2020-02-11 Planning & Environment Committee Agenda

PLANNING & ENVIRONMENT COMMITTEE MEETING AGENDA                               11 FEBRUARY 2020


However, not all conflicts are simple to resolve and many appeals will see the parties fundamentally
opposed to one another’s position and inevitably lead to appeals progressing to a full trial and
substantial costs for all parties.
The answer to the appeal cost issue and who bears this cost is not a complete reversal of the costs
rule as the SPA amendments led to, but is to simply broaden the exceptions to the existing cost
rules. It is not appropriate that councils and their communities have to expend such large sums to
defend their planning schemes when proposals significantly conflict with the planning scheme.
Given the Planning & Environment Court often refers to planning scheme conflicts in terms of
whether there is a minor or significant conflict when weighing up matters in an appeal it would be
appropriate that when the Court identifies a matter is of significant conflict with the planning
scheme, costs are awarded by the judge.
What is typically happening now, is that an application that is contrary to the planning scheme is
refused by Council with the applicant appealing to the Planning and Environment Court. Council
is then spending significant ratepayer funds to defend the planning scheme in court and in our
Council’s case, successfully defending our planning scheme. Yet in those cases, ratepayer funds
are being expended with no prospect of recovery of those costs despite the application being found
to be contrary to the planning scheme.
Experience of the Tribunal system has shown that while very cost effective for the appellant and
Council, a Tribunal is currently not the most consistent or rigorous system for hearing planning
matters. Members appointed to the tribunal are often not well versed or experienced in planning
law, which has resulted in some highly questionable Tribunal decisions and decisions that are
impactful for adjoining residents and lands. A greater level of appropriate experience when dealing
with planning matters for Tribunal members is considered warranted.
6.     Conclusion
Noosa Council has a very strong record of successfully defending planning appeals and its success
has been primarily due to excellent planning schemes, consistent decision making and a highly
experienced planning solicitor.
In the future, Council is likely to face more legal challenges, as developers seek to maximise the
financial benefit from remaining development capacity in the Shire. With the value of land generally
continuing to increase, there is more at stake financially in planning decisions, which encourages
more legal challenges. Generally only the more challenging development sites with constraints
are still to be developed and renovations, refurbishments and extension will be used to try and
justify further expansions and increased density.
The continuance of strongly defending planning decisions is one for the Council to consider, but
generally this approach has had support within the community and ensures the integrity of The
Noosa Plan is maintained.
However, the current cost provisions in the Planning & Environment Court Act 2016 requires a
comprehensive review before it becomes prohibitive to councils and their communities to defend
their planning scheme. Review is also required of the Tribunal system to ensure it remains cost
effective for appeals on small matters but is also a robust system that delivers consistent and
rigorous decisions.
It is therefore recommended that Council write to the Department of State Development,
Infrastructure and Planning calling for a review of the costs provisions in the Planning &
Environment Court Act 2016 and for improvements to the current Tribunal system.
Previous Council Consideration
Nil.
Finance
$1,000,000 has been budgeted for in legal and consultancy fees for planning appeals for the
2019/20 financial year.

                                                                                   Page 64 of 119