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

                                                                                                          S | McCullough
                                                                                                          =|Robertson

                                                      development as ‘carrying out operational works in Noosa Waters canal’;
                                                      and
                                             (ii)     Division 21 — Watercourses Works Code, Table 14 — 65 ‘Operational
                                                      Works within Noosa Waters canal’;
                                              incorrectly identifies the construction of a jetty in the Noosa Waters canal as
                                              operational work rather than building work;
                                      (b)     the reference to operational works in 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
                                                      development as ‘Carrying out operational works in Noosa Waters canal’
                                                      and
                                             (ii)     Division 21 — Watercourses Works Code, Table 14 — 65 'Operational
                                                      Works within Noosa Waters canal’

                                              should be interpreted to refer to building work rather than operational work for
                                              the purpose of this appeal; and
                                      (c)     the appeal be determined as an appeal in relation to a code assessable building
                                              works to be assessed against the Watercourses Works Code, Table 14 — 65
                                              Operational Works within Noosa Waters canal.’
                       6.3     Our view is that the prospects of the Court making the declaration sought are low, given that:
                               (a)    the declaration sought is not within the jurisdiction of the Court on Appeal
                                      (section 47(2));
                               (b)    even if the declaration was within the jurisdiction of the Court, there is no utility in
                                      making the declaration sought and it is therefore inappropriate to do so; and
                               (c)    even if the Appellants were able to satisfy the Court of (a) and (b) above, the declaration
                                      should not be made, because:
                                      (i)     the proposed development is operational works under the Planning Act 2016
                                              (Qld) (PA); and
                                      (d)     it would be incorrect for the Court to read a different type of development into a
                                              table of assessment as a matter of statutory interpretation.
                               Threshold question
                       6.4     It is our view that the declaration sought under section 47(2) of the PECA in relation to the
                               correctness of the Noosa Plan 2006 Planning Scheme falls outside this Court’s appeal jurisdiction
                               under section 47 of the PECA.?

                       6.5     Put simply, the Appeal is against Council’s decision to refuse an operational works application.
                               The correctness of the description of the Development Application is not within the gambit of the
                               Court's jurisdiction on Appeal from that particular decision.

                       3 See Perivall v Rockhampton Regional Council [2019] QPELR 96 ( Periva/f), at [31] to [65], in particular [58] to [60]
                       and [64] to [65] in relation to the Court's jurisdiction under section 47 PECA.

                       60909286v2    |  Legal opinion — Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020 6

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