Submission for MCU18-0015 by John Ford · MCU18/0015

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         environmental interruption to the creek landscape continuum which currently exists. Koalas
         still exist in this area and the habitat will be destroyed should this application gain approval.

         Koalas have been sighted by myself (and others)in this area as recently as the Christmas
         period 2018/19. I see no mention in the application as to what measures are being taken to
         protect this very significant species and its habitat.

         The Noosa Plan presciently makes the case in ‘Community Vision’, Clause 1.4.1 (d)
         Environmental excellence, sustainability and this proposal makes a comprehensive mockery
         of that clear intention. Also, in Clause 1.4.4, council states unequivocally that it has
         ‘commitment to environmental excellence’. Again, it is difficult to agree that this siting of a
         house lot within the creek zone meets that important criterion of the Plan.

         The soil conditions in this area are loose sandy surface. It is difficult to understand how any
         construction in these isolated lots 3 and 4 can be completed without significant damage to
         the surrounding context. It is a very sensitive environment with significant environmental
         value.



2.   Easement and Access


It would appear the development application has proceeded on the erroneous assumption that certain
rights are granted under easements.

             The proposed Lot Reconfiguration Plan PL.02 shows access to lots 3 and 4 over and across
             the Scheme land. There is no internal access from Attunga Heights to these lots.The
             engineer’s report (cl 4, Access) supporting the proposed development states access for lots 3
             and 4 will be taken from the existing Alma Way road construction located within the
             Pepper’s Noosa Resort and Villas development and that existing access easements (and
             rights) exist to facilitate this arrangement.

 It is our understanding that this assumption is incorrect.
We draw Council’s attention to the terms of easement as set out in the registered easements in favour of
Lot 27 on RP 87506:

Easement L
Clause 11 states:

The benefit and effect of this easement is agreed to be postponed, and the Grantee agrees that it shall
have no right to exercise any of the rights referred to in this easement, until a development approval is
granted, and the development is completed, for the Dominant Tenement.

For the purposes of this clause and this easement the following words have the following meanings:

        "development approval" means such an approval or approvals including a ministerial approval
         and conditions of approval by the Sunshine Coast Regional Council in final format enabling the
         Grantee to immediately and lawfully proceed with construction of improvements as approved,
         including in accordance with conditions of approval on the Dominant Tenement;

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       improvements being completed in accordance with the requirements of the Sunshine Coast
        Regional Council and a Certificate of Classification issuing in relation to use if required or
        applicable;

       "completed" shall mean practical completion of construction (including completion of construction
        of a stage of development, ff a staged development is approved and constructed in stages, if
        applicable) in accordance with the term as is usually used, and in the case of any uncertainty, as
        evidenced by the issue of a Certificate of Classification for such improvements by the Sunshine
        Coast Regional Council, if required or applicable, and otherwise as reasonably determined by the
        Grantor's Architect;

       in the case of any uncertainty the issue of a Certificate of Classification following Development
        Approval shall be taken to be the date upon which the Grantee may use and enjoy the rights and
        benefits conferred by this easement, if a Certificate of Classification is required or applicable, and
        otherwise, as reasonably determined by the Grantor's Architect.


Easement M & P
Clause 8 states:

The benefit and effect of this easement is agreed to be postponed, and the Grantee agrees that it shall
have no right to exercise any of the rights referred to in this easement, until a development approval is
granted, and the development is completed, for the Dominant Tenement.

For the purposes of this clause and this easement the following words have the following meanings:

       "development approval" means such an approval or approvals including a ministerial approval
        and also conditions of approval by the Sunshine Coast Regional Council in final format enabling the
        Grantee to immediately and lawfully proceed with construction of improvements as approved,
        including in accordance with conditions of approval on the Dominant Tenement;

       improvements being completed in accordance with the requirements of the Sunshine Coast
        Regional Council and a Certificate of Classification issuing in relation to use if required or
        applicable;

       "completed" shall mean practical completion of construction (including completion of construction
        of a stage of development, H a staged development is approved and constructed in stages, if
        applicable) in accordance with the term as is usually used, and in the case of any uncertainty, as
        evidenced by the issue of a Certificate of Classification for such improvements by the Sunshine
        Coast Regional Council if required or applicable and otherwise as reasonably determined by the
        Grantor's architect;

       in the case of any uncertainty the issue of a Certificate of Classification following Development
        Approval shall be taken to be the date upon which the Grantee may use and enjoy the rights and
        benefits conferred by this easement if the Certificate of Classification is required or applicable, and
        otherwise as reasonably determined by the Grantor's architect.

Should there be a development approval, any development approval must ensure that the development
conditions do not conflict with the terms of Easements L, M and P on SP207304.

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Any approval should be conditioned so that the approved uses of land in the Viridian Noosa Community
Titles Scheme 41478 can continue to comply with conditions of the development approval applying to the
Scheme Land, without additional burdens or costs imposed on the Body Corporate and consistent with
the terms of easements granted.


   3. Other Matters

If Council approves the application (insofar as it relates to proposed lots 3 & 4) (and which we submit it
should not) we note as follows:

Easements P and M on SP207304 are each 6 m2 in area and are registered for access purposes for
garbage enclosures and landscaping and for the storage of refuse bins. Council should condition any
approval to include the following in relation to the following matters:-

Easement M on SP207304 is to be allocated so as to benefit proposed Lot 3 only;
Easement P on SP207304 is to be allocated so as to benefit proposed Lot 4 only;
No garbage is to be stored in these easements from others lots in the approved development;
No construction plant, equipment, materials or associated construction waste is to be stored within these
easements (or elsewhere within the Viridian Noosa Community Titles Scheme 41478) at any time;
As required by the existing conditions within the schedule for the respective easements, the developer
should submit to the Body Corporate, for its approval, full details of the proposed enclosure design,
construction, and materials, screening landscaping and the like.

Easement L on SP207304 comprises an area of 8241m2 for the purposes of access over common
property. The Council should condition any approval to include the following matters:

              a. Easement L on SP207304 is to be allocated so as to benefit Proposed Lot 3 and 4
                  only and not any other lot in the approved development;
              b. Those motor vehicles using Easement L must comply with all conditions in the
                 schedule of the registered easement which includes, but by no means limited to, the
                 following:

                 i.    all motor vehicles using Easement L must meet T44 and W& loadings in
                       accordance with Australian Bridge design Code;
                 ii.   any buses using Easement L to be limited to 22 seats capacity shuttle buses;
                iii.   delivery vehicles for provisions, linen, etc, using Easement L are to be limited
                       rigid vehicles not exceeding 11 metres in length;
                iv.    garbage removal vehicles using Easement L are subject to the requirements of
                       Noosa Council from time to time, to be limited to standard garbage trucks
                       and/or standard vehicles for delivery/removal of garbage compactors;
                v.     service, garbage and delivery vehicles using Easement L may operate only
                       between (and may not operate outside) the hours of 8:00am to 5:00pm
                       Monday to Saturday, unless otherwise required by Noosa Council;
                vi.    motor vehicles, machinery, building materials and the like are not stored or
                       parked in the easement or on the Servient Tenement (i.e. Viridian Noosa CTS)
                       during construction.

         c.      Council should condition any development on the basis that no vehicles may use
                 Easement L for construction of any approved development.

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         d.       The plan in Annexure A – Maintenance Area in the existing registered easement
                  document should be amended to reflect the approved development over the
                  proposed development site. This Annexure should also be amended to show Area A
                  that is within the easement and not include part of the gazetted road in Morwong
                  Drive. All alterations to the easement document are to be approved by the Body
                  Corporate and made at no cost to the Body Corporate.


Any combined development approval should include conditions that ensure that:-

              A. Any emissions of noise, dust and lighting during construction and subsequent
                 ongoing use of the approved development does not create nuisance for guests and
                 visitors to the scheme land.

              B. Any security and safety lights during construction and for the ongoing use of the
                 approved development are to be positioned and orientated and designed so as not
                 to create a nuisance for guests and visitors to the scheme land as well as the
                 surrounding ecosystem.

              C. No construction is to be undertaken on the approved development over weekends
                 or on any public holidays.



    4. Not properly made application

    We understand the application is not properly made. The proposed development relies on access
    from common property of Viridian Noosa CTS 41478 (lot 900 on SP 207311) (Scheme land). The
    application does not include any reference to the Scheme land.

    If the application is determined to be properly made then, so far as the application relates to the
    creation of proposed lots 3 and 4, the application should be refused for the reasons set out above

Summary

I oppose the development application. It is inappropriate development (so far as relates to proposed
lots 3 and 4) and cannot rely on any express (or implied) rights which the applicant seeks to
substantiate with the easements identified in this submission.


Yours Sincerely

John Ford