By JONATHON HOWARD
NOOSA Council will consider appealing a ruling from the Planning and Environmental Court that orders council to pay 85 per cent of legal fees from a development application to establish a Masters Home Improvement Centre in the Noosa Shire Business Centre.
The council was unsuccessful in defending its decision to reject the development application in the Planning and Environment Court and the appellant has sought court costs.
Applicant Hydrox Nominees Pty Ltd, who submitted the application to build a Noosa Masters, was successful on all but one of the issues which had been in dispute during the appeal.
The issue was the level of conflict with the provisions of the planning scheme relating to development within relevant precincts of the Noosa Shire Business Centre.
Noosa councillor Tony Wellington said the decision to refuse the Masters development application for Noosaville was a majority decision made by the former Sunshine Coast Council.
“The decision to defend the appeal was also the product of a majority vote of Sunshine Coast councillors,” Cr Wellington wrote in a written response to Noosa Today.
“It is important to note that, as a councillor on that council, I had no influence over the choice of expert consultants engaged, nor was I able to have any significant input into the way that appeal was run.
“I can say that I was decidedly unhappy with the choice of economic consultant to help defend the appeal.”
Cr Wellington said Noosa Council determined in January this year to uphold the previous decisions by the Sunshine Coast Council and thus continued to defend the appeal.
“As a councillor on the Sunshine Coast Council, I moved the motion to refuse the Masters development at Noosaville,” he said.
“As the public record shows, the motion was carried by nine votes to four.”
Cr Wellington said his reasons for refusing the development were in part on the grounds that he believed a Masters Home Improvement store would impact adversely on existing small businesses and ultimately on the local economy.
“Aspects of the development were also contrary to the planning scheme,” he said.
Mr Wellington has also pointed out the serious ramifications for local government and were “arguable weighted in of developers”.
“The recent decision to award costs against Noosa Council has some very serious ramifications for local governments across Queensland,” he said.
“For a start we are now seeing the repercussions of this State Government’s Sustainable Planning and Other Legislation Amendment Act 2012 (SPOLA).
“Contrary to historic example, this legislation directed the Planning and Environment Court to consider awarding court costs to the successful party.
“Previously the Planning and Environment Court had been a largely cost free jurisdiction – that is, parties had met their own costs.
“It was extremely rare for costs to be made and then only in vexatious or frivolous cases.”
“The SPOLA changes introduced by the Newman Government were arguably weighted in favour of developers because they serve to inhibit councils from defending their decisions.
“Perhaps more importantly, they also inhibit community groups and individuals from becoming correspondents, with the obvious threat of having costs awarded against them.”
Cr Wellington said in the case of Masters at Noosaville, a percentage of the costs had been awarded against Noosa Council.
“In part that determination is based on the fact that the Sunshine Coast Council decision to refuse the application was contrary to the original staff recommendation to approve it. If allowed, this is a very worrying precedent,” he said.
“In future, councils that make a decision that is in conflict with a staff recommendation – and that is far from uncommon – will face the very real prospect of having legal costs awarded against them in any subsequent appeal.
“The obvious solution, which is both unfortunate and absurd, is to have their planning staff not make any recommendation.
“In other words, the staff’s expert report would not make a reference to either approve or refuse the application, and the elected councillors would have to interpret or surmise what the staff’s intent may be.
“It is also worth noting that the judge determined that neither council nor its lawyers acted improperly in deciding to proceed to a hearing and that the issues litigated were ‘bona fide matters of town planning relevance and public interest’.
“Council did nothing wrong, yet is to be penalised.
Mr Wellington said the matter would likely cause shockwaves across local governments throughout Queensland.
“Noosa Council is currently considering its prospects of appealing the decision,” he said.
HAVE YOUR SAY: Do you think the council was right to pursue the case against Masters? Email your thoughts to newsdesk@noosatoday.net.au
