Nothing to sea here: Planning and Environment Court of Queensland dismisses application alleging jurisdictional error in local government's decision to approve tidal works

In brief

The case of Heather & Anor v Sunshine Coast Regional Council & Ors [2022] QPEC 37 concerned an application to the Planning and Environment Court of Queensland (Court) for declarations and orders pursuant to section 11 of the Planning and Environment Court Act 2016 (Qld) (Act) in respect of a decision by the Sunshine Coast Regional Council (Council) to approve a development application for a development permit for operational work to construct a gangway, deck, and pontoon (Proposed Development) protruding into a canal from land located at Oak Court, Minyama (Decision).

The Applicants own a property that is "practically adjacent" to the subject property, separated only by a small public park, which was purchased shortly after the Council made the Decision and the Proposed Development was carried out (Applicants' Property) (at [4]).

The Proposed Development was code assessable and, in accordance with section 45 of the Planning Act 2016 (Qld), only required assessment against schedule 3 of the Coastal Protection and Management Regulation 2017 (Qld) (Tidal Works Code).

In making the decision, the Court considered the following issues (at [36]):

1. Whether there was a misapplication of Acceptable Outcome AO10.1 of the Tidal Works Code (AO10.1) in making the Decision.

2. Whether the Council's delegate erred in his assessment of the Proposed Development against Performance Outcome PO10.1 of the Tidal Works Code (PO10.1).

3. Whether the Decision is legally unreasonable, including whether the conditions of approval for the Proposed Development (Conditions) are unreasonable.

The Court dismissed the application as it found that the Applicants did not demonstrate that the Decision involved any jurisdictional error in that there was no misapplication of, or error in, the assessment of the Proposed Development against the Tidal Works Code and the Decision was not legally unreasonable.

Court finds that there was no misapplication of AO10.1

The Applicants argued that the Council misapplied AO10.1 because its delegate wrongly concluded that the Proposed Development complies with AO10.1 and deemed this to also cause compliance with PO10.1 (at [38]).

The Applicants relied upon an email sent by the Council's delegate subsequent to the Decision which stated that the Proposed Development complied with AO10.1(a)(i), which relates only to works involving a water allocation area whilst the Proposed Development did not affect a water allocation area (at [39]).

However, the Court accepted testimony from the Council's delegate that this statement in the email was an error and that he did not consider that the Proposed Development complied with AO10.1 at the time the Decision was made (at [39]).

Court finds the Council did not err in its assessment of PO10.1

The Applicants argued that the Council's delegate did not consider PO10.1 or, in the alternative, erred in the assessment of PO10.1 in that the Council's delegate did not consider the need for vessels to manoeuvre near the Applicants' Property or access the boat ramp on the Applicants' Property (at [44]).

The Council admitted that it did not consider the manoeuvring of vessels in the water near the Applicants' Property or access to works and structures associated with the Applicants' Property (at [46]).

The Court found that a requirement to consider the ability to manoeuvre a vessel in the water near the Applicants' Property or access to any improvements on the Applicants' Property is not included in the express terms of PO10.1 or called up by the language of the purpose of the Tidal Works Code (see [48] to [52]).

Further, the Court found that the consideration of the manoeuvrability of vessels would involve uncertainties, such as sizes and types of vessels, which proved good reason for the Court's conclusion that this is not a consideration required by the Tidal Works Code (at [53]).

Accordingly, the Court found that the Applicants failed to demonstrate that the Council's delegate failed to have regard to a matter that the legislation required him to consider (at [56]).

Court finds that the Decision was not legally unreasonable

The Applicants argued that the Decision was legally unreasonable, however they accepted that this argument depended upon successfully demonstrating that the Council's delegate was required to consider the ability of vessels to manoeuvre near the Applicants' Property (see [57] to [58]).

Whilst the Court found that this issue fell away because the Applicant did not demonstrate that this consideration was required in making the Decision, the Court observed that the Decision was reasonable due to the existence of a six metre-wide access corridor (at [59]).

The Court dismissed the Applicants' argument that the Conditions were unlawful for two reasons. Firstly, because there was no evidentiary basis for concluding that the Conditions would be impossible to enforce as claimed by the Applicants. Secondly, the Court found that the Applicants' criticism of the Conditions was truly an attempt to attack the merits of the Decision and section 11 of the Act does not allow the Court to consider the merits of the Decision (at [63]).

Conclusion

The Court dismissed the application.