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

                       6.6     The declaration sought and the allegations relied on in support amount to an attempt at a
                               collateral challenge to Council's reliance on its own planning scheme during the development
                               assessment process, and to the validity of the Noosa Plan 2006 generally.
                       6.7     The declaration could be sought by way of originating application under the Court’s general
                               declaratory jurisdiction under section 11 of the PECA. Whether it could be established that the
                               Court's power to make the declaration sought is engaged under section 11 of the PECA in all the
                               circumstances is another matter, which we will not consider separately, but is likely answered by
                               our analysis below.
                               No utility
                       6.8     Further, there is no utility in the Court making the declaration sought. There is no dispute
                               between the parties that the Watercourses Works Code, Table 14 — 65 Operational Work in
                               Noosa Waters Canal, is the applicable code against which the proposed development should be
                               assessed.

                       6.9     There is no controversy to quell between the parties. The Appellant is seeking a form of ‘advisory
                               opinion’ from the Court for ulterior purposes. It should therefore be considered hypothetical and
                               not suitable for judicial resolution by way of declaration.*
                       6.10    Based on our analysis of recent relevant decisions of the P&E Court, the Court would be more
                               likely than not to refuse to make the declaration sought by the Appellant due to its lack of utility.
                               Substantive argument against declaratory relief — operational works
                       6.11    In any event, our view is the Court would not accept the substantive grounds raised in support of
                               the declaratory relief sought by the Appellants, as the interpretation approach taken to both (a)
                               the legislation generally; and (b) the Planning Scheme, is incorrect.
                       6.12    The first step in categorising any development is to determine what type of development it is by
                               reference to the definition of development in the PA:
                               (a)     carrying out:
                                      (i)      building work; or
                                      (ii)     plumbing or drainage work; or
                                      (iii)    operational work; or
                               (b)     reconfiguring a lot; or
                               (c)     making a material change of use of premises.
                       6.13    The Appellant alleges the proposed development, being construction of a jetty in Noosa Waters,
                               is ‘building work’ as opposed to the generally accepted (including by the Appellant during the
                               development assessment process) definition of ‘operational work’ in these instances. We pause to
                               note that this is only a position which has been raised in the Notice of Appeal. It was not the
                               original position of the Appellant, which made a development application for operational work.
                       6.14    Building work includes building a structure.®

                       4 Bass & Anor v Permanent Trustee Company Limited & Ors (1999) 198 CLR 334, 355-7 [45]-[49].
                       > Brassgrove KB Pty Ltd v Brisbane City Council[2019] QPEC 42, [38] — [42].
                       ® Planning Act 2016 (Qld), Schedule 2.

                       60909286v2    |   Legal opinion — Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020 7

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