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

                              (c)    analysis of the merits of the proposal; and
                              (d)    the policy and practical impacts, should the proposed development be approved.

                      Advice

                      5       Owner’s Consent

                      5.1     Section 51(2) of the PA states the circumstances in which the written consent of the owner of a
                              premises the subject of a development application must be given:
                                     ‘(2) The application must be accompanied by the written consent of the owner of the
                                     premises to the application, to the extent—
                                     (a) the applicant is not the owner; and
                                     (b) the application is for—
                                     (i) a material change of use of premises or reconfiguring a lot; or
                                                    (li) works on premises that are below high-water mark and are outside a
                                                     canal; and
                                     (c) the premises are not excluded premises’
                      5.2     It is not clear on what basis Stratum Legal asserted owner’s consent was required for the
                              proposed development, being operational works. Owner's consent is not typically required for an
                              operational works application unless the works are on premises that are below the high-water
                              mark and are outside a canal.
                      5.3     The term ‘Aigh-water mark’is not defined in the PA. It is defined in the Coasta/ Protection and
                              Management Act 1995 (Qld) as ‘the ordinary high-water mark at spring tides‘
                      5.4     The phrase *‘ ovts/de a cana/‘limits the requirement for owner’s consent only where operational
                              works such as a jetty are proposed seaward of the boundaries of an artificial waterway. In this
                              instance, consent to the application is not required unless the works were proposed outside the
                              lock and weir structure of the Noosa Waters Estate.

                      5.5     Accordingly, we are of the view that owner's consent was not required for the Development
                              Application.

                      6       Declaratory relief

                      6.1     The Notice of Appeal seeks declaratory relief pursuant to section 47(2) of the Planning and
                              Environment Court Act 2016 (Qld) (PECA).
                      6.2     The Appellants seek a declaration under section 47(2) of the PECA that:
                                     (a)     the Noosa Plan 2006 including amendments to 8 June 2018 (the Planning
                                             Scheme) in:
                                            (i)      Division 14 — Assessment table for development other than material
                                                     change of use Table 11.12 in Column 1, where it identifies the type of

                      60909286v2    |  Legal opinion — Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020 5

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