cc Deputy Premier, State planners, MSC planners and CEO

Dear Councillor

We are writing to you as we are concerned that an unlawful decision may have been made

It has come to our attention that in the 19 July MSC meeting item 6, the development application M & G CASEY RECONFIGURING A LOT-SUBDIVISION (1 INTO 2 LOTS)-LOT 201 ON RP843530-182 KANERVO ROAD, KOAH-DA/17/0022, has been sent back to the planners to come up with conditions for approval.

This is despite the planners’ recommendation to reject the development application on the grounds it did not fit the MSC 2016 plan in regards to minimum lot size. Neither would it have complied with the MSC 2004 planning scheme.

This would be the third subdivision application approved in Koah in less than a year despite not fitting either planning schemes, due to the lots being too small to comply with the rural zone code.

The reason given for approval by council has been on all three occasions the preferred area No 3 Clohesy River area.

This was once part of the MSC 2004 but had been discarded to include State interests set out in the FNQ 2031 regional plan. This meant that both the preferred area No 3 Clohesy River area and the Myola Precinct (including the different A,B,C,D and E zones) were no longer valid in the last version of the MSC 2004 plan. The FNQ2031 regional plan came into affect 2009. The regional plan prevails over the planning scheme where they are inconsistent.

If Council has a different understanding, we would be very interested in your reasoning. We would ask you to show documents, including Council agenda and minutes, to prove these amendments to reinstate both the preferred area No 3 Clohesy River area and the Myola Precinct 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.

Last year in the 15 June 2016 Council meeting, Council requested that Council officers progress an investigation into a potential rural precinct area centred around Koah Road and to encompass all land within Preferred Area No 3 – Clohesy River Area of the Mareeba Shire Planning Scheme 2004, and report back to Council “with a recommendation on the preferred minimum lot size for the rural zone in this area.”

However this investigation has not and will not be starting yet for a while according to senior planner Brian Millard. Please see email below sent on 3 July 2017:

‘Hi Brian

Would you be able to tell me at what stage Council is regarding the investigation of the Clohesy River Preferred Area 3?

Answer:

We have been working on the Planning Scheme Alignment Amendment for the new Queensland Planning Act 2016 (which commenced today), the Environmental Significance Overlay review and the Local Government Infrastructure Plan.

We will not be formally commencing any further reviews of the Planning Scheme until these existing projects are further advanced.

Regards

Brian Millard
Senior Planner’

This is not a seriously entertained planning proposal and is therefore irrelevant to Council’s consideration of the application.   

Further, the process of changing the MSC planning scheme to include a Preferred Area No 3 – Clohesy River Area would need State approval and a public consultation time.

As an elected representative, accountable to the community, can you please explain on what grounds you chose to ignore the set out process that is involved in changing a planning scheme.

In coming to its decision the Council did not have the proponent’s application, planning assessment or planning report before it. The Council failed to take into account relevant considerations. In making its decision, Council considered whether the land could sustain agriculture and a thought bubble about a future planning investigation. Council took into account irrelevant considerations.
Please be advised that we hope to receive your own personal response and have been confused by the current practice of Peter Franks, the CEO responding on behalf of council.
Whilst we appreciate that Council has the power to delegate its powers and functions to Council officers, please consider this a letter to you as an elected representative to which we would appreciate your personal attention.

We look forward to hearing from you, preferably in writing.

We have pasted two excerpts from the local Government Act 2009 below which we hope will be helpful, plus a list of the Fitzgerald 2015 and 2017 principles for accountability and good governance :

Five Local Government Principles:

The Local Government Act 2009 is founded on five local government principles:

• Transparent and effective processes, and decision making in the public interest.
• Sustainable development and management of assets and infrastructure, and delivery of services.
• Democratic representation, and social inclusion and meaningful community engagement.

• Good governance of, and by, local government.

• Ethical and legal behaviour of councillors and local government employees. Executive and Administrative Arms of Local Government:
  

  The Fitzgerald Principles Principles outlined by the Hon Tony Fitzgerald AC QC, former judge and leader of the Fitzgerald Inquiry For 2015 State Election: 1. Govern for the peace, welfare and good government of the State (n.b. Shire in this case); 2 .Make all decisions and take all actions, including public appointments, in the public interest without regard to personal, party political or other immaterial considerations; 3.Treat all people equally without permitting any person or corporation special access or influence; and 4. Promptly and accurately inform the public of its reasons for all significant or potentially controversial decisions and actions. 2017 To act honourably and fairly and solely in the public interest To treat all citizens equally To tell the truth Not to mislead or deceive Not to withhold or obfuscate information to which voters are entitled Not to spend public money except for public benefit Not to use your position or information gained from your position for your benefit or the benefit of a family member, friend, political party or other related entity     Yours, KRPG