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

                               (c)     there is a relevant correlation between specific outcome O12 and probable solution
                                       $12.7, which are the only provisions raised against the Appellant by Council, which
                                       assumes all remaining provisions are complied with;
                               (d)     even if $12.7 may only provide guidance ‘/n part’to O12, it is the only ‘part’ in dispute for
                                       the purposes of the Appeal;'> and
                               (e)     where a code assessable development complies with all assessment benchmarks,
                                       approval is mandated by section 60(2)(a) of the PA.
                       DD      The Appellants allege that:
                               (a)     $12.6 and $12.7 are mutually exclusive, and $12.7 applies on the basis of the CMS
                                       exclusive use by-law; or
                               (b)     in the alternative that both are applicable because of the use of the conjunctive ‘AND’
                                       used between each provision.'®
                       78      In our opinion the better view is that $12.6 and $12.7 are mutually exclusive, based on figures
                               14.37 and 14.38, which depict distinct types of lot configurations in relation to the canal frontage.
                               These figures are as important to the interpretation of the assessment benchmarks as words in
                               the Planning Scheme.”
                       7.9     We see $12.6 as the applicable Probable Solution, because it applies to ‘unit developments with
                               common property along canal frontage’. S12.6 can be contrasted against $12.7, which applies
                               ‘where each unit has its own individual canal frontage.’ We share Council's view that the
                               proposed development is a unit development with common property along canal frontage,
                               because:

                               (a)     the Common Property Lot runs along the canal frontage in front of each individual unit lot
                                       (see Schedule 1);
                               (b)     the Common Property Lot is a separate registered title, capable of being distinguished
                                       from the unit lots on a title search;
                               (c)     the ‘exc/usive use areas’ are the function of a by-law which may be changed at any time
                                       by the body corporate, at its own prerogative;
                               (d)     the ‘exc/usive use areas’ do not negate that the Common Property Lot is owned by the
                                       owners of the Portside lots, as tenants in common, in shares proportionate to the interest
                                       schedule lot entitlements of their respective lots.1®
                       7.10    It is certainly arguable that the proposed development does not comply with S$12.6(b), though it
                               does appear to comply with all other limbs of the Probable Solution. A finding of non-compliance
                               would rely on a particular interpretation of ‘shared’ which is not inherent in the plain meaning of
                               the provision. That is, that S12.6(b) requires the jetty not just be ‘shared between unit owners’,
                               but be shared between all unit owners. This would involve an argument that a more unorthodox
                               approach to interpretation should be adopted by the Court.

                       15 See Andema Pty Ltd v Noosa Shire Council [2020] QPEC 46, [21].
                       16 See the Appellants’ particularised list of matters in support of approval.
                       17 Acts Interpretation Act 1954 (Qld), Schedule 1, definition of word.
                       18 Body Corporate and Community Management Act 1997 (Qld), section 35(1).

                       60909286v2    |   Legal opinion — Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020 12

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