Many of us might well remember a classic scene from Happy Days where Fonzie nearly admitted he was WRONG. It was soooo close.
Fonzie thinks he is never wrong and, consequently, has trouble admitting so. He attempts to say he was wrong in the episode titled "Tell it to the Marines," which originally aired on December 16, 1975, but can only get as far as an r with an unidentifiable vowel. He also has trouble apologising and saying "sorry" as shown in "My Fair Fonzie," which originally aired on November 22, 1977. Next Tuesday the community will hear a report from Council that appears to have The Fonzies. Council offers: At a recent Public Access Session a local landowner in Surf Beach raised concerns with Council as to why they were not notified of a development application and provided the opportunity to make comment on the development application prior to it being approved by Council in March 2022. Because the local landowner was not notified of a development application and provided the opportunity to make comment on the development application prior to it being approved by Council he (and his wife) has been sorely, and unnecessarily compromised. Rather than take in the fact that they, Council, are responsible for what has become a horrid situation that has left, and will leave a permanent taint by way of an action by a council officer the response basically exonerates staff any wrong doing but sets out to ensure issues don't recur. Council explains: "The main reason for believing that the development application should have been notified is that setback of one section of the dwelling and a shed from the adjoining boundary does not comply with the deemed to satisfy criteria in the Development Control Plan (DCP).
The Council report continues "Council’s DCPs are set up so you can choose to meet the acceptable solution (usually a numerical standard) or the performance criteria (usually a design objective). "Both of these are in compliance with the Development Control Plan, however often for the community the numerical standard is what is known and understood". From this paragraph it might appear that Council agrees that what is "known and understood" by the community is that A1.1 Dwellings must be setback a minimum of 12m from all boundaries. This is what was understood by the neighbours, The McBrides. Having just gone through the process of a Development Application to build their own home on land zoned R5 Rural Residential they were more than familiar with the DCP. The Council report continues: "Council’s Community Engagement Framework and Participation Plan (CEFPP) generally requires where there is non-compliance with a development standard or acceptable solution, that a development application is notified to adjoining owners. They were also well aware that one could seek a variation to the Acceptable Solution if you had justification and that such a variation (non compliance) would trigger your neighbours being notified. This was the example that saw a nearby neighbour, building on a steep slope, seek a variation to build 4 meters off the boundary. As the variation offered no detriment to the neighbours by way of views or privacy they happily agreed to it. This process is the model process and was applied. But for some reason Council decided not to apply it to the house next to the McBrides. Why not? Here comes the interesting bit of Council's report: "However, the Community Participation Plan also states that where the non-compliance is reasonably thought not to have a detrimental impact on adjoining properties, the application does not need to be notified. Reasonably thought by who? On the 2nd of August 2022 the General Manager wrote to the McBrides and advised them "I am informed that the development at 15 ****** Avenue as assessed, is not considered to have a detrimental impact on the adjoining dwelling at 27 ******** Avenue, when these matters are considered". One might wonder who "informed" the General Manager. The GM was informed that this building "is not considered to have a detrimental impact on the adjoining dwelling".
Above: That is a kitchenette, patio and swimming pool looming over the window of a bathroom. The house in the distance is 4m off the boundary rather than the expected 12m as per Council's 'Acceptable Solution' of 12m. The General Manager, in her letter to the McBrides on August 2nd (in what can only be described as Fonzian prose) said with some degree of finality to the issue: "The development was approved because it was considered to be consistent with the
character of the adjoining properties and locality.
"There are numerous properties that have a setback for either sheds or the main dwelling
house at less than 12 metres. and quite a few around the 4 to 6 metre setback.
"It is considered that the development does not affect your views, does not overshadow
your dwelling, and has limited effect on your privacy". Then with a overt temerity advises: "It is also noted that the 4-metre setback is at a single point, and then at varying distances in excess of that, at all other locations as shown on the attached plan".
Above: Not once, but four times, has the 12m setback been breeched and the Alfressco, kitchenette and pool looms over the McBrides home by 3m in height. Now the intention is to erect a soundproof 2m fence which is not allowed under the DCP that requires wire or post and rail.
Above: This image is repeated again so that it becomes clear that this is an ensuite and that is a kitchenette, alfresco and pool. The solution being considered by the neighbour - a non-compliant 2.5m high sound proof fence. . This statement of varying distances in excess of that (4m), along with an inclusion of the site plan the General Manager provided indicates that Council was happy to have not just one but multiple non-compliances to the 12m offset numeric requirement and justified themselves by saying that: "There are numerous properties that have a setback for either sheds or the main dwelling
house at less than 12 metres. and quite a few around the 4 to 6 metre setback". What the report and the General Manager fail to advise the community is that their excuse of numerous properties in the vicinity having set backs of less than 12m have each been individually assessed and found to have no impact based on THEIR CONTEXT. Additionally they fail to advise that neighbours were notified to allow them to make submission. At the heart of the Rural Residentail DCP is the intent to have an environment that has spacious characteristics that prevents overcrowding. This was the intent and remains the expectation. The General Manager has written to the McBrides to tell them they were not notified because "It is considered that the development does not affect your views, does not overshadow your dwelling, and has limited effect on your privacy". Again, General Manger, considered by who? By you? How does one undertake such a 'consideration'. The first thing a planner might consider is "Why is this 4m off the boundary? What justifiable reason there and what possible impact might it have to views and privacy? The first thing the approving officer of this development might do is visit the site. They might stand at the kitchenette and look out and most likely look at the plan of the house they have in one hand and the plan (that was lodged and on record) for the house that was going to be built next door. If they had done so they might have immediately realised that the house they were assessing had a floor level that was 3.5m in difference to the neighbours and would loom over the ensuite and master bedroom. But there was no pre-approval site visit. It appears that site visits are impractical when the assessor is working from home in Noosa, as is now understood. Did the assessor stand on site and consider the house she was approving would have "limited effect on privacy". No.
Above: This photo is taken from an ensuite window. The General Manager might like to reconsider if the kitchen, alfresso area and pool that loom 3m above has "limited effect on privacy". What is clear from the report going to councillors next week and from the General Manager's letter to the McBrides is that there is no apology, nor does there be any intention of giving one. There is no saying Sorry by Council for the stress, the breakdown in neighbour relations, the financial impact the new build has caused. In what can only be described as Fonzian the General Manager wrote "I appreciate that you have differing views from Council staff regarding the approval of the DA for 15 Highlands Avenue, and I am sorry that this has caused you concern". Does this amount to an apology for Council's failure to notify and the subsequent outcomes that have caused far great than simple "concern"? Most likely Council would have legal opinion to say "Don't apologise or take responsibility". Even in the report to be delivered by the Mayor next week it says" "The Given the concerns raised in the addresses to Council, I recommend that Council, as a matter of course, notify adjoining owners of any development application that does not comply with the acceptable solution for setbacks in the relevant DCP. This will mean that any adjoining owner to a development proposal where the performance criteria for a setback is proposed, would be notified in writing by Council and have a 14-day period to review the proposed development and make a submission to Council. "Where a submission is made, Council staff will consider the planning merit of any issues raised, the performance criteria in the DCP and requirements of the CEFPP. This proposed amendment to the implementation of the CEFPP does not mean that applicants cannot use the performance criteria, it simply means that neighbours will be notified of the proposal and provided the opportunity to make a submission prior to any determination being made." The McBrides showed guts in coming to Council and sitting in the chambers to deliver their story. Not once, but twice, they sat in front of the Councilors and senior staff and delivered their frustrations, their anger, their disappointment and their disgust of how they had been initially overlooked, treated, ignored and then basically advised that Council was right and they were wrong. The circumstances around the McBride case are now beginning to reveal that there have been many other instances where members of the community could have steeped forward and told their stories. Most didn't because they believed the toxic nature of Council that they had seen first hand would only further react in vindictiveness or worse with no better outcome. They also knew there was little benefit in protesting to an institution that protected itself. Even now, in some corridors of Council, there are those who will say the McBrides are serial complainants and that the staff have done nothing wrong. There is interesting reading between the lines of the final part of Council's report to be tabled next week: "It is acknowledged that this will create additional work for Council staff and subsequently result in the delay in determination of development applications. Notwithstanding this, I believe it is important that Council take this action and consider any associated impacts while undertaking a review of the CEFPP". The above reveals a possible reason why the McBrides (and their other neighbours) were not notified. "This will create additional work for Council staff and subsequently result in the delay in determination of development applications". Note that the process of notifications were in place for many decades before somebody in Council decided to remove it. Given that there are basic Development Applications now taking six months or more one the impost that a Development Application that does not comply with the acceptable solution for setbacks in the relevant DCP is negligible. As to undertaking a review of the CEFPP the General Manager ably advised what is required (an by default advised what Council failed to do) Public notification
Council’s Community Engagement Framework and Participation Plan generally requires
where there is non-compliance with a development standard or acceptable solution, that a
development application is notified to adjoining owners. However, the Framework further states that where the non-compliance is reasonably thought not to have a detrimental impact on adjoining properties, the application does not need to be notified. The criteria for determining this, is if there are detrimental impacts regarding:
• solar access
• bulk and scale
• environment. Of interest is the action being taken to re-establish the notification triggers and processes. One doesn't make such a reaction to a singular case. The number of cases over the years only begins to describe the litany of failures and staff interpretations to the rules that has impacted on so many in our shire from builders to developers. The shire does have a long standing toxic reputation when it comes to development processes. So much so that there are developers who refuse to do work in the Shire. Maybe the apology that is due the McBrides could be retrospectively offered to all who have been victims of a culture that needs to be spotlighted and nipped in the bud.
Above: When sorry seems to be the hardest word