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In brief           

The case of Connolly v Brisbane City Council and Ken Drew Town Planning Pty Ltd [2015] QPEC 16 involved an application by Mr Trevor John Connolly seeking declarations from the Planning and Environment Court that the consent given by the Brisbane City Council, as owner of the land, to the making of a development application for an extension of the Sandgate Aquatic Centre lodged by Ken Drew Town Planning Pty Ltd, was not valid as the council did not consent to the whole of the development and the council could not lawfully consent to the development as proposed in the development application.

The council and  Ken Drew Town Planning challenged the court's jurisdiction to make the declaration sought by Mr Connolly in relation to the lawfulness of the council's consent under the Land Act 1994. The court found that it was not within the jurisdiction of the court to deal with the matters raised by Mr Connolly associated with the lawfulness of the council's consent.

As to Mr Connolly's challenge on the validity of the consent on the basis that the council did not consent to the whole of the development, the court found no basis to impugn the consent on that ground and as such dismissed the application.

Mr Connolly challenged the validity of the council's consent as the landowner to the development application on the basis that the council did not consent to the whole of the development and it could not in any case lawfully provide consent to the development sought

Ken Drew Town Planning made a development application for a development permit for a material change of use, and a preliminary approval for building work, in respect of extensions to the Sandgate Aquatic Centre. The proposed development involved construction of new structures including a gymnasium, kiosk and pools and rearrangement of the existing uses and structures.

The council was the trustee of the land for the proposed development by deed of grant in trust under the Land Act 1962, which was granted "for Local Government (Swimming Pool) purposes".

As the development application sought an approval for a material change of use, the consent of the owner of the land was required. The council provided its consent, as the owner of the land, to the development application by way of a letter dated 22 October 2013 "for the purpose of building a new swimming pool and facilities within the leased area of the Sandgate Swimming Pool".

Mr Connolly challenged the validity of the council's consent on the following basis:
  • the council's letter did not contain the council's consent to the whole of the development, as it only referred to a new swimming pool and facilities and not to a new gymnasium; 
  • the council could not lawfully provide consent to the development as proposed in the development application because to do so would place the council in breach of the Land Act 1994 by taking action that was not consistent with the purpose for which the land was granted in trust.  

The court concluded that it did not have jurisdiction under section 456(1)(a) of the Sustainable Planning Act 2009 to look behind the consent once an owner of the land gave the consent in the manner provided for under section 260 of the Sustainable Planning Act 2009

The council and Ken Drew Town Planning challenged the court's jurisdiction to deal with the issues associated with the lawfulness of the council's consent under the Land Act 1994.

Section 456(1)(a) of the Sustainable Planning Act 2009 confers jurisdiction on the court to make a declaration about "a matter done, or to be done or that should have been done for" the Sustainable Planning Act 2009.

The court found that to the extent the declaratory relief sought involved consideration of the lawfulness of the uses of the land for the purposes of the Land Act 1994 that matter was not within the jurisdiction of the court under section 456(1)(a) of the Sustainable Planning Act 2009.

The relevant matter "for" the Sustainable Planning Act 2009 was the obtaining of the owner's consent to the making of the development application which could either be done by providing it with the development application or including, in the application, a declaration that the consent had been obtained.

In the court's view, where an owner of the land gave the consent in the manner provided for under the Sustainable Planning Act 2009, that would be the end of the enquiry and the court did not have jurisdiction under section 456(1)(a) of the Sustainable Planning Act 2009 to look behind the consent such as considering matters arising under the Land Act 1994.  Such view was supported by the decision in Cornerstone Properties Pty Ltd v Caloundra City Council (No. 2) [2005] QPELR 96.

The court found no basis to impugn the consent given by the council on the ground that the council did not consent to the whole of the development

In considering Mr Connolly's challenge on the validity of the consent on the basis that the council did not consent to the whole of the development, the court had regard to the rationale for requiring an owner's consent to the making of a development application explained in the decision of Petrie v Burnett Shire Council [2001] QPELR 510 at 511.

It was noted by the court that the rationale was to provide the assessing authority with assurance that the proposed development was realistically proposed and that the development application was not an exercise that would result in wasted effort and expense to the assessing authority where the development application was not made by the owner of the land.

The council gave consent, as the owner of the land, in wording that was apt to cover the development application that was made. There was also evidence before the court showing that the "new gym and amenities" were known to the council when it gave its consent.

Accordingly, the court did not consider there to be any basis to impugn the consent given by the council on the ground that it did not contain the council's consent to the whole of the development. 

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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