Insights

In brief

The case of Body Corporate for Elandra Settlers v Noosa Council [2018] QPEC 37 concerned an originating application in the Planning and Environment Court (Court) regarding the approval of a bushfire information kit. The Applicant is the Body Corporate of a high density residential development located at Serenity Cove, Noosa Heads. Relevantly, two development approvals had been issued being a material change of use approval granted on 17 April 2007 (MCU approval) and a reconfiguring of a lot approval (ROL approval). The originating application concerned condition 55 of the MCU approval and condition 70 of the ROL approval, which required the Applicant to provide a bushfire information kit to the Noosa Council (Council) as part of a Fire Management Plan. 

At the time of providing the Fire Management Plan to the Council, the Applicant did not include a bushfire information kit for the Council to approve. The Applicant, however, at a later date provided a bushfire information kit to the Council, which the Council refused to review. 

The originating application sought a declaration from the Court that the bushfire information kit is a bushfire information kit for the purposes of condition 55 of the MCU approval and condition 70 of the ROL approval. Additionally, the Applicant sought a declaration under section 246(1)(a) of the Sustainable Planning Act 2009 (SPA) that the bushfire information kit provided is consistent with the MCU approval and ROL approval. Lastly, the Applicant sought an order under section 465(8) of the SPA that the Council assess and decide whether the bushfire information kit provided ought to be approved under condition 55 of the MCU approval and condition 70 of the ROL approval. 

The Applicant argued that the relief would provide certainty as to the obligations imposed by the development approvals with respect to bushfire management works.

The Council contended as follows:

  • the Applicant's bushfire information kit was in fact not a bushfire information kit; 
  • there was no longer a requirement for the submission or approval of a bushfire information kit; and
  • the document submitted by the Applicant did not contain or acknowledge the requirement for consent to be obtained under the Environmental Covenant, which was detailed in conditions 17 - 19 of the MCU approval.

The Court held that it has the power under section 456(a) and (e) of the SPA to declare whether or not the Council could approve a bushfire information kit. In light of this, the Court concluded that the Council does have the discretion to approve the bushfire information kit submitted by the Applicant, where such a discretion "would not invalidate a bushfire management kit which did not include provisions which may derogate from a requirement of subsequent approvals as may be required under condition 19 of the development approval" (at [39]).

Fire Management Plan

In respect of condition 14 of the MCU approval, the Applicant devised a Fire Management Plan, which was approved by the Council. The Fire Management Plan addressed fire management bushfire control within the site. Additionally, condition 55 of the MCU approval stated that the Applicant was to provide a bushfire information kit to the purchasers of the allotments on the site, which was to be submitted to the Council for approval as part of the Fire Management Plan.

The Council contended, and the Court relevantly agreed, that the Applicant did not provide a bushfire information kit with the Fire Management Plan.

The Court found, however, that the Council's position to refuse the current bushfire information kit was a pre-emptive decision.

The Court concluded that even though the bushfire information kit did not accompany the Fire Management Plan, the Council has the ability to approve the bushfire management kit so as to allow compliance with condition 55 of the MCU approval. The Court based this conclusion on the following reasons (at [29]):

  • Condition 55 required that the Applicant supply the Body Corporate manager with a bushfire information kit and that the bushfire information kit was to be submitted to the Council for approval as part of the Fire Management Plan.
  • There was no express requirement that a bushfire information kit had to be submitted contemporaneously with the Fire Management Plan.
  • It could not be consistent with section 245 of the SPA to deny a successor in title an ability to obtain effective compliance with the condition. 
  • The condition is capable of an interpretation that does not exclude the submission by another entity in order to have it approved as part of the Fire Management Plan.

The Court found that it would be improper or unreasonable for the Council to refuse the document to be considered as a bushfire information kit. The Court concluded that the Council possessed an unfettered discretion in respect of any approval of a bushfire information kit under condition 55 of the MCU approval. 

Environmental Covenant and Private Open Space for Conservation (POSC) area

Condition 17 of the MCU approval provided that the area defined as the POSC area was to be registered as an environmental covenant in favour of the Council. Condition 18 of the MCU approval provided that the covenant is to cater for the requirements of the conditions of the MCU approval protecting vegetation described as the "Retained and Enhanced Vegetation".

Condition 19.7 of the MCU approval related to the POSC area and prescribed that the POSC area shall be protected so that native trees and vegetation are not removed, pruned, lopped, damaged or adversely affected, without the prior written approval from the Council's Manager - Environmental Services. 

The Court found that the Council correctly pointed out that the Applicant was bound by the relevant covenant, and the Court lacked jurisdiction in the proceeding to make a binding ruling as to the interpretation or effect of the covenant (at [32]). The Court, however, held that it did have a power to interpret condition 19.7 of the MCU approval. 

The Court concluded that there was no indication that condition 19.7 of the MCU approval should operate other than as it appeared. The Court found that condition 19.7 of the MCU approval created an overarching obligation for the Applicant, and a responsibility for the Council, which was separate to the covenant and the bushfire information kit.

Conclusion

The Court held that the Council retained the ability to exercise its discretion to approve the bushfire information kit under condition 55 of the MCU approval and condition 70 of the ROL approval. 

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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