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

                       7.11    In any event, if the Appellant can demonstrate that the proposed development is a consistent use
                              that complies with the specific outcomes, in our view it will comply with all of the relevant
                               assessment benchmarks.!9

                       7.12   The relevant Specific Outcome, 012, does not, on its face, appear to be breached by the
                               proposed development. That is, the approval of one jetty will not of itself lead to the ‘c/uttering of
                               watercourses’. In our view it is doubtful whether the Court would accept an argument that the
                              words ‘so/e purpose of providing access to vessels’ connotes something more than some access
                              to some vessels. However, an interpretation argument would need to be made that the phrase
                               should be read in the context of the definition of ‘access’in the Planning Scheme, which states:
                                      ‘access means the practicable means of entry for persons or vehicles—
                                      (a) from a constructed road to a Jot that abuts that road; or
                                      (bh) where provision is made for access by way of an easement, from a constructed road
                                      to a lot by way of an easement over contiguous land which abuts that road.’
                       7.13   As noted above, this would be an unorthodox argument, made to resolve ambiguity in how the
                               defined word ‘access’ should be applied in the context of 012, which relates to jetties on lots with
                               canal frontage.
                       7.14    In our opinion, it is more likely than not that the Court would find compliance with specific
                               outcome O12 in the circumstances, and therefore compliance with all of the assessment
                               benchmarks.

                               Impact of any non-compliance
                       7.15   The planning rationale behind the code seeks to stop the proliferation of jetties along the canal,
                              while still allowing for medium density residential development, to protect (1) character and
                               amenity, (2) navigational and operational efficiency and safety, and (3) access to the canal and
                               Noosa River by Noosa Waters residents.”
                       7.16    Even in the event that non-compliance with specific outcome 012 could be established, the
                               pertinent question then becomes whether approving this jetty, on the basis that it complies with
                              the code, prejudices future action Council may need to take in order to achieve this planning
                               outcome.

                       7.17   Weare instructed that further jetties will likely need to be approved at the Portside development
                               in future to service the residents there.

                       7.18    Even if non-compliance could be maintained, Council has the ability to approve the application
                               despite non-compliance.”
                       7.19   Alternatively, if the proposed jetty is approved, the residents within the Portside development
                               may seek a third jetty at the subject site. An application for a material change of use for a
                               Landing would need to be made under Noosa Plan 2020 as it would be code assessable.

                       19 Andema Pty Ltd v Noosa Shire Council [202] QPEC 46, [15] — [24].
                       20 On our reading of specific outcome O10.
                       21 Planning Act 2016, section 60(2)(b).

                       60909286v2   |   Legal opinion — Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020 13

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