PLANNING AND ENVIRONMENT COURT 
OF QUEENSLAND

CITATION:	Willard v England & Anor [2025] QPEC 9	
PARTIES:	GEORGE JESS LILOA WILLARD
(Appellant)
v
BRETT ENGLAND
(Respondent)
AND
NOOSA SHIRE COUNCIL
(Co-Respondent)	
FILE NO/S:	3479 of 2024	
DIVISION:	Planning and Environment 	
PROCEEDING:	Application in pending proceeding 	
ORIGINATING COURT:	Planning and Environment Court, Brisbane	
DELIVERED ON:	26 May 2025 (ex tempore)	
DELIVERED AT:	Brisbane	
HEARING DATE:	26 May 2025 	
JUDGE:	Everson DCJ	
ORDER:	Application refused.	
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPLICATION – REMITTAL TO DEVELOPMENT TRIBUNAL – where the appellant wishes to be legally represented and amenity is a relevant consideration under the planning scheme – whether the appeal should be remitted to a development tribunal. 	
CASES:	Broad v Brisbane City Council [1986] 2 Qd R 317	
LEGISLATION:	Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)	
COUNSEL:	Mr N Batty for the appellant
Ms Rodgers for the co-respondent 	
SOLICITORS:	MacDonnells Law for the appellant
King & Company Solicitors for the co-respondent	
[1]	The appellant made a development application to the respondent, a private certifier, to regularise a shed and extend it at his property at 1 Upland Court, Tinbeerwah, which is in the Rural Residential Zone.  The co-respondent, in its Referral Agency Response, directed the respondent to refuse the application.  The decision of the co-respondent was confined to the shed not complying with, and not being able to be conditioned to comply with, PO6 of the Rural Residential Zone Code in its planning scheme.   
[2]	In the Referral Agency Response, the relevant assessment benchmark is quoted in the following terms: 
PO6 Buildings and other structures are designed and sited to:-
a)	provide a high level of amenity to users of the subject site and adjoining premises, including provision of visual and acoustic privacy, access to breezes and protection from noise, odour or artificial lighting;
b) 	provide adequate distance from adjoining land uses and avoid conflict with existing or future rural uses and activities on adjoining properties
The reasons for directing the respondent to refuse the application are stated as follows: 
It has been considered that the proposed buildings located within the side boundary setback has [sic] the potential to impact the amenity of the users of the adjoining premises. There is very little justification for Council to support the location of buildings within the side boundary setback. 
Additionally, it is suggested that there are alternative design options available for which the buildings may be located that would reduce the potential impact on the users of the adjoining premises [sic]. It is anticipated that buildings and structures located on large scale rural residential properties achieve greater separation, providing adequate distances from adjoining land uses.
[3]	The appellant had a choice pursuant to sch 1, table 1 of the Planning Act 2016 (“PA”) to either appeal to the Planning and Environment Court or a development tribunal.  He chose to appeal to the court.  Before me is an application pursuant to s 9 of the Planning and Environment Court Act 2016 seeking an order remitting the appeal to a development tribunal on the basis that “the court is satisfied that the matter should be dealt with by the tribunal.”  
[4]	Development tribunals are established pursuant to ch 6, pt 2 of the PA.  They are clearly intended to provide a quick, inexpensive forum for minor development disputes.  In s 249(6) it states that a tribunal need not proceed in a formal way and may inform itself in a way it considers appropriate.  Pursuant to s 248, a party to tribunal proceedings may appear only in person or by an agent who is not a lawyer.  
[5]	The co-respondent submits, essentially, that the ambit of this dispute and the likely cost to rate payers of the appeal continuing in the court warrants a remittal of the dispute to a tribunal.  Conversely, the appellant essentially submits that he wishes to pursue his development rights in the court with the benefit of legal representation.
[6]	The problem with the application is that the concept of amenity is, to quote de Jersey J in Broad v Brisbane City Council [1986] 2 Qd R 317 at 326, “wide and flexible”.  In my view, it is a concept better litigated in a court with legal representation and the opportunity to explore the concept with the benefit of expert evidence in the context of the appropriate statutory framework.  
[7]	I have not been provided with a copy of the respondent’s planning scheme, although exhibited to the affidavit of Mr Geaney, filed 23 May 2025, is a copy of the Rural Residential Zone Code in its entirety.  I note that amenity considerations in PO6 are more extensive than those quoted in the Referral Agency Response and speak in terms of allowing for space for landscaping to be provided between buildings and preserving existing vegetation that will help buffer development.
[8]	Having regard to the material before me, such considerations are also relevant in assessing amenity implications having regard to the location of the proposed shed.  I do not know where PO6 sits in the context of the planning scheme as a whole and of the way overall outcomes, which also call up amenity considerations, interact with the relevant performance outcomes.  Regardless, the weighing of these provisions needs to occur in the context of established canons of statutory interpretation and the resolution of this dispute will turn largely upon the exercise of the discretion of the decision-maker when weighing the relevant provisions of the assessment benchmarks.
[9]	It is true that this appeal is about a shed but the co-respondent has directed that it not be built in a rural residential area for unparticularised, amorphous reasons.  Accordingly, it is a dispute better litigated in the court rather than before a tribunal which is better suited, in my view, to determine matters which are essentially technical in nature.  
[10]	In the circumstances, the application is refused.