SUPERSEDED OPW15/0139 - Negotiated Decision Notice

Officer:	Monkeith Kadhum
Direct Telephone:	07 53296293
Our Reference:	OPW15/0139
Your Reference:	Knowles

17 March 2016

Callaghan &
Toth Consulting Engineers Pty Ltd
Po Box 2305
NOOSA HEADS  QLD  4567

Dear Sir/Madam

Negotiated Decision Notice
Sustainable Planning Act 2009
I refer to your application and the representations you made in respect to the decision notice. On 15 March 2016 Council decided your representations.
Details of the decision are as follows:
1.	APPLICATION DETAILS

Application No:	OPW15/0139
Street Address:	429 Kennedys Rd POMONA  QLD  4568
Real Property Description:	Lot 7 MCH 793
Planning Scheme:	The Noosa Plan (16 September 2013)

2.	DECISION DETAILS
Council on 30 October 2015 decided to issue the following approval:
Development Permit for Operational Work - Earthworks & Landscaping (Construction of 16 aquaculture ponds)
In relation to the request to make a change to the existing approval, Council on 15 March 2016 decided to issue the following type of approval:
A.	Delete Conditions 2 and 3.
B.	Approve a change to Condition 7.
C.	Issue a Negotiated Decision Notice with the recommended changes.
3.	RELEVANT PERIOD OF APPROVAL
The relevant period for this development approval is 2 years starting the day that this development approval takes effect.
4.	ASSESSMENT MANAGER CONDITIONS
APPROVED PLANS
Development undertaken in accordance with this approval must generally comply with the approved plans of development. The approved plans are listed in the following table unless otherwise amended by these conditions.
Plan No.	Rev.	Plan/Document Name	Date
1506-01	A	Site Plan, prepared Callaghan & Toth Engineers	05/2015
1506-02	A	Layout Plan 1, prepared Callaghan & Toth Engineers	05/2015
1506-03	A	Layout Plan 2, prepared Callaghan & Toth Engineers	05/2015
1506-04	A	Layout Plan 3, prepared Callaghan & Toth Engineers	05/2015
1506-05	A	Longitudinal Sections Sheet 1 of 5, prepared Callaghan & Toth Engineers	05/2015
1506-06	A	Longitudinal Sections Sheet 2 of 5, prepared Callaghan & Toth Engineers	05/2015
1506-07	A	Longitudinal Sections Sheet 3 of 5, prepared Callaghan & Toth Engineers	05/2015
1506-08	A	Longitudinal Sections Sheet 4 of 5, prepared Callaghan & Toth Engineers	05/2015
1506-09	A	Longitudinal Sections Sheet 5 of 5, prepared Callaghan & Toth Engineers	05/2015
1506-10	A	Detail Plan 1 of 3, prepared Callaghan & Toth Engineers	05/2015
1506-11	A	Detail Plan 2 of 3, prepared Callaghan & Toth Engineers	05/2015
1506-12	A	Detail Plan 3 of 3, prepared Callaghan & Toth Engineers	05/2015
1506-16	A	Landscaping Buffer Plan, prepared Callaghan & Toth Engineers	05/2015
1506-17	A	Landscaping Notes, prepared Callaghan & Toth Engineers	05/2015

SITE SPECIFIC CONDITIONS
Deleted.
Deleted.
Access to the site for the construction works associated with this permit approval for Operational Works shall be via Kennedys Road only.
PRIOR TO COMMENCEMENT OF WORKS
Engineering
The principal contractor must have all the appropriate insurance and public liability documentation to carry out the works. The principal contractor is also responsible to ensure that any subcontractors also have the appropriate insurance and public liability documentation. Certificates demonstrating currency of public liability insurance and works insurance covering the works must be submitted to Council prior to the prestart meeting.
Council must be contacted at least 5 working days prior to any works commencing to organise a prestart.  The contact number to arrange a pre-start meeting is 53296244.  The pre-start meeting must include the relevant parties for the following aspects of the works:
Civil engineering works including the principal contractor.
Erosion and sediment control works.
Other interested parties.
A Construction Management Plan must be submitted to council prior to the prestart meeting and must specifically address the following:
Traffic management plan is required where access to Council’s road networks is involved, including:
A Traffic Management Control Plan in accordance with Manual of Uniform Traffic Control Devices (MUTCD) detailing all temporary signage and traffic control measures to address any potential of adverse traffic impact on the main and local roads.
Appropriate safety fencing to the work site in accordance with the supervising engineer instructions.
Works programme identifying key components of the works and their respective durations.
Implementing measures to minimise dust and noise pollution during the construction phase.
Deleted.
Identification of complaint management procedures including:
Contact details for the onsite manager.
Dispute resolution procedures.
Details on the location of external fill sites/sources, the haulage route, type of vehicle to be utilised during filling operations and frequency of usage

NOTE: any damage to the existing road system as a result of the works and/or the haulage operations must be fully repaired at the applicant’s expense.

Prior to the prestart meeting, a written advice must be provided to council detailing:
The name, contact details and ACN for the supervising Registered Professional Engineer of Queensland (RPEQ) and Principal Contractor.
Proposed dates for commencement and completion of construction.
Certificates demonstrating currency of public liability insurance and works insurance covering the works in line with the planning scheme.
Any changes to the details associated with the supervising RPEQ or Principal Contractor during construction, must be notified to council in writing within five business days of the change occurring.

DURING CONSTRUCTION
Engineering
The integrity and condition of any existing public or Council infrastructure and services (above ground and/or underground including roads network) must not be adversely affected by the proposed works.
The developer must meet any costs to repair damage to any Council asset during construction, where damage is a result of the development works. Damage to assets must be repaired immediately where it creates a hazard to the community. In circumstances where the damage does not create a hazard to the community, it must be repaired immediately on completion of the works associated with the development.
Any repair work which proposes to alter the alignment or level of existing services and assets, above or underground, must first be referred to the relevant service authority for approval.
All works must be supervised by a Registered Professional Engineer of Queensland (RPEQ) who is independent of the Developer and Principal Contractor, and they must certify that all works conform to the Operational Works approval.
All works must be constructed and work procedure undertaken in accordance with:
The approved plans and conditions detailed in this Decision Notice.
The relevant conditions, the conditions of associated referral agencies, approved plans and reports of the higher order Material Change of Use approval File:MCU12/004 to which this approval relates.
All relevant council Planning Scheme Policies, standard drawings, standard specifications and guidelines.
The latest version of Water Sensitive Urban Design Technical Design Guidelines for South East Queensland (Healthy Waterways) for all water quality devices to be constructed on site.
Where required fall hazard protection in accordance with the consulting engineer recommendations.
All earthworks shall be undertaken in accordance with the provisions of AS 3798, Guidelines on earthworks for commercial and residential development, with geotechnical testing undertaken in accordance with Section 8 of the Standard, and to a minimum of ‘Level 2’ as defined in Appendix B.  Test results as required by AS 3798, and a certificate of quality and uniformity of fill, shall be provided by a RPEQ and submitted to council prior to final inspection.
Stormwater Drainage
Appropriate scour protection must be provided at the outlet of all stormwater pipes including temporary outlets.
Works associated with this permit must not adversely impact on the existing drainage conditions on other properties (eg by blocking or interfering with natural overland flows).
Landscaping
All landscaping to be planted and maintained in accordance with the approved plans and in compliance with Planning Scheme Policy 3 – Landscaping Plants and Guidelines.
Erosion and Sediment Control
A construction hold point with a council delegate and supervising RPEQ must be established prior to commencement of cut to fill earthworks. The hold point must be held as soon as reasonably practical and prior to the first rain event forecast following initial tree clearing or removal of soil stabilising material. At the hold point inspection, all required sediment basins, drains and bunds to divert waters away from disturbed soil or soils about to become exposed through cut to fill activities must be installed. All areas that will not require earthworks in the imminent cut to fill operation must be stabilised to prevent entrainment of sediments into receiving waters.
Cut to fill earthworks must not commence until after the Supervising RPEQ has certified that all installed erosion and sediment controls required by this approval are sized in accordance with conditions of the approval and the written acceptance of the certification is provided to the supervising RPEQ by Council officers.
Run-off external to the earthworks area must be diverted around exposed soils on the site without entraining additional sediments. Discharge from measures to divert the offsite water must not cause run-off impacts to other properties. Measures installed to divert the upstream water must be designed and certified by the supervising RPEQ and installed prior to commencement of bulk earthworks.
Any temporary drainage works to manage stormwater flows during the construction phase of development must be designed by the supervising RPEQ to provide a 150mm freeboard and convey the following flow capacities without resulting in visible scour within flow paths:
1 in 2 year event where disturbed area open for less than 12 months
1 in 5 year event where disturbed area open for 12-24 months
1 in 10-year ARI event where disturbed area open for 24 months
Minimum 1 in 1 year ARI Hydraulic capacity for temporary culvert crossings
E&SC measures must be  installed and maintained to ensure any waters discharged from the site up to and including a  85%ile 5 day rain event (or 46mm rainfall event)  contain less than 50mg Total Suspended Solids per litre. All relevant measures detailed in the International Erosion and Sediment Control Book 2008 or Sunshine Coast Manual for Erosion and Sediment Control must be installed to minimise the amount of sediment leaving the site in rainfall events that exceed 85%ile 5 day or 46mm.
Peak 1-year ARI event discharge from the construction phase of development must be equivalent to the pre-development peak 1-year ARI event discharge. Measures included in calculations to achieve management of peak flows must be incorporated into the development in a manner that is consistent with the Noosa Plan, all conditions of the approval and does not interfere with adjoining properties.
Prior to the final inspection by Council’s officer and the commencement of the use, all site surfaces must be effectively stabilised. For the purpose of this condition, an effectively stabilised surface is defined as one that does not, or is not likely to result in visible evidence of soil loss caused by sheet, rill or gully erosion or lead to sedimentation, or lead to water contamination.
FOLLOWING CONSTRUCTION
Upon completion of the work a certificate must be issued by an RPEQ certifying that the works have been constructed in accordance with the requirements of this Operational Works permit.
A final inspection and approval of the completed works by Council’s Inspector is required.  Please contact Council on 5329 6244 to arrange for the inspection.
5.	REFERRAL AGENCIES
Not Applicable.
6.	REFERENCED DOCUMENTS
Not Applicable
7.	ADVISORY NOTES
The following notes are included for guidance and information purposes only and do not form part of the assessment manager conditions:
General Advisory Notes
Council has undertaken an audit check of the Operational Works drawings in relations to the proposed works.  A detailed check of the accuracy of the drawings has not been undertaken, as they have been certified by a RPEQ.  The RPEQ bears full responsibility for all aspects of the engineering design.  Council reserves the right to require further amendments and/or additions at a later date should design errors become apparent.
Should any changes or modifications to the approved plans be required as a result of construction constraints, a “Request to change an existing approval” under the Sustainable Planning Act 2009 must be made. Amended plans clearly indicating the changes must be lodged with this application along with the appropriate fees.
Prestart, Inspections Request
Contact Council on 5329 6244 to arrange a prestart or an inspection giving a minimum of 5 business days’ notice of preferred inspection time.
It should be noted prior to arranging a pre-start meeting the Appeal Period of 20 business days must have passed or the applicant must have provided Council with written confirmation that the applicant has accepted the conditions of Decision Notice and waived their appeal rights
If Council officers are required to undertake additional inspections of the same works, a re-inspection fee will be applicable in accordance with Council’s Fees and Charges register applicable at the time.
Environmental Advisory notes
The Environmental Protection Act 1994 states that a person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm. Environmental harm includes environmental nuisance. In this regard persons and entities, involved in the civil, earthworks, construction and landscaping phases of this development are to adhere to their ‘general environmental duty’ to minimise the risk of causing environmental harm.
Aboriginal Cultural Heritage Act 2003
There may be a requirement to establish a Cultural Heritage Management Plan and/or obtain approvals pursuant to the Aboriginal Cultural Heritage Act 2003.
The ACH Act establishes a cultural heritage duty of care which provides that:  “A person who carries out an activity must take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage.”   It is an offence to fail to comply with the duty of care.  Substantial monetary penalties may apply to individuals or corporations breaching this duty of care.  Injunctions may also be issued by the Land and Resources Tribunal, and the Minister administering the Act can also issue stop orders for an activity that is harming or is likely to harm Aboriginal cultural heritage or the cultural heritage value of Aboriginal cultural heritage.
You should contact the Cultural Heritage Co-ordination Unit on 07 3239 3647 to discuss any obligations under the ACH Act.
8.	PROPERTY NOTES
Not Applicable.
9.	PRELIMINARY APPROVAL OVERRIDING PLANNING SCHEME
Not Applicable.
10.	FURTHER DEVELOPMENT PERMITS REQUIRED
Not Applicable
11.	SELF ASSESSABLE CODES
Not Applicable.
12.	SUBMISSIONS
Not Applicable.
13.	REASONS / GROUNDS FOR APPROVAL DESPITE CONFLICT WITH SCHEME
Not Applicable.
14.	RIGHTS OF APPEAL
You are entitled to appeal against this decision.  A copy of the relevant appeal provisions from the Sustainable Planning Act 2009 is attached.
During the appeal period, you as the applicant may suspend your appeal period and make written representations to Council about the conditions contained within the development approval.  If Council agrees or agrees in part with the representations, a “negotiated decision notice” will be issued.  Only one “negotiated decision notice” may be given.  Taking this step will defer your appeal period, which will commence again from the start the day after you receive a “negotiated decision notice”.
15.	OTHER DETAILS
If you wish to obtain more information about Council’s decision, electronic copies are available on line at www.noosa.qld.gov.au, or at Council Offices.

Yours faithfully

Monkeith Kadhum
Development Engineer

Enc:	Appeal Rights

cc	Unitywater

	Appeal Rights SUSTAINABLE PLANNING ACT 2009 & SUSTAINABLE PLANNING REGULATION 2009

The following is an extract from the Sustainable Planning Act 2009  (Chapter 7).
MATERIAL CHANGE OF USE, RECONFIGURING A LOT & OPERATIONAL WORKS

Division 8 	Appeals to court relating to development applications and approvals

461 	Appeals by applicants
(1) 	An applicant for a development application may appeal to the court against any of the following—
(a) 	the refusal, or the refusal in part, of the development application;
(b) 	any condition of a development approval, another matter stated in a development approval and the identification or inclusion of a code under section 242;
(c) 	the decision to give a preliminary approval when a development permit was applied for;
(d) 	the length of a period mentioned in section 341;
(e) 	a deemed refusal of the development application.
(2) 	An appeal under subsection (1)(a), (b), (c) or (d) must be started within 20 business days (the applicant’s appeal period) after—
(a) 	if a decision notice or negotiated decision notice is given—the day the decision notice or negotiated decision notice is given to the applicant; or
(b) 	otherwise—the day a decision notice was required to be given to the applicant.
(3) 	An appeal under subsection (1)(e) may be started at any time after the last day a decision on the matter should have been made.

462 	Appeals by submitters—general
(1) 	A submitter for a development application may appeal to the court only against—
(a) 	the part of the approval relating to the assessment manager’s decision about any part of the application requiring impact assessment under section 314; or
(b) 	the part of the approval relating to the assessment manager’s decision under section 327.
(2) 	To the extent an appeal may be made under subsection (1), the appeal may be against 1 or more of the following—
(a) 	the giving of a development approval;
(b) 	any provision of the approval including—
(i) 	a condition of, or lack of condition for, the approval; or
(ii) 	the length of a period mentioned in section 341 for the approval.
(3) 	However, a submitter may not appeal if the submitter—
(a) 	withdraws the submission before the application is decided; or
(b) 	has given the assessment manager a notice under section 339(1)(b)(ii).
(4) 	The appeal must be started within 20 business days (the submitter’s appeal period) after the decision notice or negotiated decision notice is given to the submitter.

463 	Additional and extended appeal rights for submitters for particular development applications
(1) 	This section applies to a development application to which chapter 9, part 7 applies.
(2) 	A submitter of a properly made submission for the application may appeal to the court about a referral agency’s response made by a prescribed concurrence agency for the application.
(3) 	However, the submitter may only appeal against a referral agency’s response to the extent it relates to—
(a) 	if the prescribed concurrence agency is the chief executive (environment)—development for an aquacultural ERA; or
(b) 	if the prescribed concurrence agency is the chief executive (fisheries)—development that is—
(i) 	a material change of use of premises for aquaculture; or
(ii) 	operational work that is the removal, damage or destruction of a marine plant.
(4) 	Despite section 462(1), the submitter may appeal against the following matters for the application even if the matters relate to code assessment—
(a) 	a decision about a matter mentioned in section 462(2) if it is a decision of the chief executive (fisheries);
(b) 	a referral agency’s response mentioned in subsection (2).

464 	Appeals by advice agency submitters
(1) 	Subsection (2) applies if an advice agency, in its response for an application, told the assessment manager to treat the response as a properly made submission.
(2) 	The advice agency may, within the limits of its jurisdiction, appeal to the court about—
(a) 	any part of the approval relating to the assessment manager’s decision about any part of the application requiring impact assessment under section 314; or
(b) 	any part of the approval relating to the assessment manager’s decision under section 327.
(3) 	The appeal must be started within 20 business days after the day the decision notice or negotiated decision notice is given to the advice agency as a submitter.
(4) 	However, if the advice agency has given the assessment manager a notice under section 339(1)(b)(ii), the advice agency may not appeal the decision.

465 	Appeals about decisions relating to extensions for approvals
(1) 	For a development approval given for a development application, a person to whom a notice is given under section 389, other than a notice for a decision under section 386(2), may appeal to the court against the decision in the notice.
(2) 	The appeal must be started within 20 business days after the day the notice of the decision is given to the person.
(3) 	Also, a person who has made a request under section 383 may appeal to the court against a deemed refusal of the request.
(4)	An appeal under subsection (3) may be started at any time after the last day the decision on the matter should have been made.

466 	Appeals about decisions relating to permissible changes
(1) 	For a development approval given for a development application, the following persons may appeal to the court against a decision on a request to make a permissible change to the approval—
(a) 	if the responsible entity for making the change is the assessment manager for the application—
(i) 	the person who made the request; or
(ii) 	an entity that gave a notice under section 373 or a pre-request response notice about the request;
(b) 	if the responsible entity for making the change is a concurrence agency for the application—the person who made the request.
(2) 	The appeal must be started within 20 business days after the day the person is given notice of the decision on the request under section 376.
(3) 	Also, a person who has made a request under section 369 may appeal to the court against a deemed refusal of the request.
(4)	An appeal under subsection (3) may be started at any time after the last day the decision on the matter should have been made.

467 	Appeals about changing or cancelling conditions imposed by assessment manager or concurrence agency
(1) 	A person to whom a notice under section 378(9)(b) giving a decision to change or cancel a condition of a development approval has been given may appeal to the court against the decision in the notice.
(2) 	The appeal must be started within 20 business days after the day the notice of the decision is given to the person.

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PO Box 141		P. (07) 5329 6500	[email protected]	
	TEWANTIN  QLD  4565	F. (07) 5329 6501	www.noosa.qld.gov.au
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