DATE: 26 JULY 2017

TO: info@msc.qld.gov.au

CC: Deputy Premier, State planners, MSC planners and CEO

Dear Councillor

We are writing to you about the 3 Kuranda applications to be assessed under the superseded planning scheme and which were passed in the 19 July Council meeting.

Council is under the misconception that not passing those applications could have lead to compensation claims by the applicants.

The sustainable planning act 2009 says:

page 93-94 Application of a superseded planning scheme

point 95 (2) However the notice may be given to the local government within 1 year after the day the amendment of a planning scheme.

This means that in the case of the 2 Barnwell Road applications, the 1 year limit expired a number of years ago as the amendment of the MSC 2004 plan to no longer include the Myola precinct (including the different A,B,C,D and E zones) was made to include State interests set out in the FNQ 2031 regional plan. The FNQ2031 came into effect 2009. As a result of this both properties on Barnwell Road were from then on zoned rural with a minimum lot size of 30 hectares. Also the regional plan prevails over the planning scheme where they are inconsistent.

Even if the compensation provisions under SPA apply in these cases, we consider that Council’s decisions are based on unreasonable, illogical and irrelevant considerations and are therefore unlawful decisions for the following reasons. Council did not have before it any information about the nature and content of the overlays in relation to the Mason Road application; Council failed to take into account the relevant considerations regarding the limitations on the entitlement to compensation, the likelihood of a claim being successful or the likely quantum of compensation; and Council failed to take into account the importance of the integrity of the new planning scheme. Without that relevant information Council also failed to weigh up the costs and benefits of making the decision to consider the application under the superseded planning scheme. The decision is unlawful.

If Council has a different understanding we ask you to show a well documented process including Council agenda and minutes to prove the amendment to reinstate the Myola Precinct(change to the minimum lot size of 30 hectares) into the MSC 2004 plan followed proper process.

As per Sustainable Planning Act 2009 page 62

29 Amending planning schemes to reflect regional plan

(2) The local government must amend its planning scheme…..to reflect the designated regional plan.

Consequently Council can not be liable for compensation regarding this issue.

If the other concern is that the three applicants are affected by changes to matters of biodiversity because of the amendments to the matters of environmental significance overlay, it has to be taken into consideration that even if applying under the MSC 2004 plan, State interests as per State Planning Policy(SPP) have to be taken into consideration while assessing a development application.

Example MSC meeting agenda 16 November 2016 M MCKEEN – RECONFIGURING A LOT – SUBDIVISION (1 INTO 2 LOTS) LOT 1 SP154474 – 25 COPLAND ROAD, KOAH – A/16/0033

Page 15

(b) State Planning Policy

The State Planning Policy is not reflected in the Planning Scheme and is therefore applicable to the assessment of the application.

This means because all three properties lie in an ecological corridor, this has to be taken into consideration, being a State interest. It is imperative that connectivity is not compromised. Otherwise fragmentation would occur and the mapped corridor would serve no purpose in the future.

However should the applicants feel the need to be compensated for disadvantages that are a result of the State Planning Policy(SPP), they need to turn to the State for that and not Council.

We therefore request that motions passed on items 5,7, & 8 are revoked since the reason given for passing them- that Council could be liable for compensation if they refused them- is not correct.
Further, as noted above, the decisions are unlawful for failure to take into account relevant considerations and for being unreasonable.

In any event, all 3 development applications must be rejected on their merits for the reasons above should they be lodged.

If you disagree with any of the above, we ask you kindly to explain your reasoning with the necessary documentation.

Yours,

Maree Treadwell Kerr
Sarah Isaacs
Cathy Retter
Jo Martin
Nadine O’Brien
for KRPG