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

                       8       Noosa Plan 2020 assessment

                       8.1     As discussed below, future development at Portside for new jetties will involve both the Common
                               Property Lot and Lot 502 on RP839224 (Noosa Waters Lot). The Common Property Lot is
                               included in the Medium Density Residential Zone in the Noosa Plan 2020. The Noosa Waters Lot
                               is also in that same zone by operation of section 1.3.4 of the Noosa Plan 2020. Table of
                               assessment 5.5.2 categorises a Material Change of Use for a Landing as code assessable
                               development, required to be assessed against the Applicable Local Plan Code (Noosaville Local
                               Plan Code), Medium Density Residential Zone Code and the Waterways works code, as well as
                               requiring an operational works application.
                               Owner’s consent

                       8.2     Future development applications for any further jetties at Portside will require a material change
                               of use for a Landing, and as such require owner's consent with respect to ‘the premises’ to which
                               the application relates. As we noted in paragraph 5.1 above, the consent of the owner of the
                               premises is required for a material change of use application.
                       8.3     The concept of ‘premises’ in the context of section 51(2) of the PA means the land the subject of
                               the assessable development for which the approval is sought.22 In the case of a future application
                               for a jetty at Portside under the Noosa Plan 2020, the ‘premises’ would be the land the subject of
                               the material change of use for a Landing.
                       8.4     Given the jetty structure that is the key element of the Landing use would be located on the
                               Noosa Waters Lot and attached to the Common Property Lot, we are of the opinion that both the
                               Noosa Waters Lot and the Common Property Lot would form part of the land the subject of the
                               Landing use.
                       8.5     The real question is not whether consent is required, but who would be required to give consent
                               to such a development application.
                       8.6     The cases cited in the covering letter submitted with the Development Application supported a
                               proposition that the owners of Lots 1 and 2 (and the beneficiaries of the exclusive use areas
                               under the CMS) would have an exclusive right to receive rent for the area.2? Whether the party
                               who has the ‘exc/usive right to use and possess property prima facie has the right to its fruits and
                               profits is a different question, in our view, to whether a body corporate is required to give its
                               consent as an ‘owner’ to a particular development application under the PA.
                       8.7     In the case of Wright v Brisbane City Council(2008) QPELR 10, Rackemann DCJ held, with
                               respect to a case decided under superseded legislation, that although it is the owners of the lots
                               who own the common property as tenants in common, it is the body corporate which is the entity
                               that would be entitled to receive the rent for the lease of the common property in the event that
                               it were let to a tenant.”

                       8.8     Based on the Court's reasoning in Wright, it is our opinion that there is a persuasive argument
                               that the ‘owner’ of the Common Property Lot for the purposes of the PA is in fact the body
                               corporate.
                       8.9     While in our view, the body corporate is likely to be viewed as an ‘owner’ of the Common
                               Property Lot for the purposes of the PA, a separate question arises as to whether it is the owner

                       22 Bon Accord Pty Ltd v Brisbane City Council & Ors [2008] QPEC 119, [22].
                       23 North Point Brisbane [2012] QBCCMCmr 355, [105]-[111]; Baleda Pty Ltd v North Point Brisbane & Anor [2013]
                       QCATA 184, [68]-[82].
                       24 Ballada Pty Ltd v North Point Brisbane & Anor [2013] QCATA 184, [77].
                       25 at 12-13, [11]-[15].

                       60909286v2    |   Legal opinion — Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020 14

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