Sunshine Coast Water Ski Club Inc v Maroochydore Shire Council

[2001] QPEC 32

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Sunshine Coast Water Ski Club Inc v Maroochydore Shire Council [2001] QPE 032
PARTIES:	SUNSHINE COAST WATER SKI CLUB INC (Appellant) and MAROOCHY SHIRE COUNCIL (Respondent)
FILE NO/S:	Appeal No. 22 of 2000
DIVISION:	Planning and Environment Court
DELIVERED ON:	15 May 2001
DELIVERED AT:	Maroochydore
HEARING DATE:	12 - 14 March 2001
JUDGE:	K S Dodds DCJ
ORDER:	The appeal is dismissed
CATCHWORDS:	PERMIT APPLICATION – appeal against refusal – wh applic for permit was extension of permit
Statutes judicially considered: Local Government (Planning and Environment) Act 1990 Integrated Planning Act 1997
COUNSEL:	In person for the appellant G N Phillips for the respondent
SOLICITORS:	In person for the appellant Legal Services – Maroochydore Shire Council for the respondent

1. This is an appeal against a decision of the respondent refusing to extend the period of a permit to use a lagoon or lake (the lagoon) on a property owned by a Mr. Marshall for sport and recreation (boating/competition water skiing).

[2] The lagoon appears to owe its existence to extractive industry in the area in the
past. Extractive industry is still ongoing in the general area.

1. The appellant made application for the permit on the 25th of October 1996. At that time the Local Government (Planning and Environment) Act 1990, now repealed, was in force (the P&E act). The land in question is part of lot 2 on RP. 269843 contains 8.7 hectares and had a rural B zoning under the respondent’s previous planning scheme. Under Maroochy Plan 2000, which commenced on 1 June 2000, the land is within Precinct No.8 Woombye-Palmwoods East, Precinct class general rural lands, within Planning Area No. 21 Eudlo Creek Valley.

2. The vision statement for the planning area includes:

   “it is intended that the valley maintains a predominantly rural landscape accommodating a range of rural activities, rural residential development, conservation parks, extractive industry, the small country township of Eudlo, low key tourist facilities, and a business and industry node at Forest Glen”.

3. The intent of the precinct includes:

   “to allow for a wide range of rural activities within this precinct, while favourable consideration could be given to other broad hectare activities that are compatible with a rural setting and do not require urban services and infrastructure. The precinct adjoins urban areas and there is potential for land use conflict to arise. It is intended that such conflict potential be addressed through the use of best land management practices and through buffering measures incorporated in any new urban development in the adjoining precincts”.

4. The activity, the subject of the permit, was a consent use under the previous planning scheme. There was public advertising of the application. It brought forward a number of objections from people living in the vicinity of the lagoon. Consultation took place. On 19 December 1996 the application was approved. The consent permit permitted the use described subject to the undermentioned conditions which included:

   “1.(b) The use and development hereby approved under this permit shall cease and the permit lapse 3 years from the date of consent, without the prior written consent of the Chief Executive Officer for an extension of such usage;

   2. The permit hereby approved shall have no force or effect until a properly submitted development plan has been submitted to Council and endorsed by the Chief Executive Officer --;

   6. This permit shall have no force or effect until a stormwater management plan for areas affected by the proposed facilities including access, car parking areas and building sites has been lodged and endorsed by the Chief Executive Officer.”

   provisions dealing with the content of the development plan with landscaping requirements, engineering requirements, building requirements and site management.

   “10. The use and development hereby permitted shall comply with

   the following conditions:

(a)	operation of all boats restricted to week days and Saturdays 6.30am – 6pm, and Sundays 8am – 5pm, with the exception of competition and tournament days;
(b)	the number of boats operating on the lagoon at any one time is to be restricted to one only;
(c)	only boats authorised by the Sunshine Coast Water Ski Club are permitted to use the facilities and these boats are to be fitted with water silenced mufflers to restrict noise levels;
(d)	no jet ski use or remote controlled boat use is to be permitted on the lagoon;
(e)	club tournament days are to be restricted to one per month;
(f)	championship events are to be restricted to three events per year;
(g)	the use of loud speakers or music is to be restricted to championship days. Championship days are defined as Country, State or Australian National Titles;
(h)	1.2 metre chain-wire fencing to be constructed to adjoining properties RP. 182906 and RP. 167049 at the applicant’s expense;

(i)    no camping or over-nighting in respect of the approved use is permitted on the subject sight with the exception of caretaking or for security purposes.”

1. The appellant and its members used the lagoon for practice, competition and for tournaments. On 28 April 2000, two days before the expiration of the three year period, the appellant made application to the respondent to “extend the currency period of the permit”. By this date the Integrated Planning Act 1997 (IPA) was in force. There had been prior contact between members of the appellant and officers of the respondent regarding extension of the permit. There were a number of meetings between officers of the respondent and members and representatives of the appellant. On 26 July 2000 the respondent advised the appellant the request was refused. The advice included that the application was refused as the appellant had “not complied with several conditions of the original consent permit. Furthermore, the existing conditions have not been able to control noise from club events in a manner which protects the rural amenity of the locality”. It suggested a fresh application under IPA should be lodged which would be impact assessable.

2. In advancing its application for an extension the appellant obtained the services of a town planner and ex-employee of the respondent. After speaking with officers of the respondent about the appropriate form of application, she lodged the application for an extension of the currency period of a development approval in accordance with section 3.5.22 of IPA. The respondent in refusing the application did not suggest that the particular section of IPA had no application to the prevailing situation, rather, as referred to earlier its reasons for refusal were that the appellant had not complied with several conditions of the original permit and that the existing conditions had not been able to control noise from club events in the manner which protected the rural amenity of the locality.

3. Counsel for the respondent submitted that the appeal must be dismissed for two reasons. The first was that the provision of IPA, pursuant to which the application was made and refused (section 3.5.22), was not appropriate. Rather, he submitted the application could only be regarded as an application under section 3.5.33 IPA and if so regarded should be refused.

4. Section 3.5.22 IPA is in Division 5 of Part 5, Chapter 3 of IPA. Chapter 3 deals with the Integrated Development Assessment System (IDAS). Part 5 deals with the decision stage of IDAS. Division 5 deals with approvals of applications for development.

5. Section 3.5.19 of IPA provides for when an approval of a development application has effect. Section 3.5.20 provides the development may start when a development permit takes effect. Section 3.5.21 provides that a development approval for a development application lapses at the end of the currency period for it in the event that the development applied for has not been implemented in a way subsection (1) provides. Subsequent subsections of section 3.5.21 provide for a currency period depending on the type of development.

6. Section 3.5.22 is entitled “Request to extend the currency period”. It provides –

   “(1) If before the development period lapses a person wants to extend

   the currency period the person must by written notice –

(a)	advise each entity that was a concurrence agency that the person is asking for an extension of the currency period; and
(b)	ask the assessment manager to extend the currency period”.

[13] For a definition of “currency period” the dictionary, schedule 10, refers to
section 3.5.21.

1. It seems plain that the provisions I have just referred to are not appropriate for the appellant’s application. The permit granted to the appellant was fully utilised. The provisions rather deal with the period available to implement a development approval (the currency period) and its lapse at the end of that period unless the approved development is implemented in a way provided. Section 3.5.22, which provides a procedure for obtaining an extension of the currency period, has no scope for operation unless lapse of a currency period, referred to in section 3.5.21, will or may occur.

2. If the matter is approached as counsel for the respondent submitted ie, that the application by the appellant be regarded as an application under section 3.5.33 of IPA to change or cancel a condition of a development approval, then section 3.5.33(7) required that regard be had to the matters the respondent would have had regard to if it were a development application and to the submissions that were made on the original application which lead to the condition which is sought to be changed or cancelled. And in this regard six of the eight original objectors, concerned about the noise and/or management of the proposed use, suggested that the period of the use approved be limited to a period of three years, after which time the operation may be reviewed.

3. Whilst an appeal is a hearing de nevo on the material before the court it also is constrained by the requirements of section 3.5.33(7). Approached in this way, in the light of the objections which led to the condition limiting the period of the permit combined with the history surrounding the use, I would not find myself persuaded that the period of the permit should be simply extended.

4. The second and more basis reason was that section 6.1.28 of IPA was fatal to the appellant’s appeal. If section 6.1.28 applies in the present situation, the submission is correct.

5. Section 6.1.28 applies to development applications for assessable development made after the commencement of IPA to which a transitional planning scheme applies. Subsection (1) provides they must be made and processed under IPA. Subsection (2) then deals with applications which under the P&E act would have required public notification. Subsection (3) deals with applications which under the P&E act would not have required public notification.

6. The respondent’s new planning scheme, Maroochy 2000, came into force on 1 June 2000. Prior to that, when the application for an extension was made, the respondents previous planning scheme, which was a transitional planning scheme (see section 6.1.3 of IPA), applied.

7. If the appellant‘s application to extend the period of the permit is a development application for assessable development and is an application which under the P&E act would have required public notification, section 6.1.28(2) would require there be impact assessment of the application. Under the P&E act the appellant’s application would be an application under section 4.15(1)(c) of that Act to modify a condition of the permit. Section 4.15(2) of that Act provided that a local government is not to approve such an application seeking the modification of a condition imposed because of an objection made when public notice of an application was given (see section 4.15(2)(e)).

8. The use of the phrase “development application for assessable development” in section 6.1.28 at first glance does not readily appear to encompass the appellant’s application. In terms of IPA it was an application to change or cancel a condition of a permit. Under IPA, a development application is an application for a decision notice that approves development applied for. Development under IPA is any of: carrying out building work; carrying out plumbing or drainage work; carrying out operational work; reconfiguring a lot; making a material change of use of premises. However, “assessable development” is given an enlarged meaning for the purposes of section 6.1.28(1) in section 6.1.1 of IPA, such that it picks up the sort of application made by the appellant as an application for assessable development. It includes development which under the P&E act would have required an application to be made for a permit or modification of a permit under sections 4.13 and 4.15 of the P&E act respectively. Thus, a development application for assessable development is an application for a decision notice approving development applied for, here, development not inconsistent with Schedule 8 of IPA that under the P&E act would have required an application to be made for a permit and/or modification of a permit under section 4.13 (12) and 4.15 of the P&E act respectively.

9. The outcome is that the appeal will be dismissed.

10. It is not necessary in the circumstances to enter into a detailed analysis of the conditions of the permit and whether and to what extent they have not been complied with. However, in view of the way the hearing of the appeal took place, I think it is appropriate to record as follows:

11. A number of the conditions of the permit have not been strictly or fully complied with and the non-compliance has seemingly been acquiesced in by the respondent.

12. For its part the appellant has expended a deal of time, effort and money equipping the lagoon with the necessary trappings to apparently make it into a first class competition venue. It has also gone to a deal of effort in an attempt to obtain approval of its application for an extension, to show that its activities at the lagoon do not pollute the environment. It has commissioned expert testing of the water of the lagoon to demonstrate ongoing water quality. It has commissioned expert accoustical assessment to measure noise levels from boat exhausts and PA systems. It has consulted with police and other emergency services about the adequacy of its provision of infrastructure for tournament events at the lagoon.

13. It seems that over the years there has been an ongoing issue about noise from boats using the lagoon for some people who have lived or live in the area. One such person who presently lives in the area is a Mr Lamberton (Lamberton). Lamberton has kept a diary in which he has recorded observations about out-of- hours use of the lagoon by boats, some of which are undeniably boats associated with the appellant. Some may not be.

14. Lamberton gave evidence in the appeal. I accept that he and his wife genuinely find the noise of boats, and on tournament occasions the PA systems in use, jarring to their senses. Some others who live in similar or closer proximity to the lagoon also gave evidence. According to them they were not bothered by these things.

15. It is possible that persons other than the appellant’s members have also used the lagoon. For instance there have been complaints of jet ski usage. Usage by others, if it is occurring, may heighten objection to the appellant’s use of the lagoon. The tendency will be to blame all powered watercraft activity on the appellant. A problem is the lagoon is not secured from use by others. Another problem is with enforcement. Plainly with the conditions that were in place, the appellant’s activities must be self regulating, for it is not practicable for the respondent to have an enforcement officer available to respond to complaints at all times. Putting to one side the possibility of persons other than the members of the appellant also using powered watercraft on the lagoon, non-compliance with the conditions of the permit (as it appears on occasions has occurred) in the longer term will tend to exacerbate complaints and objections and contribute to a lack of support from surrounding residents.

16. The appeal is dismissed.