Canaipa Developments Pty Ltd v Redland Shire Council

[2010] QPEC 34

[2010] QPEC 34

PLANNING & ENVIRONMENT COURT

CIVIL JURISDICTION

JUDGE EVERSON

No 1521 of 2008

CANAIPA DEVELOPMENTS PTY LTD	Applicant
and
REDLAND SHIRE COUNCIL & ORS	Respondent

BRISBANE

..DATE 08/04/2010

ORDER

Catchwords: PLANNING AND ENVIRONMENT – APPLICATION – whether properly made application pursuant to s3.2.1 of Integrated Planning Act 1998 – meaning of “interfering with a State resource” – s 12 Integrated Planning Regulation.

HIS HONOUR: This is an application for a declaration pursuant to 4.1.21 of the Integrated Planning Act (1997)("IPA") that the development application the subject of this appeal is not a properly made application in that the appellant failed to provide evidence of the Chief Executive's satisfaction in respect of the taking or interfering with a State resource as required by Section 3.2.1 of IPA and Section 12 of the Integrated Planning Regulation (1998 "IPR").

The respondent also seeks a consequential order pursuant to 4.1.22 of IPA that the appeal be struck out.

The respondent's application is supported in its entirety by the Co-Respondent by Election.

On or about 15 March 2006, the appellant lodged a development application, the subject of this appeal, seeking a development permit for material change of use to facilitate the development of a mixed-use - tourist accommodation, outdoor recreation facility, refreshment establishment, shop and marine services on land situated at 1 Wright Street and at 116 Canaipa Road and 25 Wilmar Crescent, Russell Island, and more particularly described as Lot 5 on RP 129494 and Lot 15 on RP 31210 and Lot 118 on RP 137228 ("the development application").

Part of the development application proposed that a sewage treatment plant be located at the Canaipa Road site.  The development application envisaged that sewage would be pumped from the Wright Street site to the Canaipa Road site for treatment and then some of it returned to the Wright Street site as A+ class water.

Such a sewage treatment system was proposed to involve pipelines passing under the dedicated and constructed road linking the two sites and contemplated work and infrastructure in the road reserve.

The road reserve was at that time under the control of the Chief Executive, the Department of Natural Resources and Water ("the Chief Executive").

At the time the development application was made Section 12 of the IPR required that the appellant obtain from the Chief Executive evidence that the Chief Executive was satisfied that the development was consistent with an allocation of, or entitlement to the State resource, being the road reserve, or that the development application could proceed in the absence of an allocation or entitlement to the State resource in question.

It is uncontroversial that the development application was not supported by the evidence contemplated by Schedule 10 of the IPR which prescribes the requirements for compliance with Section 12 of the IPR which in turn prescribes the requirements for compliance with Section 3.2.1.(5) of IPA.

It is asserted on behalf of the appellant that it received certain assurances from officers of the respondent and the co-respondent by election which effectively excused compliance with the relevant requirements of Section 3.2.1 of IPA.  Obviously so far as the respondent is concerned, it can only act by resolution ( see Russell v. Brisbane City Council [1955] ST.R.Qd 419 at 431) and such representations, if they existed, are without legal effect.

So far as both the respondent and the co-respondent are concerned, it is accepted law that a representation cannot enable a government to dispense with the requirements in a statute (see Hogg, Liability of the Crown, the Law Book Company Ltd at 146).

It is also significant that the allegations of representations made against the employee of the co-respondent are said to have occurred on 11 February 2010, well after the lodging of a development application and self evidently, they cannot be of any relevance to the issues before the Court in this application.

The relevant statutory requirements so far as this application is concerned were explored by the Court of Appeal in Barro Group Pty Ltd v. Redland Shire Council & Ors [2009] QCA 310. Keane JA observed at para [22]:-

"While S.3.2.1 (10) does not expressly say so, the intention which emerges from this and other provisions of the IPA is that an application to which s 3.2.1 (10) applies should not be further processed as a "properly made application".  If an application is not a properly made application then it cannot complete the application stage of the IDAS process; and that means that the application may go no further in the IDAS process."

Furthermore, in Barro Group the Court of Appeal held that the deficiency the subject of this application was not able to be cured pursuant to s 4.1.5A of IPA.

The appellant seeks to distinguish Barro Group by reliance on Stockland Property Management Pty Ltd v The Cairns City Council & Ors [2009] QCA 311, on the basis that the laying of the sewerage pipes in the co-respondent's road reserve does not constitute "taking or interfering with a State resource."

The laying and use of this infrastructure, which I find on the material before me, was intended to remain the property of the appellant or its agent (see for example the affidavit of Mr Appleton filed 3 February 2010, Exhibit F at P34) constituted "involving some clash with, or hampering or hindering of, the State's ownership or stewardship of the resource" (Stockland Property Management Pty Ltd at para [39]).

I therefore find as a fact that the proposed laying and use of the sewerage pipes is such as to constitute interfering with a State resource, namely the road reserve in question.  It follows that the failure of the appellant to comply with Section 3.2.1 (5) was such that the development application was not a properly made application.

I declare that the development application was not a properly made application.

I order that the appeal be struck out.

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