Legal advice the clincher as Noosa Mayor turns vote around
CHALK one up for a significant turnaround in council's thinking on a problematic Noosa Heads subdivision to new Mayor Clare Stewart.
At the last round of meetings Cr Stewart was outvoted 6-1 by councillors intent on denying an approval for a Mitti St subdivision which had a second house already built on flood prone land.
On Friday at a special meeting the mayor won unanimous backing to settle a planning and environment court appeal for its previous refusal for the subdivision based largely on a barrister's legal advice.
After another closed session to discuss the legal implications and options facing council, Cr Stewart moved to end what one councillor described as a "diabolical" situation and another a "a series of unfortunate events".
This included a private certifier approving the second house build for what was intended to be only an extension to an existing house.
Cr Stewart put forward conditions for the settlement including the applicant must carry out works "as recommended by the expert hydrologists, including raising the height of the driveway access to lot 1".
There would also be measures designed to "minimise safety risks for future
residents of lot 1 and measures to minimise offsite impacts".
The applicant would also have to grant council an easement for drainage and vegetation management plus provide water tanks on proposed lot 1 to assist in management of stormwater.
There is also a council requirement "there be no further application for reconfiguration of the
land that is both proposed lots 1 and 2 under the planning scheme or the Body Corporate and Community Management Act or otherwise".
Once again the mayor said "my heart says defend the appeal, but my heart says no".
"The dwelling has been lawfully constructed and approved," she said.
"We cannot change the existing 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," she said.
The mayor said the applicant's proposed engineering solutions would "improve the existing flood hazards on the land and reduce offsite impacts".
These would result in a "good outcome without having to go to court and incur unnecessary costs".
"I acknowledge it is important to defend the new Noosa Plan," she said.
Deputy Mayor Frank Wilkie said this was a difficult "and some would even say a diabolical situation to find ourselves in".
"It is important to note that the existing dwelling that was there was approved by a building certifier, not Noosa Council and we've inherited a very difficult situation," Cr Wilkie said.
He said after taking legal advice and imposing these conditions "it is absolutely the right way to go".
Cr Amelia Lorentson was satisified this council course of action in setting conditions would not create a precedent and would achieve most of the assessment benchmarks contained within the Noosa Plan.
"If we maintain a refusal there's a real risk that the safety issues and the offsite impacts have the potential to remain unchecked," she said.
Cr Brian Stockwell said: "If you were to give this development saga the name of a movie there's no question in my mind it would be A Series of Unfortunate Events.
"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," he said.
Cr Tom Wegener said council had to 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," he said.