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Pelican Noosa Pty Ltd v Noosa Council[2021] QPEC 11

Pelican Noosa Pty Ltd v Noosa Council[2021] QPEC 11

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Pelican Noosa Pty Ltd v Noosa Council [2021] QPEC 11

PARTIES:

PELICAN NOOSA PTY LTD T/A PELICAN BOAT HIRE

(appellant)

v

NOOSA COUNCIL

(respondent)

FILE NO/S:

186/2019

DIVISION:

Planning and Environment

PROCEEDING:

Appeal against the refusal of a change application for a minor change

DELIVERED ON:

3 March 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

22 February 2021, 23 February 2021, 24 February 2021

JUDGE:

Cash QC DCJ

ORDERS:

The order of the court is that:

  1. The parties are directed to bring in an order giving effect to my judgment on or before Wednesday 10 March 2021

CATCHWORDS:

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – CONTROL OF PARTICULAR MATTERS – GENERALLY –  where the appellant was successful in an application to extend a jetty – where the jetty was constructed longer than permitted and contrary to a setback – where the appellant submitted a change application following – where the respondent refused the change application – whether the change application was for a minor change – whether the change should be made

Noosa Plan 2006

Noosa Plan 2020

Planning Act 2016 (Qld), s 45, s 60, s 63, s 68, s 81, s 81A

Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 46

Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2004] QPEC 74; [2005] QPELR 318, 321, [20]

Brisville Pty Ltd v Brisbane City Council [2007] QPEC 63; [2007] QPELR 637, [13] & [39]

Catterall & Ors v Moreton Bay Regional Council & Anor [2020] QPEC 52, [60]

Emaaas Pty Ltd v Brisbane City Council [2014] QPEC 31; [2014] QPELR 579, 583 [15]

GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33; [2018] QPELR 1079, [65]

Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council [2001] QPELR 414, 416

Heritage Properties Pty Ltd & Anor v Redland City Council & Ors [2010] QPEC 19; [2010] QPELR 510, 512

Matijesevic v Logan City Council [1984] 1 Qd R 599, 605; (1983) 51 LGRA 51

Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5, [2007] QPELR 334, [6]

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; (2014) QPELR 686; 201 LGERA 82, [55]-[56]

Zumbo v Brisbane City Council & Ors [2020] QPEC 14, [4]

COUNSEL:

A N S Skoien for the appellant

B G Rix for the respondent

SOLICITORS:

P&E Law for the appellant

McCullough Robertson Lawyers for the respondent

Introduction

  1. [1]
    The appellant has the benefit of a marine facility lease on the southern bank of the Noosa River at Noosaville. In 2017 the appellant successfully applied to extend the jetty. The application was code assessable and required referral to a concurrence agency.[1] The concurrence agency mandated the development had to proceed ‘generally in accordance’ with plans attached to its response (‘the concurrence agency plans’). In October 2017 the Council approved the application, stipulating the development was to ‘generally comply’ with plans attached to the Council’s decision notice. These plans differed from the concurrence agency plans. They included a requirement that the extended jetty be set back 2.6 metres from the northern (seaward) boundary of the leased area. Condition 1 of the approval conveyed by the decisions notice also mandated that ‘[v]essels associated with the marine use of the facility must only be moored within the approved lease area’.
  1. [2]
    The renovation and extension of the jetty commenced and was effectively completed. By the middle of 2018 it was apparent that the jetty had not been constructed with a 2.6 metre setback. Instead, the northernmost part of the jetty, a pontoon, was within 3 to 8 centimetres of the northern boundary of the lease. On 12 October 2018 the appellant submitted a change application seeking to amend condition 1 of the approval and to make regular the jetty as constructed. The concurrence agency raised no objection to the change application, considering the jetty had been constructed ‘generally in accordance’ with the concurrence agency plans. The Council refused the change application in September 2019, saying that the works were not a minor change[2] and would in any event be refused as the works would be contrary to the relevant planning schemes.
  1. [3]
    This is an appeal against the refusal of the change application. There are four broad issues to be resolved. Two relate to the meaning of the approval. The other two issues concern the change application and are directed toward making regular the construction and use of the jetty in the event the first two issues are decided against the appellant. The four issues are:
  1. (a)
    Was the appellant obliged to construct the jetty extension with a 2.6 metre setback from the northern boundary of the lease?
  1. (b)
    Does condition 1 of the approval require vessels ‘using’ the jetty to be wholly within the bounds of the lease area?
  1. (c)
    Are the proposed changes minor changes according to the definition in the Planning Act 2016 (Qld) (‘the PA’)? and
  1. (d)
    If they are, should the application be approved?
  1. [4]
    Before dealing with these matters it is helpful to set out a description of the area and some of the background to the proceedings.

The jetty and its surrounds

  1. [5]
    The jetty and the surrounding area were described in the joint expert report of the town planners.[3] The relevant site is the lease area, being Lot 163 on CP907408. The total area of the lease is 1,705 m2 with overall dimensions of about 65 metres by 28 metres. The lease is subject to several conditions, including that the ‘lessee must ensure that the development and use of the land meets with the Planning Scheme, Local laws and requirements of the Noosa Shire Council, binding the lessee.’ The site is improved by a small building on the foreshore with a jetty extending around 50 metres to the north into the Noosa River. There are pontoons and other structures attached to the jetty. The appellant provides a number of services from the site. These include the hire of boats and other watercraft, the sale of bait, tackle and refreshments, and the sale of diesel and unleaded fuel to boats on the water. The jetty is also used as a stop for the Noosa Ferry service which stops up to 20 times each day. There are three ferries in the service. Each have a beam exceeding 2.6 metres, with the evidence suggesting they are about 4.5 metres wide.
  1. [6]
    The jetty is sometimes used as an irregular stop for other boat hire or charter services. There was also evidence that ferries refuel at the jetty once every couple of weeks and also that the local Australian Volunteer Coast Guard and Police vessels use the jetty to refuel. The appellant is the only provider of diesel fuel to vessels on the water between Mooloolaba and Tin Can Bay.
  1. [7]
    To the immediate east and west of the site there are other leases extending into the river. Each are of a broadly comparable size to the subject site and are used commercially. They are each improved by jetties and other structures, including in one case a restaurant. Further to the east there is a lease area containing a jetty from which unleaded fuel is sold on water. Further leases and jetties extend up and down river. Aerial photographs of these other leases suggest that, at some times at least, vessels using these jetties are tied up such that they are not wholly within the lease area. Whether or not this is contrary to either the relevant leases or approvals for those jetties is not something I can determine. In any event it is not a relevant consideration. In this regard I note the appellant introduced survey evidence from Max Watterson concerning the parking of boats at a number of other jetties. The evidence touched upon the topic of the use being made by others of their leases. It may have had some relevance to the issue of whether the change sought by the appellant would result in an increase of the severity of the impact of commercial development on the river. However, Mr Watterson’s evidence was scarcely mentioned at the hearing, and he was not required for cross-examination. The appellant has not referred to this evidence in its final submissions.
  1. [8]
    The application to extend the jetty was for operational works, being Prescribed Tidal Works within the Leased Area. The concurrence agency’s response included the imposition of a number of conditions, but these were primarily concerned with making sure the works to be carried out in the river were completed in an ecologically safe manner and ensuring continued safe navigation on the river. There were no conditions concerned directly with the commercial operation of the jetty once completed.[4]

The approval and different plans

  1. [9]
    As has been noted, the concurrence agency plans differed from the plans attached to the Council’s decision notice (‘the decision notice plans’). So far as these proceedings are concerned, the relevant difference is to the northern end of the jetty. The concurrence agency plans records an extension to the jetty of 17 metres abutting a pontoon that extends a further 3 metres. There is an appreciable gap between the pontoon and the northern boundary of the lease but, unlike other parts of the plan, no distance is specified. The decision notice plans record the same 3 metre wide pontoon, but the extension of the jetty has been reduced to 15.8 metres and there is a notation identifying a 2.6 metre setback between the pontoon and the northern boundary.
  1. [10]
    There is evidence that perhaps explains how these differences came to be.[5] On 9 and 10 October 2017, Council staff and the builder engaged by the appellant to construct the jetty exchanged emails. It may be inferred from this exchange that the Council had indicated that, if the proposed development included a setback of 2.6 metres, it could be approved by Council staff and would not require consideration at one of the Noosa Council’s statutory meetings. The selection of 2.6 metres as the setback may be attributed to an indication that this figure represented the widest vessel in the appellant’s fleet. Such a vessel could be moored at the northern end of the jetty while remaining within the boundaries of the lease. On 13 October 2017 the appellant submitted amended plans including the setback. These became the plans attached to the decision notice of 24 October 2017.
  1. [11]
    Once it was discovered that the jetty had not been built with a 2.6 metre setback, the Council issued a ‘show cause’ notice. This notice, issued in September 2018, alleged non-compliance with the plans, a breach of condition 1 and also suggested part of the new jetty structure was outside of the boundaries of the lease. Subsequent surveys showed the latter was not the case and this is not in issue. As noted above, the appellant made a change application in October 2018, which was refused by the Council in September 2019 and these proceedings were commenced by the appellant in October 2019.
  1. [12]
    I note in relation to the evidence of email discussion between the Council and the builder that I have been cautious not to attempt to discern from that exchange what was intended by either the appellant or the Council. The intention of the parties does not assist in the construction of the approval.
  1. [13]
    I turn now to the four issues in dispute.

Was the appellant obliged to construct the extension with a setback?

  1. [14]
    The answer to the first two questions are to be found by determining the true meaning and effect of the approval. The legal principles relevant to the interpretation of a development approval were not in dispute. They were helpfully summarised in the submissions of the Council which I adopt and set out below:
  1. (a)
    ‘The nature and extent of the approved development must be determined by construing the document of approval, including any plan or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes or helps to establish the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council’;[6]
  1. (b)
    ‘If one construction would advance the proposal while another would tend to frustrate it, then that may be an important factor in construing the true meaning of the approval’;[7]
  1. (c)
    A condition ‘ought to be construed in the context of the approval as a whole’;[8]
  1. (d)
    ‘The evident purpose of the condition or conditions of approval ought be considered in the construction process’;[9]
  1. (e)
    ‘In construing an approval a Court is not dealing with an Act of Parliament and an overly technical approach is not called for. The words should not be scrutinised in the same way as words used by the parliamentary drafts-person’;[10]
  1. (f)
    Where a planning approval is ambiguous it should be construed in a manner which places the least burden on the landowner.[11]
  1. [15]
    To these principles I would add that any limitations or restrictions should appear plainly in the approval and the consequences of a lack of clarity fall upon the approving authority.[12]
  1. [16]
    The appellant’s point concerning the requirement for a setback is a simple one: the concurrence agency plans contained no reference to a setback and the Council acted outside its power in purporting to impose a setback in the decision notice plans. The appellant says the setback was imposed contrary to section 62 of the PA which required the Council to ‘comply with the referral agency’s response’ and to include in the approval ‘conditions exactly as stated in the response’.[13] A difficulty with the appellant’s submission is that it wrongly treats the absence of a specified setback in the concurrence agency plans as the equivalent of a condition that there be no setback at all. The reality is different. The concurrence agency plans are simply silent as to the dimensions of any setback from the northern boundary. There is a space in the plans between the pontoon and the northern boundary of the lease, but no measurement is specified. This is to be contrasted with the various other measurements and notations found in the plans. The way the plans are drawn can only indicate there is no requirement one way or the other concerning the northern boundary of the lease. The Council imposed a condition, effectively at the request of the appellant, concerning a matter about which the concurrence agency had expressed no view at all. There is no inconsistency of the kind alleged by the appellant and it was within the power of the Council to require a setback.

What is the effect of condition 1 of the approval?

  1. [17]
    I have already referred to condition 1 of the approval. For convenience I set it out again:

Vessels associated with the marine use of the facility must only be moored within the approved lease area.

  1. [18]
    The appellant contends that this condition does not prevent a vessel temporarily tying up, even if the vessel is of such a width that it is partly within and partly outside the boundaries of the lease. The Council contends to the contrary, and seeks to assign to the word ‘moored’ a definition that would mean tying up of any duration is prohibited, unless the vessel is wholly within the boundaries of the lease.
  1. [19]
    There was some evidence from Ms Bobbie Corbett, a coastal engineer called by the Council, as to what she considered to be the definitions of ‘moor’, ‘berth’ and ‘dock’.[14] Ms Corbett drew upon the Australian Standards for a definition of berth. As for dock and moor, Ms Corbett relied upon the Merriam-Webster dictionary. The definition of berth in the Australian Standards is for the word as a noun. It is a reference to a space on the water where a boat may be stopped or stored. The Australian Standards acknowledge a berth may be temporary or permanent. The Merriam-Webster definitions of dock and moor cited by Ms Corbett are not materially different to those in the Macquarie Dictionary, at least so far as the use of the words as verbs are concerned. There is no temporal element in any of the definitions. It is plain that, according to common English usage, to berth, dock or moor could connote a state that is temporary, permanent, or anything in between.
  1. [20]
    There is little, if any, assistance to be gained from dictionary or other technical definitions of these words, especially in isolation. It is more helpful, and appropriate, to construe the condition in the context of the approval itself. As has been noted, the decision notice required the development to generally comply with the plans attached to the notice. These plans included two notations of present significance.[15] The first, pointing to the northern section of the jetty extension, read:

PROPOSED FERRY PASSENGER

WAITING AREA JETTY

REFER DETAILS FOR DESIGN

ELEMENTS

  1. [21]
    The second note was written on the drawing of the new pontoon to be located at the northern end of the extension, closest to the boundary of the lease. It read:

NEW PONTOON BY OTHERS

DROP OFF ONLY, NO MOORING AT ANY TIME

  1. [22]
    It could not be doubted that the Council were aware the Noosa Ferry Company used the jetty as a stop. The notes on the plan are a clear indication the plans contemplated continued use in this fashion. It is equally clear this use was approved by the decision notice, as is indicated by the reference to a ‘ferry passenger waiting area’ and the use of the northern pontoon for ‘drop off only’. Condition 1 has to be read in light of this approval. Such is consistent with the need to construe the approval sensibly, as a whole and having regard to its apparent purpose. Adopting this approach, an interpretation of condition 1 that allows it to work harmoniously with the balance of the approval is to be preferred. Read as a whole, the approval conveyed in the decision notice permitted temporary or short-term mooring by the ferries for the purpose of picking up or dropping off passengers, even if the vessel so moored exceeded the bounds of the lease. Once it is accepted the use for temporary mooring by the ferries was approved, it follows that other uses that are practically indistinguishable must also have been permitted. There is no sensible reason for distinguishing between temporary mooring by, say, a ferry and the same by another vessel. In this case, those uses would include other vessels coming and going from the northern pontoon or stopping temporarily to refuel.[16]
  1. [23]
    An alternative construction to be considered is whether the approval, including condition 1, means smaller vessels can moor but vessels exceeding 2.6 metres in beam cannot, even temporarily. There is little to commend such an interpretation. First, it would frustrate the approval of the use of the jetty as a ferry stop. That is true as a matter of present fact. It is true whether or not the Council were specifically aware of the beam of the ferries at the time of the decision notice. To construe the condition in this way would be inconsistent with what is conveyed by the plans. A second difficulty is the problems such an interpretation would introduce to the actual operation of the jetty. Enforcing a requirement that vessels only moor temporarily is more likely to be achieved than one which requires consideration of the beam of each vessel that seeks to moor. A third factor tending against this interpretation is that it would be contrary to the settled principles of construction set out above. It invites an overly technical approach to the meaning of the word moored and imposes a burden on the appellant where there is ambiguity in the approval.
  1. [24]
    Having regard to these matters, condition 1 must be taken to mean only that any vessel tied up on something other than a temporary basis has to be wholly within the lease area. The word moored, as used in the approval, prohibits such uses if they are in the nature of longer-term or permanent mooring. The approval does not mean that vessels cannot be temporarily tied up at the pontoon, such as when passengers are embarking or disembarking or they are refuelling. Despite this conclusion, there remains some scope for ambiguity in the application of condition 1. It is appropriate to give consideration to the proposed change to the wording of condition 1 so as to avoid future uncertainty.

The statutory assessment and decision making framework

  1. [25]
    Before considering the proposed changes to the plans and condition 1, it is convenient to describe the relevant statutory assessment and decision making framework.
  1. [26]
    These proceedings are governed by the PA and the Planning and Environment Court Act 2016 (Qld) (‘PECA’). The appeal is by way of a hearing anew.[17] The appellant bears the onus in the appeal.[18] The court is constrained when determining an appeal about a change application for a minor change.[19] Different statutory considerations arise depending on whether the change is for a minor change or not. A minor change is, relevantly, one that ‘would not result in substantially different development’.[20] The Development Assessment Rules, promulgated by the responsible Minister pursuant to section 68 of the PA, give some guidance as to what may result in substantially different development. The rules relevantly provide:

Schedule 1: Substantially different development

  1. 3In determining whether the proposed change would result in substantially different development, the assessment manager or referral agency must consider the individual circumstances of the development, in the context of the change proposed.
  1. 4A change may be considered to result in a substantially different development if any of the following apply to the proposed change:
  1. (a)
    involves a new use; or
  1. (b)
    results in the application applying to a new parcel of land; or
  1. (c)
    dramatically changes the built form in terms of scale, bulk and appearance; or
  1. (d)
    changes the ability of the proposed development to operate as intended; or
  1. (e)
    removes a component that is integral to the operation of the development; or
  1. (f)
    significantly impacts on traffic flow and the transport network, such as increasing traffic to the site; or
  1. (g)
    introduces new impacts or increase the severity of known impacts; or
  1. (h)
    removes an incentive or offset component that would have balanced a negative impact of the development; or
  1. (i)
    impacts on infrastructure provisions.
  1. [27]
    Reference to these rules is not expressly required by the legislation. Nevertheless, it is appropriate to have regard to the rules, while being mindful they do not represent an exhaustive list of the relevant considerations. Whether or not a change is a minor change is a question to be considered broadly and fairly.[21] The proposed change should be considered from a qualitative as well as quantitative perspective.[22] Ultimately, it is a matter of fact and degree whether the proposed change is a minor change.[23]
  1. [28]
    If the change application is for a minor change, it is to be assessed according to section 81 of the PA and decided according to section 81A. Section 81 requires consideration of a number of matters. These include the matters that would be considered if the change application were a development application.[24] As the development application was code assessable, it is necessary to have regard to sections 45(3) and 60(2) of the PA. Pursuant to section 60(2), if the proposed development complies with the relevant assessment benchmarks, or conditions can be imposed to secure compliance, the development must be approved. If the development does not comply it may still be approved.[25]
  1. [29]
    The planning scheme against which both the development application and the change application were assessed was the Noosa Plan 2006. This court must have regard to this scheme.[26] The 2006 plan has since been replaced by the Noosa Plan 2020. The court may give appropriate weight to the new plan,[27] but it was not suggested that the new plan evidenced some change in policy relevant to these proceedings. It is sufficient for present purposes to refer only to the 2006 plan.[28]

Is what the appellant proposes a ‘minor change’?

  1. [30]
    The two changes sought by the appellant are to remove the reference to a 2.6 metre setback in the decision notice plans and to amend condition 1 to make it plain vessels can use the northern pontoon for temporary mooring. The Council asserts three bases upon which it is said that the changes are not minor changes. The first is an allegation the changes introduce a new parcel of land into the approval. The second is that the changes will, or at least have the real potential to, increase the severity of impacts on the Noosa River and its users. The third is that the change is not minor when considered in the context of the relevant planning schemes.

Do the changes introduce a new parcel of land?

  1. [31]
    A major premise of the Council’s submission in this regard relied upon a conclusion that the approval did not permit vessels to operate from the northern pontoon unless they were wholly within the boundaries of the lease. As set out above, I have reached a different conclusion. Even so, the Council submits that removing the setback would result in commercial activity extending as much as a further 2.6 metres into the river when compared to the decision notice plans. These activities will include the loading and unloading of passengers from ferries and other vessels as well as refuelling. This is said to be a change of significant moment.
  1. [32]
    The extent to which commercial activity relating to a vessel that is partly within and partly outside the boundaries of the lease introduces commercial activity to another part of the river is not easy to determine. It may be accepted that the proposed change would extend commercial activity about 2.6 metres further than the original approval. It may also be accepted, as Ms Corbett said, that there would be a benefit in a 2.6 metre setback. But that is a different thing to a conclusion that making the change would incorporate a new parcel of land into the approval or otherwise result in substantially different development. Given my conclusion that the original approval permitted temporary mooring by vessels that were wider than 2.6 metres, and which would therefore protrude outside of the boundaries of the lease, the change would not introduce a new parcel of land or result in substantially different development.

Do the changes increase the severity of impacts on the river and its users?

  1. [33]
    The Council, quoting the evidence of Ms Corbett, submits that allowing the jetty to be 2.6 metres longer will ‘increase the scale and intensity of commercial operations in and around the lease area.’ One example given is that the extra length would permit the appellant to berth two extra vessels along the sides of the jetty.[29] That may be so, but it overlooks the fact that if the pontoon had been setback 2.6 metres from the boundary the appellant could have presumably berthed more vessels along the northern side while remaining within the boundaries. This would be so even if the Council’s interpretation of condition 1 were to be preferred.[30] In terms of the number of vessels that could be berthed at the jetty, they are no more, and may in fact be fewer, than if the decision notice plans had been implemented.
  1. [34]
    The other suggested impacts of stopping and refuelling relate to matters that I have found were permitted by the approval. Under the changes they will continue, but up to 2.6 metres further out into the river. This is not in itself significant. Ms Corbett calculated that this might result in the appellant effectively taking over between 70m2 and 200m2 of the river outside the boundaries of the lease, depending upon the beam of the vessels using the northern pontoon. From this Ms Corbett projected that if each of another 13 leases on the river gained a similar benefit it would reduce the available public space on the river by an alarming amount.[31] While I am conscious of the need to avoid the cumulative impact of individually insignificant changes, there is no proper basis for thinking the present change will result in a cascade of successful change applications. That is particularly so when, pursuant to the Noosa Plan 2020, a change of this kind would now require an approval for a material change of use.[32]

The planning scheme context

  1. [35]
    I accept, as was submitted by the Council, that the effect of the change application is to be considered in the context of the relevant planning documents.[33] I also accept that the Noosa Plan 2006 and 2020 evidence a clear intention that existing commercial activities on the Noosa River should not expand in size, should be confined to the bounds of their lease and must be assessed in light of their potential for cumulative impacts. However, the Council’s arguments in this regard again depend largely upon a conclusion that the approval did not permit vessels wider than 2.6 metres to operate from the northern pontoon. To the extent that the changes will result in activity outside the boundaries of the lease, the result is not very much different from what I have found was originally approved. While the changes would result in a degree of expansion of the area of the river affected by the appellant’s operations that is not in my view significant.
  1. [36]
    Having regard to these matters I am satisfied the appellant has established the changes would not result in substantially different development. The change application is for a minor change as that term is defined in the PA.

Should the court ‘make the change’?

  1. [37]
    The remaining question is whether the changes, assessed in accordance with the PA and relevant planning schemes, should be made. The appellant sought to draw some distinction between the operational works the subject of the development and change application and the use of the site, the implication being that the use was not conditioned by the approval and either need not be considered or was not of substantial relevance. An examination of the scheme shows why such a distinction does not exist. The work was code assessable. Specified assessment benchmarks in the Noosa Plan 2006 included those of the Noosaville Locality Code.[34] The specific outcomes called up under the Code, and their probable solutions, encompass the following (footnote omitted):[35]

Noosa River

O27 Commercial development on and adjacent to the Noosa River is designed to –

  1. a)provide for uses for marine facility purposes only;
  2. b)be compatible with the scenic values of the waterway;
  3. c)provide a high level of amenity, including ensuring low ambient noise levels;
  4. d)not increase the overall scale and intensity of commercial operations;
  5. e)ensure no additional commercial leases on the Noosa River;
  6. f)ensure no net increase in the gross floor area of buildings or structures;
  7. g)use materials, natural finishes and colours that blend with the surrounding natural landscape; and
  8. h)reflect the character and setting of the locality (such as timber and tin construction with a traditional pitched roof design).

O28 Commercial development does not extend beyond existing commercial lease areas.

O29 The loading and unloading of passengers is confined to the commercial lease areas of the respective commercial operation.

S27.1 No solution provided

S28.1 Development does not increase the overall footprint of commercial jetties and structures.

S29.1 No probable solution.

  1. [38]
    These provisions specifically require examination of the use of land as well as the nature of the works to be carried out. That is apparent from the need to consider, for example, whether the development provides for ‘uses for marine facility purposes only’ or if there is an increase in ‘the overall scale and intensity of commercial operations’. These parts of O27 give context to O28 and O29 as well. Read sensibly and as a whole,[36] the latter outcomes call for consideration of more than just whether the works themselves will exceed the boundaries of the lease. Read properly, the scheme calls for consideration of broader questions of use when assessing the application.
  1. [39]
    On this basis, the Council submits that there is non-compliance with the planning schemes. Relying upon the Noosa Plan 2006, it is said that the changes would not comply with overall outcome 11.7.2(hh) of the Noosaville Locality Code and specific outcomes O27, O28 and O29. The specific outcomes are set out in the table above. Overall outcome 11.7.2(hh) is as follows:

11.7.2 The overall outcomes sought for the Noosaville Locality are the following –

 

 hh) The Noosa River and foreshores are protected from the cumulative impacts of development and activities and are protected in a way that promotes and provides for low impact nature-based recreation activities in and around the Noosa River over other forms of recreation;

  1. [40]
    The Council submits that the changes would not comply with this overall outcome, especially when it is considered in light of the further context provided by the specific outcomes. Reliance is placed on the opinions of Ms Corbett and Mr Adamson to the effect that the change application:
  1. (a)
    Does not protect the river and foreshores from the cumulative impact of development (11.7.2(hh));
  1. (b)
    Does not provide for low impact nature-based recreation activities over other uses (11.7.2(hh));
  1. (c)
    Represents an increase in the scale and intensity of the marine facility operating at the location (O27);
  1. (d)
    Would permit commercial activity outside of the area of the lease where this was otherwise not permitted (O28 and O29).
  1. [41]
    The opinion expressed by Ms Corbett concerning the first of these matters is premised upon an assumption that if this change is allowed there is potential for changes to other jetties producing an overall loss of significant areas of the river. I have dealt with this matter at paragraph [34] above. To repeat myself, there has not been identified any real prospect that such changes to other jetties would follow, in part because of the way such a change would now be assessed under Noosa Plan 2020.
  1. [42]
    Mr Adamson was of the opinion that to allow the changes would result in commercial activity extending beyond the northern boundary of the lease.[37] This was said to be contrary to the overall outcome and aspects of the specific outcomes. It is to be remembered that I am dealing with the change application, not the original development application. In this regard I am concerned with the potential for an accumulation of negative impacts, and increase in scale and intensity of operation, resulting from the change application, and not whether the jetty should be extended from its original dimensions. Because I have concluded that the original approval contemplated the use of the northern pontoon by vessels that protruded outside of the lease area, an additional 2.6 metres of protrusion is not a real increase in scale or intensity. Nor would it be likely to result in an accumulation of negative impacts. Mr Adamson was of the view that the extension by 2.6 metres would allow the appellant to store more vessels at the jetty, increasing the scale and intensity of its use.[38] As I have already said, the original approval, even on the construction contended for by the Council, would have allowed the permanent mooring of vessels no wider than 2.6 metres against the northern pontoon. This seems likely to have resulted in the capacity to store even more boats than the jetty as presently constructed. The changes proposed by the appellant in this regard do not represent an increase in scale of intensity.
  1. [43]
    The Council submits, and it is probably true,[39] that the changes would allow commercial activity beyond the boundaries of the lease, contrary to O28 and O29. So much was conceded by Mr Lewis who was called by the appellant.[40] A similar use was already permitted by the original approval. In terms of the change there is little, if any, difference in the impact or scale of the activity. If the change application were to be assessed in isolation, that is as if it was an application to extend the jetty from its original dimensions, it would more likely result in non-compliance. But, as discussed below, any non-compliance of this kind should not result in the court refusing to make the changes.
  1. [44]
    There was little discussion of whether, and to what extent, preference was given to ‘low-impact nature-based recreational activities’. The identification of this consideration as a basis for declining to make the change appears to be derived from a statement of conclusion in the evidence of Ms Corbett where it was asserted that the change application ‘does not provide for low impact nature-based recreation activities over other uses.’[41] There was no explanation for this conclusion or a reference to the evidence to support it. There was some evidence that the appellant hires out kayaks and paddleboards, as well as powered craft. In the circumstances I can see no basis for concluding there is non-compliance with this aspect of the overall outcome.
  1. [45]
    The real concerns raised by the Council related to the extent to which there was an expansion of commercial activity into the river and an increase in its scale and intensity. To the limited extent there may be non-compliance with the Noosa Plan 2006 it is not of a serious kind. The changes proposed by the appellant would not be contrary to 11.7.2(hh) or O27. They may represent an extension of commercial activity outside the lease area, contrary to O28 and O29. But where some commercial activity outside the lease area was already approved, and the difference produced by the change is minor, this is not a reason to refuse the change application.
  1. [46]
    As has been observed, the 2020 plan is in sufficiently similar terms to mean it need not be separately addressed. Certainly, there is nothing in the new plan that would support the change application, but equally there is nothing in addition to the issues raised by the 2006 plan that would warrant its refusal.
  1. [47]
    The appellant pointed to the obvious benefits of allowing the ferries and other vessels to use the jetty as a passenger stop and to refuel. As I have construed the development approval, these are benefits that would exist whether or not the jetty was built with a 2.6m setback. They are not benefits that would result from the change application. Nevertheless, having regard to what I consider to be the minor nature of any non-compliance with the planning schemes, and the change itself, I am satisfied the changes should be made.

Summary and conclusion

  1. [48]
    I am satisfied the appellant has demonstrated the appeal should be allowed and the decision refusing the change application set aside. It is appropriate to make the change the appellant seeks in relation to the plans. It is also appropriate, to avoid future uncertainty, to amend Condition 1 to make it clear the northern pontoon can be used for temporary mooring consistent with my reasons at [17]-[24]. In the event this was my conclusion, I was invited by the parties to allow them the opportunity to consider my reasons and to propose a joint draft order to give effect my decision.[42] I direct the parties to bring in an order giving effect to my judgment on or before Wednesday 10 March 2021.

Footnotes

[1]The Department of State Development, Manufacturing, Infrastructure and Planning.

[2]Planning Act 2016 (Qld), Schedule 2.

[3]Mr Jack Lewis for the appellant and Mr Shane Adamson for the Council.

[4]The concurrence agency did provide advice about other State agency requirements concerning ship pollution and refuelling. These are not presently relevant.

[5]Exhibit 1, pp.54-55.

[6]Parramatta City Council v Shell Co of Australia Ltd [1992] 2 NSWLR 632; cited in Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2004] QPEC 74; [2005] QPELR 318, 321, [20].

[7]Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council [2001] QPELR 414, 416.

[8]Brisville Pty Ltd v Brisbane City Council [2007] QPEC 63; [2007] QPELR 637, [13].

[9]Ibid, [39].

[10]Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5, [6].

[11]Matijesevic v Logan City Council [1984] 1 Qd R 599, 605; (1983) 51 LGRA 51.

[12]Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council (No. 1) [2001] QPELR 414, 416.

[13]I note that the application was considered by the concurrence agency under the Sustainable Planning Act 2009 (Qld). It has not been suggested the repeal of this legislation and the enactment of the PA is of significance.

[14]Exhibit 8(a), especially at appendix H.

[15]These notations were also on the concurrence agency plans.

[16]The prospect of the northern pontoon being used for on-water refuelling is indicated by the note on the plans relating to a ‘secondary potential fuel bowser to accommodate deep draft vessels, river silting problems’.

[17]PECA, section 43.

[18]PECA, section 45.

[19]PECA, section 46(4); see also Catterall & Ors v Moreton Bay Regional Council & Anor [2020] QPEC 52, [60].

[20]PA, Schedule 2.

[21]Heritage Properties Pty Ltd & Anor v Redland City Council & Ors [2010] QPEC 19; [2010] QPELR 510, 512.

[22]Emaaas Pty Ltd v Brisbane City Council [2014] QPEC 31; [2014] QPELR 579, 583 [15]; Zumbo v Brisbane City Council & Ors [2020] QPEC 14, [4].

[23]GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33; [2018] QPELR 1079, [49].

[24]PA, section 81(2)(da).

[25]Brisbane City Council v Klinkert [2019] QCA 40; (2020) QPELR 579; [2019] QLR 12; (2019) 236 LGERA 88, [31]-[35].

[26]PA, section 81(4).

[27]PA, section 81(5).

[28]Each of the provisions of the 2006 plan relied upon by the Council has an equivalent in the 2020 plan.

[29]T.2-23.32-46.

[30]Assuming it is right that the widest vessels in the appellant’s fleet have a 2.6 metre beam.

[31]Exhibit 8(a), p. 10, lines 229-243.

[32]T.2-110.15; T.2-135.5-11.

[33]GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33; [2018] QPELR 1079, [65].

[34]Noosa Plan 2006, Part 11, Noosa Locality Plan, Table 11.12 (found in exhibit 6 at p. 99).

[35]Ibid, Part 11, Table 11.13 (found in exhibit 6 at p. 115).

[36]Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; (2014) QPELR 686; 201 LGERA 82, [55]-[56].

[37]Exhibit 7, p. 11 [27].

[38]Exhibit 7, p.9 [19(g)].

[39]The appellant makes an argument about where commercial activity ends in relation to a vessel docked at the pontoon. It is unnecessary to determine this point.

[40]T.2-107.15-34.

[41]Exhibit 8(a), p.17, line 405.

[42]T.3-22.20; T.3-25.20.

Close

Editorial Notes

  • Published Case Name:

    Pelican Noosa Pty Ltd v Noosa Council

  • Shortened Case Name:

    Pelican Noosa Pty Ltd v Noosa Council

  • MNC:

    [2021] QPEC 11

  • Court:

    QPEC

  • Judge(s):

    Cash QC DCJ

  • Date:

    03 Mar 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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