19 Jul 2018

Whose land is it anyway? Owner's consent for development applications on Crown land in Queensland

By Kathryn Pacey

If you hold a Crown lease, you cannot veto a development application that your land is subject to by withholding consent, as you are not the "owner", but you can still oppose it.

A recent Queensland Court of Appeal decision has considered who the "owner" of land is for the purposes of development applications, where the land which is the subject of the application is Crown land (Bowyer Group Pty Ltd v Cook Shire Council [2018] QCA 159).

When is consent required?

While the case involved the requirement of consent of the owner of the land subject to development applications under Sustainable Planning Act 2009 (Qld) (SPA), there is a similar requirement under the new Planning Act 2016 (Qld) (PA). Owner's consent is required if the application is for:

  • a material change of use of premises or reconfiguring a lot;
  • work on land below high-water mark and outside a canal as defined under the Coastal Protection and Management Act 1995; or
  • work on rail corridor land as defined under the Transport Infrastructure Act (though this applies only under SPA).

Who is the owner?

The owner of the land or premises in both Acts means:

  • 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 let to a tenant at a rent.

The decision in Bowyer

In Bowyer, the owner of land adjoining the land subject to a development application argued that the developer did not obtain adequate owner's consent. As the relevant land was subject to a Crown lease, the appellant contended the development application required consent of the lease holders. It submitted:

  • "owner" can include more than one class of owner, and thus here includes both the State and Crown lessees; or
  • alternatively, the Crown lessees are the owner because their interests would more likely be affected by the activities associated with the development application.

The Court reins in the concept of "owner"

The Court rejected the appellant's arguments and such an expansive interpretation. The "owner" includes only the person principally entitled to receive the rent for the land. It does not include others who may be or become entitled to receive rent payment, for example through sub-leasing.

This aligns with the limited purpose of the owners' consent requirement, that is "to permit the application to go forward, so that the planning authority can assess it on its merits". This merely assures the planning authority that the development is "realistically proposed…not just an academic exercise which could put the Council considerable wasted effort and expense".

Thus, the Crown lessees were not owners of the land for the purpose of consent.

Whose consent is needed in Queensland?

Bowyer demonstrates that difficulties may be encountered in determining who the owner of land is where the relevant land is not freehold. However, it is now clear that if you are making a development application involving Crown land under SPA or PA, you only require the consent of the State. Consent of any Crown lessees is not required.

If you hold a Crown lease, you cannot veto a development application that your land is subject to by withholding consent, as you are not the "owner". However, as the Court of Appeal pointed out, you do have still have rights to object to the application on its merits through:

  • making submissions during the approval process; and
  • appealing a development approval decision by the Council.

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