SARA
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No 1
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No 2
·
No 3
FCRC
Conditions Commentary
Condition 1
The Process
Putting aside for the moment, the
issue of copyright and the authority to amend documents that are copyright
protected by another party, where does SARA draw its legislative authority,
as part of the assessment process, to draft/modify information that is
contained within the ‘common material’ of an applicant’s development application, without approval of the applicant?
Nor is there a clear logical
explanation for the necessity to detail the materials, within a plan provided by the applicant.
Also putting aside for the moment,
the ‘amendment
activity’
carried out by SARA to generate new content in the ‘common materials’, the most
important question to be answered is:
Q1 Was the amendment
of the Site Layout plan, necessary in order for DA21 to achieve the
objectives of an assessment benchmark?
The Queensland government already
has provided mapping in relation to DA21.
The content and context of the
material drafted by SARA onto the plan and legislation to achieve the
objective the purpose of the detailed information, documented on the plan,
already existed.
Further a planning report, (PR) by the planning consultant, which comprises a component
of the ‘common
material’ of
DA21, was provided to SARA. The PR, detailed the areas and the
circumstances, that were the focus of the material, drafted by SARA.
If SARA felt the need to reinforce
this position, this could just as easy have been achieved by the use of
text within a condition, if such was felt necessary to ensure the
development achieved the objectives of the assessment benchmarks.
The Content
Condition No1 makes particular reference
to the material inserted into an amended document (development layout plan)
(DLP) by SARA on 17 October 2024 and 21
November 2024.
There are 3 issues:
Item 1 The text placed on the DLP reads:
“Areas shaded in blue represents
the Wetland Protection Area 50m buffer and…”
The first matter of contention is
the wording. The area shaded in blue
does not ‘represent
the 50m buffer’ it
represents the portion of the 50m buffer relevant to DA21 (15m)
Item 2
When read in conjunction with
Condition 9a the significance of the drafting becomes more obvious because
9a requires the development to “Provide a 50m wide buffer for the
purposes of….”
This matter was brought to SARA
attention but they declined to redraft the condition
On 30 October 2024
SARA advised by email
"-
the blue area within Proposed Lot 5 on the SARA approved plan indicates the
50-metre buffer from the mapped High Ecological Significance (HES) wetland
(distance of this buffer is based on the subject site being located within
the Low-Density Residential Zone under the Fraser Coast Planning Scheme
2014"
Yet the wording in the condition
remained unchanged to provide the essential clarity and preciseness,
required for a development condition.
Item 3 The text placed on the DLP reads:
“…and is to remain development free for the purposes
of protecting the wetland environmental values.”
This Condition requires that this
defined area must remain “development free”.
When read in conjunction with Condition
9b the significance of the drafting becomes more obvious because 9b
requires the development to “Provide buffer elements in the locations
shown on..”
One has to assume that the ‘buffer
elements’
referred to, are to be placed within the wetland buffer area, defined on
the site plan in blue.
However, there is no information
as to:
(a)
what
might constitute a ‘buffer element’? or
(b)
what
buffer elements are considered required? or
(c)
why
the addition of buffer elements are considered required? or
(d)
any
consideration as to how one might place a ‘buffer element’, (the doing
of which would constitute a ‘development’ under PA16), in an area where ‘development has been prohibited’ by this
Condition.
Further, on 20 June
2024 the applicant's planning consultant, responded to Information
Request by SARA on the 7 January 2022, by providing a copy of the
material, also provided to the assessment manager, on that date.
The material provided, included a report from a firm of consulting engineers Stormwater Consulting,
specialists in the hydrology and hydraulic of stormwater.
The 52-page report addressed all
the issues associated with both:
(a)
overland
flow from the adjoining areas above the contour level for the subject site
(including the wetlands); and
(b)
the
stormwater that would fall upon the development.
The findings of the report were
that while ‘the
property is affected by overland flow from a catchment to the west,
the flows coming from west of the site, passing through the site and
discharges in the north-eastern site corner’.[1] Map
That is, all overland flow
comes from uphill of the site where the wetland is located and *in
the absence of any modification of the development, to reverse that flow,
there is no possibility that storm water from the development can ever have
any influence at all, on the wetland's water quality.
And confirmed this within the
report, by advising that:
The
proposed development would comply with PO3, PO4 and PO5 of State
Code 9 [2]
*No modification of the site, that
would change that circumstance, is present in the current DA21.
Then, on 9 July
2024 SARA raise the issue of Operational Works set
out in the consultant’s report for a proposed ‘Berm’ within the wetlands protection
area and called for ‘detailed plans of proposed earthworks in the ‘buffer zone’ to
demonstrate compliance with PO3 of State Code 9.
No other comment/request was made
in relation to the material submitted on 20 June 2024.
On 3 September 2024
the applicant amended DA21 and provided a copy to SARA. The amendment
removed the proposal to utilise part of the wetland’s protection area requiring a ‘Berm’ to divert
overland flow, thus making the matter raised in the Agency's advice notice
of 9
July 2024 – redundant.
Then on 17
September 2024 the applicant contacted SARA seeking to confirm
that SARA was now in possession of all the material necessary to issue
their Advice Notice to the assessment manager.
However, again SARA responded on 24
September 2024 with a request to provide ‘more detailed
stormwater management information’. The applicant responded to that
request on that same day, drawing to SARA attention that they were already
in possession of stormwater management details sufficient to satisfy their
enquiry.
On 17 October 2024
SARA provided their Advice
Notice to the assessment manager.
On 22 October 2024
the applicant
responded to SARA’s advice to the assessment manager, requesting a review of
their conditions including No I and No 3.
In that response, the applicant
brought to the attention of SARA, the existence of a document published
by the Department Environment and Science in 2022 (Guidelines) that
clearly provided advice, (PO1) in relation to ‘wetland buffers’ to the
effect that:
“Whilst development is intended to be located outside
the buffer, it is possible for low-impact elements of the development
proposal to be located within the buffer…”
Under the above cited Guidelines
there is provision:
(a)
for
the placement of accepted developments within wetland protection
areas as well as the facility-
(b)
to
make application to amend mapping in relation to these protection areas.
Condition No 1 as proposed would
preclude any of these opportunities for any development to occur in
the ‘defined
area’ -
even if it could be delivered in accordance with the requirements of
legislation, guidelines or assessment benchmarks. Or in fact as currently required by this
condition.
Plus, there is no facility under the
PA16 to amend a development permit condition in the future, once a
development is complete. Thus, permanently denying any of the above
accorded facilities.
Item 4 The text placed on the DLP reads:
Area shaded in red
represents the Erosion Prone Area and is to remain develpment free for the
purposes of coastal protection.
As detailed in Item 3 above SARA
had in their possession since 20 June 2024, advice from a specialist in coastal
engineering, that there were options available for dealing with
sites within the erosion prone zone. ‘Filling the land to a certain
level’ was
only one of the options.
In the third submission to
SARA (20
October 2024) regarding this conditions it was requested
that the existence of the options be included within the condition. This
request was denied.
Item 5 The text placed on the DLP reads:
Amended in red bySARA to
maintain development free buffers in the Erosion Prone Area and wetland
Protection Area and to ensure proposed Lots 1 and 2 are developed outside
the Erosion Prone Area.
The drafting is confusing, because
under Condition 9(a) the development is required to “Provide
(and
maintain) a 50m wide buffer for the purposes of….” and
under 9(b) ‘to
provide development within this Wetland Protection Area’.
13 November 2024 -SARA provided a Draft of changed condition
15 November 2024 -The applicant responded to the Draft
21 November 2024 -SARA provided the assessment manager with their final advice. Some proposed changed set out in SARA'a Draft were then abondoned by SARA.
For all the above reasons
Condition No1 is an unreasonable imposition on the development and not
reasonably required to ensure the developments achieve the overarching
requirements of a planning instrument.
…………………..
Condition 3
Condition No 3 is technically a
replication of some of the content and context provided for on the amended
Site Plan, the subject of Condition No1 - dealing as it does with the erosion
prone area circumstance.
On 21 December 2021, SARA as
referral (concurrence) agency was provided with a copy of the development
application and the ‘common
material’ for the DA21.
The common material included planning report (PR)
from the applicant's consultant planner.
That PR advised, in relation to state
mapping, the existence of the erosion prone areas within the subject
site and on advice of the consultant planner, the site was ‘not subject to coastal processes’ but further indicated that a section was
effected by erosion prone areas mapping and that, ‘the site will be required to be filled to
levels specified by the assessment manager’.
This would provide future security for
persons and property as a consequence of the development.
The PR also advised that in accordance
with Performance Outcome PO2 of State Code 8, that this filling of
the site was to be addressed by a future development application
(*Operational work) that would accommodate delivery of the required
performance outcome.
*The Planning Regulation 2017 in Schedule
10 Part 17 provides for assessment and referrals for Operational
work in coastal management district.
On 25 January 2022 Fraser
Coast Regional Council (Council) issued a Flood Search Report (FSR)
for the subject site. The FSR indicated the “Property was within the Storm-Tide Hazard” area and provided a Defined Storm-Tide
Level value of RL 2.4m AHD for the development.
Council's planning scheme required that
land within a development, within a Storm-Tide Hazard Area was required:
·
to be filled
to that level; and
·
to the standard
and the process- defined within Council's development policies.
The development type for the filling of
land, is Operational Works.
On 7 January 2022 SARA issued
an information request, the material in that request indicated their
knowledge that a portion of the site was expected to be inundated by sea
level rise by the year 2100 and the heights of the sea was determined to be
800mm above the present-day sea level.
Funnily enough though the information
request also advised that “No
information had been provided to demonstrate how this coastal hazard would
be mitigated for the subject site”. This, despite being in possession of the
PR which had already flagged this issue and prescribed a compliance
solution.
On 20 June 2024 the
applicant's planning consultant responded to the information request
by providing a copy of the material provided to the assessment manager
on that date.
The material provided included advice from a firm of
consulting engineers, International Coastal Management, specialists
in coastal engineering developments.
The advice identified the exact AHD that
would represent the 2100 sea level rise for that particular parcel of land (RL 2.33
AHD) and advice as to options that were available to meet
current requirements to protect land in the development from prescribed,
future inundation sea levels.
On 17 October 2022 SARA
provided its Referral Advice to the assessment manager. That advice
contained the conditions that were to be attached to any development
approval for the application. That advice included Condition No3
On 22 October 2024 the
applicant responded to that advice to the assessment manager requesting a
review of the conditions and requested the condition be redrafted to
reflect the options provided for by the specialist consultant coastal
engineer.
On 11 November 2024 the
agency provided a draft amendment to the conditions. The draft did not
include changes to Condition 3
The two lots (Lot1 and Lot2) identified in
the Condition1 and Condition 3, contained land that is below the AHD set
under Councils requirements in the FSR.
The assessment benchmarks under Councils
planning scheme, for a RAL requires lot filling for land in Storm-Tide
Hazard area to RL 2.40 AHD. That is
higher than the RL AHD required for the 2100 sea level rise.
Thus, the requirements under the planning
scheme are in excess of those required by State Code 8.
Further and more importantly the
requirement of Condition 3 is already mandatory under Condition 1.
Reproduced as Condition 3 appears as nothing more than a reminder to comply
with the lawful requirement of Condition 1.
While the retention of SARA’s Conditions 3 could be tolerated as simply
a frustration of the conduct of bureaucracy, if it did not produce an
unacceptable circumstance. But Section 259 of PA16 makes it an offence not
to comply with a development condition. The retention of Condition 3
creates the opportunity for a double jeopardy style outcome for a single
event. [Breach of condition 1 and 3] Plus a development condition run with
the land title and can never be changed.
For this very reason Condition 3 is
unreasonable and should be deleted, even if Condition 1 is retained.
................................
Condition 4
This condition refers to the ‘standard’ of a product, for the material used as
part of the performance of 'work', required by Condition 3, to be carried
out under the authority of a development permit for Operational Works.
Putting aside for one moment the above in
relation to Operational Works, the condition refers to a term “clean material’ and defines that term as being a material
“free from prescribed water contaminants”.
No reference is made to the assessment
benchmark requiring this to be considered as part of the Code
assessment process for DA21 or reference to documents called up by an assessment
benchmark that could provide scope and quantitative values for
materials that are prescribed as water contaminants, to be avoided
in fill material, within residential development.
As well as that anomaly, DA21 for referral
is one of reconfiguring of a lot (RAL), and not operational
works, that will be required to be carried out under a seperate
developmnt approval, in order for this development be completed.
*The Planning Regulation 2017 in Schedule
10 Part 17 provides for assessment and referrals for Operational
work in coastal management district.
Further, under the provisioning of titling
legislation in Queensland, local governments are required to approve
the plan of subdivision for RAL.
If there is other associated development
work, outside the RAL, that is required to be completed, local governments
will not atthorise the documentation, necessary for lodgement to the titles
office, until all development are finished in accordance with their
approval conditions.
The activity described in Condition
4 does not form part of DA21. It will however invariably form part of the
performance of work under any future Operational Work development
application
Therefore Condition 4 is not relevant to
the DA21 and should be removed.
................................
Condition 5
This condition presents the same
circumstances as outlined above, in Condition 4, and accordingly therefore
Condition 5 is not relevant either, to the DA21 and should be removed.
................................
Condition 6
This condition is an exact copy of
Condition 1. There is no reasonable requirement for it to be replicated.
When referral agencies act as an assessing
authority for a development, often there will be a number of assessments
benchmarks they are required to assess against. There is no requirement
in the assessment process to replicate a condition that delivers the same
compliance outcome applicable to multiple assessments benchmarks.
..................................
Condition 8
This condition presents the same
circumstances as outlined above, about Condition 4 and accordingly
therefore Condition 5 is not relevant to DA21 and should be removed.
..................................
Condition 9(a)
This condition replicates the objectives
defined in Condition 1 and Condition 3 and serve no purpose in ensuring the
development meets the objectives set within the provisions of PA16.
..................................
Condition 9(b)
There are a number of elements to this
condition
Firstly, on the surface, this condition
appears to be building upon the conditions outlined in Condition 1 and
Conditions 3 by now requiring that the provision of ‘buffer elements’ in locations shown on the amended plan
and offers an explanation for the condition as, ‘to assure the development achieves the “purposes” set out in the Queensland Wetland
Buffer Planning Guideline 2011.”
The assessment benchmark State Code
9, in the section Using This Code provides advice that ‘this code includes a glossary of terms for
definitions in the code and reference documents “including the guideline
State Development Assessment Provisions State Code 9: Great Barrier Reef
wetland protection areas” (SC9 Guidelines)
Firstly, Guidelines are not
statutory assessment benchmarks. Guidelines are provided to help
clarify requirements or provide general, not mandatory, advice. The Guideline
reinforce this position on Page 4 -” This guideline is not a statutory document.”
It would appear that the Queensland
Wetland Buffer Planning Guideline 2011 (QWBP
Guidelines) cited in Condition 9(b) are called up via the SC9 Guideline
–
Part 4.0 Information requirements
This Part of SC9 Guidelines states:
If proposing a reduced buffer or wetland
area, an ecological values assessment demonstrating compliance with the
Queensland Wetland Buffer Planning Guideline. and
provides a hyperlink to a copy of the QWBP Guidelines.
Nowhere in DA21, is it proposed to develop
a “wetland area”, nor is the development seeking a ‘reduced buffer’, for which guidance may then needto be
referrence from the QWBP Guidelines.
Next, nowhere in the QWPB Guideline is
there information that clearly identified the “purpose” of the
Guidelines. However, using Section 2 of QWPB
Guideline headed ‘Purpose
and scope’, a
purpose can be extrapolated/deduced from within the opening paragraph.
The QWPB Guideline primarily functions to support a Buffer Design Method which is intended to evolve from fundamental concepts and using a systematic approach in the design.
Its purpose, it would seem, is to assist
those involved with wetland development planning by providing a series of
steps and considerations associated with ‘designing a wetland’ and also provide some support to those
involved in the ‘management of
wetlands’ though it is not abundantly clear
in what form that support takes, other than guidance information in the
document.
Then of particular interest to DA21, the
documents states
“This
guideline cannot override legislative requirements however it can inform
decisions required under Queensland legislation to the degree that
legislation allows for guideline consideration”
And then the statement in the QWPB
Guideline:
Wetland buffers also need to
be distinguished from wetland trigger areas under legislation. Trigger
areas are those areas which trigger an assessment of the impacts
for a development — the resulting buffer may
be significantly narrower than the trigger area depending on the
nature of the development
The QWPB Guideline is not an CODE assessment
benchmark; as it clearly is IMPACT based and requires
the application of a'personal opions' and nor is it called up in an assessment
benchmark - relevant to DA21.
Keep this in mind when we
come to the consideration of ‘compliance with the legislation’ in undertaking a code
assessment of a development application.
..................................
Condition 9(c)
Places a requirement on the production, by
an undefined but ‘appropriately
qualified person’, of
documentation, that it is assumed, would contain evidence of, what is
termed:
·
The 50 m wide
buffer as identified in Conditions 1; 6; and 9(a) are still in existence;
and
·
The provision
of undefined buffer elements in undefined locations, has occurred,
at some stage, prior to when the local
government, in accordance with the requirements of the subdivision of land
titling, issues their approval to the titles office to approve the plan of
subdivision documentation.
One has to asume that if this condition
remains in place, the condition would expire on compliance with 9(c) (On
sealing of the survey plan) and one would have to do ask the question,
” In
what way does this ensure ongoing maintenance of the buffer area, into the
future, and ensure the compliance with the ‘purposes’
set out in the document called up by Condition 9".
Lot 5 of the proposed DA21, which is the
subject of the prohibitions placed by Conditions 1 and 6, has ample space to
accommodate future development, in accordance with both the zoning and the
planning scheme assessment benchmarks.
The inclusion of conditions to prohibit
future development in the areas identified on the Site Plan. No matter how
much the development can be supported would, because of the lawful nature
of development conditions, be a permanent block to any further development
considerations, even if such developments were to demonstrate that future
development in those area can be accommodated within both legislative and
guideline documentation.
For these reasons Condition 9 is
unreasonable and should be deleted.
