Escanaba v Noosa Council and the 2006 Noosa Plan

What does this judgement tells us about Existing Rights and Superseded Planning Scheme Approvals derived from the 2006 Noosa Plan?

By Julia Craddock, Noosa Shire Resident

Followers of this site may recall that Council recently approved an existing rights application (S260 of the Planning Act) for a property near me.

The approval gives the owner unfettered rights to continuous short-stay let the property in perpetuity.

The rights can be onsold to an investor. The approval boosts the value of that property considerably and devalues my residential home. My residential amenity, my ability to peacefully enjoy my home is significantly diminished.

I knew the history of the property. I knew the approval was not likely to be valid. I sought advice and assistance from Noosa Council. Council refused to answer my enquiries regarding the approval. I was told in no uncertain terms: you have no right to know.

I did what any reasonable person, unreasonably denied information would do - I researched the matter myself. I investigated the legislation; case law; the Noosa Plan 2006; the Noosa Plan 2006 Part 2 Definition and Dictionary and the Eastern Beaches Locality Plan. I sought advice and direction from the State. I matched the information I acquired to Council Guides. I learned that the Guides I had previously accepted without question did not appear to be accurate.

What I have discovered causes me significant concern re the validity of that specific approval, and existing rights approvals in general. It also raises doubts in my mind re the last Superseded Planning Scheme round. It causes me disquiet in relation to the current proposed changes to the Noosa Plan. Are the purported interchangeable rights of pre-2006 properties valid? Or is Council just jumping over inconvenient legislative provisions in order to facilitate the administration of another SPS round?

I attempted to raise my concerns with Council. It took me more than 6 weeks to get a meeting with Council’s STA unit. And when I did, I think it fair to say they were not prepared for the level of questioning I put to them. I felt I was encountering a closed mind-set. I was told I was wrong, but no-one could show me where I was wrong. Council couldn’t readily demonstrate the basis of their position. I got the impression I was dealing with a set organisational view - we’ve always done it this way. I repeatedly pointed to the Escanaba v Noosa Council judgement. It wasn’t considered to be of any significant relevance. I asked why? Show me how? Look here, here and here …

I have now presented 2 detailed documents to Council. An analysis of the judgement in my layman’s terms. I am not legally qualified. And at Council’s request, I have provided a follow-up analysis questioning a number of approvals that I believe do not meet requirements of S4 and S6 of the local law. I query the “lawful” basis and validity of the “rights” relied on. I query the validity of these local law approvals. They are illustrative examples that do not appear to accord with Justice Cash’s decision in Escanaba. I query Council’s stated position on “interchangeable rights” in pre-2006 properties.

These matters are primarily the responsibility of the Acting CEO and the Mayor. To date I have received no acknowledgment or response from either.

Council is now seeking legal advice.

As the election period looms, we are starting to see a shift in public positions by Councillors. Staunch STA supporters are indicating an awareness of the extensive damage foisted onto residents by the uncontrolled and poorly managed tsunami of STA in Noosa. Too little too late? An eye to the potential for vote losses only? STA approvals are usually in perpetuity. Council has rushed to zealously rubber-stamp approvals with apparently inadequate regard for legislative detail. Council fears compensation claims from investors denied. It is eager to grant approval. It does not appear to have adequately considered the other side coin.

What would happen in residents took action? Is Noosa Council confident, post Escanaba it could defend these approvals against claims of loss by residents? For most homeowners in Noosa, their home represents their biggest asset. Remarkably Council appears to have had too little regard to residents - to its constituents. Our interests are clearly deemed secondary to those of the mostly out of area and State investors.

We are told bad luck. Sell. Sell to an investor - as the dominoes continue to fall. Fewer and fewer residents in whole streets and areas comprised of STA. 1 in 3 properties in coastal Noosa are identified as STA. There are of course many more not formally identified.

I encourage all residents and Councillors to read Escanaba v Noosa Council 2023 and use that judgement as a starting point for consideration of: what rights to short-stay letting are embedded in the 2006 Noosa Plan? I recommend residents read the judgement rather than rely on a précis. The judgement is exceedingly clear.

Clr Stockwell has recently released data which demonstrates the scale of existing rights and superseded planning scheme approvals in Noosa. Council’s intense focus on avoiding compensation claims from owners is highlighted. The costs of potential claims avoided is estimated at $28-56m. Where are the estimated costings of detriment or compensable loss to residential home owners? What about potential liability relating to unfairness of process and possibly invalid approval?

My work and motives are challenged. What if you are right? Imagine the cost? How can it be resolved? It’s unthinkable. And indeed it is. Does that make the detriment to residents, to resort owners, to small businesses and to unhoused workers ok? We should just turn the other cheek?

Legal firms with an interest in representative proceedings can, I am sure, see both the scale of potential claims and make initial assessments of likely potential for success.

It is clearly in the community’s interest and Council’s interest for Council to openly engage with residents. I invite Council to do so. Stonewalling has only served to exacerbate tensions with residents.

Whilst it is clearly preferable for the entire community to be able to openly raise; satisfactorily mediate, and resolve these issues with Council, I recognise some may prefer to exercise their options through formal channels. I believe the information I have acquired may assist those wishing to pursue formal options.

I strongly encourage Council to engage with residents to transparently answer questions and allay concerns. I strongly encourage residents to clarify technical issues and raise them directly with the Acting CEO and Mayor, or, if necessary, their legal representatives.

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