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

                               (a)    whether the Noosa Waters Canal has a ‘high-water mark’, which has previously been
                                      found to be a feature of tidal waters;!°
                               (b)    how often the tidal flows overtop the weir, including whether it is best described as
                                      ‘occasional’;"' and
                               (c)    whether the weir is a one-way flow system, or has flow reversal.
                       6.27    For the reasons that will become apparent in our analysis of the merits, we are not
                               recommending to Council that such an expert be retained to consider this issue.

                       7       Merits

                       7A      Table 11.12 of the Planning Scheme categorises 'Carrying out operational works in Noosa Waters
                               canal’as code assessable.
                       Wid:    The code assessable development is to be assessed against all the assessment benchmarks in
                               Column 3 of Table 11.12 of the Planning Scheme.!?
                       7.3     That means the proposed development must comply with Table 14.65 of the Watercourses
                               Works Code. Importantly, Table 14.65 only is nominated in column 3 of Table 11.12, not the
                               entirety of the code. Accordingly, the overall outcomes of the code are not assessment
                               benchmarks. That is somewhat unusual.

                       7.4     The key operative compliance provisions in the Planning Scheme provides that:
                               (a)    Development that complies with the overall outcomes of the code complies with the
                                      code; 3 and
                               (b)    development that complies with the probable solutions complies with the overall and
                                      specific outcomes of the code.'4
                       7.5     Council has instructed us that it is of the view the development does not comply with the
                               following provisions of the Watercourses Works Code:
                               (a)     14.161.2 — Overall Outcome (a);
                               (b)    Table 14.65: Specific Outcome 012(a); and
                               (c)    Probable Solution $12.6(a); (b).
                               As noted above, Overall Outcome (a) of the Watercourses Works Code cannot be relied upon as
                               an assessment benchmark for the purposes of assessing this proposal. The relevant assessment
                               benchmarks are set out below:

                                      ‘O12 Works for jetties are designed and constructed for the sole purpose of providing
                                      access to vessels and are sited and designed to avoid—
                                        a) cluttering of watercourses;

                       10 Boensch v City of Parramatta Council (No 2)(2019] NSWLEC 1381, at [87].
                       1 Nifsan Pty Ltd v Gold Coast City Counci/[1998] QPELR 66 at 118.
                       12 section 2.6.4(d)(i) of the Planning Scheme when read with Table 11.12.
                       13 section 2.6.4(d)(iiiia) of the Planning Scheme.
                       4 section 2.6.4(d)(iii)(b) of the Planning Scheme.

                       60909286v2    |  Legal opinion — Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020 10

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