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00:00:00 Mayor Stewart: Good morning everyone. Welcome to our special meeting. I declare it open. I would like to acknowledge that today we are meeting on the traditional lands of the Kabi Kabi people and I pay my respects to their Elders past, present and emerging. I note that everyone is in attendance and there are no apologies. The only item on the agenda is on page 3, Planning and Environment Court Appeal number 30 of 2019, reconfiguring a lot, one into two, at 20 Mitti Street, Noosa Heads. Again, for the third time, we find ourselves in unusual circumstances and the potential need to close this meeting for the duration of discussions pertaining to this agenda item. This is unusual and let me reassure you that as a Council we are committed to transparency. However, in light of legislative requirements, specifically under section 275 of the Local Government Regulations, we will need to go into a confidential session to discuss this matter as it pertains to legal proceedings initiated.
00:01:00 I move a motion that we go into a closed session. Councillor Wilkie: I'll second it. Mayor Stewart: Thank you, Councillor Watkins. We'll now turn the recorder off. Sorry, for the vote. Everyone move into a closed session. Thank you.
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00:26:00 The Council note the report by the Manager Development Assessment to the special meeting dated 29th of May 2020 and agree to settle Planning and Environment Court Appeal number 30 of 2019 for reconfiguring a lot, one into two lots, at 20 Middy Street Noosa Heads in accordance with reasonable and relevant conditions to be prepared that address the following matters.
00:27:00 One, works required to address the flooding issues raised in the appeal and as recommended by the expert hydrologists, including raising the height of the driveway access to lot one, measures designed to minimise safety risks for future residents of lot one and measures to minimise off-site impacts. Two, the grant to Council of an easement for drainage and vegetation management for protection purposes, including access over the existing Battle Axe driveway in proposed lot one to provide access. And that part of proposed lot one subject to flooding, works or constraints. Three, the independent connection of full services, telecommunications, water, sewerage and gas, et cetera, directly to proposed lot one, if that is not already the case. Four, the provision of water tanks on proposed lot one to assist in management of stormwater. Five, a condition requiring that there be no further application for reconfiguration of the land that is both proposed lots one and two.
00:28:00 Under the planning scheme or the body corporate and community management act or otherwise. Councillor Wilkie: I'll second that, Madam. Mayor Stewart: Thank you. Councillor Wilkie: Chair. Thank you. Mayor Stewart: Thank you, Council Wilkie. In our previous meeting regarding this matter, I said and I reaffirmed today, this is a very difficult one. This is a head and a heart one. My heart says defend the appeal, but my head says no. We must settle the appeal today in accordance with reasonable and relevant conditions. And this is why. The application in front of us today, when assessed against estate planning policy and planning regulation 2017 is consistent. We may wish not to provide support for the extension of the detached house on one of the lots, but that is not up for discussion today. The dwelling has been lawfully constructed and approved. The house site area was approved and constructed pursuant to building approval. What is being put forward today cannot be challenged.
00:29:00 We cannot change the existing dwelling. We cannot change the dwelling structures. We cannot call for a dwelling to be removed. We cannot rewrite history. It's time to play defensive, not offensive. To mitigate as best we can. In fact, if we were to settle the matter with the conditions set down, the engineering solutions proposed by the applicant would improve the existing flood hazards on the land and reduce offsite impacts. The size of the lots, when reconfigured into two lots, are not dissimilar to other sizes of lots in the area. They are more the norm than the standout. They cannot be deemed to be inconsistent with the size of other allotments in the locality of Mini Street. I have stated previously, and I will do so again, the applicant's proposals would result in a good outcome without having to go to court and incur unnecessary costs. If we go to court, or if this progresses, it will incur potentially significant costs to our community. I had hoped, and I continue to hope, that the more cost-efficient negotiated settlement might eradicate the need to spend further ratepayer money.
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00:30:00 I acknowledge it is important to defend the new Noosa Plan. However, in this meeting, in this regard, all that we can act on is what is in front of us today, an application to reconfigure a lot. And yes, that application may fly in the face of many of us. Indeed, it does for me. But it has to be looked at in the context of what is before us and the information we have available to us. On all the information presented, we must, as I have said previously, agree to settle the appeal with reasonable and relevant conditions set down. Thank you. Councillor Wilkie: Madam. Mayor Stewart: Thank you, Councillor. Councillor Wilkie: Yes, I'd like to say this is, as the Mayor said, a very difficult, and some would say even a diabolical situation to find ourselves in. It's important to note that the existing dwelling that is there was approved by a building certifier, not Noosa Council. And we've inherited a very difficult situation. But on the basis of new legal advice, this settling this appeal with these conditions is absolutely the right way to go.
00:31:00 Councillor Lorentson: Thank you, Councillor. Councillor Munster. At Council's last meeting on the 13th of May, I refused the application to reconfigure 20 Mini Street into two lots for two reasons. The first reason was that I was concerned that this case would create problematic precedents. And the second reason was on principle. The principle that it did not comply with the outcomes of the Noosa Plan and it did not meet community expectations. Since that meeting, we have revisited the application and Council have imposed extra conditions on the applicant, including one, that the grant to Council of an easement for drainage and vegetation management. Two, to carry out further works to fence the entire area of the overland flow. And three, a condition that requires that there be no further application for reconfiguration of the land under the planning scheme or the Body Corporate and Community Management Act.
00:32:00 I am satisfied that one, the imposition of these conditions and other conditions tabled does not allow this case to create precedents. Number two, I am satisfied that the imposition of these extra conditions will achieve compliance with most of the assessment benchmarks of the Code contained within the Noosa Plan. And three, I am satisfied that the benefits of minimising flood risk by securing additional works of the land will be secured by the negotiated outcome. If we maintain a refusal, there is a real risk that the safety issues and off-site impacts have the potential to be reduced. Settling this appeal with these extra conditions is, in my opinion, going to achieve an improved and better outcome than going to court. I am satisfied that this is the best strategy going forward for Council in achieving the best mediated outcome. I am also satisfied that the imposition of these conditions will act as a deterrent for any developer or building certifier looking at pushing the envelope too far.
00:33:00 The imposition of these extra conditions also sends a strong message that we, as a Council, will fight to defend the Noosa Plan, whether it is in the courtroom or on the negotiating table. I therefore recommend that Council seek to settle the appeal subject to these conditions. Councillor Jurisevic: I would like to ask a question of staff if I may. In the conditions, the granting of the easement of drainage and vegetation management and protection purposes to Council, who then is responsible for maintaining the drainage that is being put together on this site as a result of this reconfiguration? Speaker 2: The applicant is still responsible for maintaining those works, but the easement has to be in favour of somebody, and Council is the most appropriate.
00:34:00 Councillor Jurisevic: Thank you. I just wanted to clarify that. Deputy Mayor Stockwell: I think the Mayor mentioned that it is between the head and the heart, and I actually typify that as actually between principal and pragmatism. Speaker 1: Yes. Deputy Mayor Stockwell: Councillor Wilkie mentioned the word diabolical, and if you were to give this development saga the name of a movie, there is no question in my mind it would be a series of unfortunate events. Speaker 1: No. Deputy Mayor Stockwell: At the last meeting, we did assess a very similar application and result to refuse it on the grounds in the planning scheme. Since 1990, as a councillor or as a planner, I have never approved a development over a wetland or in a situation like this. I have in fact taken on councils who have developed places like this. And so it is a hard decision. The reasons for refusal that we had in the last application
00:35:00 are very valid reasons. The problem we have is that we're dealing with an existing structure that was already there and therefore the reconfiguration of the existing built footprint doesn't allow us to raise the number of issues of concern. So in this regard, I foreshadow that I'm going to request of staff that we do analyse the lessons from this particular development to look at in the new plan how we do have more significant triggers for building certifiers to ensure as far as possible that any certified is realising when they're in a floodplain, whether it be a local or a larger one, that they're in a floodplain, whether it be a local one, any certifier or applicant understand when they're in a groundwater-dependent ecosystem
00:36:00 and any applicant or certifier understand when they're trying to put a building in a wetland because that is unacceptable. The building that is there is unacceptable. But in this case, the legal advice is that we really must make the decision in front of us. Mayor Stewart: Thank you, that's a story. Councillor Wegener: Just quickly, we must follow the rule of law. Sometimes it doesn't make sense to us. Sometimes you want to be emotional and change what seems to be wrong, but the rule of law must prevail in the circumstances of the case. Councillor Finzel: I'd like to thank everyone for their contribution to the meeting today and I do agree it is a principled decision that we made last time and I still stand on that. However, today,
00:37:00 the word I use to describe is abhorrent. The situation that we find ourselves with today as newly elected members of this community, when what preceded this today, arrives us in a place that is difficult with all the things mentioned today. But based on the rule of law, the application to reconfigure the block is what we're here to decide on today. So based on a leading barrister's advice to reconfigure the block, I do have to agree that we will have to settle the appeal. However, having said that, moving forward, I agree with Councillor Stockwell in the fact that we will use this situation to analyse the loopholes that have been highlighted and the decisions made or not made to get to this point today will need to be addressed moving forward by this Councillor. I will commit to pursuing whatever avenues it takes to stick to the plan, get it right
00:38:00 and move forward to minimise this type of outcomes in the future. Also, I'd like to comment on the cost to the ratepayers at the current time and the situation that we're in right now. The advice with the costs being made back to community certainly is high on my agenda. And concerning this vote, thank you. Councillor Jurisevic: I'll have a crack at it. Look, I think it's all been said, and I thank the councillors around the table for their opinions and their understanding of this matter. The fact is that if this had come before, councillors, as a building application, it would never have been approved in any way, shape or form. It's unfortunate that an extension becomes a secondary dwelling, becomes a primary dwelling in this nature. Unfortunately, we seem to be stuck with it. There's not a lot we can do in hindsight, but we can learn the lessons, as Councillor
00:39:00 Stockwell has alluded to, and hopefully we can make better decisions or put in better provisions to ensure that this sort of development in this sort of location doesn't occur again. Mayor Stewart: Just to finish, the issue today is a moat. As I said, how it came about doesn't sit well with any of us. We all acknowledge that. As Councillor Stockwell said, a single moat is a series of unfortunate events. What we must do now is go forward, and we must not throw good money after bad. I thought about this, and I thought, if this was my money, what would I do? And then I thought, well, it is my money, and it's your money. And most significantly, it's our ratepayers' money, and we are all accountable. And let's not forget the opportunity cost. The more money we spend on this matter, the less we have to spend elsewhere, on roads, on footpaths, on upgrading our infrastructure, on providing grants to our community groups, support, supporting our local businesses. We can talk all we like about community benefit and looking to be financially responsible, and we can sharpen
00:40:00 our pencils as best we can, and we can fight to the bitter end to save costs. But at the end of the day, if we talk the talk, we must walk the walk. Today, we must walk that walk. On the information before all of us, I believe it not only prudent, but also essential, to ensure fiscal responsibility and accountability to our ratepayer, that we settle the appeal with the reasonable and relevant conditions set down. Thank you. I'll put the motion to a vote. All in favour? Thank you. If that's the only item on the agenda, I officially declare the special meeting closed. Thank you. Councillor Wilkie: Thank you.