Heather 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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QPEC 37
Decision Date: 7 October 2022

CaseChat Overview and Summary

In Heather v Sunshine Coast Regional Council, the applicant challenged the Council's approval of a prescribed tidal works application, which allowed for the construction of a jetty. The application was deemed code assessable, meaning it did not require referral to the Minister for a decision. Following the approval and subsequent construction of the jetty, the applicant sought declarations and orders to set aside the decision, arguing that it was materially affected by legal error or was legally unreasonable.

The court was required to determine whether the decision to approve the prescribed tidal works was legally flawed. This involved examining the criteria and process by which the decision was made, and whether the Council had adhered to the relevant legislative and procedural requirements. The applicant's contention was that the decision was legally unreasonable because it did not properly consider the impact on the applicant's property and the surrounding environment.

The court examined the legislative framework and found that the Council had correctly followed the prescribed process for assessing the tidal works application. The court held that the decision was not materially affected by legal error and was not legally unreasonable. The court found that the Council had appropriately considered the relevant factors and statutory criteria in approving the application. Consequently, the applicant's challenge to the decision was dismissed, and the construction of the jetty was upheld.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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