Serratore v Noosa Shire Council - [2021] QPEC 21

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Serratore & Anor v Noosa Shire Council [2021] QPEC 21

PARTIES:

GIUSEPPE SERRATORE, TERESA SERRATORE, ANTONIO SERRATORE, CARMELA SERRATORE, MICHELA SERRATORE, PRISCILLA SERRATORE AND FRANK SERRATORE (BY HIS LITIGATION GUARDIANS CARMELA SERRATORE AND ANTONIO SERRATORE)

(appellants)

v

NOOSA SHIRE COUNCIL

(respondent)

FILE NO/S:

1781 of 2019

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal against enforcement notices

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

9 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21, 22, 23 and 24 September 2020 with further material delivered on 28 September 2020.

JUDGE:

Williamson QC DCJ

ORDER:

The appeal be listed for review on 16 April 2021.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where each appellant given an enforcement notice under s 168 of the Planning Act 2016 in relation to vegetation clearing – appeal against decision to give the enforcement notices – whether there is a reasonable belief that a development offence has been committed under s 163 of the Planning Act 2016 – whether there are defects in the form of the enforcement notices given – whether the enforcement notices should be varied – whether the matter should be remitted to the respondent.

LEGISLATION:

Planning Act 2016, ss 29, 46, 88, 161, 163, 166, 167, 168, 260, 261, 264, 265, 275L and Chapter 7, Part 1 and Schedule 2

Planning Regulation 2017, ss 70, 71, 75 and Schedules 6, 22 and 23

Planning & Environment Court Act 2016, ss 43, 45 and 47

CASES:

Benfer v Sunshine Coast Regional Council [2019] QPELR 613
Briginshaw v Briginshaw (1938) 60 CLR 336
Crowther v State of Queensland [2003] QPELR 346
Phillips v Spencer [2006] 2 Qd R 47
Vines v Djordjevitch [1955] 91 CLR 512

COUNSEL:

K Wylie for the appellants
A Skoien for the respondent

SOLICITORS:

Mullins lawyers for the appellants

Heiner Doyle solicitors for the respondent

Introduction

This is an appeal against a decision to give an enforcement notice to each appellant under s 168 of the Planning Act 2016 (PA). The notices are in identical terms and allege the named recipient has committed, or is committing, a development offence on land formally described as Lot 1 on RP 205063 (the land). The underlying basis for each notice is a stated belief that vegetation had been, or was in the process of being, cleared on the land without an effective development permit, contrary to s 163 of the PA.
The appeal is a hearing anew.[1]
[1]s 43, Planning & Environment Court Act 2016.
It is for Council to establish the appeal should be dismissed.[2]
[2]s 45(3), Planning & Environment Court Act 2016.

Background

Giuseppe and Teresa Serratore, and their five adult children, jointly own the land.[3]
[3]Affidavit of C Serratore, para 2.
The land is 41 hectares in size. It is trapezoidal in shape, with a truncation in its south-western corner. The truncation adjoins the road reserve.
The land is improved with a dwelling,…

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: [2021] QPEC 21
Decision Date: 9 April 2021

CaseChat Overview and Summary

Serratore v Noosa Shire Council involves an appeal against enforcement notices issued under the Planning Act 2016 to the appellants for vegetation clearing. The appellants contested the notices on various grounds, including whether there was a reasonable belief that a development offence had been committed, defects in the form of the enforcement notices, and whether the notices should be varied or the matter remitted to the respondent. The appellants argued that the clearing work did not constitute development under the Act and that there were defects in the enforcement notices.

The court examined whether the vegetation clearing constituted development, specifically operational work, under the Planning Act 2016. The court found that the clearing work materially affected the premises, satisfying the definition of operational work. The appellants cleared the land to manage a significant bushfire hazard, which was deemed material. Furthermore, the court considered whether the clearing works were categorised as assessable development under the Noosa Plan. Although the planning scheme did not list operational work as assessable development, the overlay mapping indicated that the land was partly ‘Environmental Protection’ and partly ‘Environmental Enhancement’, making the clearing works assessable.

The court concluded that the enforcement notices should be upheld as the clearing work constituted development and was assessable under the planning scheme. The appellants' appeal was dismissed, and the matter was to be reviewed on 16 April 2021.

Orders

Orders of the court

The appeal be listed for review on 16 April 2021.

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

The term operational work is also defined in Schedule 2 of the PA as follows:“operational work means work, other than building work or plumbing or drainage work, in, on, over or under premises that materially affects premises or the use of premises.” It can be accepted that the clearing work is not building, plumbing or drainage work. The point requiring closer attention in this case arises from the tail end of the definition. The question to be considered is whether the clearing work ‘materially affects the premises or the use of premises’? This is a question of fact and degree. The answer will be informed by a range of considerations, including the adopted planning controls. Importantly, it should be borne in mind that it is insufficient for the clearing works to affect the premises or its use. The degree of affectation must be material to satisfy the definition. Here, I am satisfied the clearing work materially affects the premises for the purposes of the definition of operational works. This is so when two matters are taken in combination, namely: (1) the extent of clearing, which is depicted in aerial photography and described in the affidavits of Mr Friend and Mr Hill; and (2) the underlying rationale for the clearing works, as described by Carmela Serratore, which was to manage a known and significant constraint to the use of the land, namely bush fire hazard. The level of risk attending that hazard is high. The clearing work is development for the purposes of the PA, namely operational works. I am, as a consequence, satisfied the question posed in paragraph [62](a) is answered in the affirmative. With respect to paragraph [62](b), it is necessary to determine whether the clearing works is categorised as assessable development. This is resolved in this case by reference to Council’s planning scheme, ‘The Noosa Plan’. For the purposes of the planning scheme, the land is included in the Cooroibah locality[48] and Rural zone[49]. Section 5.14 (division 8), table 5.6[50] of the planning scheme contains the assessment table for development that is ‘other than material change of use’ in the Cooroibah locality. The table does not make operational work (involving vegetation clearing) in the locality, or Rural zone, assessable development. That this is so is not the start and finish of an examination of the planning scheme. [48]Ex.4, Tab 10, Map ZM2.[49]Which is admitted at paragraph 3 of the Second Further Amended Notice of Appeal (Ex.1, Tab 7).[50]Ex.4, Tab 8, p. 5-15 to 5-17. Part 13 of the planning scheme is also of relevance. It contains overlays. Of particular relevance is the Biodiversity overlay and the associated code (the overlay). Overlay mapping indicates the land is affected by the overlay in at least two respects. The land is mapped as partly ‘Environmental Protection’ and partly ‘Environmental Enhancement’.[51] Division 2 of the overlay sets out a number of definitions. One such definition is ‘category 3 lot’,[52] which means a freehold lot of 2 hectares or more, other than a category 4 lot, in the protected vegetation overlay area. There was no dispute between the parties that the land satisfied this definition. [52]Ex.4, Tab 9, p.13-1.

CITATION:	Serratore & Anor v Noosa Shire Council [2021] QPEC 21
PARTIES:	GIUSEPPE SERRATORE, TERESA SERRATORE, ANTONIO SERRATORE, CARMELA SERRATORE, MICHELA SERRATORE, PRISCILLA SERRATORE AND FRANK SERRATORE (BY HIS LITIGATION GUARDIANS CARMELA SERRATORE AND ANTONIO SERRATORE) (appellants) v NOOSA SHIRE COUNCIL (respondent)
FILE NO/S:	1781 of 2019
DIVISION:	Planning and Environment Court
PROCEEDING:	Appeal against enforcement notices
ORIGINATING COURT:	Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:	9 April 2021
DELIVERED AT:	Brisbane
HEARING DATE:	21, 22, 23 and 24 September 2020 with further material delivered on 28 September 2020.
JUDGE:	Williamson QC DCJ
ORDER:	The appeal be listed for review on 16 April 2021.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – where each appellant given an enforcement notice under s 168 of the Planning Act 2016 in relation to vegetation clearing – appeal against decision to give the enforcement notices – whether there is a reasonable belief that a development offence has been committed under s 163 of the Planning Act 2016 – whether there are defects in the form of the enforcement notices given – whether the enforcement notices should be varied – whether the matter should be remitted to the respondent.
LEGISLATION:	Planning Act 2016, ss 29, 46, 88, 161, 163, 166, 167, 168, 260, 261, 264, 265, 275L and Chapter 7, Part 1 and Schedule 2 Planning Regulation 2017, ss 70, 71, 75 and Schedules 6, 22 and 23 Planning & Environment Court Act 2016, ss 43, 45 and 47
CASES:	Benfer v Sunshine Coast Regional Council [2019] QPELR 613 Briginshaw v Briginshaw (1938) 60 CLR 336 Crowther v State of Queensland [2003] QPELR 346 Phillips v Spencer [2006] 2 Qd R 47 Vines v Djordjevitch [1955] 91 CLR 512
COUNSEL:	K Wylie for the appellants A Skoien for the respondent
SOLICITORS:	Mullins lawyers for the appellants Heiner Doyle solicitors for the respondent