SCRC CORRESPONDENCE

Your Ref: 2008/50-00027 I^^'NN^^IINI Our Ref: SP5054 / 13906jm.jm asp„yan 16 December 2011

The Chief Executive Officer Sunshine Coast Regional Council Locked Bag 72 Sunshine Coast Mail Centre Qld 4560

Attention: Mr Marc Cornell

Dear Sir,

Representations on Conditions - Decision Notice (Approval) for Development Permit for Material Change of Use to Extend an Existing Shopping Complex located at 119 Point Cartwright Drive, Buddina, Tumut Street, Buddina, 10 & 12 Tumut Street, Buddina and 2, 4, 6, 8, 10, 12, 14, 16 & 18 Bermagui Crescent, Buddina (Council reference: 2008/50-00027)

We refer to Council's Decision Notice for the abovementioned development, dated 22 November 2011 (and received in full on 24 November 2011). Your records will reflect that we suspended the applicant's appeal period by letter dated 2 December 2011 in accordance with section 366 of the Sustainable Planning Act 2009.

Our client has now instructed us to make representations on the conditions contained within the Decision Notice. The wording of each condition subject to representation/negotiation has been provided below, along with our client's representation, and a recommended action. In each instance, proposed changes to the condition have been provided. Any new words proposed to be included are highlighted in bold, while any words to be deleted are shown as struck out.

The Site Plan has also now been amended to show the proposed staging for the approved extensions and is included here as Attachment A (by Mirvac Design, drawing no. RFI CC 1 D). The plan illustrates that the extensions will be completed in two (2) stages, with the small, north-western "Point Cartwright" extensions to be undertaken first, together with other minor extensions as shown. 1,697 parking spaces will be provided with Stage 1 and the balance of the proposed parking spaces (1939 in total) will be provided with Stage 2, including the podium car park.

Staging the extensions in this way will enable the sequencing of the site works in the most efficient and orderly fashion. To avoid a complete re-organisation of the decision notice, we request that Council formally endorses the attached Site Plan, >ETER FOIKER showing staging, and confirms the conditions that are applicable to each stage ARISTEPHENS by way of a new condition. The condition could include a table such as that set :ATE DIRECTOR out below, with all conditions not listed in the table being applicable to both stages of the development. The new condition could read:

,MADE STAGING 4 TREE The approved extensions may be staged in accordance with the ) Box 60! approved plans. If staged, the development must occur sequentially in the CHYDORI :ENSLAVE stage order indicated on the approved plans. The table below lists specific ALIA 4551 143 5561 143 99 7 conditions that are applicable to each stage. Prior to the commencement of use of any stage, all associated works relevant to that stage must be r// completed unless otherwise stated. All conditions not listed in the table are applicable to both stages of the development

Stage I Stage 2 Condition 27(b), (c), (d), (e)1iv) (v) Condition 7 Condition 41 Condition 8 Condition 24 JL^ Condition 25 Condition 27(a),(e)io.O (0.(w),(f),(g),(h),(i).(j) Condition 31 Condition 36A Condition 38 Condition 39 Condition 40 Condition 42 Condition 42A Condition 42B Condition 43 Condition 55

Condition 30 Council's original condition reads:

The premises must be provided with a minimum of 1827 on-site car parking spaces, together with standing and manoeuvring for service vehicles including 9 Vans, 3 SRV's, 4 MRV's, 3 HRV's and 2 AV's. Car parking and manoeuvring areas must: (a) be provided with a sealed surface and be line marked or otherwise delineated to the minimum dimensions detailed in the relevant Planning Scheme and AS2890 - Parking Facilities; (b) achieve, where used for parking, a longitudinal gradient and crossfall of all driveways that complies with the requirements of AS2890.1; (c) be designed to ensure disabled car parking spaces are located in close proximity to a primary building entrance and meet the requirements of outlined in AS2890. I Clause 2.4.5 and AS 1428.1 Clause 1.7.2; (d) be provided with signage and pavement markings that indicate the location of parking areas and the proposed flow of traffic through the site; (e) be designed to enable all vehicles to enter and leave the site in a forward gear; (f) be kept and used exclusively for vehicle parking and manoeuvring; and (g) be accessible to the general public and/or staff during approved hours of operation.

It is requested that the condition be amended to reflect the revised staging plan as follows:

At the completion of this development the premises must be provided with a minimum of 1827 on-site car parking spaces, together with standing and manoeuvring for service vehicles including 9 Vans, 3 SRV's, 4 MRV's, 3 HRV's and 2 AV's. Staging of the provision of on-site car parking spaces and service vehicle bays must occur generally in accordance with the approved plans. Car parking and manoeuvring areas must:

December 2011 Kawana Shoppingworld Page 2 (a) be provided with a sealed surface and be line marked or otherwise delineated to the minimum dimensions detailed in the relevant Planning Scheme and AS2890 - Parking Facilities; (b) achieve, where used for parking, a longitudinal gradient and cross fall of all driveways that complies with the requirements of AS2890. I; (c) be designed to ensure disabled car parking spaces are located in close proximity to a primary building entrance and meet the requirements of outlined in A52890. I Clause 2.4.5 and AS 1428.1 Clause 1.7.2; (d) be provided with signage and pavement markings that indicate the location of parking areas and the proposed flow of traffic through the site; (e) be designed to enable all vehicles to enter and leave the site in a forward gear; (f) be kept and used exclusively for vehicle parking and manoeuvring; and (g) be accessible to the general public and/or staff during approved hours of operation.

Condition 32 Council's original condition reads:

The premises must be provided with a minimum of 132 bicycle bays for employees and 77 bicycle bays for visitors. The premises must also provide for shower cubicles with ancillary change rooms provisions for both males and females. Details are to be provided prior to the approval of any Operational Works.

It is requested that the condition be amended to reflect the revised staging plan as follows:

At the completion of this development the premises must be provided with a minimum of 132 bicycle bays for employees and 77 bicycle bays for visitors. Staging of the provision of bicycle bays must occur generally in accordance with the approved plans. The premises must also provide for shower cubicles with ancillary change rooms provisions for both males and females. Details are to be provided prior to the approval of any Operational Works.

Condition 42B Council's original condition reads:

Prior to the commencement of the use, a Bus Interchange Facility is to be constructed on the western side of Nicklin Way to service north-bound bus services to the satisfaction of Council and the Department of Transport and Main Roads. Details are to be provided to Council prior to the approval of any application for Operational Works

Our Client's Representations This is considered to be an invalid condition for the reasons set out in the accompanying advice by Minter Ellison - included as Attachment B. The applicant therefore requests that the condition be deleted.

December 2011 Kawana Shoppingworld Page 3 Conditions 66 & 68 Council's original conditions read:

Buildings and other structures must maintain a minimum clearance of 1.5 metres from Unitywater sewer mains, and 1.0 metre from sewer manhole chambers and inspection openings. The existing sewer mains affected by the development must be relocated accordingly

A 3.0 metre wide easement must be provided over all Unitywater sewers located in private property. A 4.0 metre wide easement must be provided over Unitywater sewers greater than 3.0 metres deep (where approved by Unitywater). Easements must be located centrally over the main. For sewers on side boundary alignments easements may be partially located within neighbouring properties

Our Client's Representations It is imperative that the proposed extensions are able to be built over an existing sewer which follows the eastern boundary of the site. Section 5.2 of the submitted Engineering Report prepared by Bornhorst and Ward Consulting Engineers addressed this issue (extract below) in response to an earlier Council information request.

There is an existing 450mm diameter trunk sewer line following the eastern boundary of the site. This provides service to the shopping centre as well as areas external to the development site. The location of this is indicated on the Bornhorst & Ward Drawing SKC040 attached in Appendix A.

The shopping centre building extensions are proposed to be constructed over the existing sewer line. A longitudinal section of the existing sewer line has been prepared indicating the extent of build-over required. As part of the proposal, the existing manhole MH00938 is required to be demolished, with a new manhole being constructed within the loading dock of the shopping centre extensions, no more than 90m away from both the existing upstream and downstream manholes.

The existing 150mm diameter sewer, connecting to MH00938 also requires diversion as a result of the development proposal. Survey has been undertaken of the existing sewer manhole within private property to provide accurate long sections of the existing and proposed scenarios. Build over of the new section of 150mm diameter line will also be required for the building extensions.

To support this application, long sections and detailed plan views have been prepared of the proposed sewer build over, and realignment of the existing 150mm diameter sewer line. CCTV has also been undertaken of the existing 450mm diameter sewer line to allow Council to determine the extent of relining works. This information is attached in Appendix A and C.

Subsequent to the Decision Notice being issued, Unity Water's Sandya Handunnetti has confirmed that the sewer pipe is in good condition, having been relined by Council in 2005, and hence that Unity Water will not object to the previous in principle agreement by Caloundra Council to build over the existing sewer main. It is therefore requested that Council amend Conditions 66 & 68 as follows:

Buildings and other structures must maintain a minimum clearance of 1.5 metres from Unitywater sewer mains, and 1.0 metre from sewer manhole chambers and inspection openings with the exception of the sewer main identified in Section 5.2 of the submitted Engineering Report prepared by Bornhorst and Ward Consulting

December 2011 Kawana Shoppingworld Page 4 Engineers where building over the sewer is permitted. Th existing er mans

A 3.0 metre wide easement must be provided over all Unitywater sewers located in private property. A 4.0 metre wide easement must be provided over Unitywater sewers greater than 3.0 metres deep (where approved by Unitywater). Where building over sewer is permitted, a volumetric easement must be provided over the sewer main. Easements must be located centrally over the main. For sewers on side boundary alignments easements may be partially located within neighbouring properties

We trust that Council gives due regard to the representations made above. Should you have any queries relating to this issue, please do not hesitate to contact the writer on 5443 5566.

Yours faithfully DiIIory^Iker Stephens Pty Ltd

cc: Mirvac Funds Ltd, Level 26, 60 Margaret Street, Sydney NSW 2000, attention Mr Robert Beck

December 2011 Kawana Shoppingworld Page 5 Attachment A Omrr2

pEEE r T --- I I 1

WOOLWORTHS

Councils RFI Calculations: EXISTING PROPOSED Gross Floor Area (gfa) 30,660 m' 39,600 m2 (38,122 m' Retail + 1,478 m2 Commercial) Car Spaces Provided 1,720 1,904 Carparking Ratio 5.57@100 4.90@100 (Retail Only) Car Spaces Required - Retail 5@100 1,902 (38,046 m' x 51100) Car Spaces Required - Commercial 2.5@100 37 (1,644 m' x 2.5/100) Car Spaces Required -Total 1,939 Bike Parking 79 Public Parking + 20 Staff Parking

rev date: amendment project dde: drawn: 0 10 20 30 40 50 60 70 80 90 100 A 16.02.11 ISSUED FOR CONCURRENCE AGENCYS RESPONSE. NOTE: approved: B 26.07.11 ROAD WORKS & CARPARK REVISED AS PER TTM. Lewd 2409 gI*a Red lines shown on the dra" C 19.08. 11 ROAD WORKS & CARRPARK REEVISED. KAWANA SHOPPINGWORLD MIRVAC Syoiey. NSW 200 Proposed CoastConnect D 20.08 . 11 P p C GADDED. are existing herb line 8 wising A 9290868600 job no: 4.472 date: FEBRUARY 2011 scale@A3: 1:2000 LOT 529LOADINGDOCK REVIS ED pedestrian crossing, etc. DESIGN in. 02 9 6 02 8181 The Nicklin Way QUEENSLAND WChk$CU rr^rra IArvac ce$W Pry. Ld Cm+grdfekWwddiwif-d.9.n ih .tlryW-D.M A. etWpoSabiaad Site and Floor Plan lot no: drawing no: RFI_CC_1 rev: D eN IN dsdgns t ASN 78 007 359 153 Mi by ay mybwy PePweewpeey 4-Gkm.ta.11 wsn pwN,knd Iv OWp PV. FA mirvac Attachment B MinterEllison L A W Y E R S

WATERFRONT PLACE I EAGLE STRF.F1 BRISBANE 14 December 201 1 PC BOX 7844 WATERFRONT PLACE OLD 4001 AUSTRALIA OX 102 BRISBANE ww* mnnWe1*m.can TELEPHONE 417 3"9 5009 FACSIINLE -61 7 3119 1000

BY EMAIL: [email protected]

Peter Folker Director Dillon Folker Stephens PO Box 605 Maroochydore QLD 4558

Dear Peter

Kawana Shoppingworld extension Development Permit 2008/500027 - Preliminary comments on Condition 42B

You have asked for us to provide preliminary comments on Condition 42B of Development Permit 200/500027 dated 22 November 2011.

Condition 42B provides as follows:

Prior to the commencement of the use, a Bus Interchange Facility is to be constructed on the western side of Nicklin Way to service north-bound bus services to the satisfaction of Council and the Department of Transport and Main Roads. Details are to be provided to Council prior to the approval of any application for Operational Works.

In our view, Condition 42B may be invalid on grounds that include:

1. a lack of certainty as to the nature of the works required to be carried out; and

2. a lack of finality, by deferring an important aspect of the decision for later determination.

The ambiguity as to the works required by Condition 42B means that it is not clear how the condition is relevant to, or reasonably required, by the development approved. Depending on the type of bus interchange required to he constructed, this condition may exceed what is reasonably required to address additional public transport demand generated by the development.

MINTER ELUSON GROUP AND ASSOCIATED OFFICES ADELAIDE AUCKLAND BEIJING BRISBANE CANBERRA DARWIN GOLD COAST HONG KONG LONDON MELBOURNE PERTH SHANGrIAI SYDNEY WELLINGTON DILLON FOLKER STEPHENS 14 Dcccmhca 2011

Our preliminary comments on the legal tests for validity are contained in Schedule 1 to this letter.

Yours taithliully MINTER ELLISON

Contact: Matthew Roach Direct phone: +61 7 3119 6147 Direct fax: +61 7 31 19 1 147 Email: [email protected] Partner responsible: Antra I lood Direct phone: +61 7 3119 6241 Our reference: 40-6944941 enclosure

ME ')5o!2442 14W20070 DILLON FiLKER STEPHENS 14 December 2011 3

Schedule

No. Legal test of validity Comment

ouncil cannot require itself or DTMR to undertake works The wording of Condition 42B is ambiguous, but the only entity that Council can require to undertake the works is Mirvac. A development approval attaches to land and binds the person undertaking the development. A condition on a development approval cannot require works to be undertaken by another entity.

4. Council can require works be undertaken on a road or on Council's land, Condition 42B must only relate to land within the road reserve, or land but not on private land not part of the development approval that is owned by Council.

A condition may require works to he carried out, including works on State-owned or State-controlled roads.2 It is outside Council's jurisdiction to require works to he carried out on private land that is not owned by Council or included in the development approval.

5. Council may on/v impose conditions that are relevant and reasonably The expansion of the centre will generate additional public transport required by the development it has approved demand that may need to he serviced by a new bus stop.

Any requirement to provide infrastructure must reasonably relate to the The extent of works required is a factor in determining whether condition demand created by the development. 42B is relevant and reasonably required. For example, a local bus stop may be appropriate but a five storey major bus interchange may not. In Neilson v Gold Coast CC [2005] QPELR 452, a condition was found to be invalid where it required a 100% contribution to the upgrading of a At present, the uncertainty of the drafting of Condition 42B means that it State road, where the development proposal would create a maximum of is not possible to conclude whether the requirement is reasonable. 12% of the demand necessitating the upgrading. Invalidity as a result of uncertainty is discussed below.

In Wootton v Woongarra Shire Council (1985) 56 LGRA 301, Council

' SPA section 347(c). SPA section 347(2); An example where works were required on land not part of the application is Bon Accord Pry Ltd & v Brisbane City Council & Ors [2008] QPEC 119. DILLO N F() I K I-R S 11:PHENS 14 December2011 4

No. Legal test of validity Comment

sought a monetary contribution for an infrastructure upgrade where the existing infrastructure had sufficient capacity to cope with the proposed development. The Court held that this condition was invalid.

In Primelink Pty Ltd v Council of the City of Hervey Bay [ 1990] QPLR 185, Council's condition requiring construction of a road external to the site as 'it would be unreasonable to require this developer to construct [the road] along the frontage of a number of other blocks which, in all probability, will be developed in their turn. The costs of completing this link... will be considerable and the relevant responsibilities in this context must be accepted by each of the developers who are involved.' (at 186)

6. Condition 42B must be certain and final We consider that condition 42B may not be valid because: • the works requirement is not sufficiently certain; and A condition will be invalid if it is ambiguous in its requirements. or leaves • the condition defers an important aspect of the decision for later a significant aspect of the development for later determination. determination. In Scott v Wollongong City council & Anor (1992) 75 LGRA 112, the Condition 42B does not detail the nature of the works required. The lack Court stated that 'the principle of finality is intended to protect both the of detail is particularly evident when contrasted with condition 42A and developer and those in the neighbourhood who may be affected by the the corresponding DTMR condition 3 (Public Passenger Transport - Bus). proposal, against the consent authority's reservation of power to alter the character of the development in some significant respect, thereby changing The works required by Condition 42B are also subject to the approval of the expectations settled by the consent already granted'. (at 118) both Council and DTMR. As the types of works required are not adequately described, the level of discretion available to Council and In Carter v Redland Shire Council & Anor [1999] QPELR 88, a condition D1'MR may mean that the condition is invalid on the basis of lack of that left the colour and materials of construction subject to later approval finality. by Council was held to be invalid. The Court stated 'It is impossible to say what colour and material might be approved. An objector will not know the details put forward by Ausbuild. They maybe quite different from those proposed in the application. When approved they will become further conditions attached to Council's decision... The requirement is DILLON FOl KER STEPHEN'S 14 December 2011 S

No. Legal test of validity Comment

vague and general, leaving much room for subjective difference of opinion'. (at 91)

It will be acceptable to leave an aspect of the development subject to later approval where there is reference to clear standards or requirements upon which that approval will be based - Pentland Park Amusements Pty Ltd v Melbourne and Metropolitan Board of Works [ 1972] VR 540 and Mt Marrow Blue Metal Quarries Pty Ltd v Council of the Shire of Moreton [ 1996] 1 Qd R 347.