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Heather & Anor v Sunshine Coast Regional Council[2022] QPEC 37

Heather & Anor v Sunshine Coast Regional Council[2022] QPEC 37

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Heather & Anor v Sunshine Coast Regional Council & Ors [2022] QPEC 37

PARTIES:

JAY ANTHONY HEATHER

ELISABETH IRENE HEATHER

(applicants)

 

v

 

SUNSHINE COAST REGIONAL COUNCIL

(first respondent)

 

GLYNN EDWARD MOSELEY

KARRAN JAYNE MOSELEY

(second respondents)

FILE NO/S:

11/2021

DIVISION:

Planning and Environment

PROCEEDING:

Application for declarations and ancillary orders

DELIVERED ON:

7 October 2022

DELIVERED AT:

Maroochydore

HEARING DATES:

21 February 2022, 22 February 2022

JUDGE:

Cash DCJ

ORDERS:

The application is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION FOR DECLARATIONS OR ORDERS – REVIEW OF DECISIONS – where the respondent was successful in an application for prescribed tidal works to build a jetty – where the application was code assessable – where the application was approved and the jetty was constructed – where the applicant sought declarations and orders setting aside the  decision to approve prescribed tidal works – whether the decision was materially affected by legal error or was legally unreasonable

Coastal Protection and Management Regulation 2017 (Qld), Schedule 3

Planning Act 2016 (Qld), s 45, s 60

Planning and Environment Court Act 2016 (Qld), s 11

Planning Regulation 2017 (Qld), s 21, s 28, Schedule 8, Schedule 10

Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 132, [161], [191], [232], followed

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, [522], followed

Craig v South Australia (1995) 184 CLR 163, 179 [14], applied

Elias v Commissioner of Taxation (Cth) (2002) 123 FCR 499, [57], followed

Ferreyra v Brisbane City Council [2016] QPEC 10; [2016] QPELR 33, [7]-[9], [76], applied

Fraser Coast Regional Council v Walter Elliott Pty Ltd [2017] 1 Qd R 13, [40], applied

Friends of Buddina Ltd v Sunshine Coast Regional Council & Anor [2021] QPEC 57, [18], [19], applied

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123; 92 ALJR 780; 359 ALR 1, [30], [39]-[43], [74], applied

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40-41, applied

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225, [68], [75], [76], [105], [108], applied

COUNSEL:

A N S Skoien for the applicants

K W Wylie for the first respondent

P A Beehre for the second respondents

SOLICITORS:

P&E Law for the applicants

Sunshine Coast Council Legal Services for the first respondent

North Coast Law for the second respondents

Introduction

  1. [1]
    The applicants (the Heathers) and the second respondents (the Moseleys) own properties near each other on a canal in Minyama. The first respondent (the Council) gave the Moseleys approval to construct a gangway, deck and pontoon protruding into the canal. The works have been completed. The applicants are unhappy with the decision of the Council to approve the works. They challenge the decision, alleging it was affected by jurisdictional error. The questions presented by their application to this court are:
  1. (a)
    Was the decision materially affected by jurisdictional error?
  1. (b)
    Was the decision “legally unreasonable”?
  1. (c)
    If the answer to either of the first two questions is “yes”, what, if anything, should this court do?
  1. [2]
    For the following reasons I have reached the conclusion that the Council did not err in its decision and the first two questions must be answered in the negative. Consequently, it is unnecessary to answer the third question and the application must be dismissed.

Background

  1. [3]
    The Moseleys own a property at 1 Oak Court, Minyama (Lot 283). The lot is roughly trapezoidal. The property faces Oak Court to the south. The rear of the property, which is narrower than the front, faces north onto a canal. On 10 March 2020 an application was lodged on behalf of the Moseleys asking the Council to approve “an overwater deck with a pontoon and gangway attached” (which I will for convenience refer to collectively as the jetty, though it is really the pontoon and gangway that is of concern in this application). The Moseleys’ application was considered and on 27 May 2020 the Council decided it would be approved. A decision notice was issued, giving permission for Operational Works (Prescribed Tidal Works – Pontoon and Deck).
  1. [4]
    About a week later, on 6 June 2020, the Heathers contracted to purchase the property at 43 Mooloolah Drive (Lot 285). The contract settled on 7 August 2020. The Heather property is the first house to the west of the Moseley property. Oak Court and Mooloolah Drive intersect and are perpendicular. The Heathers’ lot is also roughly trapezoidal but the front faces Mooloolah Drive to the west and the rear faces onto the canal to the east. There is a concrete boat ramp adjoining the Heather property at the rear and protruding into the canal. The two properties are close but not precisely adjacent. Oak Park, a small public space, sits in the corner created by Mooloolah Drive and Oak Court and separates the properties. The park is wedge shaped, tapering toward the canal where it is at its narrowest. As such, the Heather property and Moseley property are practically adjacent at the canal. A person standing at the rear of the Heather property facing east would have the Moseley property to their immediate right. A person at the rear of the Moseley property facing north would have the Heather property to their immediate left.
  1. [5]
    The first property to the north of the Heather property is 45 Mooloolah Drive (Lot 286). This property already had the benefit of an approval for tidal works and there was (and is) an existing jetty structure at the rear of 45 Mooloolah Drive. The existence of this structure was relevant to any assessment of whether the proposed jetty unreasonably impeded navigable access to Lot 285 which, as will be discussed, was the critical question posed by the Moseleys’ application for the approval of tidal works.
  1. [6]
    Construction of the jetty attached to the Moseley property began in late June 2020 and was completed in early July. The Heathers’ settled the purchase of their property soon after the jetty was completed. In January 2021 they commenced this application to challenge the decision of the Council.

Framework for the Council’s decision to approve the works

  1. [7]
    The Council’s decision to approve the works was made by its delegate, Simon Aalbers. The works for which approval was sought were “tidal works”.[1] As such it constituted “assessable development” that was subject to “code assessment”.[2] The Council was the prescribed assessment manager.[3] Section 45 of the Planning Act 2016 (Qld) (PA) required the assessment to be carried out “only … against the assessment benchmarks”.[4] The sole assessment benchmark for this application was the “Code for assessable development that is prescribed tidal works” found in Schedule 3 to the Coastal Protection and Management Regulation 2017 (Qld) (the Tidal Works Code).[5] The assessment of the application by the Council was governed by section 60 of the PA, which is set out below.

60  Deciding development applications

…

  1. (2)
    To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment—
  1. (a)
    must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and
  1. (b)
    may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and

Examples—

  1. 1
    An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks.
  1. 2
    An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks and a referral agency’s response.
  1. (c)
    may impose development conditions on an approval; and
  1. (d)
    may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.

Example of a development condition—

a development condition that affects the way the development is carried out, or the management of uses or works that are the natural and ordinary consequence of the development, but does not have the effect of changing the type of development applied for

  1. [8]
    The reference in this provision to section 62 of the PA concerns the need for an assessment manager’s decision to comply with any referral agency response or conditions. While there was a referral agency for this application, and the agency provided a response imposing conditions,[6] it has not been suggested this raised any matter relevant to the present application.
  1. [9]
    It follows from sections 45 and 60 of the PA that the Council:
  1. (a)
    Could only have regard to the Tidal Works Code when assessing the proposed development;[7]
  1. (b)
    Was required to approve the application to the extent it complied with the assessment benchmarks in the Tidal Works Code;
  1. (c)
    Could impose development conditions on an approval; and
  1. (d)
    Could only refuse the application if compliance with the Tidal Works Code could not be achieved through the imposition of development conditions.
  1. [10]
    It is also to be noted that the statutory scheme made no provision for the applicants to make submissions or representations to the Council as part of the decision-making process. And, as will be discussed below, the legislative scheme makes no provision for persons in the position of the applicants to seek, by way of a statutory appeal, a review of the merits of the decision.

Legal principles governing this application

  1. [11]
    This is not an appeal against the approval or refusal of a development application. Nor is it an application for the judicial review of an administrative decision such as might be authorised by legislation like the Judicial Review Act 1991 (Qld), although there is considerable similarity in the legal principles to be applied.[8] The authority of the Planning and Environment Court to decide this application is derived from section 11 of the Planning and Environment Court Act 2016 (Qld) (PECA), which confers on the court a general declaratory jurisdiction. Where an administrative decision is materially affected by jurisdictional error, it is within the power of the P&E Court to declare the decision invalid and to make ancillary orders.[9] Such a power has been recognised in various iterations of planning legislation and is preserved despite the privative clause in section 231 of PECA.[10] But it is a power that is constrained, especially when compared to the powers of the P&E Court when dealing with a “planning act appeal”.[11]
  1. [12]
    It is important to note at the outset that this application presents no occasion to review the merits of the decision of the Council. As was observed in Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd[12]

The proceedings for declaratory relief … are analogous to judicial review proceedings. They are concerned with whether the impugned decision was validly made; they are not a merits appeal from fact finding. The Planning and Environment Court … is not empowered to simply set aside a decision of the Council and replace it with its own. The question for the court was whether the Council had acted beyond power. As a general rule, the declaratory power is no substitute for the appellate process. (Footnotes omitted.)

  1. [13]
    The narrowness of the inquiry in such cases was made clear by the High Court in Craig v South Australia[13] where it was said

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

  1. [14]
    As stated in the above passage from Craig v South Australia, it is necessary for an applicant for relief to demonstrate that the challenged decision was affected by the asserted error. In other words, the court may still deny relief if the error could not have materially affected the decision. A “breach of a condition [of the valid exercise of a decision-making power] cannot be material unless compliance with the condition could have resulted in the making of a different decision”.[14] The need for the error to have materially affected the decision is to be distinguished from the court’s residual discretion to deny relief, such as where it would produce no useful result. As explained by Edelman J in Hossain v Minister for Immigration and Border Protection[15]

Reference to the potential exercise of discretion where no useful result could ensue thus looks forward to the utility of another hearing. Although the residual discretion is not confined to being “forward looking”, it contrasts with the usual consideration of materiality, discussed above, which looks backwards to whether the error would have made any difference to the result.

  1. [15]
    It must also be noted that a corollary of the constraints upon the review of the Council’s decision is a restriction on the material that may legitimately be considered by this court. As was observed by Bowskill QC DCJ in Ferreyra v Brisbane City Council and Anor[16]

Because the scope of judicial review is confined to the legality of the decision, rather than the merits of it, ordinarily, material which was not before the decision-maker at the time of making the decision will not be admissible in a proceeding such as this.

Where, as here, the actual “decision” comprises a decision notice, with no statement of reasons, it is necessary to have regard to the process leading up to the making of that decision, and the various letters, reports, and other documents either provided to the Council, or generated by officers of the Council, which, in the absence of any indication to the contrary, may reasonably be inferred to have been the basis for the ultimate decision…

However, there is authority which supports the proposition that, in an application for judicial review that is based in part upon legal unreasonableness, expert evidence relied upon to rebut that contention (and therefore, also to support it) may be admissible, particularly where the subject matter of the impugned decision concerns specialised or technical matters, in respect of which expert evidence may assist the court. (Footnotes omitted.)

  1. [16]
    When, as here, an administrative decision is challenged on the basis that it was legally unreasonable, the court is concerned with whether the decision was within the bounds of legal reasonableness. The ambit of the bounds is to be discerned having regard to the scope, purpose, and objects of the statutory source of the power.[17] A finding of unreasonableness is not limited to decisions that are “irrational” or “bizarre”, or to decisions that no reasonable person could have reached. It may be sufficient to conclude that the decision was one that was unreasonable or plainly unjust,[18] though a court should not lightly interfere with an administrative decision on the ground that it is legally unreasonable.[19] It has been said that

unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power… Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[20]

  1. [17]
    The court, on review, will examine the decision-making process for the existence of “justification, transparency and intelligibility” and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law”.[21]
  1. [18]
    In this application the Heathers also assert that the Council failed to consider, or properly consider, or misconstrued, or misapplied, relevant assessment benchmarks.[22] Such a complaint may be understood as an allegation that the Council “asked itself the wrong question”[23] because it had regard to irrelevant considerations or ignored ones that were relevant. A relevant consideration is something the legislation governing the decision required to be taken into account. An irrelevant consideration is one “which, as a matter of construction of the legislative provision, cannot permissibly be taken into account”.[24] The weight to be given to each consideration is generally a matter for the decision-maker.[25] I accept as correct the proposition that

As long as the decision-maker considers those things that the legislation requires to be taken into account and ignores any prohibited consideration, the grounds of failing to take into account a relevant consideration, or taking into account an irrelevant consideration, will not be available. Nor are those grounds available where the essence of the complaint is that the decision-maker paid either too little or too much attention to a relevant factor…[26]

Assessment benchmarks

  1. [19]
    As I have mentioned, the sole assessment benchmark was the Tidal Works Code found in Schedule 3 to the Coastal Protection and Management Regulation 2017 (Qld). Before turning to the decision of the Council and the arguments of the parties, it is useful to note some parts of the Tidal Works Code as set out below.

Schedule 3 – Code for assessable development that is prescribed tidal works

Part 1 – Preliminary

  1. Purpose of code

The purpose of this code is to ensure prescribed tidal works—

…

  1. (f)
    do not cause a significant adverse effect to any of the following—
  1. (i)
    existing public use of, and access to, State tidal land or tidal water;
  1. (ii)
    navigable access to, or navigable egress from, any lot that adjoins, or is in the immediate surroundings of, a lot connected to prescribed tidal works;

…

  1. Definitions

In this code—

"acceptable outcome", for achieving a performance outcome stated in the table, column 1, means the acceptable outcome stated in the table, column 2 opposite the performance outcome.

…

"extended side boundary", of a lot connected to prescribed tidal works, means a notional boundary worked out by extending a side boundary of the lot into tidal water—

  1. (a)
    in a continuing straight line; or
  1. (b)
    if extending the side boundary into tidal water in a continuing straight line would reduce the width of navigable access to, or egress from, an adjoining lot to less than 3m or cause a significant adverse effect to navigational safety—at an angle that ensures—
  1. (i)
    the width of navigable access to, or egress from, any adjoining lot is not reduced to less than 3m; and
  1. (ii)
    no significant adverse effect is caused to navigational safety.

…

"performance outcome" means an outcome stated in the table, column 1.

…

"water allocation area", for a lot, means an area of State tidal land designated by the State, a local government or the Gold Coast Waterways Authority as an area in relation to which a development application for prescribed tidal works connected to the lot may be made.

…

…

Part 2 – Compliance with code

  1. How to comply with code
  1. (1)
    This code is complied with for prescribed tidal works if each performance outcome applying to the works is achieved.

…

  1. (4)
    An acceptable outcome … stated for a performance outcome provides a guide for how the performance outcome may be achieved.

…

…

Part 3 – Performance outcomes and acceptable outcomes

Table

Column 1

Column 2

…

Navigable access to, or egress from, lots that adjoin, or are in the immediate surroundings of, a lot connected to prescribed tidal works

Performance outcome

Acceptable outcome

  1. 10.1
    Prescribed tidal works that are for a private purpose do not adversely affect navigable access to, or navigable egress from, any lot that adjoins, or is in the immediate surroundings of, a lot connected to prescribed tidal works.

The design and construction of the prescribed tidal works is consistent with the following standards—

  1. (a)
    subject to paragraph (b), prescribed tidal works—
  1. (i)
    for a lot connected to the works for which there is a water allocation area —are not constructed outside the water allocation area; and
  1. (ii)
    for a lot connected to works for which there is no water allocation area —are no closer than 1.5m to that lot’s side boundary or extended side boundary;
  1. (b)
    if a relevant planning scheme standard is more stringent than the standard mentioned in paragraph (a) —the relevant planning scheme standard, to the extent it is more stringent than the standard mentioned in paragraph (a).
  1. [20]
    As may be seen from section 5(1), compliance with the Tidal Works Code will be achieved if there is compliance with the relevant performance outcome or outcomes. Under subsection (2), any relevant acceptable outcome will provide a guide for how the performance outcome might be achieved, but compliance with the acceptable outcome or outcomes is no substitute for compliance with the relevant performance outcome. For example, it is possible to imagine proposed tidal works that strictly comply with the acceptable outcomes while still unreasonably impeding navigable access. The opposite might also occur. There may be a proposal for tidal works that includes construction closer than 1.5 metres to a side boundary, but which do not adversely affect navigable access to and from adjoining lots. Such works would achieve the performance outcome and comply with the code. As I discuss below, this case is an example of the latter.
  1. [21]
    The Tidal Works Code makes it clear that whatever guidance is to be derived from the acceptable outcomes, the critical question for the Council was whether the tidal works achieved compliance with performance outcome 10.1 (PO 10.1).
  1. [22]
    Another matter to note concerns the requirement of PO 10.1 that tidal works “do not adversely affect navigable access to, or navigable egress from” adjoining or nearby lots. This requirement should not be seen in absolute terms and must be read as if the requirement were qualified by an adverb such as “unreasonably”. Were it otherwise the provision would prohibit practically all tidal works.[27] The applicants accepted that PO 10.1 is to be construed in this way.[28]

The Council’s decision

  1. [23]
    The document that triggered the Council’s assessment and decision was the development application lodged on 10 March 2020 by a company called Pontoon Works on behalf of the Moseleys.[29] The Council’s delegate who assessed and ultimately approved the application was Simon Aalbers. The Council relied upon an affidavit of Mr Aalbers[30] and he was called for cross-examination. His evidence established the following matters.
  1. [24]
    Approval was sought for works in a tidal area that were code assessable. When Mr Aalbers assessed the application as it was originally made, he was concerned that the works “would unduly impact upon the reasonable access to the canal for the owners and occupiers of Lot 285” (the Heather property at 43 Mooloolah Drive). On 30 April 2020 Mr Aalbers sent an information request to Pontoon Works.[31] Relevantly, Mr Aalbers wrote

The water allocation areas shown on the plan appeared to landlock the adjoining lots, particularly 43 Mooloolah Drive. Performance Outcome 10.1 of Schedule 3 of the Coastal Protection and Management Regulation 2017 requires that “Prescribed tidal works that are for a private purpose do not adversely affect the navigable access to, or navigable egress from, any lot that adjoins, or is in the immediate surroundings of, a lot connected to the prescribed tidal works”. Further, it is noted that the current design does not comply with the Acceptable Outcomes either, hence, in order to continue assessment of, and approve, the proposed works, we will require navigable access to be demonstrated in accordance with Performance Outcome 10.1 of the code.

  1. [25]
    Mr Aalbers referred to written guidance from the State Department of Environment and Science concerning the preparation of a water allocation area for tidal works, suggesting it would be of assistance, and continued

Compliance with this document, or some other method of demonstrating compliance with Performance Outcome 10.1 will be required in order to approve this design.

  1. [26]
    In response to this information request, the proposal was amended.[32] Pursuant to the new plans the gangway was to be a metre shorter and relocated about a metre to the east, creating a clearance of 6180 mm between the proposed jetty and the existing structure attached to lot 286 (the property to the immediate north of the Heathers). Mr Aalbers deposed that upon considering the revised plans, he was satisfied that PO 10.1 could be achieved with the imposition of conditions. The conditions the Council imposed (as relevant to this application) were
  1. Any marine craft moored to the approved structure must:
  1. (a)
    Not exceed the size shown on the approved plans
  1. (b)
    Only be moored in the location shown on the approved plans
  1. (c)
    Be moored such that it is at least 1.5m from the side boundary (or extended side boundary) of the water allocation area shown on the approved plans.
  1. [27]
    The plans depicted a vessel approximately six metres long and two metres wide moored on the western side of the jetty.
  1. [28]
    Mr Aalbers was cross-examined at the hearing of the application. What follows is a summary of the relevant parts of his testimony. Mr Aalbers confirmed that he did not assess the application on the basis that the Heather property had a water allocation area,[33] but as part of his assessment he did treat the property to the north (Lot 286) as having a water allocation area.[34] In considering navigable access to the Heather property, Mr Aalbers did not consider the use of any particular type of vessel. That was because the Tidal Waters Code did not provide for a design vessel.[35] Some of Mr Aalber’s questioning on this topic bears setting out in full:[36]

MR SKOIEN: … What I’m suggesting to you is that once you had identified that there was a gap of a certain and appropriate width between the pontoon[37] and the proposed pontoon, to get into that water area in front of Lot 285 [the Heather property], you didn’t perform any further assessment in relation to how that area will be utilised for the purpose of access on to Lot 285 because you didn’t have any design – it wasn’t within your capacity and you had no design vessel to use for that purpose?‑‑‑Yeah.

All right.  Just because that was a – somewhat of a double-barrelled question, you’ve agreed with me there’s – there was no design vessel that – in relation to which you could perform that exercise, firstly;  yes?‑‑‑Yes.

And because of the absence of that, you didn’t perform any assessment of the use of that water for manoeuvring to get access to it, because you didn’t have that designed?‑‑‑In terms of the area, I suppose, for clarity, but it was – it was more than just the clear canal width that I considered.  So I did consider the physical bounds of that water area.

Yes?‑‑‑Yes.

And in considering the water at the bounds of that water area, that didn’t involve – sorry, that actually involved assessment against consideration for water allocation areas.  That was how you approached it, wasn’t it?‑‑‑True, yes.

Yes.  It didn’t involve assessment against manoeuvring of any particular vessel of any particular size at all?‑‑‑Correct, yeah.

  1. [29]
    Later in his evidence, Mr Aalbers said that he considered PO 10.1 to refer to navigable access to a lot, rather than to structures on the lot.[38] In terms of navigable access, Mr Aalbers considered both the capacity of a vessel to fit between the existing structure at Lot 286 and the proposed jetty at the Moseley property, as well as whether the proposed jetty impinged upon the extended side boundaries of the Heather property.
  1. [30]
    Mr Aalbers said that he relied upon the dimensions shown in the plan that accompanied the development application to ascertain the space between the existing pontoon at Lot 286 and the proposed jetty.[39] He went on to explain that he had regard to a document published by the Queensland Department of Environment and Science titled “Preparing a water allocation area for tidal works in natural waterways – Guideline for coastal development” (“the guidelines”).[40] Mr Aalbers considered this publication of assistance in determining how to allocate extended side boundaries of properties that are constrained by their geography, such as in the present case. In the absence of any other guideline, Mr Aalbers considered the document to be of assistance even though it applied to natural waterways and not to canals.[41] His reference to the publication was also informed by his treatment of the area where the proposed jetty was to be built as an “informal” water allocation area, even though one had not been designated.[42]
  1. [31]
    The plans considered and approved by Mr Aalbers included lines drawn to indicate extended side boundaries (in accordance with the definition in the Tidal Works Code) and showing a 1.5 metre setback.[43] Mr Aalbers treated the area bounded by the extended side boundaries as an “informal” water allocation area and looked to see how the proposal fitted in comparison to the guideline document.[44] He did not undertake a “full” assessment of the the application against the guidelines as Mr Aalbers was concerned with the question set by PO 10.1 – did the proposed works adversely affect navigable access to and from the Heather property?[45] Mr Aalbers did not accept that he had assessed the proposal as if the Moseley property had the benefit of a water allocation area, concluding that because there was compliance with AO 10.1(a)(i), the proposal had to be approved. He maintained this position even when shown a later email written by Mr Aalbers in which he (wrongly) stated that the proposal complied with AO 10.1(a)(i).[46] Mr Aalbers was frank in his acknowledgement that he had little direct recollection of the assessment process undertaken in the first half of 2020[47] and conceded the possibility that he considered there was compliance with AO 10.1(a)(i). In answer to a question I asked, Mr Aalbers said that in any event he assessed the proposal against PO 10.1 and considered it complied with that outcome.[48]
  1. [32]
    In relation to the conditions imposed on the approval, Mr Aalbers said it was “fair comment” to say they were imposed because of concerns about use of the water area adjacent to the Heather property.[49] In re-examination Mr Aalbers confirmed that he considered the gap between the proposed jetty and the existing structure at Lot 286 provided sufficient access to the water adjacent to the Heather property and that there was an area for manoeuvring.[50]

Other evidence in the hearing

  1. [33]
    As well as the evidence of Mr Aalbers summarised above, the applicants tendered correspondence written after the decision to approve the proposed works had been made. This correspondence appears to have been generated because of complaints made by the applicants to the Council. The relevance and admissibility of the correspondence was in issue.[51] The applicants first submitted that I should have regard to some of what was later written as being the reasons for the decision. The Council and the second respondents resisted this notion. In final submissions the applicants moved away from that position and accepted the relevance of the correspondence was limited in the light they might shed on what Mr Aalbers actually considered, or did not consider, when he made the decision.[52] That is, the fact Mr Aalbers wrote the information request on the one hand, or the later email referring to AO 10.1 on the other, is a relevant matter to consider when deciding if his evidence is to be accepted.
  1. [34]
    In the circumstances it is unnecessary to summarise the correspondence apart from that authored by Mr Aalbers and referred to above.
  1. [35]
    Mr Jay Heather gave evidence for the applicants and Dr Moseley for the second respondents. Each testified about events after the construction of the Moseley’s jetty. It is fair to say each hold strong views about the merits of the Council’s decision to approve the works. Their evidence was said to be relevant to what Edelman J in Hossain described as the “residual discretion”.[53] As I do not consider the decision of the Council was legally unreasonable or affected by error, the “residual discretion” does not arise for consideration, and it is unnecessary to summarise this evidence. I would, however, observe that the evidence was of the impressions or opinions of Mr Heather and Dr Moseley as non-expert witnesses and each with an interest in the outcome of the application. Even if a question of the “residual discretion” arose, their evidence would have carried very little weight in deciding the utility of granting the orders the applicant sought.

The matters in issue

  1. [36]
    The submissions of the applicants identified four areas said to justify setting aside the decision of the Council. Put broadly, those four issues were:
  1. An error that resulted from the misapplication of AO 10.1.
  1. An error in the assessment of PO 10.1 because the Council did not consider the need to manoeuvre vessels near the Heather property or navigable access to the boat ramp on the Heather property.
  1. The decision itself is legally unreasonable.
  1. The conditions attached to the approval are also unreasonable and show the decision to approve the works was one no reasonable decision maker could have reached.
  1. [37]
    I will deal with each issue in turn.

Misapplication of AO 10.1?

  1. [38]
    The applicants argued that the decision of the Council miscarried because AO 10.1 was misapplied. The essence of the argument was that Mr Aalbers wrongly concluded the proposed jetty complied with the relevant parts of AO 10.1, then compounded the error by deeming this to be compliance with PO 10.1.
  1. [39]
    As to the first point, there is some evidence to support the theory that Mr Aalbers thought the proposed jetty complied with AO 10.1(a)(i), which is concerned only with works involving a water allocation area. Indeed, that is what Mr Aalbers wrote in an email a few months after the works were approved. But Mr Aalbers testified that his statement in the email was in error, and he did not at the time of the decision consider the proposed works complied with AO 10.1. I accept Mr Aalbers evidence in this regard. It is more likely to be the true position for the following reasons. First, there can be no doubt that Mr Aalbers was aware that the ultimate question he had to answer was that posed by PO 10.1 – would the proposed works adversely affect navigable access to and from the Heather property? This is established by Mr Aalbers evidence and confirmed by the information request he sent in April 2020 where the matter was directly raised. A consequence of the query sent by Mr Aalbers was a change to the design, shortening the gangway and moving the structure to the east. Upon considering the revised plans Mr Aalbers “became satisfied” the proposed works complied with PO 10.1. This too suggests consideration of the relevant performance outcome.
  1. [40]
    Secondly, Mr Aalbers testified that he knew there was no formal water allocation area for the Moseley property. That being the case he must have known, at the time of the decision, that AO 10.1(a)(i) was inapplicable. Mr Aalbers did refer to water allocation areas, but I am satisfied that was in the context of seeking guidance when assessing works near lots that had constrained access to the canal. In the absence of other binding or applicable guidelines or standards, it was appropriate for Mr Aalbers to consider the approach to be taken in relation to tidal works for lots with constrained access and the benefit of a water allocation area. The resort to the guidelines explains Mr Aalber’s references to water allocation areas, whether “formal” or “informal”, in the decision-making process.
  1. [41]
    It appears to me that Mr Aalbers statement (in the email of 29 July 2020) to the effect that the proposed works complied with AO 10.1 was an unfortunate error. This error was repeated in other correspondence from the Council, but the repetition does not affect my conclusion that Mr Aalbers did not assess the application on the basis that it complied with AO 10.1. Instead, he properly assessed the proposed works against PO 10.1. That being the case, the applicants’ submission that Mr Aalbers wrongly deemed compliance with AO 10.1 as compliance with PO 10.1 falls away.
  1. [42]
    The applicants made a related submission to the effect that the proposed works did not in fact comply with AO 10.1(a)(ii). This provision was relevant because there was no water allocation area for the Moseley property. AO 10.1(a)(ii) was achieved if the works were “no closer than 1.5m to [the] lot’s side boundary or extended side boundary”. The applicants point to the approved plans and note that the gangway part of the jetty appears to be within the 1.5 metre buffer zone on the eastern side (the side further away from the Heather’s property). This may mean that the proposed works did not comply with AO 10.1(a)(ii). But it is to be remembered that the acceptable outcomes only provide a guide for how the performance outcome might be achieved. Compliance, or non-compliance, with an acceptable outcome does not end the enquiry for the decision maker. Non-compliance may be a weighty matter, but if in the end the decision maker considered the proposed works complied with PO 10.1, they had to be approved.[54] Here the failure to comply with AO 10.1(a)(ii) (if that was the case) was inconsequential. It concerned the eastern side boundary of the Moseley property, which could not conceivably affect navigable access to the Heather property to the west. If there was non-compliance, it is of a kind that did not prohibit a conclusion that the proposed works complied with PO 10.1.
  1. [43]
    In my view there was no misapplication of any acceptable outcome.

Error in the assessment of PO 10.1?

  1. [44]
    The applicants assert that there was no consideration of PO 10.1.[55] An alternative submission is that the Council erred by not considering navigable access to the boat ramp at the rear of the Heathers’ property. The first assertion may be dealt with briefly. For the reasons I have already set out, I accept the evidence of Mr Aalbers that he considered PO 10.1 and assessed that the proposed works complied. Any suggestion to the contrary must be rejected. That leaves for consideration the alternative submission of the applicant. This submission may be understood as a claim that Mr Aalbers did not have regard to a relevant consideration, namely access to and from the Heathers’ boat ramp.
  1. [45]
    As I have already observed, a relevant consideration (in the context of the present application) is one that the decision maker was bound to take into account. It may be further observed that “[w]hether a decision-maker is bound to take a particular matter into account is determined by the construction of the statute conferring the discretion”.[56] To obtain relief on this basis, the applicants must demonstrate:[57]
  1. (a)
    first, the alleged relevant consideration was, as a matter of law, to be regarded as … a consideration which the [decision-maker] was bound to take into account in the exercise of power;
  1. (b)
    second, the decision-maker failed to take the relevant consideration into account;
  1. (c)
    third, because of the materiality of the consideration, the proper exercise of discretion would be to set aside the decision and to order it to be re-exercised.
  1. [46]
    It is the case that Mr Aalbers did not consider the manoeuvring of vessels in the water near the Heather property, or access to works or structures associated with it. That is demonstrated by Mr Aalbers own evidence.[58] But to succeed, the applicants must show that it was necessary for Mr Aalbers to consider the ability of a vessel to manoeuvre in the water adjacent to the Heather property and to access the boat ramp. The answer to this issue is to be found in the terms of the relevant statutory material.
  1. [47]
    Code assessment pursuant to the PA is to be carried out against the “assessment benchmarks”. As earlier discussed, PO 10.1 was the only relevant benchmark engaged by the Moseley’s application. The terms of PO 10.1 bear repeating.

Prescribed tidal works that are for a private purpose do not adversely affect navigable access to, or navigable egress from, any lot that adjoins, or is in the immediate surroundings of, a lot connected to prescribed title works.

  1. [48]
    In this instance the lot connected to the prescribed tidal works was the Moseley property. The Heather property does not adjoin the Moseley property, but it is in the immediate vicinity. The only requirement then imposed by PO 10.1 is that the prescribed tidal works do not adversely affect navigable access to or from the lot.[59] The express terms of the provision do not require a consideration of access to or from any improvements on the lot, or of an ability to manoeuvre a vessel in the water adjoining the lot. The question then becomes whether such requirements arise by implication considering the terms of the Tidal Works Code.
  1. [49]
    The stated purpose of the Tidal Works Code in Schedule 3 does not greatly assist. It provides:

The purpose of this code is to ensure prescribed tidal works—

  1. (a)
    are compatible with the character and amenity of their surrounding area; and
  1. (b)
    are designed and constructed in a way to ensure they are structurally sound; and
  1. (c)
    are safe for their intended use; and
  1. (d)
    are adequately serviced with infrastructure, including, for example, infrastructure for the supply of water or the discharge of sewage; and
  1. (e)
    involve only minimal use of State tidal land for a private purpose; and
  1. (f)
    do not cause a significant adverse effect to any of the following—
  1. (i)
    existing public use of, and access to, State tidal land or tidal water;
  1. (ii)
    navigable access to, or navigable egress from, any lot that adjoins, or is in the immediate surroundings of, a lot connected to prescribed tidal works;
  1. (iii)
    the natural features of tidal water, including, for example, the water quality and bed and banks of the tidal water;
  1. (iv)
    the structural integrity, operation or maintenance of any existing structure.
  1. [50]
    As may be seen, (f)(ii) merely repeats the requirement of PO 10.1.[60] No assistance is gained by reference to other parts of the purpose of the Code.
  1. [51]
    The applicants assert that the construction they prefer is “entirely consistent with the clear purpose of the provision, being to ensure access to, and from, waterbodies … is not adversely affected by new prescribed tidal works”. This is no more than a restatement of the words of PO 10.1 and does not present an argument as to why additional requirements to consider access to the boat ramp and vessel manoeuvring are to be read into the provision. The applicants refer to no textual considerations in support of their contention.
  1. [52]
    I do not accept the applicants’ submissions concerning the construction of PO 10.1. There is no reason to read additional requirements into the provision and to do so would have the potential to create difficulties. In oral submissions Mr Skoien agreed that his construction would mean

the decision maker was required to consider the sorts of vessels that might be used by adjoining or nearby lots, having regard to the existing facilities at those lots, in order to decide if the navigable access was significantly adversely affected.[61]

  1. [53]
    An obligation to consider the sorts of vessels that might be used by nearby property owners to access their lots raises obvious and difficult questions about how this is to be decided. Is the decision-maker to decide the vessels that might be used based on their own experience? Or are they obliged to seek advice from those experienced in the operation of watercraft? Are they to seek information from the occupiers of nearby lots to see what sort of vessels they have, or think they might use? The answer as to what sorts of vessels might use tidal works will vary substantially depending on the inquiry that is made. Variance of this kind would not sit comfortably with the application of a code to assessable development. It may also be observed that such inquiries are in no way contemplated by the Tidal Works Code, which does not provide for any kind of standard or design vessel against which assessments are to be made. The uncertainties that would attend inquiries of this kind provide a good reason for concluding they are not implicitly required by the Code.
  1. [54]
    Similar difficulties face the applicants’ contention that Mr Aalbers was required to have regard to the ability of a vessel to manoeuvre in the water adjacent to Lot 285. If such an assessment was required it would have entailed consideration of, and decisions about, the types of vessels that might be used in the water adjacent to the Lot. For the reasons set out above such a requirement cannot be implied having regard to the text of the Tidal Works Code.
  1. [55]
    The second respondents point to the guidelines to which Mr Aalbers referred as supporting a literal reading of PO 10.1. These guidelines focus on the preservation of an access corridor that is at least three metres wide and may be suggestive of an approach where navigable access is to be assessed having regard to the width of any proposed access corridor. The difficulty with this submission of the second respondents is that it treats the guidelines as if they form part of the Tidal Works Code and are to be considered when deciding what the Code requires. There is no proper basis for such an approach. The guidelines were not called up as part of the assessment under the Tidal Works Code, which is delegated legislation that can, and should where possible, be construed on its own terms. Reference to the guidelines by Mr Aalbers was appropriate in the circumstances he faced,[62] but I do not think the guidelines assist when considering how the Tidal Works Code is to be construed. It is sufficient to consider the terms of the Code, including the relevant acceptable outcomes. These terms do not mandate consideration of the matters relied upon by the applicants.
  1. [56]
    AO 10.1 focusses attention on ensuring the tidal works are within a specific area of water adjoining the lot with which the works are connected. AO 10.1(a)(ii) seems designed to ensure that there is always an access corridor of at least three metres between the tidal works on adjacent properties. These provisions seek to ensure there will be a sufficient access corridor to a lot adjacent to or nearby tidal works. Having regard to the terms of AO 10.1(a)(i) and (ii), their effect may often be that navigable access will be achieved if there is an access corridor of at least three metres.[63] That is not to say that navigable access will always be achieved if there is a three-metre access corridor. But an approach to assessment that considers the sufficiency of a corridor to provide access to an adjoining or nearby lot is consistent with the requirements of the Tidal Works Code. That was the assessment undertaken by Mr Aalbers in this case. As such, the applicants have not demonstrated that Mr Aalbers failed to have regard to a matter the legislation required him to consider. This ground of the application must fail.

Was the decision legally unreasonable?

  1. [57]
    The applicants’ contention that the decision to approve the tidal works was legally unreasonable was not strongly pressed. In written submission the applicants asserted that

[t]he approach taken by the Council led to an absurd result, where Council, apparently, considered the Development Application to be compliant with Performance Outcome PO10.1, despite the [works] clearly limiting or restricting use of a vessel larger than a jet ski for access for the Heathers’ Property to, and from, the Canal.[64]

  1. [58]
    However, and as was accepted by the applicants in oral submissions,[65] success on this ground depended upon the applicants demonstrating that it was necessary for the decision maker to consider access to the boat ramp and the ability of vessels to manoeuvre in the water adjacent to the Heather property. That is, if it were necessary for Mr Aalbers to consider these matters as part of the calculus of whether the tidal works unreasonably impeded access, he could not reasonably have concluded the works complied with PO 10.1. As I have decided that the legislation did not require consideration of these matters the issue of legal unreasonableness falls away. The question posed by PO 10.1 being whether the works unreasonably adversely affected access to and from the Heathers’ lot, it was not unreasonable for Mr Aalbers to conclude the works complied. Much ink has been spilled in the pursuit of a precise definition of what is “legally unreasonable”. This application presents no occasion to add to what has been written. It is sufficient for present purposes to adopt the words of Bastarache and LeBel JJ in Dunsmuir v New Brunswick[66] where their Honours stated that legal unreasonableness is concerned with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.[67]
  1. [59]
    In this case the changed plans approved by Mr Aalbers provided for an access corridor about six metres wide between the existing works at Lot 286 and the proposed works. It may be inferred that the width of the access corridor was to be secured by the imposition of conditions 14(a) to (c), such that, as Mr Aalbers expressed, he became satisfied the proposed works complied with PO 10.1. The existence of the access corridor meant that it was not unreasonable for Mr Aalbers to reach this conclusion. His decision was not legally unreasonable.

Were the conditions attached to the approval unreasonable?

  1. [60]
    The complaint of the applicants is that conditions 14(a) to (c) attached to the approval are vague, uncertain, lack finality, or are internally inconsistent such that this court should declare the conditions are unlawful. The applicants do not make clear how this is a relevant matter to a consideration of alleged jurisdictional error or legal unreasonableness. Instead, it appears to be an attempt to attack the merits of the decision.
  1. [61]
    The relevant conditions attached to the approval are repeated below.
  1. Any marine craft moored to the approved structure must:
  1. (a)
    Not exceed the size shown on the approved plans
  1. (b)
    Only be moored in the location shown on the approved plans
  1. (c)
    Be moored such that it is at least 1.5m from the side boundary (or extended side boundary) of the water allocation area shown on the approved plans.
  1. [62]
    The question for the court on this application is whether the conditions, alone or in combination with other matters, indicate there was error in the decision of Mr Aalbers. It may immediately be noted that the conditions are not well drafted. Condition (a) seemingly refers to a vessel depicted on the approved plans adjacent to the western side of the pontoon. This vessel as drawn on the plans extends into the 1.5 metre buffer zone between the extended side boundary of Lot 283 and what would constitute the water allocation area if one had been designated. This does not sit well with condition (c) which requires any moored vessel to be at least 1.5 metres from the extended side boundary. But that does not make the conditions irreconcilably inconsistent. Condition (c) may be seen as a further requirement to condition (a), and both conditions can be satisfied. A vessel moored at western side of the pontoon that complies with condition (c) would inevitably satisfy condition (a). That condition (a) on its own contemplates a vessel of a size that could not comply with condition (c) does not render the suite of conditions invalid or unreasonable. The conditions are to be read fairly and wholistically.
  1. [63]
    The applicants also argue that the conditions are practically impossible to enforce. While it is not articulated in the applicants’ submissions, the argument appears to be that the alleged impossibility of enforcing the conditions means that Mr Aalbers could not reasonably have found that the conditions contributed to compliance with PO 10.1. There are at least two difficulties with this argument. First, there is no evidentiary basis for concluding the conditions would be impossible to enforce. Apart from the allusion to some evidence of Mr Aalbers to the effect that he could not, without taking onsite measurements, be certain if a boat shown in a photograph breached condition (c), there was nothing else to suggest that the monitoring and enforcement of the conditions would be especially difficult. In this regard, it may be inferred that the applicants will be astute to observe and report any alleged contraventions of the conditions. Secondly, it is an argument that is squarely directed to the merits of the decision. The matters raised by the applicants amount to reasons why Mr Aalbers should not have reached the decision he did, rather than why he could not have reached such a decision. As I have said, this application is concerned with whether Mr Aalbers decision was affected by jurisdictional error, not whether it was the “right” decision or the decision that, out of a range of options, was the one that should have been made.
  1. [64]
    In my view this ground of the application cannot be sustained.

Conclusion

  1. [65]
    It may be accepted that the applicants do not enjoy unconstrained access to the canal from their property. It may also be accepted that the concrete boat ramp adjoining the Heather property is not well situated to promote access to and from it to the canal. But these were not issues that were determinative of the development application. When consideration is given to the sole question posed by PO 10.1 – would the proposed tidal works unreasonably adversely affect navigable access to and from Lot 285? – and to the access corridor preserved in the approved plans, the applicants have not shown that Mr Aalbers’ decision was materially affected by jurisdictional error or was legally unreasonable. As such it is unnecessary to consider the residual discretion. Having said that, the evidence adduced at the hearing was not of a kind to indicate that if the decision were to be considered again a different conclusion would be reached.
  1. [66]
    The application is dismissed.

Footnotes

[1] According to the definitions in the Planning Act 2016 (Qld) and the Coastal Protection and Management Act 1995 (Qld).

[2] Planning Regulation 2017 (Qld), Schedule 10, Part 17, Division 1, s 28 and Division 2, Table 1.

[3] Planning Regulation 2017 (Qld), s 21 and Schedule 8, Table 2.

[4] There being no relevant regulation pursuant to section 45(3)(b).

[5] Planning Regulation 2017 (Qld), Schedule 10, Part 17, Division 2, Table 1 (where it is referred to as the “Coastal Regulation, schedule 3”).

[6] Affidavit of Jean Marie Lukin, 19 January 2021 (court document 2), exhibit JML-2, pp 66-73.

[7] In contrast to assessable development that is subject to “impact assessment” where regard may be had to “any other relevant matter, other than a person’s personal circumstances” – section 45(5)(b).

[8] Friends of Buddina Ltd v Sunshine Coast Regional Council & Anor [2021] QPEC 57, [19] (Friends of Buddina).

[9] PECA, section 11(4).

[10] Friends of Buddina, [18].

[11] As that term is defined in PECA and having regard to Part 5, Division 1 of that Act, and section 229 of the Planning Act 2016 (Qld).

[12] [2017] 1 Qd R 13, [40]. The decision concerned an equivalent statutory provision of the now repealed Sustainable Planning Act 2009 (Qld).

[13] (1995) 184 CLR 163, 179 [14]. See also Plaintiff M64/2015 v MIBP [2015] HCA 50; 258 CLR 173; 90 ALJR 197; 327 ALR 8.

[14] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123; 92 ALJR 780; 359 ALR 1, [30].

[15] Ibid, [74]. Nettle J agreed in substance at [39]-[43].

[16] [2016] QPEC 10; [2016] QPELR 33, [7]-[9].

[17] Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 132, [161], citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541; 92 ALJR 713; 357 ALR 408.

[18] Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225, [68], [75].

[19]  It has been described as involving a “stringent test” that is “rarely established” – Francis v Crime and Corruption Commission & Anor [2015] QCA 218 citing Minister for Immigration and Citizenship v Li, [108] (Gageler J).

[20] Minister for Immigration and Citizenship v Li, [76] (Hayne, Kiefel and Bell JJ).

[21] Minister for Immigration and Citizenship v Li, [105] (Gageler J), citing Dunsmuir v New Brunswick [2008] SCC 9; [2008] 1 SCR 190, 220-221 [47].

[22] Applicants’ written submissions, 5 October 2021 (court document 23), [23] and [29].

[23] Craig v South Australia (1995) 184 CLR 163, 179 [14].

[24] Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 132, [191].

[25] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40-41.

[26] Elias v Commissioner of Taxation (Cth) (2002) 123 FCR 499, [57] (Hely J), cited with approval in Australian Retailers Association & Ors v Reserve Bank of Australia (2005) 148 FCR 446, [525] (Weinberg J) and Ferreyra v Brisbane City Council and Anor [2016] QPEC 10; [2016] QPELR 33, [76] (Bowskill QC DCJ).

[27]  Cf. Cox & Ors v Maroochy Shire Council & Ors [2006] QPEC 51; QPELR 628, [64] (Skoien SDCJ) and Jedfire Pty Ltd v Council of the City of Logan and Anor [1995] QPLR 41 (Skoien DCJ).

[28] Applicants’ written submissions in reply, 17 February 2022 (court document 30), [2.4] and T.2-62.20-25.

[29] Exhibited to the affidavit of Jean Marie Lukin, affirmed 19 January 2021 (court document 2).

[30] Affidavit of Simon Dean Aalbers, sworn 16 July 2021 (court document 14).

[31] Document 6 of exhibit SDA-1 to the affidavit of Mr Aalbers.

[32] Document 7 of exhibit SDA-1 to the affidavit of Mr Aalbers. See also exhibit 6.

[33] T.2-8.38-41.

[34] T.2-9.30-32; T.2-10.30-35.

[35] T.2-13.37-41.

[36] T.2-14.18-43.

[37] At lot 286 to the north of the Heather property.

[38] T.2-30.25-26.

[39] T.2-19.1-3.

[40] Exhibit 8.

[41] T.2-19.35 to T.2-20.15.

[42] T.2-21.14-27.

[43] Cf. Acceptable Outcome 10.1(a)(ii).

[44] T.2-21.22-32.

[45] T.2-22.19-27.

[46] T.2-34.45 to T.2-35.24.

[47] T.2-37.5-40.

[48] T..2-48.11-16.

[49] T.2-40.35-41.

[50] T.2-44.

[51] T.2-6 to T.2-7.

[52] T.2-76 to T.2-78.

[53] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123; 92 ALJR 780; 359 ALR 1, [74].

[54] See PA, section 60 and Tidal Works Code, section 5.

[55] Applicants’ written submissions, 5 October 2021 (court document 23), at paragraph 33.

[56] Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, [522] (Weinberg J), cited with approval by Bowskill QC DCJ in Ferreyra v Brisbane City Council at [74].

[57] Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 132, [232].

[58] See paragraphs [28] and [29] above.

[59] There is a definition of “lot” in the Tidal Works Code, but it only extends the definition to parcels of unallocated State land. There was no suggestion that “lot” included the adjoining waterway – see applicants’ written submissions, 5 October 2021 (court document 23), at paragraph 36.

[60] With the addition of the word “significant” in a manner consistent with how it was agreed PO 10.1 is to be read.

[61] T.2-66.28-37.

[62] See paragraph [40] above.

[63] Compliance with either (i) or (ii) would result in a “buffer” zone between tidal works of at least three metres.

[64] Applicants’ written submissions, 5 October 2021 (court document 23), [49].

[65] T.2-79.7-27; T.2-80.3-5.

[66] [2008] SCC 9; [2008] 1 SCR 190.

[67] Ibid, 221 [47]. This passage was cited with approval by Gageler J in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225, [105].

Close

Editorial Notes

  • Published Case Name:

    Heather & Anor v Sunshine Coast Regional Council & Ors

  • Shortened Case Name:

    Heather & Anor v Sunshine Coast Regional Council

  • MNC:

    [2022] QPEC 37

  • Court:

    QPEC

  • Judge(s):

    Cash DCJ

  • Date:

    07 Oct 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Australia Pacific LNG Pty Ltd v Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport (No 2) [2019] QSC 132
4 citations
Jump To
Cite 1 - [2019] QSC 132
Cite 2 - [2019] QSC 132
Cite 3 - [2019] QSC 132
Cite 4 - [2019] QSC 132
Australian Retailer Association v Reserve Bank of Australia (2005) 148 FCR 446
3 citations
Jump To
Cite 1 - (2005) 148 FCR 446
Cite 2 - (2005) 148 FCR 446
Cite 3 - (2005) 148 FCR 446
Cox v Maroochy Shire Council [2006] QPEC 51
1 citation
Jump To
Cite 1 - [2006] QPEC 51
Craig v South Australia (1995) 184 CLR 163
3 citations
Jump To
Cite 1 - (1995) 184 CLR 163
Cite 2 - (1995) 184 CLR 163
Cite 3 - (1995) 184 CLR 163
Dunsmuir v New Brunswick [2008] 1 SCR 190
2 citations
Jump To
Cite 1 - [2008] 1 SCR 190
Cite 2 - [2008] 1 SCR 190
Dunsmuir v New Brunswick [2008] SCC 9
2 citations
Jump To
Cite 1 - [2008] SCC 9
Cite 2 - [2008] SCC 9
Elias v Commissioner of Taxation (2002) 123 FCR 499
2 citations
Jump To
Cite 1 - (2002) 123 FCR 499
Cite 2 - (2002) 123 FCR 499
Ferreyra v Brisbane City Council [2016] QPEC 10
3 citations
Jump To
Cite 1 - [2016] QPEC 10
Cite 2 - [2016] QPEC 10
Cite 3 - [2016] QPEC 10
Ferreyra v Brisbane City Council [2016] QPELR 33
3 citations
Jump To
Cite 1 - [2016] QPELR 33
Cite 2 - [2016] QPELR 33
Cite 3 - [2016] QPELR 33
Francis v Crime and Corruption Commission [2015] QCA 218
1 citation
Jump To
Cite 1 - [2015] QCA 218
Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd[2017] 1 Qd R 13; [2016] QCA 19
2 citations
Jump To
Cite 1 - [2017] 1 Qd R 13
Cite 2 - [2017] 1 Qd R 13
Friends of Buddina Ltd v Sunshine Coast Regional Council [2021] QPEC 57
2 citations
Jump To
Cite 1 - [2021] QPEC 57
Cite 2 - [2021] QPEC 57
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
3 citations
Jump To
Cite 1 - [2018] HCA 34
Cite 2 - [2018] HCA 34
Cite 3 - [2018] HCA 34
Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780
1 citation
Jump To
Cite 1 - (2018) 92 ALJR 780
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
1 citation
Jump To
Cite 1 - (2018) 264 CLR 123
Jedfire Pty Ltd v Council of the City of Logan and White [1995] QPLR 41
1 citation
Jump To
Cite 1 - [1995] QPLR 41
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30
1 citation
Jump To
Cite 1 - [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
3 citations
Jump To
Cite 1 - [2013] HCA 18
Cite 2 - [2013] HCA 18
Cite 3 - [2013] HCA 18
Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618
1 citation
Jump To
Cite 1 - (2013) 87 ALJR 618
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
1 citation
Jump To
Cite 1 - (2013) 297 ALR 225
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
1 citation
Jump To
Cite 1 - (2013) 249 CLR 332
Plaintiff M64/2015 v MIBP [2015] HCA 50
1 citation
Jump To
Cite 1 - [2015] HCA 50

Cases Citing

Case NameFull CitationFrequency
Heather v Sunshine Coast Regional Council (No. 2) [2023] QPEC 41 citation
Sanad Capital Pty Ltd v Sunshine Coast Regional Council [2023] QPEC 81 citation
1

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