Owner’s consent for development applications involving State land – Guidance from the Court of Appeal

Section 51(2) of the Planning Act 2016 provides that certain development applications must be accompanied by the written consent of the owner of the premises to the application, to the extent that the applicant is not the owner of the premises. This requirement has been in place for development approvals, in one form or another, since the Local Government (Planning and Environment) Act 1990.

The term ‘owner’ is defined in Schedule 2 of the Planning Act in the following way:

owner, of land, premises or a place, means the person who –

(a) is entitled to receive rent for the land, premises or place; or
(b) would be entitled to receive rent for the land, premises or place, if the land, premises or place were rented to a tenant.

This definition, or a variation of it, has been in place since the Local Government (Planning and Environment) Act 1990.

In relation to freehold land, it is the registered owner of the land that would be required to give consent. However, where the application relates to State land, the situation is not as clear. A recent decision of the Court of Appeal has provided some guidance for different types of State land.

In Bowyer Group Pty Ltd v Cook Shire Council & Anor [2018] QCA 159, the Court considered the meaning of ‘owner’ under the repealed Sustainable Planning Act 2009 (SPA) for the purposes of determining the entity required to provide owner’s consent for the making of a development application under that Act. The definition of ‘owner’ in the SPA was the same as the definition in the Planning Act.

The Court of Appeal held that:

• as a matter of construction, the owner of land, under either limb of the definition, is the same person (or persons or entity)
• the word ‘or’ should be given its ordinary disjunctive meaning; and
• the natural and ordinary meaning of the language used in the definition of ‘owner’ is that the owner is the person who is (currently) entitled to receive the rent for the land, or (where the land is not currently let) who would be entitled to receive the rent for the land, if it were let to a tenant at a rent.

The Court of Appeal decided in Bowyer Group that Crown lessees are not owners of land for the purposes of giving consent for the making of a development application under the SPA. Rather, the State, through the Department of Natural Resources, Mines and Energy (DNRME), was the owner of Crown leasehold land.

The Court of Appeal noted that this decision is consistent with the conclusion reached by the Full Court of the Supreme Court of Queensland in BMG Resources Limited v Pine Rivers Shire Council [1989] 2 Qd R 1, where it was held that, for a reserve under the Land Act 1962 and placed in the control of a trustee, the owner of the land for the purposes of service of a notice of an application for consent to use the adjoining land under the Local Government Act 1936, was the trustee and not the State. The definition of ‘owner’ in the Local Government Act 1936 was in similar terms to the Planning Act.

The Court in BMG Resources held that it was the trustee, and not the State, that was the owner of a reserve. This flowed from the provisions of the Land Act 1962, under which the land was reserved and vested in a trustee, because:

• the trustee had control of the land, including the power to make by-laws regulating the use and enjoyment of the land
• with the consent of the Minister, the land could be leased by the trustee, and rents received by the trustee were to be applied solely for the purposes of the trust
• once reserved and vested in the trustee, the land was not available for grant or lease by the Crown to any other person; and
• while the Governor in Council would revoke the reserve under the Land Act 1962, and therefore the State could be said to retail a real or practical interest in the land, the relevant state of affairs was that prevailing at the time the notice was to be given.

The provisions of the Land Act 1994 are similar to the provisions of the Land Act 1962, insofar as they relate to the powers and functions of the trustees of reserves.

Following the reasoning in BMG Resources, the owner of land which is a reserve is, generally, the trustee of the reserve.

The decision in BMG Resources did not take into account that the Minister could, with the approval of the Governor in Council, issue a special lease over a reserve under the Land Act 1962. There is a similar power under the Land Act 1994. However, following the rationale of the Court in BMG Resources, where a State lease has been issued by the Minister over land, it would be the State, rather than the trustee, that would be entitled to the rent and therefore it would be the State, acting through DNRME would be the owner for the purposes of giving consent to the making of a development application.

If your agency has questions about consents for development applications, or other planning issues, contact Glenn Wilshier, Special Counsel in the Commercial and Property Team on 3031 5720 or at glenn.wilshier@crownlaw.qld.gov.au.

_{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}