29th March 2011,
The General ManagerMr R. Dobrzynski
City of Launceston
Town Hall
St John Street
LAUNCESTON TAS 7250
Dear Mr Dobrzynski,
Your ref. DA042/2010, Development Encroachment on Future Road on Land at 66-84 Henry Street Launceston.
Thank you for your letter dated 17th March 2011, in reference to our letter of 16th March. Our investigations have revealed that contrary to what you say in your letter, the development application for a residence was advertised just once in September 2010. This advertisement was for the construction of a building (single dwelling) in the Scenic Protection Area.
Neither the advertisement nor the drawings and other information that was placed on display in the Service Centre alerted the public to the existence of, or any potential conflict with Council's Zoning Plan, denoting the course of a future road through this land. Council has the clear duty to ensure that adequate information is available when assessing new proposals in order to take account of any adverse impacts. It is our contention that Council has failed to meet its responsibility to the community in this regard.
Because there were no submissions made to council by the public, this application was not placed on the Council Meeting Agenda, and the determination apparently made under delegation by Council's officers, was not reported to a Council Meeting, or made public in any way.
Accordingly, the inference that may be gained by the second paragraph of your letter, that this approved development came about through a proper and open publicly-advertised procedure, cannot be deduced.
Council's zoning plan established a very clear responsibility and duty for council, both its officers and councillors alike, to uphold the provisions of the Planning Scheme under the LUPA Act, and among the many requirements provided for in the planning scheme, to make provisions which relate to the use, development, protection or conservation of land within the municipal district of the Launceston City Council.
Launceston City Council has a very clear and unambiguous responsibility to have full and proper regard to the Planning Scheme Purpose, the Planning Scheme Goals, the Planning Scheme Objectives and Principles, and in particular, the principle 4.18.1 (f) Protect future road corridors from inappropriate use or development.
Council has many detailed responsibilities to undertake when deliberating on an application, including a number of policies, strategic plans and objectives at local and state levels, quite apart
from the circumstances of the case and the public interest.
Council is directed to 31.10(2) of the planning scheme which denotes the reasons why new buildings are to be set back from alongside future roads. In this instance we enquire as to what setback criteria council prescribed for this development.
There is nothing evident from our investigation, that Council sought input from the Road Authority in relation to this application. The Launceston Planning Scheme 1996 makes specific provisions in relation to future roads.
46 FUTURE ROAD
46.1 Purpose
To enable the protection of future road corridors from inappropriate use or development which because of its nature, capital improvement life expectancy would tend to prejudice the provision, or significantly increase the land acquisition cost of the road at a later date. 46.2 Requirements to be met Unless the use or development is prohibited by any other zone a discretionary permit is required to use or develop land in the Future Road zone. 46.3 Application of Provisions This Clause applies to a 200m wide corridor of land, 100m either side of the centre-line of the Future Road alignment.
Neither the advertisement nor the drawings and other information that was placed on display in the Service Centre alerted the public to the existence of, or any potential conflict with Council's Zoning Plan, denoting the course of a future road through this land. Council has the clear duty to ensure that adequate information is available when assessing new proposals in order to take account of any adverse impacts. It is our contention that Council has failed to meet its responsibility to the community in this regard.
Because there were no submissions made to council by the public, this application was not placed on the Council Meeting Agenda, and the determination apparently made under delegation by Council's officers, was not reported to a Council Meeting, or made public in any way.
Accordingly, the inference that may be gained by the second paragraph of your letter, that this approved development came about through a proper and open publicly-advertised procedure, cannot be deduced.
Council's zoning plan established a very clear responsibility and duty for council, both its officers and councillors alike, to uphold the provisions of the Planning Scheme under the LUPA Act, and among the many requirements provided for in the planning scheme, to make provisions which relate to the use, development, protection or conservation of land within the municipal district of the Launceston City Council.
Launceston City Council has a very clear and unambiguous responsibility to have full and proper regard to the Planning Scheme Purpose, the Planning Scheme Goals, the Planning Scheme Objectives and Principles, and in particular, the principle 4.18.1 (f) Protect future road corridors from inappropriate use or development.
Council has many detailed responsibilities to undertake when deliberating on an application, including a number of policies, strategic plans and objectives at local and state levels, quite apart
from the circumstances of the case and the public interest.
Council is directed to 31.10(2) of the planning scheme which denotes the reasons why new buildings are to be set back from alongside future roads. In this instance we enquire as to what setback criteria council prescribed for this development.
There is nothing evident from our investigation, that Council sought input from the Road Authority in relation to this application. The Launceston Planning Scheme 1996 makes specific provisions in relation to future roads.
46 FUTURE ROAD
46.1 Purpose
To enable the protection of future road corridors from inappropriate use or development which because of its nature, capital improvement life expectancy would tend to prejudice the provision, or significantly increase the land acquisition cost of the road at a later date. 46.2 Requirements to be met Unless the use or development is prohibited by any other zone a discretionary permit is required to use or develop land in the Future Road zone. 46.3 Application of Provisions This Clause applies to a 200m wide corridor of land, 100m either side of the centre-line of the Future Road alignment.
46.4 Guidelines for permit
(1) Before deciding on an application Council must consider in addition to the matters in Clause 6 : (a) nature, capital improvement and life expectancy of the proposal; (b) when the land is likely to be acquired for the future road; and (c) location of the proposal on the land in relation to the proposed alignment of the future road and if it would prejudice the provision or significantly increase the land acquisition cost of the road at a later date.
(2) An application must be referred to the Department of Transport and Works, and Council must not approve the application without the consent, conditional or otherwise, of that Department.
46.5 Conditions or restrictions In order that the provision of the road at a later date is not prejudiced or its land acquisition cost significantly increased, a discretionary permit may be subject to a condition or restriction that: (1) The use cease, and any buildings or improvements be removed to the satisfaction of Council without claim for compensation, after a specified period of not less than five years from the issue of the permit; (2) Different construction materials or methods are used than those indicated in the application; and (3) Any proposed buildings, improvements or the like be located on a different part of the land.
It is our assessment of these planning scheme provisions that council
has :
• failed to protect this future road corridor from inappropriate use and development, which because of its nature as a private residence, its capital value and life expectancy of at least 40 years, will prejudice the provision for a future road and significantly increase the land acquisition cost because of this development, at a later date;
• failed to advertise this development as being a discretionary use in the Future Road zone;
• failed to protect a corridor of land 200m wide (i.e. 100m either side of the centre line of a future road alignment), and prescribe the necessary setback for the development from this alignment;
• neglected to give any consideration, in addition to the matters in Clause 6 of the scheme, the nature of a private residential development, the capital improvement and life expectancy of the proposal, when the land is likely to be acquired for the future road, and whether the location of the proposed private residence in relation to the proposed alignment of the future road and if it would prejudice or significantly increase the land acquisition cost of the road at a later date;
• neglected to refer the application to the Department of Transport and Works, and furthermore apparently approved the application without the consent, conditional or otherwise of that Department.
• In spite of the failures and neglect to comply with the provisions of the planning scheme, never-the-less Council failed to adopt alternative approval provisions and conditions to allow the
development without prejudice to the provision of the road at a later date or increase significantly its land acquisition cost by subjecting a discretionary permit to any conditions or restrictions that would require that the use cease, and any buildings or improvements be removed without claim for compensation, after a minimum specified period of five years from the issue of the permit; that the construction employ materials or methods than those proposed that would better insulate and protect the private residence from the detrimental environmental effects of an adjoining future road; and require that the proposed building be located on a different part of the land not affected by or encroaching on the course of a future road location.
Your explanation that council relies on advice from its personnel in its Department of Infrastructure Services is not a sufficient or valid reason for the inappropriate action apparently taken by Council's officers in issuing a permit for this development. The observation cited, that this future road alignment was not proceeding because Council had apparently deferred making a decision on proceeding with the road plan at some date in 2007, is nonsensical. The suggested fact that no decision was made (either to proceed or not to proceed) with the development of the road, means that the provision of the planning scheme survives, it has not been amended or annulled, and must for all of the reasons and references referred to in this correspondence, be
upheld, protected and enforced.
Accordingly, we call upon council to direct that the construction of the building on the subject land 66-84 Henry Street Launceston, cease.
Should council not concur with any part of the argument or interpretation contained within this letter, then we ask that you advise us of such views in detail, at as a matter of urgent importance.
Yours faithfully,
Lionel J. Morrell
President
Tasmanian Ratepayers Association Inc.
Tel. 03 6331 6144
(1) Before deciding on an application Council must consider in addition to the matters in Clause 6 : (a) nature, capital improvement and life expectancy of the proposal; (b) when the land is likely to be acquired for the future road; and (c) location of the proposal on the land in relation to the proposed alignment of the future road and if it would prejudice the provision or significantly increase the land acquisition cost of the road at a later date.
(2) An application must be referred to the Department of Transport and Works, and Council must not approve the application without the consent, conditional or otherwise, of that Department.
46.5 Conditions or restrictions In order that the provision of the road at a later date is not prejudiced or its land acquisition cost significantly increased, a discretionary permit may be subject to a condition or restriction that: (1) The use cease, and any buildings or improvements be removed to the satisfaction of Council without claim for compensation, after a specified period of not less than five years from the issue of the permit; (2) Different construction materials or methods are used than those indicated in the application; and (3) Any proposed buildings, improvements or the like be located on a different part of the land.
It is our assessment of these planning scheme provisions that council
has :
• failed to protect this future road corridor from inappropriate use and development, which because of its nature as a private residence, its capital value and life expectancy of at least 40 years, will prejudice the provision for a future road and significantly increase the land acquisition cost because of this development, at a later date;
• failed to advertise this development as being a discretionary use in the Future Road zone;
• failed to protect a corridor of land 200m wide (i.e. 100m either side of the centre line of a future road alignment), and prescribe the necessary setback for the development from this alignment;
• neglected to give any consideration, in addition to the matters in Clause 6 of the scheme, the nature of a private residential development, the capital improvement and life expectancy of the proposal, when the land is likely to be acquired for the future road, and whether the location of the proposed private residence in relation to the proposed alignment of the future road and if it would prejudice or significantly increase the land acquisition cost of the road at a later date;
• neglected to refer the application to the Department of Transport and Works, and furthermore apparently approved the application without the consent, conditional or otherwise of that Department.
• In spite of the failures and neglect to comply with the provisions of the planning scheme, never-the-less Council failed to adopt alternative approval provisions and conditions to allow the
development without prejudice to the provision of the road at a later date or increase significantly its land acquisition cost by subjecting a discretionary permit to any conditions or restrictions that would require that the use cease, and any buildings or improvements be removed without claim for compensation, after a minimum specified period of five years from the issue of the permit; that the construction employ materials or methods than those proposed that would better insulate and protect the private residence from the detrimental environmental effects of an adjoining future road; and require that the proposed building be located on a different part of the land not affected by or encroaching on the course of a future road location.
Your explanation that council relies on advice from its personnel in its Department of Infrastructure Services is not a sufficient or valid reason for the inappropriate action apparently taken by Council's officers in issuing a permit for this development. The observation cited, that this future road alignment was not proceeding because Council had apparently deferred making a decision on proceeding with the road plan at some date in 2007, is nonsensical. The suggested fact that no decision was made (either to proceed or not to proceed) with the development of the road, means that the provision of the planning scheme survives, it has not been amended or annulled, and must for all of the reasons and references referred to in this correspondence, be
upheld, protected and enforced.
Accordingly, we call upon council to direct that the construction of the building on the subject land 66-84 Henry Street Launceston, cease.
Should council not concur with any part of the argument or interpretation contained within this letter, then we ask that you advise us of such views in detail, at as a matter of urgent importance.
Yours faithfully,
Lionel J. Morrell
President
Tasmanian Ratepayers Association Inc.
Tel. 03 6331 6144
Copy to Mayor and Aldermen
Reply
From: Robert Dobrzynski
Sent: Thursday, 31 March 2011 8:30 AM
To: Lionel Morrell
Cc: Mayor; Records
Subject: RE: Development encroachment near Henry Street Launceston
Dear Lionel,
I acknowledge receipt of your correspondence. A copy will be forwarded to the Mayor and Aldermen. I have asked the Director of Development Services Peter Button to respond to the specific matters you have raised. Thank you.
From: Robert Dobrzynski
Sent: Thursday, 31 March 2011 8:30 AM
To: Lionel Morrell
Cc: Mayor; Records
Subject: RE: Development encroachment near Henry Street Launceston
Dear Lionel,
I acknowledge receipt of your correspondence. A copy will be forwarded to the Mayor and Aldermen. I have asked the Director of Development Services Peter Button to respond to the specific matters you have raised. Thank you.
