Negotiated Report (Representations made) MCU21 0174

REQUEST FOR NEGOTIATED DECISION REPORT
Author	Graduate Development Planner, Maxwell Potter
Development Assessment

APPLICATION DETAILS
Application No.	MCU21/0174
Development Approval	Development Permit for Material Change of Use of Premises (Dwelling House)
Applicant	Christopher Joseph Bentley
Representations Received On	4 February 2022
Number of Submissions for Original Application	Not Applicable

PROPERTY DETAILS
Property Address	11 Senegal Rise Doonan Qld 4562
RP Description	Lot 120 RP 887986
Land Area	10560m²
Existing Use of Land	Vacant

STATUTORY DETAILS
SEQRP Designation	Rural Living Area
Locality	Doonan
Zone	Rural Residential
Overlays	Biodiversity, Waterways and Wetlands Overlay Area subject to Biodiversity Overlay Area Subject to the Riparian Buffer Overlay Bushfire Hazard Overlay High Potential Bushfire Intensity Potential Impact Buffer Landslide Hazard Overlay High Hazard Area Moderate Hazard Area
Assessment Type	Representations made to original approval

background
A development approval for a Development Permit for Material Change of Use of Premises (Dwelling House) was issued on 23 December 2021
The applicant suspended the appeal period and made representations on 4 February 2022 to the development approval conditions. The representations are detailed below but primarily relate to the built form of the shed, vegetation removal, earthworks and retaining walls and property access and driveways.
assessment
An assessment in relation to each of the submitted representations is provided below:
Condition 9 – Built Form
The shed must be painted in muted tones which blend in with the surrounding natural environment.
Applicant’s Representation
The applicant proposes this condition is amended to include the standard Colobond range as the intention is for the shed to be tied in with the house, which is to be painted Surfmist.
Accordingly, both the residence and the shed would be the same colour to enable the two structures to be matched and maximise visual appeal. The adjacent house to the north and its associated outhouses are also of the same colour, enabling consistency in colour for all structures within the immediate area.
A review of the local streetscape (Senegal Rise, Livistone Drive, Piccabean Street) would suggest that a large number of sheds and outhouses area of a colour similar to what is proposed at the site. Many of these are located close to the road or the side property boundaries. Typically the colour is selected to match the residence to contribute to uniformity of the structures associated with the house, particularly where they are immediately adjacent.
Accordingly, the above change would be considered to be sufficient to enable this architectural approach to be achieved on the site in a manner consistent with the surrounding environment.
Assessment of Representation
Council approved a setback variation for the shed to be located 5 metres from the northern side property boundary in lieu of 10 metres. The assessment process considered the impact of the setback variation on the amenity of the adjoining property, noting the size of the shed, which is 16.6 x 8 metres, the natural characteristics of the site, such as the existing dense and mature vegetation and gradient of the land. Moreover, the existing and proposed screening vegetation and the colour of the shed were also taken into consideration.
As a result of the assessment process, the setback variation approval received Council approval with the condition that the shed be painted in muted tones in order to minimise the adverse effects to the amenity of the adjoining property. The proposed Surfmist shed will be easily viewed from the neighbouring property to the north and will therefore result in a loss of amenity.
Furthermore, Performance Outcome PO11 of the Rural Residential Zone Code requires the landscape character and visual amenity quality of hillslopes and ridgelines are retained and development uses materials, finishes and colours that complement the natural setting and integrate with the landscape and skyline.
Council does not agree to the applicant’s representation for Condition 9 and the condition will remain unaltered.

Condition 23 (a) - Vegetation Removal
Vegetation removal:
must have vegetation and mulch stockpiles removed from the site.
Applicant’s Representation
Clarification is required with regard to the requirement for mulch stockpiles to be removed from the site under Condition 23 (a). The applicant has no intention of retaining stockpiles of combustible materials onsite beyond the construction period however intends to use chipped vegetation for gardens at the front of the property, and to assist with the cover required for the effluent disposal area. Accordingly, mulch and other material obtained from the process of clearing will be retained on site, however no stockpiles will be retained beyond construction. For the condition to be both reasonable and relevant to the application, the use of materials gained from tree clearing onsite is to be permitted (as opposed to disposing of it offsite and then ordering new mulch in from a landscape supplier).
Assessment of Representation
The subject site is identified as being of High Potential Bushfire Intensity and Potential Impact Buffer by the Bushfire Hazard Overlay  Map. The primary concern regarding maintaining stockpiles of mulch on site is increasing the fire risk to people and property. The applicant seeks to use materials gained from the tree clearing onsite and retain the mulch during the construction phase. Furthermore, the mulch which is to be maintained on site upon completion of construction will be used throughout the gardens and is prescribed in the amended Bushfire Hazard Assessment, prepared by Dan Willis and dated 1 March 2022. Council therefore agrees to amend the Condition as follows:
Vegetation removal:
must have vegetation and mulch stockpiles removed from the site or utilised on site in accordance with the Bushfire Hazard Assessment Report, prepared by Daniel Willis 19 July 2021, upon completion of construction of the dwelling.

Condition 32 – Earthworks and Retaining walls
All earthworks associated with the construction of the proposed dwelling, shed and pool must be certified by the Building Certifier (and contained within 3m of these buildings/structures). Any earthworks outside of this area must be undertaken in accordance with an Operational Works approval.
Applicant’s Representation
Since the completion of the information request period, the applicant’s design consultant has been able to plot the location of the proposed retaining wall associated with the residence and the shed. This has been forwarded to the building certifier, Brett England for review and comment together with the engineering plans for the wall design and the certifier has confirmed that since the works are entirely connected to the residence and the shed, approval is able to be granted under the Building Act 1973 (where there is no conflict with the higher order planning approval). The current condition nominates that all earthworks must be contained within 3m of the buildings/structures, or will require an operational works approval. This has bearing on the location of the retaining wall which has been located in response to the engineering report to stabilise the cut and fill platform on the site.
Advice from the certifier has confirmed that just because the earthworks extend 3m past the building does not automatically make the earthworks operational works. The definition of building works in the Planning Act 2016 includes excavation/filling that is incidental to the construction of a building. There is no pre-determined dimension on how far away earthworks can be before they become operational works. Accordingly, in this instance, the certifier has confirmed that the proposed earthworks are incidental to the proposed house and shed buildings, thereby making them building work by definition.
Correspondence from Brett England in relation to the matter has also been attached for Council’s consideration.
On the basis of the information provided, the condition should be amended as follows:
All earthworks associated with the construction of the proposed dwelling, shed and pool must be certified by the Building Certifier.
This condition would be consistent with the Planning Act 2016 and be complemented by Condition 34 which refers to the relevant standards nominated by Arcos Consulting.
Assessment of Representation
Council’s concerns with the earthworks on the site were that the works had been carried out without proper design and supervision and extended beyond the responsibility of the building certifier. The condition was worded to address these concerns. The applicant has since advanced the design of the retaining structures and earthworks. The applicant has also provided advice from the associated building certifier that states that as the earthworks are incidental to the construction of a building he is willing to include the full extent of the earthworks/retaining works as part of the building approval. It is recommended that Council agree to amend the condition to read as proposed by the applicant.

Condition 28 – Property Access and Driveway
Access to the proposed shed on the western side of the property must only be obtained via an internal driveway stemming from the crossover of 11 Senegal Rise generally in accordance with Rev D of the Proposed Residence & Build Envelope Plan (as prepared by Costa Homes).
Applicant’s Representation
The wording for Condition 28 is not considered to be reasonable for the proposed development. Access to the proposed shed on the western side of the property is to be obtained via an internal driveway stemming from the cross over of 11 Senegal Rise, however this condition complexes the option of making future applications should discussions with the owner of the land immediately to the north be progressed to gain direct access by the form of a dedicated access easement.
The applicant is aware that property rights do not exist for access to be gained from Lot 123 on SP110332, and in the event that these are sought, an application will be required to be submitted to Council for an access easement to be in place, which is a formal process requiring both land owner consent and Council approval. On this basis, the wording of this condition should be amended as follows:
An internal driveway stemming from the crossover of 11 Senegal Rise generally in accordance with Rev D of the Proposed Residence & Build Envelope Plan (as prepared by Costa Homes) is to provide access to the proposed shed on the western side of the property.
Assessment of Representation
The lawful access to the site is from its direct frontage to Senegal Rise. Notwithstanding, Council has no concerns if the applicant reaches a private agreement with the adjoining property owners to use the concrete driveway to the north.
Council therefore agrees to delete the condition.
conclusion & reasons for decision
The representations to the vegetation removal and the earthworks and retaining walls is consistent with the Bushfire Management Assessment and the requirements for an Operational Works Application under the Noosa Plan 2020 - Tables of Assessment. Notwithstanding, the representation to the built form of the shed and the property access and driveways are not agreed to by Council as they result in adverse impacts to the amenity of the adjoining dwelling to the north, whilst the subject site has no lawful access to the adjacent driveway and therefore must be accessed from Senegal Rise.
RECOMMENDATION
With regard to Application No. MCU21/0174, and the representations made, Council on 11 March 2022 decided to:
A.	Agree to amend conditions 23 (a) & 32 to read as follows:
23.	Vegetation removal:
a.	must have vegetation and mulch stockpiles removed from the site or utilised on site in accordance with the Bushfire Hazard Assessment Report, prepared by Daniel Willis 19 July 2021, upon completion of construction of the dwelling.
b.	Conclude with the area being stabilised against erosion.
*(Refer to Advisory Note)
32. 	All earthworks associated with the construction of the proposed dwelling, shed and pool must be certified by the Building Certifier.
B.	Delete condition 28
C.	Refuse to the representations made to Condition 9 for the following reasons:
The proposal does not comply with Overall Outcome (a) h) and Performance Outcome PO6 (a) and PO11 (d) of the Rural Residential Zone code as the changes:
Do not provide a high level of amenity to users of the adjoining premises by adversely affecting their visual amenity and landscape values of the area; and
Do not use materials, finishes and colours that complement the natural setting and integrate with the landscape and skyline.
D.	Note the report is provided in accordance with Section 83(9) of the Planning Act 2016.

[word/footer1.xml]
Page 5 of 5

[word/header1.xml]
3