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

                               of the ‘premises’ to which the application applies. Whether a body corporate’s consent is
                               required for the purposes of a development application has been considered by the Court on
                               numerous occasions. The key principles which can be distilled are:
                               (a)     “In any such scheme for the control of land use the two critical integers, land and use,
                                       each involves a question of definition, what land and what use?...it will be one of them,
                                       the integer of use, that will dictate the precise identity and extent of the other integer,
                                       the land the subject of the application’,*
                               (b)     that there is a legal connection between lot owners in respect of certain interests is not
                                       the question, but whether the connection is relevant to the use that is being applied
                                       for;?
                               (c)     the need to use common property for access purposes where individual lot owners in a
                                       strata titled unit complex applied for a material change of use of a unit is unlikely to give
                                       rise to a need to obtain the consent of the body corporate, because there was no
                                       ‘planned development upon the common property; 8
                               (d)     whether a physical structure is to be built on common property appears to be a relevant
                                       consideration; #
                               (e)     the ability of other lot holders and the body corporate to have an opportunity to have
                                       their respective interests considered through the submission process has been put
                                       forward as a reason for not requiring a body corporate’s consent to any application.°*°
                       8.10    Asa matter of fact, a jetty structure (similar to that proposed here) would need to be connected
                               to the Common Property Lot. The Common Property Lot is therefore an indispensable component
                               of the jetty use. In our view, it can be considered more than an ‘access lot’, and indicates there is
                               development planned upon the common property of Portside.
                       8.11    Applying the relevant principles, Council officers would have a strong case for requiring the
                               consent of both the Body Corporate, and Council as trustee of the Noosa Waters Canal, to any
                               future applications triggering a material change of use for a Landing at the Portside complex on
                               the basis that the premises to which such an application is made includes both of those lots.
                       8.12    This statutory owner's consent requirement in itself would prevent the mischief Council is
                               concerned about occurring in relation to the proliferation of jetties at Portside. In the recent case
                               of Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Counci{ [2021] QPEC 15, it was
                               accepted at paragraph [42] that the general purpose of requiring owner's consent is to enable an
                               owner of land to exercise control over matters that affect their land. We have considered this
                               issue primarily from the perspective of the Body Corporate for the Common Property Lot rather
                               than Council for the Noosa Waters Lot as, in our experience, most government agencies will give
                               owner's consent and assert regulatory control via the development assessment process which is
                               triggered.
                               Merits under Noosa Plan 2020

                       8.13.   While the Local Plan Code overrides the Zone Code and Works Code to the extent of any
                               inconsistency, and the jetty could be assessed against the entirety of these three codes, rather

                       26 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 501.
                       2? Bartlett v Brisbane City Counci/[2004] 1 Qd R 610 at 617, [18] (Bartleté).
                       28 Savage Vv Caitns Regional Counci{(2015] QPELR 848; Savage v Cairns Regional Councif[2016] QCA 103 at 108.
                       29 Trowbridge & Anor v Noosa Shire Council & Ors [2018] QPELR 501.
                       © Bartlett at [28].

                       60909286v2    |   Legal opinion — Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020 15

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