2021-05-11 Planning & Environment Committee Meeting Agenda

PLANNING AND ENVIRONMENT COMMITTEE MEETING AGENDA   11 MAY 2021




                                                    Page 27 of 64

PLANNING AND ENVIRONMENT COMMITTEE MEETING AGENDA                                                             11 MAY 2021

                                                                                                          ; | McCullough
                                                                                                          =|Robertson

                              than only one table, the Waterways Works Code provides specific guidance in relation to jetties
                              within Noosa Waters Estate.

                       8.14    Under the Noosa Plan 2020 s.5.3.3(4), code assessable development that complies with the
                               performance or acceptable outcomes complies with the purpose and overall outcomes of the
                               code.

                       8.15    Substantially similar provisions (PO19, AO19.6 and AO19.7) to the Noosa Plan 2006 have been
                               carried over — that is, the key operative Performance Outcome would be: ‘Development is
                               designed and constructed for the sole purpose of providing access to vessels and are sited and
                               designed to avoid—{(a) cluttering of waterways’. This does not give Council a clear mandate to
                               refuse applications on the basis that a maximum of 2 jetties per multiple-dwelling are allowed,
                               and access must be shared.

                       8.16    Despite the fact that three separate codes constitute the relevant assessment benchmarks for a
                               development application for a Landing at Noosa Waters under the Noosa Plan 2020, there would
                               still need to be an actual impact on the character, amenity or navigational safety of Noosa
                              Waters Canal as a result of the cluttering of the watercourse to warrant a refusal, in our view.
                       8.17.  The extent of the impacts caused by any future development applications would be a matter of
                              fact and degree and depend upon expert evidence being obtained in support of Council's position
                               in any future appeal.
                       8.18    If Council wishes to ensure that where a unit development has common property as canal
                              frontage, there are a maximum of two jetties per multiple dwelling, and that the jetties for
                               multiple dwellings must be shared between all owners, it may consider, via scheme amendment,
                               including more specificity in the overall outcome or performance outcome. This approach would
                               align with the performance-based planning system.

                       Recommendation

                       8.19   While elements of the Appellant’s case are, in our view, bound to fail, it is our view that the Court
                               is ultimately more likely to accept the Appellant's grounds for approval of the Development
                              Application as they relate to the merits of the application, when assessed against the O12 and
                               $12 provisions of the Planning Scheme noted above.
                       8.20   We recommend that Council attempt to resolve the Appeal at the mediation on 13 April 2021, on
                              the basis that the Appeal be allowed, but none of the declarations sought by the Appellant are
                               made. This would trigger a need for Council to propose a conditions package and any mediation
                               agreement could allow for that.
                       8.21    If Council wishes to limit the number of jetties on common property lots to two per unit
                               development and require sharing between all owners, it may consider seeking to incorporate
                              these limitations higher up in the hierarchy of scheme provisions in the Noosa Plan 2020 for body
                               corporate titling. That is more specificity could be incorporated in a performance outcome or
                               overall outcome in the Waterways Works Code. This would trigger a scheme amendment
                               process.
                       8.22    In any event, the fact that a Landing is a material change of use under the Noosa Plan 2020
                               means that the owner's consent to future development applications is required. This would
                               include the consent being needed from the body corporate of Portside. The Body Corporate could
                               decide not to give consent to the making of any future application. If it adopts that position it
                               need not provide reasons and there is no challenge available to a proponent with respect to an
                               adverse owner's consent decision.

                       60909286v2   |   Legal opinion — Australian Sunrise Citrus & Ors v Noosa Council - Appeal D209 of 2020 16

                                                                                                              Page 27 of 64