Council warned not to set Mooloolaba precedent
SUNSHINE Coast Council risked setting a precedent and sending a message its approvals were rubbery if it failed to act strongly in response to developments built contrary to relevant approvals.
University of Queensland property law expert Dr Chris McGrath said in those circumstance particularly where the alterations could deliver millions of dollars in additional value it should be fairly straight forward to prosecute.
"Compliance is a condition of approval,'' he said. "If they don't build according to the approved plan it should be a straight forward prosecution.”
Dr McGrath said purchasers who wanted to back out of contracts would have strong grounds to terminate in cases where the building did not comply with its approval.
Professor Chris Eves from the Queensland University of Technology agreed, saying if retrospective approval was given to developments built in variance with their DA others would quickly jump up and down and expect the same.
Those assessments come as the Mooloolaba Spit Protection Association (SPA) has called on the council to send a "severe message” to developers they should stay within the published Town Plan constraints and the approved plans and not treat them with "blatant disregard”.
"If this is not done, it simply indicates that the council is either unwilling or unable to represent the best interests of the community,'' SPA said in a release.
"SPA would like to encourage Council to honour their first priority which is to the community who have expressed their wishes through the Town Plan, and their responsibility to work on the community's behalf to be the stewards of Mooloolaba.”
Aria, developer of the Breeze apartment complex on the Esplanade at Mooloolaba ,which does not meet the terms of its Sunshine Coast Council approval, has submitted additional information sought by the local government body.
An independent architect will be appointed by council planners to look at that information and to provide an assessment.
Planning portfolio head Christian Dickson said the council had already refused one request from Aria after the fact for changes made to the Breeze development.
He said councillors would ultimately have to determine whether to give the developer what it wanted or consider a potential legal prosecution which would have the matter ultimately determined by a court's judgement.
Cr Dickson said council officers were in the process of gathering all the facts about the building in relation to its performance against the development application which applied to it.
SPA in a release said the fact all units in the complex had been sold from a "non-approved plan” implied a "level of confidence amounting to absolute certainty that council will retrospectively approve their non-compliance”.
"If Council gives Aria retrospective approval on the Breeze site, a precedence is set for all future developments at Mooloolaba,'' SPA said.
"It effectively confirms to developers that they are able to flout the rules to their advantage and then apply for retrospective approval, which will be granted as a matter of course since they have the support of the Sunshine Coast Council.''
It expressed concern for upcoming development on a number of key Mooloolaba sites.
Developer Aria has failed to respond to questions put by the Sunshine Coast Daily.
It was revealed last week Aria had applied late in construction seeking ratification for changes it had made to the original approved 57-unit development on the corner of Meta Street and the Esplanade at Mooloolaba.
The application was refused because the council determined the changes negated the very reason the project had won approval for a number of planning scheme concessions in relation to site coverage and private open space allocation.
The council did agree however to what it judged to be a number of minor changes made to the placement of ground level elements.
Units in the development sold out off a plan which reflected what has been built rather than what was approved.
Settlement had been expected to take place in November.