State resource entitlement- why all the confusion? By Natasha Calligeros, Solicitor, McInnes Wilson Lawyers

Transcription

1 State resource entitlement- why all the confusion? By Natasha Calligeros, Solicitor, McInnes Wilson Lawyers Applicants are to be wary when submitting a development application that may interfere with a State resource. The Queensland Court of Appeal in Barro Group Pty Ltd v Redland Shire Council ( Barro ) established that the discretion afforded by section 4.1.5A of the repealed Integrated Planning Act 1997 (Qld) would not apply in a situation where evidence of the attitude of a State Government department for a proposed development application was not included during the Integrated Development Assessment System (IDAS) process. Since Barro and the inception of the Sustainable Planning Act 2009 (Qld), Northeast Business Park Pty Ltd v Moreton Bay Regional Council, and more recently Vidler v Fraser Coast Regional Council have tested the broader excusatory power of section 820 of the Sustainable Planning Act 2009 (Qld), specifically section 820(3), which acknowledges a situation where a development application is not properly made. Both judgments in these appeals have drawn an analogy between the mandatory requirement for owner s consent of a development application and notifying the relevant State government department when a development application may interfere with a State resource. Examination of all three appeals will establish why there has been so much confusion in interpreting section 820(3) of the Sustainable Planning Act 2009 (Qld).and more particularly why there is so much confusion over the need to obtain evidence of or entitlement to a State resource. Barro Group Pty Ltd v Redland Shire Council [2009] QCA 310 In Barro, the development application lodged with Redland Shire Council by the Barro Group Pty Ltd, was not supported by evidence of the attitude 1 of the State government to the involvement of land owned by the State in the proposed development. The Council ultimately decided to refuse Barro s development application. Barro appealed against that decision to the Planning and Environment Court. The issue to be determined by the Planning and Environment Court was whether section 4.1.5A of the IPA was available to enable that Court to excuse the irregularity 2 which arose by reason of the progression of the application from the application stage through the subsequent stages of the IDAS process established by the IPA. The learned judge of the Planning and Environment Court concluded that Barro s application was not a properly made application by virtue of section 3.2.1(5) of the IPA. The Planning and Environment Court ordered that Barro s appeal should be struck out 3 and declared that no properly made application was before the Council. 1 [2009] QCA 310 at [2]; 2 [2009] QCA 310 at [3]; 3 [2009] QCA 310 at [5];

2 Barro sought leave to the Court of Appeal under section of the IPA and contended that the judge of the Planning and Environment Court failed to appreciate the full breadth of the discretion conferred by section 4.1.5A of the IPA. The development application lodged by Barro sought a development permit for a material change of use for the purpose of extending its quarrying activities 4 at a site at Mt Cotton. The land the subject of Barro s application was cut by a road. Barro proposed to re-locate plant and equipment used in its quarrying activities onto that road. Road was defined as a State resource under item 10 of schedule 10 of the Integrated Planning Regulation 1998, with the then Department of Natural Resources and Water being the government department charged with the administration and maintenance of the road. Barro had originally disputed in the Planning and Environment Court that the placing of plant and equipment on the road was not taking or interfering with a State resource. However, it was found by the judge in the Planning and Environment Court to be wrong. This meant that Barro s application was required to be supported by evidence that the Chief Executive of the Department of Natural Resources and Water was satisfied that: 1. the proposed development was consistent with an allocation of, or entitlement to the resource; or 2. the development application might proceed in the absence of an allocation of, or entitlement to, the resource 5. Barro s development application was not supported by such evidence. The issue for determination by the Court of Appeal was whether the discretion to excuse a non-compliance with requirements of the IPA conferred by section 4.1.5A permits the Planning and Environment Court to exercise its discretion 6 to make an application that was not properly made because it did not contain the appropriate of evidence of or entitlement to a State resource, properly made. Section 4.1.5A is confined in its operation by the terms of section 4.1.5A(1)(b), where the excusatory discretion is available only where the non-compliance has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or another Act. 7 The Court stated that its primary obligation 8 to give effect to the intention of the legislature as expressed in a statute rather than to a judicial interpretation of the statute. The Court of Appeal affirmed the Planning and Environment Court judges opinion in stating that the excusatory provision of section 4.1.5A was not available to overcome a development application not properly made under section 3.2.1(5) of the IPA. 4 [2009] QCA 310 at [9]; 5 [2009] QCA 310 at [12]; 6 [2009] QCA 310 at [60]; 7 [2009] QCA 310 at [65]; 8 [2009] QCA 310 at [85];

3 Northeast Business Park Pty Ltd v Moreton Bay Regional Council and the Chief Executive, Department of Main Roads [2010] QPEC 112 Northeast Business Park Pty Ltd v Moreton Bay Regional Council and the Chief Executive, Department of Main Roads ( Northeast Business Park ), gave the Planning and Environment Court the opportunity to interpret the breadth of section 820 of the Sustainable Planning Act 2009 (Qld) relating to non-compliances, which in effect seeks to broaden the Court s excusatory power previously found under s.4.1.5a. In 2004, the Northeast Business Park lodged the development application with the former Caboolture Shire Council. Northeast Business Park later purchased adjoining land to the west of the site which was the subject of a development application for a preliminary approval for a mixed use business and industrial park. On 21 June 2006, the Northeast Business Park Project, comprising those two development applications, was declared a project of significance by the Coordinator-General under the State Development and Public Works Organisation Act 1971 (Qld). As the project was a significant project under section 26 of the State Development and Public Works Act 1971 (Qld). An environmental impact statement was required, and was publicly notified from February to April At the end of the EIS process. the Coordinator General s report recommended, subject to conditions, that the development application be approved. The EIS, in a number of places, referred to issues of State resources and in some, at least, expressed confidence that the Appellant would obtain the allocations it required 9. One could be forgiven for thinking that the Coordinator-General s report might be seen as committing relevant State entities; however the State Development and Public Works Act 1971 (Qld) did not give the report any such wide-ranging effect. Northeast Business Park s development application, whilst for preliminary approval, proposed 10 capital dredging of several kilometers of the Caboolture River, involving some 550,000 cubic metres of dredge spoil, maintenance of a dredge pump line along the river, ongoing maintenance of dredging in the river, construction of fishing platform with canoe landings on the bank of the river and the removal of the bank of the river to construct a lake to permit access to and from the marina. The Applicant s argument was that the development did not involve taking or interfering with any State resource, because the Applicant s contention was that the preliminary approval applied for did not authorize 11 the carrying out of any actual development on the ground. 9 [2010] QPEC 112; 10 [2010] QPEC 112; 11 [2010] QPEC 112;

4 The judge in Northeast Business Park sighted the decision in Barro 12, where the judge acknowledged that an application involves interfering with a State resource if development the subject of it would have the effect, even if there was no physical manifestation was dependant on further approvals being obtained. The judge in Northeast Business Park was persuaded by Counsel for the Respondent Council s argument 13 that although any actual taking or interference with a State resource might be dependent on some future development permit or permits in relevant respects, the IPA did not distinguish between a development application which seeks a permit permitting the actual development application or a preliminary approval. The Counsel for the Council relied on the explanatory notes and the terms of the IPA in support of the proposition that a preliminary approval and a development application seeking such an approval cannot be distinguished from a development approval and a development permit, which may ensue to permit the actual carrying out of work. The State resources aspect of the preliminary points for the court s consideration was resolved through an application of the judgment in Barro however the door remains open for NEBP to seek the appropriate evidence of or entitlement to the identified State resources or go back to the Court to request it exercise it s discretion under s.820 of SPA. Vidler v Fraser Coast Regional Council & Chief Executive, Department of Main Roads [2011] QPEC 18 The issue of resource entitlement came up again in Braith Murray Vidler v Fraser Coast Regional Council & Chief Executive, Department of Main Roads ( Vidler ) where the Council made the objection to Vidler s development application on the basis that it was not supported by evidence 14 required under section 3.2.1(5) of the IPA, with the consequence that it was not a properly made application. The appellant contended that under the Water Act he may do whatever may be envisaged by his development under section 20 of the Act. The proposed development involved the expansion of an existing drainage corridor 15 into a more extensive waterway. The width of the channel after the widening works was likely to vary from 60 to 260 metres. The Applicant proposed a large corridor drain that would form a series of lakes to form an attractive recreational feature and act as reservoir. As a part of the proposed development, the hydraulic capacity of the existing waterway would be widened through the installation of constructed wetlands for urban storm water treatment. 12 [2010] QPEC 112; 13 [2010] QPEC 112; 14 [2011] QPEC 18 at [3]; 15 [2011] QPEC 18 at [18];

5 Both parties in this appeal accepted the approach 16 to be taken to the concept of interference indicated by Stockland Property Management Pty Ltd v Cairns City Council & Ors [2009] QCA 311, where the learned judge stated: It may be accepted that the involvement of the State resource in a proposed development means no more than that there is a connection between the proposed development and the State resource. The judge went on to say that one species of the particular kind of development is taking. That is obviously an involvement of a kind which is adverse to the enjoyment by the State of its ownership or stewardship of the State resource. Of course the dictionary meaning of a word may not be a sure guide to its legal meaning in its statutory context. But with reference to the statutory context in which the phase taking or interfering with a State resource is used, it affords support for the view that interference must be understood as involving some clash with, or hampering or hindering of, the State s ownership or stewardship of the State resource. Northeast Business Park was sighted, as it rejected the analogy 17 being drawn between the mandatory requirement that the owner of land consent to any development application concerning it and the requirement that the relevant emanation of the State as owner of a particular State resource. Counsel for the Applicant submitted that Northeast Business Park was wrongly decided, in part in reliance on Stockland, however the judge thought that Stockland did not consider or cover the point. The judge went on to say that section 820 of the Sustainable Planning Act 2009 (Qld) was more generous that its predecessor, section 4.1.5A of the repealed Integrated Planning Act 1997 (Qld). Counsel for the Respondent argued that non-compliance with a provision in section 820(3) is not shown here anymore than was non-compliance with a requirement in such cases as Lamb v Brisbane City Council [2007] QCA 147. Applying the approach of the Chief Justice to what is a requirement for a development application in Fawkes v Gold Coast City Council [2003]. The judge considered that it was a non-compliance with a provision, not a requirement of the Sustainable Planning Act 2009 (Qld). The judge went on to state that in the cases relied upon, there was positive material before the court indicating that, had Vidler sought relevant consents or evidence to include in the development application, whatever was needed would or very likely would have been made. Such was not the case in Vidler. There was not, from any quarter within the State government the slightest indication that would give heart to the appellant s cause. The other adverse factor was the negative answer deliberately given to the IDAS form question about the involvement of a State resource. The negative answer was given at an early stage in the history of mandatory requirements before the pitfalls for developers created by State resource issues had emerged. The answer in the IDAS form was wrong, but it is not shown to have been deliberately so, or 16 [2011] QPEC 18 at [20]; 17 [2011] QPEC 18 at [24];

6 otherwise untoward. However, the judge agreed with the argument that for a favorable exercise of any section 820 discretion that existed would be stronger had some sympathetic explanation for the wrong answer being offered. Ultimately the judge relied on the decision in Northeast Business Park. Even though section 820 of the Sustainable Planning Act 2009 (Qld) has been interpreted as being wider 18 than its predecessor of section 4.1.5A of the repealed Integrated Planning Act 1997 (Qld), the lesson learnt in Vidler is that the Applicant must be transparent from the outset, i.e. it must notify the relevant State government department if a development application has the potential of interfering with a State resource. The confusion has been caused because the Court has been reluctant in providing guidance as to how the relevant department is to respond when notified by an Applicant that a development application will interfere with a State resource. It appears that the only guidance lies in the Barro judgment, where Keane J at [12] 19 stated that the department must be satisfied that either: 1. the proposed development was consistent with an allocation of, or entitlement to the resource; or 2. the development application might proceed in the absence of an allocation of, or entitlement to, the resource. Therefore, it is important for Applicants to err of the side of caution and ensure that, from the very outset, transparency is paramount when notifying the relevant department of the interference of a State resource. 18 [2011] QPEC 18 at [31]; and 19 [2009] QCA 310 at [12].