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00:00:00 Mayor Stewart: Good afternoon. I declare the meeting open. I would like to acknowledge that we are meeting on the traditional lands of the Kabi Kabi people and I pay my respects to the elders past, present and emerging. Councillor Lorentson is an apology for today's meeting but I note that everyone else is in attendance. Today's special meeting has been called to consider one item and that is RAL 20 slash 0027 development application to reconfigure a lot, one into two lots, at 33 Ross Crescent, Sunshine Beach. We have Kerry Coyle, our development assessment manager here, as well as Tim Quirk, our lawyer from Tyne McCartney. Thank you for being here, Tim and Kerry. Are there any questions for staff or team? Deputy Mayor Stockwell: Sure, it's a hard question, councillors. Come on. But we need Cathy there. Sorry, I'm just getting a little turned in.
00:01:00 So if I could have the image that I gave you previously. So just a question I have here. The report does have a picture of the Noosa Coastal Hazard Mapping in the locality, which is the right-hand side one there. It doesn't actually show the map of the erosion-prone area that's referred to in the State Planning Policy. But it does have a picture of the state planning policy. I understand that the Kube Coast 2100 Minimum Standard Guidelines suggests the statewide modelling is based on a 2100 erosion hazard area. Is that correct? Speaker 3: Yes, that's correct. Deputy Mayor Stockwell: Good standing up. I should be, too. I note in this graphic on the left-hand side, there's about 10 houses mapped in the State's SPP, State Planning Policy's erosion hazard area. But not in the Council 2100 area, which I believe is the red area there. Is that, is, which
00:02:00 of those two is the more accurate depiction of the 2100? Speaker 3: Yeah, so the State Planning Policy mapping is quite old now. It's very general across Queensland's coast. So the mapping that Council has done is much more refined mapping. And it's based on specific detailed LiDAR information for our coastal areas. And it's based on specific detailed LiDAR information for our coastal areas. And based on storm surge and tides, as well as sea level rise for the area. So it's much more refined mapping than state mapping. And that's why you will see that less area is actually affected under our mapping than under the State's policy. Deputy Mayor Stockwell: Just to follow on that, the King Coat legal advice that LGAQ got back in 2014 suggests that Council should base their decisions on the best scientific advice available. Would you consider the coastal hazard map to be more effective?
00:03:00 Speaker 3: Absolutely. This mapping has gone through a methodology process that's been signed off by the State. So it is the most up to date and current mapping that we have that depicts the potential risks along the coastline. It's likely that this mapping will be adopted by the State in the future. So all Queensland Councils are working on this at present. And it's likely that the State's mapping will be updated at a point to reflect our mapping. Mayor Stewart: Kerry, just to confirm, we haven't actually submitted the CHAP yet to the State. So when you say it's been signed off by the State, can you clarify that? Speaker 3: Yes. So what I'm saying it's been signed off by the State is the methodology behind the mapping. So the State agree that the methods used to prepare this map are correct based on the most relevant scientific information we have. Mayor Stewart: Thank you. And just to confirm, this mapping is 2100. So we're 80 years away. And this is looking at a 1% chance in 80 years for a 2100 map. That's correct, isn't it?
00:04:00 Speaker 3: I'm not sure about the percentage there. But certainly the mapping goes up to 2100. And you'll see the coloured mapping on the right hand side shows a series of years potentially what might occur up to 2100. Mayor Stewart: It's my understanding that the percentage is a 1% chance in 2100. But I'm happy to receive further information on that. Deputy Mayor Stockwell: And the final question in this regard. Does this, being the right hand side, I bet the verbal scientific advice suggests that any part of the proposed new lot would not be considered to be part of the area prone, erosion prone area modelled for the year 2100? Speaker 3: This mapping shows that the proposed lot would be fully located in the area that's potentially affected by erosion. Thank you. Mayor Stewart: Thank you. Kerry, we have a map up here that we haven't actually taken forward. I want to talk about
00:05:00 what the direction are or what we have been directed to by the state. Do we have to refuse this application according to the state? Speaker 3: Yes. So under the Planning Act, the application was required to be referred to the state for comment because it is located in the state's coastal erosion area and the Coastal Management District. The states as a referral agency to the application have directed us to refuse the application. And the Planning Act states that we must refuse the application. And just to clarify, the coastal hazard mapping, the methodology behind that was adopted by Council in July 2019. And some updated mapping was adopted by Council in January this year. So it does have formal status. Mayor Stewart: Yes. Kerry, just if we don't, if we are in breach of the planning law, does that mean we are breaking the law if we don't follow what the state is requiring us to do?
00:06:00 Speaker 3: We've got our planning solicitor sitting next to us. But essentially, yes, we would be in breach of the planning legislation, which is my understanding we'd be breaking the law if we went against the state's direction. Thank you. I just want that on record. Thank you. Councillor Finzel: Thank you. What would happen if the applicant wants to take us to court over this? Speaker 3: Well, I would expect that, well, first thing, they would have to lodge an appeal with the Planning and Environment Court. Each of the parties would then have an opportunity to either join the appeal or not. So the state would have that option, and I would expect them to join the appeal, given they've directed us to refuse it. Council would then have an option to join the appeal. Given, no? Speaker 1: We are automatically, council would automatically be a party because we're the ultimate decision maker. But then it's up to the state agencies who have directed us to refuse it to elect to become a party to the appeal, and the expectation that they would do so and take
00:07:00 carriage of any appeal or take the lead in any appeal in terms of the reasons for the refusal. Mayor Stewart: Should we not add anything to that, Tewantin? Speaker 2: Look, that's correct. And once the matter is within the appeal system, ultimately the decision maker in relation to that appeal will be the court. But it's a matter for the parties to the appeal to define what the issues in dispute are. There's a bit of flexibility there. So where that matter ends up, there are a number of ways it couldn't end up once it's in court. It could end up in an approval. That's not out of the question. Councillor Wilkie: Thank you. Councillor Wegener: To go back, when the person bought this property, was it two lots when he bought it, or has it always been one single lot, this property in question? Because I'm just having a hard
00:08:00 time understanding why he thinks this application to split a lot into two lots. What is his argument for the legal argument that he's making? I don't know the history behind this lot. I would assume that it hasn't been subdivided Speaker 3: before. That's something we can look at through the titles of the property to determine whether it was once two lots. My expectation is that the applicant is seeking an approval for two lots because it meets simply the minimum lot size for subdivision in the area, and that he thinks that that's probably a good chance. But I don't want to speak for the applicant. Councillor Wegener: So I think if it was a couple of blocks inland, we wouldn't be talking about coastal erosion. We'd be saying, is this a lot? And I think there's a lot of people in Noosa that would
00:09:00 love to split their lots up. I mean, I've got it on a hectare property. I'd love to cut mine into two acres. That's a good question. So would this be, if this block was inland, 100 meters, would we still be looking at cutting it in half? Or would we be saying, no, this isn't in the town plan. It's a single block. When you bought the block, it was a single block. Where is the expectation that you can cut this block into two blocks? Speaker 3: Well, if it was 100 meters inland, and so wasn't included in the erosion prone area, there wouldn't be the coastal issue. There's a lot of issues that your report raises. 100 meters inland is not subject to flooding. It's probably quite suitable for subdivision, providing they proposed a lot of a usable size and consistent with lots in the area. Speaker 1: I might just add to that, if you don't mind, Councillor. So the fact that someone buys one allotment doesn't preclude them, what that figuration was when they bought it is
00:10:00 really not relevant to whether or not they can and can't make a planning application to subdivide. Anyone can choose to make an application to Council to subdivide their block. What comes into question then is whether or not the provisions of the planning scheme allow that to occur, minimum lot size, as Kerry said, you know, is it flood free, access to roads and things like that. So anyone can make that application. In this particular case, of course, the coastal issue in terms of the state planning policy comes into place as one of the considerations. Councillor Wilkie: Kerry, under the planning scheme, this lot is also deemed to be a landslip hazard with a 40% slope, deemed to be eight times allowed as considered acceptable under the Noosa planning scheme. Can you talk about the risk posed by a landslip, why that's an important consideration, please? Speaker 3: So you're right. The planning scheme raises other issues for us to consider with this lot, not just coastal
00:11:00 processes. It does identify it as a landslip area. The scheme also sets a maximum slope for lots, and this proposal exceeds that slope quite substantially. It's only 40%, so it's a very steep lot. And certainly when you inspect the property, it steeply slopes down from the land, from the roadway. Landslide hazard is all about geotechnical. So because this is on a sand dune, there's potentially slippage because it's on a sand dune, essentially. And so that presents risks for any future building on the site if it's not constructed appropriately. Councillor Wilkie: And just on that, this lot sits around the corner from a slippage that occurs on the side of Ross Creek, I understand. Are you aware of that, please? Sorry, I should have flagged that. I was going to ask that question. Speaker 3: Yeah, no, I'm not aware of that slippage.
00:12:00 But it's certainly not far around the corner. There's a waterway, and the land steepens further. So I wouldn't be surprised if there wasn't past slippages in that area. Deputy Mayor Stockwell: I can answer the question. You were right. Can you answer the question? Councillor Finzel: Yeah, so the state planning policy has proposed a reconfiguring of the lot based on the planning policy. If that changes further down the track, where does the applicant stand in that case? Speaker 3: Well, if the planning policy was to change throughout the course of an appeal, that could be considered at that time. If it changes after the appeal is decided, the applicant would be able to re-lodge a further application in the future. So applications are assessed against the material current of the time it's lodged. Councillor Finzel: So given the SARA recommendations, they have directed Council to refuse the application
00:13:00 on several grounds. What of those other several grounds would impact down the track or be assessed if the applicant was to re-put it in if the policy changes to reconfigure the block? Speaker 3: Sorry, I'm not quite understanding that question. Councillor Finzel: So further down the track, at the start of the appeal, the applicant would be able to re-submit. Sarah has said that there's several other assessments based around this application. Would they be considered in the following application? Speaker 2: I can try and answer that. I think if you say they change in the future. Councillor Finzel: Yeah, if there was a change in the future. Speaker 2: When it is reassessed, it will be assessed against the scheme or the policies that are current at that time. Councillor Finzel: So it's been speculated. So I'm just asking what would be the several grounds that would impact that. There's several grounds now that SARA has considered further down the track.
00:14:00 What are those grounds today? And would they be considered under a new application if the policy changed? Speaker 1: The short answer is, and this is going to sound really strange, it depends. So it depends on the assessment at the moment. It's based on what policy is in place. The standard assessment is based on what policy is in place. So we're going to make a decision today, and that might or might not be appealed. So the decision might be at the end, the applicant might not appeal, or if they appeal, they'll end up with a decision through the court. Fast forward whatever number of years, there might be a change in the state planning policy or might be change in other provisions in the planning scheme. When that application is lodged, it will be lodged against what's in place at that point in time. So the grounds of what will be considered might be different if the policy in the planning scheme is different. And whatever grounds that, whether the state or council looks at, would be different from what's back here if the underlying planning scheme or state policy is different.
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00:15:00 Councillor Jurisevic: They may or may not be relevant. Mayor Stewart: Just coming back to the direction from the state, how often does this happen that we receive a direction in regard to a planning matter? Speaker 3: It's pretty rare for our council, because there's not a lot of applications that get referred to the state, so pretty rare. The last one I recall was the Hoffman land, where our council was directed to refuse that application originally because of the Vegetation Management Act at the time. Speaker 1: I can only recall one or two in the last X number of years as well. Some of those have been from main roads. If there's an application that dumps a lot of traffic onto an area that's not going to be able to support it, they are pretty rare. So I would probably count them on less than one hand over the last 20 years. Mayor Stewart: And of those who we have received a direction, have they taken it further? Do you recall that? Speaker 3: Well, yeah, the only one that I recall is Hoffman. And certainly there was an appeal at the time against that direction to refuse.
00:16:00 And through that process, the applicant amended the subdivision plan to address the Vegetation Management Act requirements that exclude the land matched by that act. Thank you. Councillor Jurisevic: Having said that, there are other occasions when state agencies are concurrent agencies on planning matters, and they do have input and do make comment on planning matters. Is that not correct? Speaker 3: Yeah, certainly. Referral agencies can also direct council to impose conditions on approval, which is more commonly what we see rather than refusals. Deputy Mayor Stockwell: If that's the end of the questions, I'll move the recommendation. Councillor Wilkie: I'll second it. Mayor Stewart: Thank you. Thank you. Would you like to speak, Councillor Stockwell? Deputy Mayor Stockwell: So, Councillors, this application is probably as close as you get to the planning equivalent of a laid-down bazaar. If you put all the planning criteria cards on the table, you lose on nearly every one. The only one that you might give a glimmer of hope of winning a trick is on the lot size.
00:17:00 But other than that, across every criteria that's in the report about winning a trick, when you allow subdivisions and when you don't, this one comes up, you don't. We don't have to rely on the state government to tell us not to do it because we'd be foolish to do so without their guidance. But we do have to understand why they have given that advice. And that advice is really clear because we've got a state planning policy which all the other planning requirements fit under. And it says, in the very highest level, about the protection of coastal environment, it says, well, we want to conserve the natural state of landforms, wetlands and neighbour vegetation in the coastal management district. And we want to maintain or enhance the scenic and aesthetic value of the important natural coastal landscape views and distance. In state policy interest number eight, it says, erosion prone areas within the coastal management district, development does not occur unless the development cannot feasibly be located elsewhere and is a coastal dependent development.
00:18:00 This is not. Temporary readily relocated or able to be abandoned development. In this case, it is not. Essential community infrastructure. This is not. Minor development of the existing permanent building or structure that cannot be relocated or abandoned. This is not. That was really clear from the state planning policy. But there's other reasons that councils have to really think about why we need to refuse this application or anything like that. We've got consistent track record of legal advice about the risks, the risks and the risks associated with coastal zones and climate change predictions. So this one from LGOQ, the advice from King & Co in 2014. And it says, consideration of natural hazards. As a general proposition in common law, local governments must act reasonably to ensure that planning and development decisions avoid causing foreseeable harm either presently or in the future to other persons or property. It says, consider the impacts of any development proposal on the environment and surrounding
00:19:00 area. In particular, whether it causes harm. Where necessary, obtain expert advice. It gives an example in one of the court cases about a subdivision. And it said, in this case, the court had commented, the effect of exercising its power of approval in an application of subdivision is to create a series of new allotments which would not otherwise be available for purchase and use by members of the public for residential purpose. The effect of approving a subdivision puts it into circulation, something which in that form is for the first time capable of being bought and sold. Viewed in that way, Council's actions may be compared to that of a manufacturer who, by fabricating a commodity and making it available for distribution to the public, comes under a duty of care to persons who sustain damage through negligence in the course of manufacturing. Now, negligence is something that's been dealt with in the climate change environment. So this is a document from the old National Climate Change Adaptation Research, which will be called Legal Risk, a Guide to Legal Decision-Making in the Face of Climate Change for Coastal
00:20:00 Decision-Makers. And it says, decision-makers should be especially cautious to take a long-term approach to decisions to prevent future government officials and constituents from having to bear the costs of inappropriate decisions. It goes on to say that in terms of negligence, which we've mentioned before, that the statutory contest in which a decision is made is called legal risk. It's critical. The level of information that the government possess will also be crucial. If a government has high quality data concerning hazard, risk, and approves of development in a high hazard area, it may be more difficult to escape from a finding of negligence. So be very clear. If the state hadn't said we should refuse it, it is highly likely we'd open ourselves to a court case on negligence because we, if we did approve it. Because we can really see that our best available evidence, the highest quality data available
00:21:00 to us, says this is in an erosion-prone area. Although the legal outcomes cannot be predicted with any certainty, it would certainly be prudent for decision-makers to make decisions according to any scientific data and hazard risk information they have in their possession. It doesn't matter whether we've adopted it or not. It's whether it's in our possession. So councillors. This, to me, is a really clear case for refusal of the development. But it's also a really clear case to understand that we are liable for every decision and we must base it on the same sound information and decision-making that we have in previous years and that we need to in the future unless we open up future councils to long-term risks of claims of negligence and other matters relating to coastal health.
00:22:00 Councillor Wilkie: Thank you, Mayor. I think Councillor Stockwell made a very good point that we didn't really need the State Government to give us, to instruct us as to the reasons why it would be unwise to approve a subdivision on a lot like this. And we don't even need to go to the Bible. To pull out aphorisms about the man who built his house on rock as opposed to the man who built his house on sand to realise there are risks associated with subdivisions, approving subdivisions on a very steeply sloping sand dune, which has been identified under the Noosa planning scheme as a landslip prone zone, 40% slope, eight times the slope deemed acceptable under the planning scheme. And it's not just about abiding by lines on a map.
00:23:00 The coastal hazard adaptation mapping was mentioned there and it's been signed off by the Department of Environment and Science. The methodology has been signed off and the mapping is sound. It's about protecting property and protecting people in any property that is approved by this Council as being appropriate. So, Councillors, it's not about, from my perspective anyway, it's not about abiding by what the State tells us because it's legal. It would be breaking the law if we didn't or breaking the Noosa, going against the Noosa planning scheme. It would be irresponsible and unsafe to the people who would want to invest and live on that property for us to approve the subdivision on that lot. I support the motion. Thank you. Mayor Stewart: Thank you, Councillor Woodridge.
00:24:00 Councillor Stockwell, would you like to finish? Deputy Mayor Stockwell: I will. Unlike Councillor Wilkie, I mentioned Matthew 7-24. And this wasn't a set up. Therefore, whoever hears these sayings of mine and does them, I will liken them to a wise man who built up a house. And it's interesting. I grew up in the 60s and our most common Sunday school song was build on the rock and not upon the sand. And that was written back in the 1860s. But the reason that works is the metaphor was used in the Bible. The reason it works is it's always been known since Biblical times that building on sand is a high risk strategy. And what our plan does is try and reduce the risk of building on sand. Reduce the risk of the cost to the community. And what this subdivision would do, if approved, would be increase the risk.
00:25:00 Deputy Mayor Stockwell: Not only to the people who would be living there, the potential risk associated with protecting it, but also the risk of losing the beach that people come from all over the Deputy Mayor Stockwell: world to enjoy. And that's what the state planning policy is about. The state planning policy says at the top of our mind on applications like this is we need to protect the beach. Thank you. Mayor Stewart: Thank you. Thank you. Thank you. All in favor?