2021-03-09 Planning & Environment Committee Meeting Agenda

PLANNING & ENVIRONMENT COMMITTEE MEETING AGENDA                                         9 MARCH 2021


       -   pets must be managed and not cause a nuisance, including noise nuisance;
       -   store waste in containers; and
       -   grounds kept safe and tidy.
3.3   Legal advice
Legal advice was obtained on a number of matters and the proposed changes recommended in
this report. Specifically, advice was sought and confirmed the following:
      Council is not prevented from further regulating a premises which may be considered to enjoy
       existing lawful use rights.
      Existing use rights and development approvals are not affected by the introduction of the
       local law and remain regardless of suspensions or cancellations of a local law approval.
       Notwithstanding this, if there are infringements against the local law, the use rights can be
       suspended for a period of time pending the remedying of compliance matters or the granting
       of a further local law approval.
      If the scale or intensity of the use materially increases it could be subject to further regulation
       by Noosa Plan 2020.
      The local law cannot regulate or duplicate planning scheme matters and therefore regulating
       the scale and intensity of short stay use such as maximum occupancy and times of use of
       outdoor areas cannot be included in the local law as these matters are planning scheme
       matters.
      While the local law should not ordinarily make a person responsible for actions or omissions
       over which the person may have no control, the local law is drafted consistent with the
       fundamental legislative principles regarding the approval holder’s responsibilities. The
       process for enforcement under sections 17-19 in Local Law (Administration) No. 1 will be
       followed in this regard.
      The Body Corporate and Community Management Act (BCCMA) and the module regulations
       (being State laws) prevail over the local law. But, the BCCMA and the module regulations do
       not address the complaints time frame issue identified in the local law, so there is no
       inconsistency between the local law and the BCCMA / the module regulations.
      With regards to any conflict between the body corporate by-laws and the local law, section
       180(1) of the BCCMA provides that where a by-law is inconsistent with another Act (which
       includes a local law), the Act prevails to the extent of inconsistency. Consequently, even if
       the body corporate’s by-laws do address the complaints time frame, resulting in a conflict
       between the by-laws and the local law, the local law will prevail.
      In relation to the letting agent management agreement, it is contractual in nature. It is not a
       legislative instrument despite the fact that its creation is authorised by the BCCMA / the
       regulation modules. Accordingly, the local law overrides the management agreement.
3.4   Statutory process and public notification
The revised draft local law has been prepared following Council’s Local Law Making Policy and
requirements under the Local Government Act 2009.
Council’s Local Law Making Policy provides that where following public notification of the first draft
local law, if the proposed changes are substantial that further public consultation on the revised
draft local law be undertaken.
A four week public notification is proposed for the revised draft local law.
Following this, submissions made during the public notification period will be considered and a final
draft will be reported to Council for adoption, gazettal and commencement.
It is anticipated the local law will commence around July 2021, subject to finalisation and adoption
of the final local law.
Public Interest Test Plan
The revised draft local law contains anti-competitive provisions requiring compliance with the

                                                                                        Page 88 of 173