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

                                              b.  otherwise—the point to which the high spring tide ordinarily flows and
                                                  reflows in the watercourse, whether due to a natural cause or to an artificial
                                                  barrier.

                                      2       A watercourse is a river, creek or other stream, including a stream in the form
                                              of an anabranch or a tributary, in which water flows permanently or
                                              intermittently, regardless of the frequency or flow events—
                                              a.  ina natural channel, whether artificially modified or not; or
                                              5.  inan artificial channel that has changed the course of the stream...
                       6.18   The reference to ‘canal’ in part 1(e) of the definition of tidal works is not the only interpretation
                               by which development in Noosa Waters can be considered tidal works, which the Appellant's
                               arguments do not seem to acknowledge.
                       6.19   We agree that Noosa Waters does not fit the legislative definition of ‘canal’ per section 9 of the
                               Coastal Act, as submitted by the Appellant, because access to the Noosa River is hindered by a
                               lock and weir structure:

                                      ‘9      Meaning of canal
                                              (1) Canal means an artificial waterway—
                                                  (a)     connected, or intended to be connected, to tidal water; and
                                                  (b)     from which boating access to the tidal water is not hindered by a
                                                          lock, weir or similar structure.’
                       6.20    Our position is that Noosa Waters is a watercourse for the purposes of the Water Act 2000, and
                              that it is affected by spring tides, based on Council's instructions to us.®
                       6.21    Based on the little evidence to hand, our primary view is that it is likely the Noosa Waters Canal
                               is tidal water under both limb (a) or limb (b) of the definition in the Coastal Act. The construction
                               of the jetty is therefore tidal works under limb (a)(i) of the Coastal Act definition.
                       6.22    Our alternative view is that the proposed jetty can be considered tidal works under limb (a)(ii) of
                              the Coast Act definition, because it say be subject to tidal water inflows from the Noosa River, as
                               a result of the nature of the lock and weir structure.

                       6.23    Because, in our opinion, the proposed jetty constitutes tidal works, it cannot be building work.
                       6.24   The proposed development is therefore operational work, as defined by the PA, which is a broad
                               definition. It means work, other than building work or plumbing or drainage work, in, on over or
                               under premises that materially affects premises or the use of premises.
                       6.25    In any event, the interpretation of the Planning Scheme by interpolating words, as proposed by
                              the Appellant as part of the declaratory relief sought, is incorrect, and would ordinarily be
                               rejected by a Court.?
                       6.26    Our preliminary view about the nature of the works is subject to confirmation from a water
                               expert about the tidal nature of the Noosa Waters Canal. In particular, it would be helpful to
                               know:

                       § Email from Daniel Wishaw to Kerri Coyle dated 22 January 2021.
                       ° Boral Resources (Qld) Pty Limited v Gold Coast City Council [2018] QCA 75.

                       60909286v2   |   Legal opinion — Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020 9

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