2021-05-11 Planning & Environment Committee Meeting Agenda

PLANNING AND ENVIRONMENT COMMITTEE MEETING AGENDA   11 MAY 2021




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PLANNING AND ENVIRONMENT COMMITTEE MEETING AGENDA                                                             11 MAY 2021

                                                                                                           | McCullough
                                                                                                          -|Robertson

                       Legal opinion
                       Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020

                        Executive summary

                        (a)   The declaratory relief sought by the Appellant is outside the jurisdiction of the Court, and in any
                              event unlikely to be granted, subject to expert evidence about the impacts of tidal waters on the
                              Noosa Waters Canal being obtained.
                        (b)   The merits of the Appeal are in favour of the Appellant. The Court would be unlikely to decide
                              the Appeal in Council's favour because of the lack of hard impacts relating to the proposed
                              development. It is likely the Court would find that the proposal complies with the relevant
                              assessment benchmarks and therefore must be approved.
                        (c)   However, the Appeal is not obviously doomed to fail. Should Council wish to progress the matter
                              to trial, intricate statutory interpretation arguments in support of a refusal position are open but,
                              in our view, are unlikely to succeed. Should Council wish to proceed, we suggest Counsel be
                              briefed to advise on the matter.
                        (d)   A resolution of the Appeal which resulted in approval of the proposed development would not
                              prevent Council from refusing future applications for jetties at Portside which caused a
                              ‘cluttering’ impact on the character and amenity of the watercourse. Future development
                              applications for jetties at Portside would be for a material change of use (code assessable) for a
                              Landing and operational works (code assessable) under the Noosa Plan 2020. The former would
                              be subject to obtaining the owner's consent, which would include the consent of the body
                              corporate of Portside. In other words, the body corporate of Portside would have greater control
                              on the lodgment of future applications in comparison to the current operational works
                              application.
                        (e)   We recommend that Council attempt to resolve the Appeal at the mediation on 13 April 2021, on
                              the basis that the Appeal be allowed, but none of the declarations sought by the Appellant are
                              made.
                        (f) | We have noted some strategic planning matters for Council's consideration at paragraphs 8.18
                              and 8.21 below.

                       Background

                       1       Proposed development
                       1.1    Australian Sunrise Citrus Pty Ltd wishes to develop a new jetty at the common boundary of the
                               exclusive use areas of units 1 and 2 of 4 Portside Court, Noosaville (being Lots 1 and 2 on
                               BUP 103414).
                       1.2    The jetty would benefit only the owners of units 1 and 2 of the ‘Portside’ apartment complex
                               (Portside). Portside is a complex of 20 units.
                      1.3     The continuous lot along the canal frontage is common property (Lot 0 on BUP103414), which is
                               allocated to various unit owners as exclusive use area under the Community Management
                               Scheme for Portside (CMS).

                       60909286v2   |   Legal opinion — Advice on Prospects - Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020

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