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Escanaba Pty Ltd v Noosa Shire Council[2023] QPEC 14

Escanaba Pty Ltd v Noosa Shire Council[2023] QPEC 14

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Escanaba Pty Ltd v Noosa Shire Council [2023] QPEC 14

PARTIES:

ESCANABA PTY LTD

(appellant)

V

NOOSA SHIRE COUNCIL

(respondent)

FILE NO/S:

97/2022

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

DELIVERED ON:

12 May 2023

DELIVERED AT:

Maroochydore

HEARING DATE:

17 February 2023

JUDGE:

Cash DCJ

ORDERS:

I will hear from the parties as to the appropriate orders having regard to these reasons

CATCHWORDS:

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPEAL AGAINST REFUSAL – local law – subordinate local law – where the appellant owns a unit in a duplex at Sunshine Beach – where the appellant wishes to use the premises for ‘the operation of short stay letting’ – where such use was subject to approval by the respondent council – where the respondent council refused approval – where the premises have the benefit of a development approval granted in 2015 – whether the operation of short stay letting was a lawful use pursuant to the 2015 approval

ENVIRONMENT AND PLANNING – PROCEDURE – PRELIMINARY HEARING – SEPARATE QUESTIONS – where the parties raise a preliminary question concerning the lawful use of the premises – where parties did not raise issue in application in pending proceeding – whether it is appropriate to decide the preliminary question

LEGISLATION:

Local Government Act 2009 (Qld), s 26

Noosa Shire Council Local Law No. 1 (Administration) 2015, s 5, s 6, s 9, schedule 1

Noosa Shire Council Subordinate Local Law No. 1 (Administration) 2015, schedule 21A

Planning Act 2016 (Qld), s 229, schedule 1

Planning and Environment Court Act 2016 (Qld), s 43, s 45(1)(b)

Planning and Environment Court Rules 2018 (Qld), r 4

Uniform Civil Procedure Rules 1999 (Qld), chapter 13, part 5

CASES:

Sunshine Coast Regional Council v EBIS Enterprises Pty Ltd [2010] QCA 379, [16]-[19], [33], distinguished

Trowbridge & Anor v Noosa Shire Council & Ors [2019] QPEC 54; [2020] QPELR 50, [33], [72], distinguished

APPEARANCES:

K W Wylie for the appellant

M J Batty with J E Bowness for the respondent

SOLICITORS:

P&E Law for the appellant

McCullough Robertson for the respondent

Introduction

  1. [1]
    The appellant owns a unit in a duplex at Sunshine Beach.[1] It is within the local government area administered by the respondent. The premises have the benefit of a development approval, issued in 2015, for a material change of use described as ‘Multiple Housing Type 2 – Duplex’. The appellant wants to let the unit on a commercial basis for short term accommodation. This would be an activity defined under the current form of Noosa Shire Council Local Law No. 1 (Administration) 2015 (‘the Noosa local law’) as ‘the operation of short stay letting’. As a result, the appellant required the respondent’s approval for this use. One requirement for approval for the operation of short stay letting is that the proposed use must comply with the 2015 development approval. On 5 March 2022 the appellant applied for approval. On 27 April 2022 the respondent refused the application.[2] It was refused on the basis that the 2015 approval for ‘Multiple Housing Type 2 – Duplex did not allow for visitor or short-term accommodation use of the premises’. This is an appeal against the decision of the respondent, pursuant to a local law, to the refuse the application.
  1. [2]
    The question to be answered, for now,[3] is whether the appellant’s 2015 approval for a material change of use authorised use for ‘the operation of short stay letting’ as that term is defined in the Noosa Shire Council Local Law No. 1 (Administration) 2015?[4] For the reasons that follow the question must be answered, ‘No.’
  1. [3]
    It is helpful to begin by setting out the terms and effect of the Noosa local law and why it is important in this appeal.

The Noosa local law

  1. [4]
    The Local Government Act 2009 (Qld), by section 28, gives local governments the power to make and enforce a local law. This also includes the power to make a subordinate local law, which is concerned with ‘the detailed implementation of the broader principles contained in the local law’.[5] It was pursuant to this power that the Noosa local law was enacted. The form of the law relevant to this appeal is that contained in the agreed bundle of documents.[6]
  1. [5]
    The Noosa local law sets out to define the ‘operation of short stay letting’ as a ‘prescribed activity’. The definition of short stay letting is found in the dictionary in schedule 1. Subject to some exclusions that are not presently relevant, it means ‘the provision, or making available, of premises for use by 1 or more persons, other than the owner of the premises, for less than 3 consecutive months’. Section 5(a) then provides that a ‘prescribed activity’ means an activity listed in part 1 of schedule 2. This includes the ‘operation of short stay letting or home hosted accommodation’, which in turn is defined in part 2 of schedule 2 as ‘the provision, or making available, on a commercial basis, of short stay letting or home hosted accommodation’. It follows that the letting of premises by the owner to someone else, on a commercial basis, for a period of less than three months is the ‘operation of short stay letting’ and is a ‘prescribed activity’.
  1. [6]
    Section 6 of the Noosa local law makes it an offence to undertake a prescribed activity without a current approval granted by the respondent. A current approval ‘means an approval that is in force and has not been suspended at the time the prescribed activity is being undertaken.’ The Noosa local law then provides the mechanism by which an approval might be sought and granted. Section 9 should be set out in full, as it prescribes the only basis on which approval might be given.

9 Local government’s discretion in granting approvals

  1. (1)
    The local government may grant an approval for an applicant to undertake a prescribed activity only if it is satisfied that—
  1. (a)
    if the prescribed activity requires a separate approval under an Act, a law of the Commonwealth or the local government’s planning scheme—the separate approval has been granted; and
  1. (b)
    the proposed operation and management of the prescribed activity is adequate to protect public health, safety and amenity and prevent environmental harm; and
  1. (c)
    the grant of the approval would be consistent with the purpose of any relevant local law; and
  1. (d)
    the proposed operation and management of the prescribed activity would be consistent with any additional criteria prescribed for the activity under a subordinate local law for this paragraph; and
  1. (e)
    if the application relates to trust land—the grant of the approval would be consistent with the terms and conditions of the trust; and
  1. (f)
    if the application relates to a prescribed activity mentioned in section 5(b)—the grant of the approval would be consistent with any requirements or criteria specified in the relevant Local Government Act in relation to the approval.

Example for paragraph (a)—

An application for commercial use of a local government controlled area that is held in trust by the local government under the Land Act 1994 may require registration of a trustee lease or issue of a trustee permit prior to the approval being granted for commercial use of the area.

  1. (2)
    The local government may, by written notice to the applicant—
  1. (a)
    grant the approval unconditionally; or
  1. (b)
    grant the approval subject to conditions determined in accordance with section 10; or
  1. (c)
    refuse to grant the approval

…

  1. (3)
    However, the local government’s powers in deciding the application are subject to the provisions of any relevant local law.
  1. [7]
    Additional criteria are prescribed pursuant to section 9(1)(d). They are found in section 4 of schedule 21A of the Noosa Shire Council Subordinate Local Law No. 1 (Administration) 2015 (‘the subordinate law’).[7] The terms of section 4 of the schedule are set out below.

4 Additional criteria for the granting of approval

The local government may only grant an approval (or renew an approval) for the operation of short stay letting or home hosted accommodation at premises if it is satisfied the proposed operation and management of the activity would be consistent with each of the following additional criteria—

  1. (a)
    the applicant is the owner of the premises, or is authorised in writing by the owner of the premises, used for the short stay letting or home hosted accommodation;
  1. (b)
    the operation of the short stay letting or home hosted accommodation can be lawfully conducted on the premises;
  1. (c)
    the matters which are the subject of the conditions specified in section 6 of this schedule which are relevant to the operation of the short stay letting or home hosted accommodation at the premises can be adequately addressed by the imposition of conditions;
  1. (d)
    the applicant’s history in respect of the operation of short stay letting or home hosted accommodation at the premises or other premises and any suspensions or cancellations pursuant to section 17 or 19 of the authorising local law;
  1. (e)
    the operation of the short stay letting or home hosted accommodation must comply with the following criteria—
  1. (i)
    the operation of the short stay letting or home hosted accommodation must comply with—
  1. (A)
    any relevant development approval; or
  1. (B)
    accepted development or accepted development subject to the requirement provisions of the local government’s planning scheme; or
  1. (C)
    for premises with lawful use rights — the local government’s planning scheme which applied at the date the lawful use commenced;
  1. (ii)
    the operation of the short stay letting or home hosted accommodation at the premises must not detrimentally affect the residential amenity (including, but not limited to, noise, overlooking or light spill) enjoyed by residents adjoining, or in the vicinity of, the premises;
  1. (iii)
    adequate on-site vehicular parking facilities must be provided at the premises;
  1. (f)
    if the application is for an approval to operate short stay letting at the premises — the applicant must provide to the local government up to date details of a person (contact person) (which may include the name and contact details of an individual, letting agent, property manager, security firm or the like) being a person who—
  1. (i)
    is available 24 hours a day, 7 days a week; and
  1. (ii)
    resides, or has a place of business, within a 20 kilometre radius of the premises; and
  1. (iii)
    will be responsible for the supervision and management of the premises, including addressing complaints about the use of the premises for short stay letting and visitor queries.
  1. [8]
    The combined effect of section 9 of the Noosa local law and section 4 of the schedule to the subordinate law is that an application may only be approved if all the listed criteria are satisfied. These criteria include section 4(e)(i)(A) of the schedule, with the result that the appellant’s application could not, and cannot, be approved if the proposed use for the operation of short stay accommodation is inconsistent with the terms of the 2015 development approval. The respondent decided that the 2015 approval did not permit ‘visitor or short-term accommodation’ and on that basis refused the application. It will be necessary to consider closely the terms of the 2015 approval and provisions of the planning scheme that were in effect at the time. Before doing so something should be said of the nature of this appeal and the issue presented by the parties.

The statutory basis for the appeal

  1. [9]
    Not all decisions of local government authorities concerning planning matters can be appealed. Section 229 of the Planning Act 2016 (Qld) sets out the circumstances in which an appeal lies to the Planning and Environment Court. This calls up schedule 1 to the Planning Act which provides, in table 2 at item 6, that ‘[a]n appeal may be made against a decision of a local government, or conditions applied, under a local law about … the use of premises…’ This is such an appeal. As the Planning Act is the enabling act for the appeal, the appeal is a ‘planning act appeal’ as that term is defined in the Planning and Environment Court Act 2016 (Qld),[8] with the result that the appeal is by way of a hearing anew,[9] and it is for the appellant to establish that the appeal should be upheld.[10]

The narrow issue to be determined

  1. [10]
    But this decision is not concerned with determining the whole of the appeal. At the beginning of the hearing, and in response to a query of mine as to what exactly the court was being asked to do, the appellant confirmed that the present question is confined to whether, pursuant to section 4(e)(i)(A) of the schedule to the subordinate law, the 2015 approval authorised the operation of short stay letting as that term is defined in the Noosa local law. It was conceded that if, as a matter of construction, the 2015 permit did not authorise what is now defined as the operation of short stay letting, then all criteria of the subordinate law are not satisfied and the appeal must be dismissed.[11] It would have been preferable, in my view, had the parties clearly identified the issue and posed it as a separate question. As I have noted, provisions exist to identify and decide separate questions or to seek declarations about matters including ‘the lawfulness of land use’. Nevertheless, in deference to the parties who presented argument on this issue, it is appropriate to decide the question they posed as if it were one posed pursuant to Chapter 13, Part 5 of the Uniform Civil Procedure Rules 1999 (Qld).

The terms of the 2015 approval and the planning scheme at the time

  1. [11]
    The approval for a material change of use was communicated in a decision notice dated 11 August 2015.[12] As already noted, the approval was a ‘Development Permit for Material Change of Use of Premises – Multiple Housing Type 2 – Duplex’. The relevant planning scheme at the time of the decision, and identified in the decision notice, was the Noosa Plan 2006 as at was on 16 September 2013. In order to decide what was approved, it is necessary to set out a raft of provisions of that scheme which the parties rely upon in support of their arguments, beginning with Part 2 dealing with interpretation of the scheme.
  1. [12]
    Section 2.1.1 of the Noosa Plan 2006 provided:[13]

2.1.1 The dictionary at Section 2.11 of this Part defines particular words used throughout the planning scheme as follows—

a) defined uses and use classes (identified by bold);

b) administrative terms (identified by italics).

  1. [13]
    The ‘Dictionary’ in section 2.11 begins with the following:[14]

The use and use classes terms employed by this planning scheme have the meanings described below.

This planning scheme employs the nesting of land uses so that—

  • A primary use includes use classes;
  • A use class in turn is defined and includes uses based on performance and potential level of impact;
  • A use is in turn defined;
  • A diagram for each primary use is included to assist explanation of the nesting construction.
  1. [14]
    As may be seen by the employment of italics above, ‘use classes’ was a defined administrative term. It meant ‘a group of uses having different purposes but broad characteristics in common’. In turn ‘use’ was defined in the following terms – ‘use in relation to a use class, means a use for a purpose that is within that use class. The use may include multiple uses’.[15]
  1. [15]
    The table mentioned in the definition of use and use classes above, and relevant to this appeal, is found at 2.11.5 of the Noosa Plan 2006. It divides uses and use classes into three columns, arranged in a manner consistent with the employment of ‘nesting’ as described in the dictionary. The parties differed as to the significance of this arrangement, especially considering the decision of the court of appeal in Sunshine Coast Regional Council v EBIS Enterprises Pty Ltd.[16] This is a matter to which it will be necessary to return. The top section of the table is the diagram ‘included to assist explanation of the nesting construction’. It is reproduced below.

Escanaba Pty Ltd v Noosa Shire Council [2023] QPEC 14

  1. [16]
    Below the tree diagram, the Noosa Plan 2006 at 2.11.5 contained a further table with the heading ‘Residential uses means any use or use class described below’. The table contained various definitions, some of which appeared in shaded boxes and some of which did not. The relevant parts are set out below.

Detached house means the use of premises for a single dwelling unit which comprises the whole of the building on one lot. The term includes uses and works incidental to and associated with the detached house. The term includes the temporary use as a display home or removal home. The use is not divided further.

…

Multiple housing means the use of premises for two or more dwelling units or accommodation units as the case may be, occupied by permanent or semi-permanent residents, where the occupants may share common facilities on the site. The term includes the following types:

Type 1 Relative or employee

…

Type 2 Duplex

Means the use of premises for two dwelling units either attached or detached, on one lot where the use does not fall under Multiple housing Type 1 Relative or employee.

…

 

Visitor accommodation means accommodation–that is designed and predominantly used for visitors to the Shire and where social, recreational and dining services may be provided for visitors by owners or staff. The term includes the following types:

Type 1 Home Hosted

The use of premises for short term accommodation hosted by the resident family within a detached house where there is no more than 6 guests accommodated in no more than three rooms. At least one bedroom within the detached house is excluded from use by guests. Meals may be provided by the hosts, as guest cooking facilities are not available. The use includes bed and breakfast.

Type 2 Caravan park

The use of premises for the parking of caravans for the purpose of providing accommodation. The use includes communal facilities for the exclusive use of occupants of the caravan park. The use includes the use of camping areas and cabins for short-term accommodation where they are ancillary to the provision of caravan sites. The use also includes a caretaker’s residence and office, any amenity buildings and any recreation and entertainment facilities that cater exclusively for the occupants of the caravan park.

Type 3 Rural

The use of premises for short-term accommodation where accommodation has direct connection with the rural production, environmental or scenic values of the premises. The use includes a cabin park, guesthouse or retreat located in a rural setting and host farm offering rural experiences.

Type 4 Conventional

Two or more dwelling units or accommodation units, for the purpose of providing short-term visitor accommodation. The use may include common recreation or dining facilities and includes an ancillary dwelling unit for onsite manager. The use includes a guesthouse, visitor hostel, motel, resort and services rooms, but does not include Visitor accommodation Type 1 Home hosted or Type 3 Rural as separately defined.

  1. [17]
    The appellant initially argued that the definitions appearing in shaded boxes were for guidance only and not part of the planning scheme. The argument was based on section 2.3.2 of the Noosa Plan 2006, which identified some text in the scheme as being for guidance only and not part of the scheme. The appellant abandoned this argument after the hearing had concluded and accepts that the use class definitions in shaded boxes form part of the planning scheme.[17]
  1. [18]
    The final matter to note in relation to the Noosa Plan 2006 is that the premises were in the Eastern Beaches Locality, a consequence of which was that use as ‘visitor accommodation’ required impact assessment and could not be undertaken without a development permit.

Did the 2015 approval permit ‘short stay letting’?

  1. [19]
    To decide what uses the 2015 approval permitted, it is necessary to consider the terms of the approval itself, in the context of the planning instruments that are incorporated expressly or by implication.[18] The documents are to be construed according to ordinary principles of statutory construction and must be read sensibly.[19]
  1. [20]
    The premises were approved as ‘Multiple Housing Type 2 – Duplex’. There is no temporal restriction on the use of the premises apparent on the face of the development approval that might confine the period of accommodation that is permitted. But the approval was express in its reference to the Noosa Plan 2006 and its use of some terms defined in that scheme. These were incorporated into the development approval. It follows that is necessary to look to the terms of the Noosa Plan 2006 to decide whether they imply a temporal element in the approval.
  1. [21]
    The definition of ‘multiple housing’ as a use class in the Noosa Plan 2006 referred to permanent or semi-permanent residents. This may be contrasted with the definitions of the types of use under the ‘visitor accommodation’ use class. Each of these definitions refer, at least in part, to ‘short-term accommodation’.[20] These terms are not further defined. But it is clear that the scheme draws a distinction between permanent or semi-permanent occupation, something associated with the multiple housing use class of residential uses, and short-term accommodation, something associated with the visitor accommodation use class. This is, to my mind, an indication that approval for multiple housing, or as a ‘Type 2 Duplex’, did not involve approval for short-term accommodation. I am fortified in reaching this conclusion having regard to the distinct treatment of multiple housing and visitor accommodation under the Eastern Beaches Locality Plan, pursuant to which the former was code assessable and the later impact assessable. The reference to visitor accommodation in the locality plan is but one indication that the scheme intended the definitions of uses and use classes to convey meaning.
  1. [22]
    That is not to say that what is now short stay letting according to the Noosa local law would necessarily have been captured under the definition of visitor accommodation in the Noosa Plan 2006. As the appellant submitted, visitor accommodation as a use class was defined as ‘accommodation that is designed and predominantly used for visitors to the Shire’. Whatever that may have meant, it is not obvious this definition would have included the unit in the duplex owned by the appellant. That is one matter that tends against a conclusion that short stay letting is the equivalent of visitor accommodation according to the Noosa Plan 2006. But that is a different concern, and one that it is unnecessary to resolve, in order to conclude that the 2015 approval for a type of multiple housing did not authorise short-term accommodation. It is not for the respondent to show that the proposed use was for visitor accommodation, as defined in the Noosa Plan 2006. It is for the appellant to show that ‘Multiple Housing Type 2 – Duplex’ permitted short-term accommodation. I have concluded it does not, having regard to the use definitions and the definition of the multiple housing use class referred to above. It follows that even if the proposed use for the operation of short stay letting is not visitor accommodation, it is not ‘Multiple Housing Type 2 – Duplex’ either. In that case, it would be an undefined use according to the Noosa Plan 2006 and therefore subject to impact assessment.[21]
  1. [23]
    Of course, the real question is whether the 2015 approval authorised what is now called the operation of short stay letting. So far as is relevant to this appeal, the operation of short stay letting amounts to allowing the use of premises, on a commercial basis, by someone other than the owner for less than three consecutive months. It is a defined term, where short-term accommodation was not defined under the Noosa Plan 2006. But schemes are to be read sensibly, and it must be that short stay letting and short-term accommodation are analogues. If that is so, it follows that because the 2015 approval did not authorise short-term accommodation, it did not authorise the use of the premises for the operation of short stay letting. This is the construction I prefer because it gives effect to the provisions of the Noosa Plan 2006 set out above. It is consistent with the way the Noosa Plan 2006 treats uses and use classes and the scheme’s reliance on ‘the nesting of land uses’ as illustrated in the diagram above.
  1. [24]
    The appellant submitted that to follow this approach was to err, as explained by the Court of Appeal in Sunshine Coast Regional Council v EBIS Enterprises Pty Ltd (‘EBIS’).[22] I do not agree with the appellant’s submission for the simple reason that the planning schemes involved are different. EBIS was decided with reference to the Caloundra City Plan 2004. It concerned an application for an enforcement order on the basis that EBIS Enterprises Pty Ltd had committed a development offence by using a house at Little Mountain as an ‘accommodation building’ without the necessary permit. The outcome turned upon whether the house was a ‘detached house’, in which case it could not be an accommodation building.[23] The primary judge found the house was not a detached house, importing into the scheme definition the notion that such a use could not be for short-term accommodation. His Honour based his decision in part upon a nested diagram found in the Caloundra City Plan 2004. The diagram began with a box labelled ‘Residential Use Class’ and fanned out into a series of boxes connected by various lines. The primary judge described this as a ‘flow chart’ and stated that ‘some meaning must be given to the categorisation of the residential use classes in the flow chart’.
  1. [25]
    The primary judge was held to have been in error. Chesterman JA (with whom McMurdo P and Phillipides J agreed) wrote

[16] There are two errors in the approach taken by the learned judge to the Plan. The first was to rely upon figure 3.1 in Part 3.2.2 to alter the definition of “detached house”. There is nothing in the explicit definition of that term which makes premises a detached house only if used for long term accommodation. Neither that term nor the other, “short term accommodation” is defined, whether in the use definitions or the administrative definitions in Part 3. Nor, for that matter, is “single unit” or “multi unit” defined in either sub-part.

[17] The administrative definitions include the term “residential use class”. That is defined to mean

“… defined use being accommodation building, bed and breakfast, caravan and relocatable home park, caretaker’s residence, detached house, display dwelling, duplex dwelling, home based business, motel, multiple dwelling and retirement community (refer Figure 3.1 – Residential Use Class).”

It will be seen that uses mentioned in the definition of “residential use class” appear in the unshaded boxes in figure 3.1. The terms which appear in the shaded boxes are not the subject of any definition, as I pointed out. One cannot discern from the Plan what function figure 3.1 is meant to perform. It is obviously meant to be more than a restatement of the classes of residential uses designated in the Plan. It probably intends to say something about the interrelationship between various classes of residential use and, perhaps, as the primary judge thought, attempt some categorisation of them into “single units”, “multi units”, “long term accommodation”, and “short term accommodation”. Given the format of the figure it is impossible to discern what purpose is intended by the categorisation. It is, as well, not easy to understand why a “display dwelling” should be classified as “long term accommodation”, nor is it immediately obvious that a duplex dwelling or multiple dwelling will more commonly be associated with long term accommodation rather than short term accommodation.

[18] It is not necessary to pursue the puzzle further. The immediate inquiry is whether it is right to amend the explicit definition of “dwelling unit” by reference to the figure, and to add to it the qualification: “provided that the use is long term”, or something to the same effect.

[19] There is, with respect to the primary judge, no warrant for altering the express terms of the definition by reference to figure 3.1. If the words used in the definitions in the Plan are not to mean what they say, the manner in which, and the means by which, they depart from their ordinary meaning should appear with unambiguous clarity from the Plan itself. There is no indication that the definitions are not to be read as they are written. Whatever function or purpose the figures are meant to serve, figure 3.1 does not manifest a clear intention that a dwelling unit is only such if the residential use occurs on a long term basis, a term which is itself imprecise.

  1. [26]
    Unlike the relevant scheme in EBIS, the Noosa Plan 2006 did manifest a clear intention that the diagram was meant to inform the meaning of the terms used. This is found most clearly in the dictionary at 2.11 as set out at paragraph [14] above. It is also the case that the terms critical to the decision in EBIS were themselves clearly defined in the scheme and did not contain any temporal limitation. Chesterman JA confirmed that ‘the words of the definition should be given their ordinary meaning’ and not be modified by extraneous considerations.[24] That is not the case here where the outcome does not turn upon a single defined phrase in the Noosa Plan 2006. Finally, the diagrams themselves are different. The diagram employed in the Caloundra City Plan 2004 was not solely hierarchical and drew connections both vertical and horizontal between terms. In contrast, the diagram in the Noosa Plan 2006 is hierarchical and does not suffer from the same deficiencies identified in EBIS. That was a different case and does not assist in the resolution of this question.
  1. [27]
    The appellant also looked for support in the decision of Judge Kefford in Trowbridge & Anor v Noosa Shire Council & Ors.[25] That concerned the same version of the Noosa Plan 2006 but what was in issue was in some ways the reverse of the present question, being concerned with permanent accommodation on land associated with visitor accommodation. The appellant points to Judge Kefford’s observation that the definition of ‘detached house’ in the scheme did not preclude use for visitor accommodation.[26] This bare statement does not assist the appellant. Her Honour was not deciding whether a house could be used for visitor accommodation. Indeed, the premises in question had the benefit of approval for visitor accommodation and the issue was whether permission to use them for permanent accommodation would result in the loss of a ‘range of visitor accommodation’ contrary to other parts of the scheme.  Understood in its proper context, Judge Kefford’s observation cannot be translated into a statement that there can never be a temporal limitation on the use of the premises implied by other parts of the scheme. Trowbridge does not assist the appellant, nor does it provide any real assistance to the respondents, despite her Honour’s apparent endorsement of the notion that the overarching use class definitions give context to the ‘type’ definitions.[27]
  1. [28]
    The decisions in other cases involving different facts and planning schemes are of little assistance. I am required to construe the relevant provisions of the Noosa Plan 2006 according to ordinary principles of statutory construction and in the context of the 2015 approval. Having done so, I have concluded that the 2015 approval did not authorise the operation of short stay letting.
  1. [29]
    Finally, I would note that the appellant raised the Queensland Planning Provisions made pursuant to the now repealed Sustainable Planning Act 2009 (Qld). The essence of the appellant’s argument was that that the guidance to drafters concerning ‘activity groups’ confirms that the arrangements of the Noosa Plan 2006 for use classes are not meant to inform the meaning of types of use. The difficulty with the appellant’s submission is that the Noosa Plan 2006 was prepared in accordance with the Integrated Planning Act 1997 (Qld) and there was no requirement for the scheme to reflect the standard planning scheme provisions contained in the Queensland Planning Provisions.[28] This argument does not assist the appellant.

Conclusion and orders

  1. [30]
    For these reasons the question, ‘Did the appellant’s 2015 approval for a material change of use authorise use for the operation of short stay letting as that term is defined in the Noosa Shire Council Local Law No. 1 (Administration) 2015?’ must be answered, ‘No.’
  1. [31]
    I will hear from the parties as to the appropriate orders, having regard to these reasons.

Footnotes

[1] Properly described as Lot 1 on Survey Plan 284465.

[2] The appellant sought internal review of the first refusal decision. The refusal was confirmed by the respondent on 7 June 2022.

[3] As discussed below, the issue was not posed as a separate question to be determined, as it might have been pursuant to rule 4 of the Planning and Environment Court Rules 2018 (Qld) and Chapter 13, Part 5 of the Uniform Civil Procedure Rules 1999 (Qld). Nor was there an application for a declaration pursuant to section 11 of the Planning and Environment Court Act 2016 (Qld). Nonetheless, the parties were content for me to decide this issue without deciding the whole appeal.

[4] It is important at the outset to contrast the definitions of ‘short stay letting’ and ‘the operation of short stay letting’ under the Noosa local law. The latter requires there to be a commercial basis to the provision of accommodation whereas the former does not. These reasons are not concerned with whether the appellant has a right to conduct ‘short stay letting’.

[5] Local Government Act 2009 (Qld), section 26.

[6] Exhibit 1 at pp. 22-51.

[7] Exhibit 1, pp. 132 to 140.

[8] Planning and Environment Court Act 2016 (Qld), schedule 1.

[9] Planning and Environment Court Act 2016 (Qld), section 43.

[10] Planning and Environment Court Act 2016 (Qld), section 45(1)(b).

[11] Transcript of hearing, 17 February 2023, T.1-8.39 to T.1-10.18.

[12] Exhibit 1, pp. 152 to 164.

[13] Exhibit 1, p. 176.

[14] Exhibit 1, p. 180.

[15] Exhibit 1, p. 203.

[16] [2010] QCA 379.

[17] Letter from P&E Law to the solicitors for the respondent, dated 17 March 2023 and provided to the court with the agreement of the parties on 20 March 2023.

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

[19] Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686, 698; 201 LGERA 82, [52], [55]-[56]; AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1, 19 [73].

[20] The definition of ‘Type 2 Caravan Park’ does not include a temporal limit on the use of caravans but restricts camping areas and cabins to short-term accommodation.

[21] Noosa Plan 2006, Table 7.2 at 7.17.

[22] [2010] QCA 379.

[23] Ibid, [13].

[24] Ibid, [26]. Phillipides JA, writing separately made a similar statement at [33].

[25] [2019] QPEC 54; [2020] QPELR 50.

[26] Ibid, [33].

[27] Ibid, [72].

[28] Sustainable Planning Act 2009 (Qld), section 777(3).

Close

Editorial Notes

  • Published Case Name:

    Escanaba Pty Ltd v Noosa Shire Council

  • Shortened Case Name:

    Escanaba Pty Ltd v Noosa Shire Council

  • MNC:

    [2023] QPEC 14

  • Court:

    QPEC

  • Judge(s):

    Cash DCJ

  • Date:

    12 May 2023

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
AAD Design Pty Ltd v Brisbane City Council[2013] 1 Qd R 1; [2012] QCA 44
1 citation
Jump To
Cite 1 - [2013] 1 Qd R 1
Aqua Blue Noosa Pty Ltd v Noosa Shire Council (2005) QPELR 318
1 citation
Jump To
Cite 1 - (2005) QPELR 318
Parramatta City Council v Shell Co of Australia Ltd (1992) 2 NSWLR 632
1 citation
Jump To
Cite 1 - (1992) 2 NSWLR 632
Sunshine Coast Regional Council v EBIS Enterprises Pty Ltd [2010] QCA 379
5 citations
Jump To
Cite 1 - [2010] QCA 379
Cite 2 - [2010] QCA 379
Cite 3 - [2010] QCA 379
Cite 4 - [2010] QCA 379
Cite 5 - [2010] QCA 379
Trowbridge & Anor v Noosa Shire Council & Ors [2020] QPELR 50
4 citations
Jump To
Cite 1 - [2020] QPELR 50
Cite 2 - [2020] QPELR 50
Cite 3 - [2020] QPELR 50
Cite 4 - [2020] QPELR 50
Trowbridge v Noosa Shire Council [2019] QPEC 54
2 citations
Jump To
Cite 1 - [2019] QPEC 54
Cite 2 - [2019] QPEC 54
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
1 citation
Jump To
Cite 1 - [2014] QPELR 686
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
1 citation
Jump To
Cite 1 - (2014) 201 LGERA 82

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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