In brief

The case of Pelican Noosa Pty Ltd v Noosa Council [2021] QPEC 11 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Noosa Council (Council) to refuse a change application seeking to regularise the construction of a jetty.

The Applicant applied to the Council to extend a jetty. The concurrence agency mandated that the development proceed "generally in accordance with" plans attached to its response (Concurrence Agency Response Plans). The Council approved the development application, which included a condition that the development was to "generally comply" with the plans attached to the Council's decision notice (Decision Notice Plans), which were different to the Concurrence Agency Response Plans. Most relevantly, the Decision Notice Plans show the jetty setback 2.6 metres from the northern (seaward) boundary of the lease area, whereas the Concurrence Agency Response Plans do not show such setback. The decision notice also includes a condition which relevantly states that "[v]essels associated with the marine use of the facility must only be moored within the approved lease area" (Condition 1) (see [17]). 

The Applicant constructed the extension to the jetty but not with the 2.6 metre setback, and instead so that the northern (seaward) pontoon was within 8 centimetres of the northern (seaward) boundary. The Applicant submitted a change application to the Council to make regular the jetty as constructed and to amend Condition 1.

The Council refused the change application on the grounds that the extension was not a minor change and was contrary to the now superseded Noosa Plan 2006

The two broad issues for the Court to determine were, firstly, how the approval of the development application is to be interpreted, and secondly, whether the proposed changes are a minor change and if they should be approved.

The Court allowed the appeal for the following reasons:

  • Condition 1 is to be interpreted to mean that the northern (seaward) pontoon can be used for temporary mooring.

  • The proposed changes are a minor change and are not a reason to refuse the change application.

Council acted within its authority to require the setback

The Applicant argued that the Council acted outside of its power by imposing the 2.6 metre setback because the Concurrence Agency Response Plans made no reference to the setback. The Applicant relied upon section 62 of the Planning Act 2016 (Qld) to argue that the Council was required to "comply with the referral agency's response" and to include in the approval "conditions exactly as stated in the response" (see [16]).

The Court rejected the Applicant's argument because it mischaracterised the absence of a specified setback in the Concurrence Agency Response Plans to be a condition that no setback be imposed at all (at [16]). The Court held that the Council acted within its power to require the setback since the Decision Notice Plans are not inconsistent with the Concurrence Agency Response Plans in respect of the setback, which are silent as to any distance between the jetty and the northern (seaward) boundary, and cannot be interpreted to provide any requirement one way or another (at [16]). 

Court rejects Council's interpretation of Condition 1 because of original approval

The central dispute over Condition 1 was the interpretation of the term "moored". The Council argued that it ought to be interpreted as meaning "…tying up of any duration is prohibited, unless the vessel is wholly within the boundaries of the lease" area (at [18]). The Council relied upon evidence from a coastal engineer who opined that the definitions of "berth", "moor", and "dock" from the Australian Standards and the Merriam-Webster dictionary ought to be adopted (at [19]).

The Court held that technical definitions of the words taken in isolation provided no answer to the effect of Condition 1 (at [20]). Instead, the Court construed Condition 1 in the context of the approval itself.

The Court examined two notations that are present in both the Concurrence Agency Response Plans and the Decision Notice Plans. The first notation states, near the northern section of the jetty extension, "FERRY PASSENGER WAITING AREA" and the second notation states, near the new pontoon adjacent to the northern (seaward) boundary of the lease area, "DROP OFF ONLY". The Court held that these notations indicate that, firstly, the Council was aware that the jetty had historically been used as a stop, and secondly, that the Concurrence Agency Response Plans and the Decision Notice Plans approve the continued use of the jetty as a stop (at [22]). The Court held that there was no sensible reason to assess Condition 1 against the purpose of the mooring since many historic uses of the jetty were "practically indistinguishable" (at [22]). The Court held that interpreting Condition 1 in light of this approval "…is consistent with the need to construe the approval sensibly, as a whole and having regard to its apparent purpose" (at [22]).

For those reasons, the Court reached the conclusion that Condition 1 is to be taken to permit temporary or short-term mooring even if the vessel exceeds the boundary of the lease area, and only mooring on something other than a temporary basis would have to be wholly within the lease area (at [24]). 

Court finds that proposed changes are minor and should be approved

The Council argued that the Applicant's change application was not minor on the following three grounds:

  1. The changes introduce a new parcel of land into the approval.

  2. The changes increase the severity of impacts on the river and its users.

  3. The change is not minor when considered in the context of the relevant planning scheme.

Proposed changes will not introduce a new parcel of land

The Council argued that the Decision Notice Plans do not permit vessels to operate from the northern (seaward) pontoon, unless they are wholly within the boundaries of the lease area and that removing the 2.6 metre setback would result in an extension of commercial activity into the river. The Council argued that these factors are more than a minor change.

The Court disagreed with the Council and held that the proposed changes would not introduce a new parcel of land or result in a substantially different development because of the Court's conclusion that the original approval already permitted temporary mooring by vessels outside the boundaries of the lease area (at [22]).

Proposed changes will not increase the severity of impacts on the river and its users

The Council relied on the submissions by its coastal engineer to argue that the Applicant's proposed changes will "increase the scale and intensity of commercial operations in and around the lease area" (see [33]). The Council's coastal engineer further opined that if the changes were approved and the 13 other leases on the river gained a similar benefit it would significantly reduce the public space on the river (at [34]). 

The Court held that the proposed changes will not increase the impacts on the river and its users for the following reasons (at [34]):

  • The potential number of vessels that could be berthed within the lease area boundary under the proposed changes is less than if the 2.6 metre setback had been applied and if the Council's interpretation of Condition 1 had been applied. 

  • There was "no proper basis" in arguing that the proposed changes will result in successful changes to the other leases on the river since this would now require an application for a material change of use because the Noosa Plan 2006 had since been superseded by the Noosa Plan 2020.

Proposed changes are minor as defined under the Planning Act 2016 (Qld)

The Council's argument relied on the Court reaching a conclusion that the Decision Notice Plans do not permit vessels wider than 2.6 metres to operate from the northern (seaward) pontoon. The Court held that while the proposed changes would result in some expansion of the Applicant's operations into the northern area of the river, the expansion is not significant because this result is not different from what was originally approved (see [22] and [35]).

Court approves the minor change application 

The final matter for the Court to consider was whether the Applicant's proposed changes ought to be made when assessed against the relevant planning scheme. In particular, the Council argued that the proposed changes do not comply with Overall Outcome O11.7.2(hh) and Specific Outcomes O21, O28, and O29 of the Noosaville Locality Code in the Noosa Plan 2006. The Council's reasons and the Court's response were as follows:

  • The Council argued that on the evidence of the Council's coastal engineer, there is potential for changes to other jetties that would produce an overall loss to the river's area, which is contrary to Overall Outcome O11.7.2(hh). The Court held that there is no real prospect that the alleged changes to other jetties would follow from the approval of the change application because of how such a change would be assessed under the Noosa Plan 2020 (see [34] and [41]).

  • The Council relied on evidence of the Council's town planner to argue that approval of the change application would increase the scale or intensity contrary to Specific Outcome O27. The Court held that an additional 2.6 metres is a negligible increase in scale and intensity when considered against the original approval contemplating the use of the northern (seaward) pontoon by vessels outside of the lease area (at [42]).

  • The Council's primary argument was that the change application would result in commercial activity extending beyond the northern boundary of the lease area and not satisfy Specific Outcomes O28 and O29. The Court agreed that commercial activity would extend beyond the boundary of the lease area, but held that some commercial activity had already been approved outside of the lease area and that the total difference produced by the change would be minor and was not a reason to refuse the change application (see [43] and [45]).

Conclusion

The appeal was allowed. The decision to refuse the change application was set aside and the parties were directed to produce to the Court an order that would amend Condition 1 to make it clear that the northern (seaward) pontoon can be used for temporary mooring.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.

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