Minutes 28-03-01 - Shire of Shark Bay

More documents

Recommendations

Info

ORDINARY COUNCIL MINUTES - 28 MARCH 2001 Page 14 Moved Cr Crawford Seconded Cr Cane 1 That Council investigate with DOLA the availability of land east of the current Telstra site for future communication towers. 2 That Council not allow communication towers to be erected in industrial or residential areas. CARRIED UNANIMOUSLY 11.3 APPLICATION FOR DEVELOPMENT P11/2000 - ADDITION TO BOUGH SHED TO 105.01 RESTAURANT, MONKEY MIA Author Manager Regulatory Services. Disclosure of Any Interest Nil. Background At Council's Ordinary meeting held 15 December 2000, Council considered a development application from the Monkey Mia Dolphin Resort (Mr Graeme Robertson). The development was essentially a series of additions to the existing Bough Shed Restaurant, a new kitchen, toilets and café section. Section 2 of Council's Development Conditions stated - To be developed in accordance with the endorsed plan but upon and subject to the following condition - floor level to be not less than 3.0 AHD (100 year flood/storm surge + 500 mm). The proponents were not happy with this requirement as it would result in a building with two different floor levels. Discussion ensued as to the validity of Council being indemnified against any future legal action by approving development at the existing ground levels while relying on an indemnity provided by the proponent. Council resolved as follows - That a legal opinion and advice be obtained s to the validity of an indemnity that indemnifies Council from litigation by approving a floor level at a height significantly less than the recommended height of 3.0 metres AHD in regard to the proposed additions to the Bough Shed Restaurant at Monkey Mia and that all costs associated with obtaining such legal opinion and advice be borne by the applicant. An opinion was been obtained from Council's Solicitors which was also forwarded to the proponents legal representative. Discussions between the two Solicitors did not resulted in any further change in the advice originally forwarded to Council by Minter Ellison. Monkey Mia Bough Shed Restaurant Addition We refer to your facsimile dated 6 February 2001, which sought our advice as to whether it is acceptable for Council to approve the Monkey Mia Bough Shed Restaurant Addition (proposed development) whilst relying on an indemnity provided by Monkey Mia Resorts Pty Ltd (the owner). BACKGROUND In May 2000 Council approved the demolition of the existing building and the development of a new Restaurant and licensed Bar at Monkey Mia subject to conditions. One of the conditions required that the floor level of this development be not less than 3.0 metres AHD (100 year flood/storm surge + 500 mm). Since this approval was granted the owner of the Bough Shed Restaurant has submitted a new application to extend the existing building rather than demolish it. The application submitted proposes that the floor level of the new addition be the same as that of the existing building. Council is aware that due to potential flooding in the area, it is proper planning to require that the floor level of the proposed development be no less than 3.0 metres AHD. At a Council meeting in December 2000 this issue was discussed. The minutes of this meeting (unconfirmed) suggest that
ORDINARY COUNCIL MINUTES - 28 MARCH 2001 Page 15 the applicant and owner may have concerns that such a condition of approval would raise complications in terms of building design. In a letter dated 25 th January 2001, the owner has offered to 'indemnify the Shire of Shark Bay for an cost or damage which may be incurred by the Shire through the Shire approval of the kitchen, as proposed, being at the floor level of the existing kitchen'. Your facsimile and the accompanying Ordinary Council Minutes from the 15 th December 2000 (unconfirmed), indicate that Council has concerns about the validity of a deed of indemnity that indemnifies the Shire against litigation that may arise by any approval of the proposed development with a floor level at a height significantly less than the recommended height of 3.0 metres AHD. 1 INDEMNITY For the reasons set out below, we consider that an indemnity of the kind proposed would probably not be effective. 1.1 Legislation The Shire of Shark Bay Town Planning Scheme No 2 (District Zoning Scheme) does not expressly allow the Council to obtain an indemnity from an owner in relation to a development approval. Council should also keep in mind that Clause 2.3 of the Scheme states that - 'In considering any such application, Council shall have regard to - (i) (ii) the objectives and provisions of this Scheme; the orderly and proper planning of land within the Scheme Area;' These factors do not in their terms, encompass the proposed indemnification of the Council as a relevant consideration. 1.2 Case law There are numerous cases involving local authorities that have received applications from owners who wished to build or extend building located in flood prone areas. The local authorities in these cases proposed to grant approvals with the condition that the owners sign an indemnity releasing them from liability for any damages that may result. Demco Machinery co Pty Ltd v Parramatta City Council (1983) 8 APA 341 was a decision by the Land and Environment Court of New South Wales which dealt with an applicant who proposed alterations to existing buildings which were prone to flooding. The respondence local planning authority was prepared to consent but subject to certain conditions, including a condition requiring a deed of indemnifying the Council 'against all claims for damages, which might be made against [it] as a result of the flooding on the subject premises'. The Council sought the indemnity because of a genuine fear that legal liability might be incurred as a result of granting consent in respect of land known to be flood prone. The Court held that the conditions were beyond the Council's power because they did not reasonably relate to the proposed development or give effect to a planning policy or purpose. At p.350 of the report, Senior Assessor Bignold said - 'Even assuming that the respondent's apprehensions of incurring legal liability by virtue of the grant of development consent in respect of flood prone land are well founded (recent cases suggest that a public authority will be held liable if it negligently executes a statutory duty of considering and approving building applications); (see Sutherland Shire Council v Heyman [1982] 2 NSWLR 618, 50 LGRA 64; Wollongong City Council v Fregman [1982] 1 NSWLR 244, 46 LGRA 391; Dennis v Charnwood Borough Council [1982] 3 WLR 1064; and Carosella v Ginos & Gilbert Pty Ltd [1981) 27 SASR 515, 46 LGRA 51); the court is unable to agree that the disputed conditions are justified in the circumstances of this case. Essentially this is a conclusion that the disputed conditions (requiring indemnification of the respondence) are ultra vires either for the reason that they do not reasonably relate to the approved development or that they do not give effect to a planning policy or purpose.' The Court went on to conclude that it would also be contrary to public policy to permit a public authority to seek an indemnity while carrying out its statutory duties - 'Moreover, it would be contrary to public policy for this court to sanction any attempt by a public authority to execute its statutory duty by reference to considerations of its own indemnification and protection against the legal consequences of an actionable (for example: negligent) execution of that duty. Thus the proper approach for the respondent in determining a development application conformably to s.90 of the Environmental Planning
Page 1 and 2: Minutes of the Ordinary meeting of
Page 3 and 4: ORDINARY COUNCIL MINUTES - 28 MARCH
Page 13: ORDINARY COUNCIL MINUTES - 28 MARCH
Page 65 and 66:
ORDINARY COUNCIL MINUTES - 28 MARCH
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
show all

Minutes 28-03-01 - Shire of Shark Bay

Create successful ePaper yourself

Delete template?

Save as template?