand will not be affected.
or demand
In summary, the proposed change to the development approval is considered a Permissible
Change in accordance with the relevant tests under Section 367 of the Act.
3. Supporting Information
In support of this request, please find attached the following as required under Sections 370 and
371 of SPA:
Council’s application form; and
letter of the land owner’s consent.
We understand the applicable fee for this request is $1,625.00 calculated in accordance with
Councils schedule of fees and charges 2015-2016.
In accordance with previous advice received from Council, we understand that additional Council
Solicitors fees are applicable for preparation of the covenant document. It has been advised that
$3,400 to $5,200 approximately, plus any outlays which are to be invoiced for the Solicitors fees
at the time of lodgement. This will be paid upon receipt of Council’s fee quote.
Other supporting information includes:
95D60E9.docx Page 4
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Attachment A - Geotechnical Report as prepared by Douglas Partners Pty Ltd dated 7
September 2015; and
Attachment B - Corrs Chambers Westgarth Legal Advice dated 25 September 2015.
We trust this information is sufficient for your purposes. Should you require further details or
wish to discuss these matters, please contact the writer on (07) 3124 9357 or Stephen Mason on
(07) 3124 9377.
Yours faithfully
RPS
SOPHIE WILLIAMS
Planner
Enc. NC application form
Land owners consent letter
Geotechnical Report
Legal Advice
cc: Jason Eden & Nick Craven, Bunnings Group Limited
95D60E9.docx Page 5
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Application Forms and Owners Consent 95D60E9.docx Page 6 [OCR of page images] Application Forms and Owners Consent Page 6
Page 7
w ebNeles eeeencens eu ee Sustainable Planning Act 2009 This form must be submitted to Council accompanied by the applicable fee. Attach extra pages if there is insufficient space on the form. Please note that for development approvals that include water and sewerage conditions, a Unitywater fee may also apply. 1. Details of person making the eo Full name — individual or company wy Ppete ¢ Pty +o c/- Res Contact Name — for company Le [Foun 5 Postal address RP Box 15S? Suburb fo, -hircle vedlery State QLD Postcode Y“OO6 Business phone Z/L.Y IFRS 7 AJH phone Mobile Email address So ohie ue //\ Maras pe Percept Con. af 2. Details of existing approval Type-of approval (please tick ALL applicable categories) Which entity issued approval? Development Permit O Council O Preliminary Approval O Other entity — please specify O Compliance Permit Material Change of Use & Reconfiguring a Lot Operational Works Building Works Plumbing or Drainage Works Compliance Certificate oooada Environmentally Relevant Activity Application number/council reference Date issued Is the approval for a mobile and temporary ERA? O No O Yes — complete below Insert the name of each local government area in which the mobile and temporary ERA is proposed to operate/operating 3. Nature of request (please tick ALL applicable categories) Ol To change the development M Tochange the development Ol To extend the relevant period approval conditions before lapsing Please attach documentation outlining the detail of and the reasons and justification for the requested change or extension. Privacy Council will use any personal information provided for the intended purpose only and for remaining in contact with you. Council is authorised to collect this information in accordance with the Local Government Act 2009 and other Local Government Acts. Your personal information is only accessed by persons authorised to do so. Your personal information is dealt with in accordance with council’s privacy policy www.noosa.qid.gov.au [email protected] T 07 5329 6500 PO Box 141 Tewantin Qld 4565 ABN 97 969 214 121 Page 1 of 4
Page 8
4. Location of the premises
Unit No. StreetNo } 7 $ Steet Euarnund, Noose Koad
Suburb AJoasecur/le. State QLD Postcode 4S GG
Lot no. _Plan type CAC ume
10/ SP o4/37/
5. Concurrence Agencies
Was there one or more concurrence agencies involved in the original approval? ONo
O Yes-provide details below
Note — Under s372 of the Sustainable Planning Act 2009 the person making the request is required to give a copy of this request to all
concurrence agencies.
| Concurrence Agency Date copy given
6. Pre-request response notice
Has a pre-request response been given by a relevant entity (e.g. a concurrence agency) for this request?
{No O Yes
If yes, please attach a copy of the notice.
ON memere Tea
Is the owner's consent required for this request? O No
aVes- complete either Table A or Table B below
Note — If more than one owner of the land all owners’ details are required
Table A — owner's consent provided on form
el = ae erg Pedece Reka
: 5 Le
Owner's name/s Owner's name/s Bonn mae Praoert ee by
We, the above-mentioned owner/s of the land, consent die owner's written consent is attached.
to the making of this request.
Signature/s
Date
Page 2 of 4
Page 9
NOTES: For question 7
Under section 371 of the Sustainable Planning Act 2009, if the person making the request is not the owner of the land to which the
approval relates, the request must be accompanied by the owner's consent.
However, owner's consent is not required if the approval:
- relates to land the was acquisition land to which section 263(2)(d) of the Sustainable Planning Act 2009 applied when the
application for the approval was made; or
- is for building work or operational work for the supply of community infrastructure on land designated for the community
infrastructure; or
- the consent of the owner would not be required under section 263(1) of the Sustainable Planning Act 2009 if a development
application were made for the requested change.
Also, owner's consent is not required if the Assessment Manager is satisfied that:
- the number of owners of the land make it impractical to obtain owners’ consent, and the requested change does not materially
affect the owners’ land; or
- having regard to the nature of the proposed change, the owner has unreasonably withheld consent and the requested change
does not materially affect the owner's land.
8. Does the request involve a State resource prescribed under the SustainablePlanning Regulation 2009,
Schedule 14?
0 Yes — complete below details
Nature of State owned resource:
Nature of Evidence required:
O Evidence of allocation of / entitlement to, the resource Evidence the chief executive has agreed to the request
Attach a copy of the evidence required above
NOTES: For question 8
Section 370(3) and (4) of the Sustainable Planning Act 2009 requires that if an application for the development approval were made at
the time of making this request and evidence under section 264(1) of the Sustainable Planning Act 2009 would be required to support
the application, this request must be accompanied by the written agreement of the chief executive from whom evidence would be
required under section 264(1).
Section 264 of the Sustainable Planning Act 2009 provides that if a development involves a State resource, a regulation may require
the application to be supported by certain evidence prescribed under regulation. Schedule 14 of the Sustainable Planning Regulation
2009 prescribes the State resources for which evidence is required to be given, and the evidence required, to support the application.
9. Declaration of applicant
IWe, the applicant, declare that the above information is correct in all respects, at the time of lodgement of this
application with Council. Should any of the details given in relation to this application be changed in the future, the
applicant shall adyiseyCouncil in writing prior to any such change being implemented.
~
Signature/s
Date 2/i]/S.
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FFICE USE ONLY Receiving Officer Payment options In person "9 Pelican Street, Tewantin: 8.30 am to 4.30 pm Monday to Friday (excludes public holidays). By mail Cheque or money order to be made payable to Noosa Council. O Cheque © Money order 06 Mastercard O Visa All payments made by credit card will incur a 0.50% surcharge (exempt of GST) to reflect the cost of fees charged for credit card transactions, Page 4 of 4
Page 11
BUNNINGS The Chief Executive Officer Noosa Council PO Box 141, TEWANTIN QLD 4565 . Dear Sir / Madam RE: LAND OWNER CONSENT FOR DEVELOPMENT APPLICATION Bunnings Properties Pty Ltd (A.C.N. 008 557 622) consent to the lodgement of the necessary development application/s (under the Sustainable Planning Act 2009) by RPS Australia East Pty Ltd over 178 Eumundi Noosa Road, Noosaville, more formally described as Lot 101 on SP241371. Yours faithfully Date: bi: 3° X014 Ne Tana ecw se Position: DiecTow saa NGS PRorvactiel . JN. I Nhe[A. '_ Date: 3g alt Name: Dry iD wil KiN Sony aches | Poston’ COvUPANYY Se ciLETRE Y - The ACN must be included and accompanied by — = the signature of either- -— Two directors of the company — Adirector and a company secretary of the company or — Ifa proprietary company that has a sole director who is also the sole company secretary, that director OR = The company seal (if the company has a common seal) witnessed by- - Two directors of the company - Adirector and a company secretary of the company or — For a propriety company that has a sole director who is also the sole company secretary, that director. Bunnings Group Limited 16-18 Cato Street Telephone +(61 3) 8831 9777 ABN 26 008 672 179 Hawthorn East Australia 3123 Facsimile +(61 3) 8831 9444 A member of the Wesfarmers Limited Locked Bag 3004 Website www.bunnings.com.au Group of Companies Hawthorn Victoria 3122
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Attachment A Geotechnical Report Prepared by Douglas Partners Pty Ltd Dated 7 September 2015 95D60E9.docx Page 7
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Douglas Partners Pty Ltd
ABN 75 053 980 117
www.douglaspartners.com.au
Unit 1, 28 Kessling Avenue
Kunda Park QLD 4556
Phone (07) 5351 0400
Fax (07) 5351 0499
Project 33984.02
Bunnings Group Pty Ltd 7 September 2015
96 Mount Gravatt Capalaba Road BWE
UPPER MOUNT GRAVATT QLD 4122
Attention: Jeff Thomas
Email: [email protected]
Dear Sirs,
Report on Geotechnical Investigation
178 Eumundi-Noosa Road, Noosaville
1. Introduction
This report presents the results of a geotechnical investigation carried out by Douglas Partners Pty Ltd
(DP) to assess the condition of existing filling at 178 Eumundi-Noosa Road, Noosaville described as
Lot 102 on SP279285.
It is understood that the site forming part of Lot 102 on SP279285 is subject to a reconfiguration of lot
subdivision dividing current Lot 102 on SP279285 into two lots.
The investigation comprised the drilling of five bores followed by engineering assessment and
reporting. Details of the field work are presented in this report, together with comments on construction
for future development on the site and identifies the geotechnical requirements necessary to achieve
long term stability.
This report must be read in conjunction with the attached notes entitled ‘About this Report’ together
with any other explanatory notes and should be kept in its entirety without separation of individual
pages or sections.
2. Field Work Methods
The field work was carried out on 29 June 2015 and comprised the drilling of five bores. The bore
locations were set out with reference to site features, with locations recorded using a hand held GPS.
The approximate bore locations are indicated on the attached drawing.
The bores were drilled using a 4WD mounted Jacro 200 drilling rig using continuous flight augers fitted
with a tungsten carbide (TC) bit. Dynamic cone penetrometer (DCP) tests were carried out adjacent
and within the bores in order to assess the relative density and strength consistency of the subsurface
soils. Strata identification was undertaken through observation of cutting returns and recovered
Brisbane • Cairns • Canberra • Darwin • Geelong • Gold Coast • Macarthur • Melbourne • Newcastle • Perth • Sunshine Coast •
Sydney • Townsville • Wollongong • Wyong
Page 14
Page 2 of 3 samples. On completion, the bores were observed for groundwater seepage and then backfilled with spoil tamped into the holes. The field work was undertaken by experienced geotechnical personnel who logged the bores, collected disturbed samples for visual and tactile assessment. 3. Field Work Results The subsurface conditions encountered in the bores are described in detail on the attached borehole logs. In summary the subsurface conditions encountered in the bores typically comprised filling to between 4.1 m and 5.9 m depth. The filling typically comprised a gravelly sandy clay overlying a sandy clay which was in turn underlain by a silty clay in Bores 2, 3, and 5. The filling was underlain by natural sandy then silty clays. No groundwater seepage was observed during the investigation; however, it should be noted that groundwater depths and ground moisture conditions are affected by climatic conditions and soil permeability, and will therefore vary with time. 4. Comments 4.1 Appreciation of Ground Conditions DP previously carried out geotechnical investigations on the site in 2006 and 2008. In the area of the site, uncompacted to poorly compacted filling with foreign material (ie. bricks, timber, steel sheeting, steel pieces, tree roots) was encountered up to 4.7 m depth. As mentioned above, filling was encountered to between 4.1 m and 5.9 m depth in the recent bores. The near surface filling encountered in the bores at the time of this investigation appear to be clean of any foreign, deleterious material or topsoil material rich in organics or root matter. Any organics or foreign material including concrete, plastic, wire and bricks encountered within the recent bores was encountered typically in the sandy clay filling material below 1 m depth consistent with the ‘uncontrolled’ filling previously encountered. The settlement of ‘uncontrolled’ filling cannot be reliably predicted as it is unknown whether the filling has been placed and uniformly compacted to an appropriate engineering standard. The presence of voids within the ‘uncontrolled’ filling as well as potential soft/loose zones or inclusions of deleterious materials may lead to potentially significant settlements, with possible large settlement over short distances (ie. differential settlements) where looser pockets occur in the filling. 4.2 Recommendations for Future Construction Given the above, future development on the site will need to be planned, designed and constructed in accordance with sound and proper engineering principles, and more specifically take into consideration the potential long term settlement or creep of the ‘uncontrolled’ filling. Report on Geotechnical Investigation Project 33984.02 178 Eumundi-Noosa Road, Noosaville September 2015
Page 15
Page 3 of 3 If future building development on the site is to be fully suspended founding beneath the ‘uncontrolled’ filling and into natural soils using a deep foundation system and suspended slab, the existing uncontrolled filling could be left in place not requiring any further works to reduce potential surface movement. The deep foundation system should be design in accordance with AS 2159-2009 “Piling – Design and Installation”, However, if slab on-ground or pavement construction is required, remove all ‘uncontrolled’ filling and sort to remove unsuitable materials and reinstate the excavation with the ‘clean’ sorted filling compacted in layers under ‘Level 1’ inspection and testing. This approach would allow for building loads to supported on high level footings founded in the new ‘controlled’ engineered filling. All earthworks should be carried out in accordance with AS 3798-2007 “Guidelines on Earthworks for Commercial and Residential Developments”. The above procedures will require geotechnical inspection and testing services to be employed during construction. DP is suitably qualified to conduct earthworks inspection and testing services that will be required during any earthworks construction. Provided future development on the site is undertaken using the above recommendations along with good engineering practice, the site would be considered stable for the intended purpose. It is recommended that prior to the finalisation of the specifics of any future development on the site, the proposed details of that development should be checked by DP to check against the recommendations made in this report and to confirm that the proposed development conforms with these recommendations. We trust that the above is satisfactory for your current needs. Should you have any questions or require any further clarification on this matter, please contact the undersigned at our Sunshine Coast office. Yours faithfully Douglas Partners Pty Ltd Brett Egen Associate Report on Geotechnical Investigation Project 33984.02 178 Eumundi-Noosa Road, Noosaville September 2015
Page 16
Introduction • A localised, perched water table may lead to
These notes have been provided to amplify DP's an erroneous indication of the true water
report in regard to classification methods, field table;
procedures and the comments section. Not all are • Water table levels will vary from time to time
necessarily relevant to all reports. with seasons or recent weather changes.
They may not be the same at the time of
DP's reports are based on information gained from construction as are indicated in the report;
limited subsurface excavations and sampling, and
supplemented by knowledge of local geology and • The use of water or mud as a drilling fluid will
experience. For this reason, they must be mask any groundwater inflow. Water has to
regarded as interpretive rather than factual be blown out of the hole and drilling mud must
documents, limited to some extent by the scope of first be washed out of the hole if water
information on which they rely. measurements are to be made.
More reliable measurements can be made by
Copyright installing standpipes which are read at intervals
This report is the property of Douglas Partners Pty over several days, or perhaps weeks for low
Ltd. The report may only be used for the purpose permeability soils. Piezometers, sealed in a
for which it was commissioned and in accordance particular stratum, may be advisable in low
with the Conditions of Engagement for the permeability soils or where there may be
commission supplied at the time of proposal. interference from a perched water table.
Unauthorised use of this report in any form
whatsoever is prohibited.
Reports
The report has been prepared by qualified
Borehole and Test Pit Logs personnel, is based on the information obtained
The borehole and test pit logs presented in this from field and laboratory testing, and has been
report are an engineering and/or geological undertaken to current engineering standards of
interpretation of the subsurface conditions, and interpretation and analysis. Where the report has
their reliability will depend to some extent on been prepared for a specific design proposal, the
frequency of sampling and the method of drilling or information and interpretation may not be relevant
excavation. Ideally, continuous undisturbed if the design proposal is changed. If this happens,
sampling or core drilling will provide the most DP will be pleased to review the report and the
reliable assessment, but this is not always sufficiency of the investigation work.
practicable or possible to justify on economic
grounds. In any case the boreholes and test pits Every care is taken with the report as it relates to
represent only a very small sample of the total interpretation of subsurface conditions, discussion
subsurface profile. of geotechnical and environmental aspects, and
recommendations or suggestions for design and
Interpretation of the information and its application construction. However, DP cannot always
to design and construction should therefore take anticipate or assume responsibility for:
into account the spacing of boreholes or pits, the • Unexpected variations in ground conditions.
frequency of sampling, and the possibility of other The potential for this will depend partly on
than 'straight line' variations between the test borehole or pit spacing and sampling
locations. frequency;
• Changes in policy or interpretations of policy
by statutory authorities; or
• The actions of contractors responding to
Groundwater
commercial pressures.
Where groundwater levels are measured in
If these occur, DP will be pleased to assist with
boreholes there are several potential problems,
investigations or advice to resolve the matter.
namely:
• In low permeability soils groundwater may
enter the hole very slowly or perhaps not at all
during the time the hole is left open;
July 2010
Page 17
Site Anomalies
In the event that conditions encountered on site
during construction appear to vary from those
which were expected from the information
contained in the report, DP requests that it be
immediately notified. Most problems are much
more readily resolved when conditions are
exposed rather than at some later stage, well after
the event.
Information for Contractual Purposes
Where information obtained from this report is
provided for tendering purposes, it is
recommended that all information, including the
written report and discussion, be made available.
In circumstances where the discussion or
comments section is not relevant to the contractual
situation, it may be appropriate to prepare a
specially edited document. DP would be pleased
to assist in this regard and/or to make additional
report copies available for contract purposes at a
nominal charge.
Site Inspection
The company will always be pleased to provide
engineering inspection services for geotechnical
and environmental aspects of work to which this
report is related. This could range from a site visit
to confirm that conditions exposed are as
expected, to full time engineering presence on
site.
July 2010
Page 18
3
4 2 5
1
CLIENT: De Luca Corporation Test Location Plan PROJECT No: 33984.02
OFFICE: Sunshine Coast Existing Fill Assessment DRAWING No: 1
DATE: July 2015 178 Eumundi-Noosa Road, Noosaville REVISION: 0
Page 19
Sampling reliability, due to the remoulding, possible mixing
Sampling is carried out during drilling or test pitting or softening of samples by groundwater.
to allow engineering examination (and laboratory
testing where required) of the soil or rock.
Non-core Rotary Drilling
Disturbed samples taken during drilling provide The borehole is advanced using a rotary bit, with
information on colour, type, inclusions and, water or drilling mud being pumped down the drill
depending upon the degree of disturbance, some rods and returned up the annulus, carrying the drill
information on strength and structure. cuttings. Only major changes in stratification can
be determined from the cuttings, together with
Undisturbed samples are taken by pushing a thin- some information from the rate of penetration.
walled sample tube into the soil and withdrawing it Where drilling mud is used this can mask the
to obtain a sample of the soil in a relatively cuttings and reliable identification is only possible
undisturbed state. Such samples yield information from separate sampling such as SPTs.
on structure and strength, and are necessary for
laboratory determination of shear strength and
compressibility. Undisturbed sampling is generally Continuous Core Drilling
effective only in cohesive soils. A continuous core sample can be obtained using a
diamond tipped core barrel, usually with a 50 mm
internal diameter. Provided full core recovery is
Test Pits achieved (which is not always possible in weak
Test pits are usually excavated with a backhoe or rocks and granular soils), this technique provides a
an excavator, allowing close examination of the in- very reliable method of investigation.
situ soil if it is safe to enter into the pit. The depth
of excavation is limited to about 3 m for a backhoe
and up to 6 m for a large excavator. A potential Standard Penetration Tests
disadvantage of this investigation method is the Standard penetration tests (SPT) are used as a
larger area of disturbance to the site. means of estimating the density or strength of soils
and also of obtaining a relatively undisturbed
sample. The test procedure is described in
Large Diameter Augers Australian Standard 1289, Methods of Testing
Boreholes can be drilled using a rotating plate or Soils for Engineering Purposes - Test 6.3.1.
short spiral auger, generally 300 mm or larger in
diameter commonly mounted on a standard piling The test is carried out in a borehole by driving a 50
rig. The cuttings are returned to the surface at mm diameter split sample tube under the impact of
intervals (generally not more than 0.5 m) and are a 63 kg hammer with a free fall of 760 mm. It is
disturbed but usually unchanged in moisture normal for the tube to be driven in three
content. Identification of soil strata is generally successive 150 mm increments and the 'N' value
much more reliable than with continuous spiral is taken as the number of blows for the last 300
flight augers, and is usually supplemented by mm. In dense sands, very hard clays or weak
occasional undisturbed tube samples. rock, the full 450 mm penetration may not be
practicable and the test is discontinued.
Continuous Spiral Flight Augers The test results are reported in the following form.
The borehole is advanced using 90-115 mm • In the case where full penetration is obtained
diameter continuous spiral flight augers which are with successive blow counts for each 150 mm
withdrawn at intervals to allow sampling or in-situ of, say, 4, 6 and 7 as:
testing. This is a relatively economical means of 4,6,7
drilling in clays and sands above the water table. N=13
Samples are returned to the surface, or may be • In the case where the test is discontinued
collected after withdrawal of the auger flights, but before the full penetration depth, say after 15
they are disturbed and may be mixed with soils blows for the first 150 mm and 30 blows for
from the sides of the hole. Information from the the next 40 mm as:
drilling (as distinct from specific sampling by SPTs 15, 30/40 mm
or undisturbed samples) is of relatively low
July 2010
Page 20
The results of the SPT tests can be related
empirically to the engineering properties of the
soils.
Dynamic Cone Penetrometer Tests /
Perth Sand Penetrometer Tests
Dynamic penetrometer tests (DCP or PSP) are
carried out by driving a steel rod into the ground
using a standard weight of hammer falling a
specified distance. As the rod penetrates the soil
the number of blows required to penetrate each
successive 150 mm depth are recorded. Normally
there is a depth limitation of 1.2 m, but this may be
extended in certain conditions by the use of
extension rods. Two types of penetrometer are
commonly used.
• Perth sand penetrometer - a 16 mm diameter
flat ended rod is driven using a 9 kg hammer
dropping 600 mm (AS 1289, Test 6.3.3). This
test was developed for testing the density of
sands and is mainly used in granular soils and
filling.
• Cone penetrometer - a 16 mm diameter rod
with a 20 mm diameter cone end is driven
using a 9 kg hammer dropping 510 mm (AS
1289, Test 6.3.2). This test was developed
initially for pavement subgrade investigations,
and correlations of the test results with
California Bearing Ratio have been published
by various road authorities.
July 2010
Page 21
Description and Classification Methods
The methods of description and classification of Definitions of grading terms used are:
soils and rocks used in this report are based on • Well graded - a good representation of all
Australian Standard AS 1726, Geotechnical Site particle sizes
Investigations Code. In general, the descriptions • Poorly graded - an excess or deficiency of
include strength or density, colour, structure, soil particular sizes within the specified range
or rock type and inclusions.
• Uniformly graded - an excess of a particular
particle size
Soil Types
Soil types are described according to the • Gap graded - a deficiency of a particular
predominant particle size, qualified by the grading particle size with the range
of other particles present:
Cohesive Soils
Type Particle size (mm) Cohesive soils, such as clays, are classified on the
Boulder >200 basis of undrained shear strength. The strength
may be measured by laboratory testing, or
Cobble 63 - 200
estimated by field tests or engineering
Gravel 2.36 - 63 examination. The strength terms are defined as
Sand 0.075 - 2.36 follows:
Silt 0.002 - 0.075
Clay <0.002 Description Abbreviation Undrained
shear strength
(kPa)
The sand and gravel sizes can be further
Very soft vs <12
subdivided as follows:
Soft s 12 - 25
Type Particle size (mm) Firm f 25 - 50
Coarse gravel 20 - 63 Stiff st 50 - 100
Medium gravel 6 - 20 Very stiff vst 100 - 200
Fine gravel 2.36 - 6 Hard h >200
Coarse sand 0.6 - 2.36
Medium sand 0.2 - 0.6 Cohesionless Soils
Cohesionless soils, such as clean sands, are
Fine sand 0.075 - 0.2
classified on the basis of relative density, generally
from the results of standard penetration tests
The proportions of secondary constituents of soils (SPT), cone penetration tests (CPT) or dynamic
are described as: penetrometers (PSP). The relative density terms
are given below:
Term Proportion Example
And Specify Clay (60%) and Relative Abbreviation SPT N CPT qc
Sand (40%) Density value value
(MPa)
Adjective 20 - 35% Sandy Clay
Very loose vl <4 <2
Slightly 12 - 20% Slightly Sandy
Clay Loose l 4 - 10 2 -5
With some 5 - 12% Clay with some Medium md 10 - 30 5 - 15
sand dense
With a trace of 0 - 5% Clay with a trace Dense d 30 - 50 15 - 25
of sand Very vd >50 >25
dense
July 2010
Page 22
Soil Origin
It is often difficult to accurately determine the origin
of a soil. Soils can generally be classified as:
• Residual soil - derived from in-situ weathering
of the underlying rock;
• Transported soils - formed somewhere else
and transported by nature to the site; or
• Filling - moved by man.
Transported soils may be further subdivided into:
• Alluvium - river deposits
• Lacustrine - lake deposits
• Aeolian - wind deposits
• Littoral - beach deposits
• Estuarine - tidal river deposits
• Talus - scree or coarse colluvium
• Slopewash or Colluvium - transported
downslope by gravity assisted by water.
Often includes angular rock fragments and
boulders.
July 2010
Page 23
Introduction
These notes summarise abbreviations commonly Orientation
used on borehole logs and test pit reports. The inclination of defects is always measured from
the perpendicular to the core axis.
Drilling or Excavation Methods h horizontal
C Core Drilling v vertical
R Rotary drilling sh sub-horizontal
SFA Spiral flight augers sv sub-vertical
NMLC Diamond core - 52 mm dia
NQ Diamond core - 47 mm dia
HQ Diamond core - 63 mm dia Coating or Infilling Term
PQ Diamond core - 81 mm dia cln clean
co coating
he healed
Water inf infilled
Z Water seep stn stained
V Water level ti tight
vn veneer
Sampling and Testing
Coating Descriptor
A Auger sample
ca calcite
B Bulk sample
cbs carbonaceous
D Disturbed sample
cly clay
E Environmental sample
fe iron oxide
U50 Undisturbed tube sample (50mm)
mn manganese
W Water sample
slt silty
pp pocket penetrometer (kPa)
PID Photo ionisation detector
PL Point load strength Is(50) MPa
Shape
S Standard Penetration Test
cu curved
V Shear vane (kPa)
ir irregular
pl planar
st stepped
Description of Defects in Rock un undulating
The abbreviated descriptions of the defects should
be in the following order: Depth, Type, Orientation,
Coating, Shape, Roughness and Other. Drilling
and handling breaks are not usually included on Roughness
the logs. po polished
ro rough
Defect Type sl slickensided
B Bedding plane sm smooth
Cs Clay seam vr very rough
Cv Cleavage
Cz Crushed zone
Ds Decomposed seam
F Fault Other
J Joint fg fragmented
Lam lamination bnd band
Pt Parting qtz quartz
Sz Sheared Zone
V Vein
July 2010
Page 24
Graphic Symbols for Soil and Rock
General Sedimentary Rocks
Asphalt Boulder conglomerate
Road base Conglomerate
Concrete Conglomeratic sandstone
Filling Sandstone
Soils Siltstone
Topsoil Laminite
Peat Mudstone, claystone, shale
Clay Coal
Silty clay Limestone
Sandy clay Metamorphic Rocks
Gravelly clay Slate, phyllite, schist
Shaly clay Gneiss
Silt Quartzite
Clayey silt
Igneous Rocks
Sandy silt Granite
Sand Dolerite, basalt, andesite
Clayey sand Dacite, epidote
Silty sand Tuff, breccia
Gravel Porphyry
Sandy gravel
Cobbles, boulders
Talus
July 2010
Page 25
BOREHOLE LOG
CLIENT: De Luca Corporation Pty Ltd SURFACE LEVEL: -- BORE No: 1
PROJECT: Existing Fill Assessment EASTING: 504148 PROJECT No: 33984.02
LOCATION: 178 Eumundi-Noosa Road, Noosaville NORTHING: 7078686 DATE: 29/6/2015
DIP/AZIMUTH: 90°/-- SHEET 1 OF 1
Description Sampling & In Situ Testing
Graphic
Dynamic Penetrometer Test
Water
Depth
Log
RL
Sample
of (blows per 100mm)
Depth
Type
(m) Results &
Comments
Strata 5 10 15 20
FILLING - firm to stiff, grey brown, high plasticity sandy
clay filling with fine to medium grained sand, some fine to
medium gravel, some silty clay layering, moist 0.3 pp = 200
-firm, medium to high plasticity, fine to medium gravel, no
silty clay layering
0.6 pp = 80
0.9 pp = 90
1 1
1.4 pp = 70
>>
- foreign material (concrete)
- high plasticity
2 2
2.4 pp = 90
- foreign material (plastic, wire), organics
2.9 pp = 90
3 3
- estimated 20% organics >>
3.4 pp = 100
3.6
FILLING - stiff to very stiff, grey brown, medium plasticity
gravelly sandy clay filling with fine to medium grained
sand and fine to medium with some coarse gravel, moist
4 4
4.25
FILLING - stiff, grey mottled red brown and orange brown,
high plasticity silty clay filling, moist 4.4 pp = 150
5 5
5.1
SANDY CLAY - stiff to very stiff, red mottled grey orange,
high plasticity sandy clay with fine and some medium
grained sand, moist 5.4 pp = 130
6 6.0 6
Bore discontinued at 6.0m
Limit of investigation.
RIG: Jacro 200 DRILLER: RB LOGGED: RB/JB CASING: Nil
TYPE OF BORING: Auger
WATER OBSERVATIONS: No groundwater seepage observed at time of drilling.
REMARKS: Location coordinates are in MGA94 Zone 56 J. Sand Penetrometer AS1289.6.3.3
Cone Penetrometer AS1289.6.3.2
SAMPLING & IN SITU TESTING LEGEND
A Auger sample G Gas sample PID Photo ionisation detector (ppm)
B Bulk sample P Piston sample PL(A) Point load axial test Is(50) (MPa)
BLK Block sample Ux Tube sample (x mm dia.) PL(D) Point load diametral test Is(50) (MPa)
C Core drilling W Water sample pp Pocket penetrometer (kPa)
D Disturbed sample Water seep S Standard penetration test
E Environmental sample Water level V Shear vane (kPa)
Page 26
BOREHOLE LOG
CLIENT: De Luca Corporation Pty Ltd SURFACE LEVEL: -- BORE No: 2
PROJECT: Existing Fill Assessment EASTING: 504147 PROJECT No: 33984.02
LOCATION: 178 Eumundi-Noosa Road, Noosaville NORTHING: 7078699 DATE: 29/6/2015
DIP/AZIMUTH: 90°/-- SHEET 1 OF 1
Description Sampling & In Situ Testing
Graphic
Dynamic Penetrometer Test
Water
Depth
Log
RL
Sample
of (blows per 100mm)
Depth
Type
(m) Results &
Comments
Strata 5 10 15 20
FILLING - stiff, grey brown, medium to high plasticity
gravelly sandy clay with fine to medium grained sand and
fine with some medium and trace of coarse gravel, moist 0.3 pp = 150
- grey brown streaked brown, some silty clay layering 0.9 pp = 220
1 1
- trace of foreign material (plastic), trace of shell fines
1.4 pp = 120
- firm, grey brown mottled grey, no foreign material
1.9 pp = 80
2 2
>>
- foreign material (concrete)
- estimated 10% organics 2.4 pp = 100
2.9 pp = 60
>>
3 3
3.2
FILLING - stiff, brown mottled grey, medium to high
plasticity sandy clay filling with fine to medium grained 3.4 pp = 110
sand, moist
3.9 pp = 150
4 4
4.1
FILLING - stiff to very stiff, orange brown mottled brown
grey, high plasticity silty clay filling, some fine to medium
grained sand, trace of fine gravel, moist 4.4 pp = 220
4.6
FILLING - firm to stiff, dark grey brown, medium to high
plasticity sandy clay filling with fine and some medium
grained sand, moist
5 5
5.4
SANDY CLAY - stiff, brown mottled orange brown, high
plasticity sandy clay with fine and some medium grained
sand, moist
5.9 pp = 130
6 6.0 6
Bore discontinued at 6.0m
Limit of investigation.
RIG: Jacro 200 DRILLER: RB LOGGED: RB/JB CASING: Nil
TYPE OF BORING: Auger
WATER OBSERVATIONS: No groundwater seepage observed at time of drilling.
REMARKS: Location coordinates are in MGA94 Zone 56 J. Sand Penetrometer AS1289.6.3.3
Cone Penetrometer AS1289.6.3.2
SAMPLING & IN SITU TESTING LEGEND
A Auger sample G Gas sample PID Photo ionisation detector (ppm)
B Bulk sample P Piston sample PL(A) Point load axial test Is(50) (MPa)
BLK Block sample Ux Tube sample (x mm dia.) PL(D) Point load diametral test Is(50) (MPa)
C Core drilling W Water sample pp Pocket penetrometer (kPa)
D Disturbed sample Water seep S Standard penetration test
E Environmental sample Water level V Shear vane (kPa)
Page 27
BOREHOLE LOG
CLIENT: De Luca Corporation Pty Ltd SURFACE LEVEL: -- BORE No: 3
PROJECT: Existing Fill Assessment EASTING: 504148 PROJECT No: 33984.02
LOCATION: 178 Eumundi-Noosa Road, Noosaville NORTHING: 7078711 DATE: 29/6/2015
DIP/AZIMUTH: 90°/-- SHEET 1 OF 1
Description Sampling & In Situ Testing
Graphic
Dynamic Penetrometer Test
Water
Depth
Log
RL
Sample
of (blows per 100mm)
Depth
Type
(m) Results &
Comments
Strata 5 10 15 20
FILLING - stiff, grey mottled brown and orange brown,
high plasticity gravelly sandy clay filling with fine to
medium grained sand and fine with some medium and 0.3 pp = 170
trace of coarse gravel, moist
0.6 pp = 140
- some silty clay layering
>>
0.9 pp = 120
1 1
1.1
FILLING - firm, grey brown, medium to high plasticity
sandy clay filling with fine to medium grained sand, some
organics, moist 1.4 pp = 80
1.9 pp = 80
2 2
2.2
FILLING - very stiff to hard, grey brown, medium to high
plasticity gravelly sandy clay filling with fine to medium
grained sand and fine to medium gravel, moist
2.8
FILLING - stiff, orange brown mottled grey and brown, 2.9 pp = 150
3 high plasticity silty clay filling, some fine to medium 3
grained sand and trace of fine gravel, moist
3.4 pp = 100
3.7
FILLING - firm, orange brown mottled grey, high plasticity
sandy clay filling with fine and trace medium grained 3.9 pp = 90
4 sand, moist 4
- stiff, orange brown mottled dark grey brown, some
organics
4.4 pp = 150
- firm to stiff, grey brown
5 5
5.2
SANDY CLAY - stiff, orange brown, high plasticity sandy
clay with fine to medium grained sand, moist
- red brown mottled grey, fine grained sand, trace of fine
gravel
6 6.0 6
Bore discontinued at 6.0m
Limit of investigation.
RIG: Jacro 200 DRILLER: RB LOGGED: RB/JB CASING: Nil
TYPE OF BORING: Auger
WATER OBSERVATIONS: No groundwater seepage observed at time of drilling.
REMARKS: Location coordinates are in MGA94 Zone 56 J. Sand Penetrometer AS1289.6.3.3
Cone Penetrometer AS1289.6.3.2
SAMPLING & IN SITU TESTING LEGEND
A Auger sample G Gas sample PID Photo ionisation detector (ppm)
B Bulk sample P Piston sample PL(A) Point load axial test Is(50) (MPa)
BLK Block sample Ux Tube sample (x mm dia.) PL(D) Point load diametral test Is(50) (MPa)
C Core drilling W Water sample pp Pocket penetrometer (kPa)
D Disturbed sample Water seep S Standard penetration test
E Environmental sample Water level V Shear vane (kPa)
Page 28
BOREHOLE LOG
CLIENT: De Luca Corporation Pty Ltd SURFACE LEVEL: -- BORE No: 4
PROJECT: Existing Fill Assessment EASTING: 504128 PROJECT No: 33984.02
LOCATION: 178 Eumundi-Noosa Road, Noosaville NORTHING: 7078697 DATE: 29/6/2015
DIP/AZIMUTH: 90°/-- SHEET 1 OF 1
Description Sampling & In Situ Testing
Graphic
Dynamic Penetrometer Test
Water
Depth
Log
RL
Sample
of (blows per 100mm)
Depth
Type
(m) Results &
Comments
Strata 5 10 15 20
FILLING - firm to stiff, grey brown, medium plasticity
gravelly sandy clay filling with fine to medium grained
sand and fine to medium with some coarse gravel, moist
- cobbles, small boulders
- very stiff, no cobbles or small boulders
1 1
- some cobbles >>
- no cobbles, estimated 40% organics
- firm to stiff, some organics
2 2
- stiff, grey brown streaked grey 2.4 pp = 140
2.9 pp = 150
3 3
- firm to stiff, trace of foreign material (wire)
- medium to high plasticity, no foreign material 3.7 pp = 80
4 4
- firm
4.3 pp = 100
4.9 pp = 60
5 5
>>
5.4 pp = 60
5.8 pp = 60
5.9
6 SANDY CLAY - very stiff, red brown mottled grey, high 6
plasticity sandy clay with fine grained sand, moist
6.4 pp = 250
6.5
Bore discontinued at 6.5m
Limit of investigation.
RIG: Jacro 200 DRILLER: RB LOGGED: RB/JB CASING: Nil
TYPE OF BORING: Auger
WATER OBSERVATIONS: No groundwater seepage observed at time of drilling.
REMARKS: Location coordinates are in MGA94 Zone 56 J. Sand Penetrometer AS1289.6.3.3
Cone Penetrometer AS1289.6.3.2
SAMPLING & IN SITU TESTING LEGEND
A Auger sample G Gas sample PID Photo ionisation detector (ppm)
B Bulk sample P Piston sample PL(A) Point load axial test Is(50) (MPa)
BLK Block sample Ux Tube sample (x mm dia.) PL(D) Point load diametral test Is(50) (MPa)
C Core drilling W Water sample pp Pocket penetrometer (kPa)
D Disturbed sample Water seep S Standard penetration test
E Environmental sample Water level V Shear vane (kPa)
Page 29
BOREHOLE LOG
CLIENT: De Luca Corporation Pty Ltd SURFACE LEVEL: -- BORE No: 5
PROJECT: Existing Fill Assessment EASTING: 504166 PROJECT No: 33984.02
LOCATION: 178 Eumundi-Noosa Road, Noosaville NORTHING: 7078697 DATE: 29/6/2015
DIP/AZIMUTH: 90°/-- SHEET 1 OF 1
Description Sampling & In Situ Testing
Graphic
Dynamic Penetrometer Test
Water
Depth
Log
RL
Sample
of (blows per 100mm)
Depth
Type
(m) Results &
Comments
Strata 5 10 15 20
FILLING - stiff, brown mottled dark grey, medium plasticity
gravelly sandy clay filling with fine to medium grained
sand and fine to coarse gravel, trace of cobbles, moist 0.3 pp = 120
0.6 pp = 170
- some cobbles
>>
- no cobbles 0.9 pp = 180
1 1
- firm to stiff, grey brown, high plasticity, some fine to
medium gravel, trace of organics
1.4 pp = 90
- stiff, medium to high plasticity
1.8 pp = 130
2 - foreign material (bricks) 2
2.9 pp = 130
3 3.0 3
FILLING - stiff, grey brown mottled orange brown, high
plasticity silty clay filling, some fine and trace of medium
grained sand, moist
3.4 3.4 pp = 140
FILLING - stiff, grey brown, high plasticity sandy clay >>
filling with fine grained sand, moist
3.9 pp = 140
4 4
4.1
SANDY CLAY - stiff, orange brown mottled grey, high
plasticity sandy clay with fine grained sand, moist
4.4 pp = 110
4.6
SILTY CLAY - stiff, red brown mottled grey, high plasticity
silty clay, some fine grained sand, moist
5 5
- very stiff
5.4 pp = 330
6 6.0 6
Bore discontinued at 6.0m
Limit of investigation.
RIG: Jacro 200 DRILLER: RB LOGGED: RB/JB CASING: Nil
TYPE OF BORING: Auger
WATER OBSERVATIONS: No groundwater seepage observed at time of drilling.
REMARKS: Location coordinates are in MGA94 Zone 56 J. Sand Penetrometer AS1289.6.3.3
Cone Penetrometer AS1289.6.3.2
SAMPLING & IN SITU TESTING LEGEND
A Auger sample G Gas sample PID Photo ionisation detector (ppm)
B Bulk sample P Piston sample PL(A) Point load axial test Is(50) (MPa)
BLK Block sample Ux Tube sample (x mm dia.) PL(D) Point load diametral test Is(50) (MPa)
C Core drilling W Water sample pp Pocket penetrometer (kPa)
D Disturbed sample Water seep S Standard penetration test
E Environmental sample Water level V Shear vane (kPa)
Page 30
Attachment B Corrs Chambers Westgarth Legal Advice Prepared by Brent Lillywhite (CCW) Dated 25 September 2015 95D60E9.docx Page 8
Page 31
Our reference ONE ONE ONE Eagle Street
MLlBLlBUNN 13247-9113533 111 Eagle Street Brisbane OLD 4000 CORRS
GPO Box 9925 Brisbane OLD 4001 CHAMBERS
Tel +61 732289333 WESTGARTH
Fax +61 732289444
www.corrs.com.au Lawyers
Sydney
Melbourne
Brisbane
Perth
25 September 2015
Contact
By email: [email protected] Brent Lillywhite (07) 3228 9420
Jason Eden Email: [email protected]
Development Approvals Manager
Partner
Bunnings Group Limited Michael Leong (07) 3228 9474
Email: [email protected]
Dear Jason
Bunnings Noosaville - Compliance with Conditions of ROL
Permit
1 Introduction
1.1 We refer to previous discussions in relation to Bunnings' compliance with
condition 9 of its development permit for reconfiguring a lot (1 lot into 2 and Park)
in respect of land located at 178 Eumundi Noosa Road, Noosaville (ROL Permit).
1.2 As previously advised, we consider that Bunnings is not required to comply with
condition 9 insofar as it relates to Lot 102, because no earthworks were
undertaken on Lot 102 as part of the works pursuant to the ROL Permit and
subsequent operational works permits. Further, it is likely that condition 9 is an
unlawful condition which should be severed from the ROL Permit.
2 Recent developments
2.1 However, we understand that recent negotiations with Noosa Council (Council)
have resulted in general agreement that Bunnings will make a request for a
permissible change to amend condition 9 to provide an 'alternative' condition.
2.2 That is, existing condition 9 will become a condition 9.1, and a new condition 9.2
will be inserted providing an alternative to compliance with condition 9.1. The new
condition 9.2 will make reference to a geotechnical report prepared by Douglas
Partners that identifies the existing ground conditions of Lot 102, and the
geotechnical requirements necessary to achieve long term stability. It is intended
that the geotechnical report will be registered on the title of Lot 102 by way of
covenant under section 97A of the Land Title Act 1994.
2.3 In an email from Mark Lewis (Council) to Jason Eden (Bunnings) on 24 August
2015, Council confirmed the general understanding for this approach, but subject
to the new condition 9.2 including an ongoing indemnity that protects Council from
any action from the current owners or any subsequent owners.
14403320/1
Page 32
- ..
25 September 2015
Bunnings Group Limited
Bunnings Noosaville - Compliance with Conditions of ROL Permit
3 Development approval condition cannot require an indemnity
3.1 It is a long-standing common law position that a condition of a development
approval cannot require an indemnity.
3.2 The principle was first established in the case of Galandon Pty Ltd v Narrabri
Shire Council.' in which the applicant proposed to develop a new motel on flood
prone land at Narrabri. The local government sought to impose a condition
requiring an indemnity in respect of claims arising out of personal or property
damage caused by flooding as a result of the local government having granted
approval. The Court found that the imposition of a condition requiring an
indemnity in favour of a local government was an unlawful condition.
3.3 Similarly, in Hutchinson 3G Australia Pty Ltd v Wavertey Council.' the local
government sought to impose a condition on a development approval for a mobile
phone tower which would indemnify the Council against any legal liability from
health risks associated with electro-magnetic radiation. The Court again held that
the indemnity condition was invalid.
3.4 Further, and as previously advised, even if Bunnings is willing to agree to the
indemnity, that will not mean that a manifestly unlawful condition becomes
lawful." Therefore, if an unlawful condition is imposed and is not challenged by
Bunnings, an application can be made to the Court at a later time by a subsequent
purchaser of Lot 102 to have the condition set aside."
4 Council is sufficiently protected
4.1 We can understand Council's desire for the indemnity in the conditions, to ensure
that it is protected for future legal liability. However, the registration of the
covenant on Lot 102 will ensure that Council is sufficiently protected and
'indemnified' from risk.
4.2 That is, the covenant will attach to Lot 102 at the time of registration and identifies
the geotechnical requirements necessary to achieve long term stability of the site.
If the requirements of the covenant (set out in the geotechnical report attached to
the document) are satisfied, and subsequently there are stability issues for the
purchaser, then it is Douglas Partners who is liable, not Council.
4.3 We have previously advised other local government clients on a range of
developments where the imposition of a condition requiring the registration of a
covenant under section 97A of the Land Title Act 1994 has sufficiently protected
the local government from future liability. This is particular the case where, for
example, the subdivision of steeply sloping land requires specific geotechnical
requirements. Each of the approved lots is subject to a condition requiring the
registration of a covenant that identifies the geotechnical requirements necessary
to achieve the relevant factor of safety and long term stability. In those
1 (1983) 51 LGRA 5
2 (2002) 123 LGERA 75
3 City of Bradford Metropolitan Council v Secretary of State for the Environment (1986) 53 P&CR 55
4 Lewiac Pty Ltd & Ing Real Estate Joondalup BV v Gold Coast City Council & Ors [2003] QPELR 385 at 401; Rowlands
Surveys v Council of the City of Thuringowa [1993] QPLR 217
14403320/1 page 2
Page 33
- ..
25 September 2015
Bunnings Group Limited
Bunnings Noosaville - Compliance with Conditions of ROL Permit
circumstances, it is the author of the geotechnical report (an RPEQ) who becomes
liable for any subsequent geotechnical failure, not the local government.
5 No utility in condition 9.2 requiring an indemnity
5.1 Given that
(i) a condition requiring an indemnity in favour of Council would be unlawful;
(ii) even if Bunnings agreed to the indemnity in the condition now, a
subsequent purchaser could later apply to the Court to have it set aside;
and
(iii) the registration of the covenant adequately shifts liability onto Douglas
Partners and protects Council,
there is no utility whatsoever in amending condition 9.2 to require an indemnity in
favour of Council.
5.2 If you have any further queries, please contact Brent Lillywhite on 3228 9420 or
Michael Leong on 3228 9474.
:;:lt~e~tgarth
Yours faithfully
Brent Lillywhite
Senior Associate
14403320/1 page 3