Court of Appeal dismisses appeal against a decision of the Planning and Environment Court regarding an owner’s consent for a development application on Crown land

In brief

The case of Bowyer Group Pty Ltd v Cook Shire Council & Anor [2018] QCA 159 concerned an application for leave to appeal a decision of the Planning and Environment Court to the Court of Appeal. The Applicant sought to challenge the decision of the Planning and Environment Court regarding the approval of a development application for a material change of use of land for extractive purposes. 

The Court acknowledged that the case involved important issues concerning the proper interpretation of the application of the Sustainable Planning Act 2009 (SPA). As such, the Court granted leave, however, ultimately dismissed the appeal.

Subject Land

The land the subject of the development application is described as Wolverton Station. The development application was for a development permit for a material change of use for sand and gravel screening and extraction. 

The land is the subject of a rolling term lease for pastoral purposes granted under the Land Act 1994. The rolling term lease was originally set to expire on 31 March 2022 but was extended by an additional 23 years and 9 months.

Relevantly, the Second Respondent holds a mining lease over part of the land and a sales permit under the Forestry Act 1959, which allows for obtaining quarry materials located on part of the land.

Prior decision of the Planning and Environment Court

The Appellant was Bowyer Group Pty Ltd, an owner of adjoining land.

The Second Respondent, David Oriel Industries Pty Ltd, had applied to the Cook Shire Council for a development permit for a material change of use of land, and the Council subsequently issued the development approval subject to conditions.

The Appellant raised the following two preliminary issues in the appeal: 

1. the development application was not properly made as it was not accompanied by the consent of the holders of the relevant Crown lease; and

2. the development application was not properly notified.

The Planning and Environment Court determined both preliminary issues in favour of the Second Respondent and dismissed the appeal.

Grounds of appeal

The Applicant sought leave to appeal against the decision of the Planning and Environment Court on the basis that the Planning and Environment Court had erred in its finding that the development application was properly made. 

Relevantly, the Applicant argued that:

1. the development was not properly made as it required the consent of the Crown lessees; and

2. the phrase “owner of the land the subject of an application” under section 263(1) of the SPA is capable of referring to more than one class of owner; or

3. alternatively, if the definition of “owner” is to be construed to one class of owner then the Crown lessees ought to be regarded as the owner, because their interests would more likely be affected by the approval of the development application. 

In relation to the first issue, the Court found that the development application was properly made because the consent of the Crown lessees was not required as they were not the “owners” of the land but merely held an interest in the land.

Proper construction of the Sustainable Planning Act 2009

In relation to the second issue, the Court of Appeal held that the natural and ordinary meaning of the word “owner” should be applied, being the person (or entity) who is currently entitled to receive rent for the land or who would be entitled to receive the rent for the land if it were to be let to a tenant to rent. 

The Court of Appeal found that the Crown lessees were entitled to receive the rent for the land from the lessees under the rolling term lease. However, the Court of Appeal disagreed with the Applicant’s argument that sub-lessees would also be classified as owners of the land as they were also entitled to receive rent from the land. 

The Court of Appeal relied upon the following definition of "owner" as stated in BMG Resources Ltd v Pine Rivers Shire Council [1989] 2 Qd R (at paragraph [51]):

“The person other than Her Majesty who for the time being is entitled to receive the rent of any land or who, if the same were let to a tenant at a rack rent would be entitled to receive the rent thereof.”

The Court of Appeal held that there was no logical reason why “owner”, for the purposes of section 263(1) of the SPA, should be interpreted in an expansive way and why a lessee, or sub-lessee, should have a right to veto the making of a development application in respect of land they have a limited interest in. The Court of Appeal found that the proper construction of “owner” is the person or entity who is principally entitled to receive the rent for the land and therefore holds the right to veto a development application. With respect to the other parties who have an interest in the land, the Court of Appeal held that they are able to submit an objection to the development proposal, but do not hold the right to veto the making of the development application. 

Court dismissed the appeal

The Court of Appeal granted the Applicant leave to appeal but ultimately dismissed the appeal with costs, and held that the Planning and Environment Court was correct in finding that the development application was properly made.