Howard Street Developments Pty Ltd v Maroochy Shire Council

[2002] QPEC 15

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Howard Street Developments Pty Ltd v Maroochy Shire Council [2002] QPEC 015
PARTIES:	HOWARD STREET DEVELOPMENTS PTY LTD Applicant
v
MAROOCHY SHIRE COUNCIL Respondent
and
DOUG WALKER MOTORS PTY LTD Co-respondent
FILE NO/S:	D1227 of 2002
DIVISION:	Planning and Environment
PROCEEDING:	Preliminary Point
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	18 April 2002
DELIVERED AT:	Brisbane
HEARING DATE:	5 April 2002
JUDGE:	Judge Quirk
ORDER:	Declaration made
CATCHWORDS:	Integrated Planning Act 1997; ss 1.2.3(1), 3.2.1, 3.2.1(8) Acts Interpretation Act 1954; s 14(A)
COUNSEL:	Mr D Fahl for the applicant Mr G Phillips for the respondent Mr D Welsh for the co-respondent
SOLICITORS:	Lestar Manning Lawyer for the applicant Shire Solicitor for the respondent Welsh and Welsh for the co-respondent

1. This matter raises a brief but interesting point. The applicant is the owner of an

   allotment of land at Nambour (the subject land). The co-respondent is the owner of

   an adjoining allotment (Lot 3) which enjoys an easement over the subject land. The point that has arisen is whether the applicant, who wishes to make a town planning

   application in respect of the subject land, requires the written consent of the co-

   respondent.

2. Section 3.2.1 of the Integrated Planning Act provides (inter alia):

·	Each application must be made in the approved form;
·	The approved form must contain a mandatory requirements part
including a requirement for –

·	an accurate description of the land the subject of the
application;
·	the written consent of the owner of the land to the making
of the application.

· If the Assessment Manager receives, and after consideration, accepts an application that is not a properly made application, the

application is taken to be a properly made application (s.3.2.1(8)).

· Sub-section (8) does not apply to an application unless the application contains the written consent of the owner of any land to

which the application applies.

1. In the Integrated Planning Act “the land” is defined as including:

“(a)	any estate in, on, over or under land; and
....”.

The co-respondent argued, and may be correct in so doing “that the benefit

of an easement over the subject land constitutes an estate in the subject land

and therefore “land” within the meaning of the Act.

1. However the Act also provides a definition of “owner” in these terms:

   “The person for the time being entitled to receive the rent for the land or would be entitled to receive the rent for it if it were left to a tenant at a rent”.

2. I have concluded that even if the beneficial interest in the easement is “land” within

   the meaning of the Act, the co-respondent is not an “owner” within the meaning of

   that term as defined by the Act. Accordingly I do not believe the co-respondent’s

   consent is required to the making of an application in respect of the subject land.

3. In so finding I am comforted by s. 14A of the Acts Interpretation Act which

   provides:

“(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation”.

1. The purpose of the Integrated Planning Act is found in Part 2 section 1.2.1. Section

   1.2.3(1) indicates that “ensuring decision making processes are accountable, co-

   ordinated and efficient” advances the Act’s purpose.

2. If it was the case that a party in the co-respondent’s position could, by withholding

   its consent, effectively veto any application for development approval in respect of

   the dominant tenement, the decision making process would be anything but “co-

   ordinated and efficient”. For those reasons I am prepared to make a declaration

   that:

   “In the circumstances of these proceedings, the applicant’s intended application to the respondent for development approval does not require the written consent of the owners of Lot 3 RP 75748, County of Canning, Parish of Mooloola”.