Australia: Does Private Wastewater Infrastructure Within a Roadway Trigger the Requirement to Obtain a State Resource Entitlement?

In the recent Queensland Planning and Environment Court decision of Canaipa Developments Pty Ltd v Redland City Council & Ors [2010] QP EC 034, the Court found that a failure to include evidence of a State resource entitlement for private wastewater infrastructure in a public roadway meant that a development application was not properly made.

Facts

The applicant sought development permits for the development of a mixed-use tourist facility over two non-adjacent sites separated by approximately 1.5 kilometres of public road.

The development application proposed that a sewage treatment plant be located at site 'A'. Sewage was intended to be pumped from site 'B' to site 'A' for treatment and returned to site 'B' as A+ class water. The returned A+ class water was intended to be used as irrigation for the golf course proposed for site 'B'. This proposal envisaged pipelines located under the local road connecting the two sites.

It has long been the position under Queensland law that the land comprising local roads is owned by the State of Queensland (section 95 of the Land Act 1994 (Qld)) but that legal control of local roads is the responsibility of the Local Authority (section 111 of the Land Act 1994 (Qld)).

The development application was not supported by evidence that the applicant was entitled to interfere with a State resource. At the time of lodgement, the applicant was required to obtain evidence from the Chief Executive of the Department of Natural Resources that he or she was satisfied that the proposed development was consistent with an allocation of, or entitlement to the State resource, being the road reserve.

The development application was refused by the Council and an appeal filed. The Council raised a preliminary legal point that the application was not properly made. The applicable law was the Integrated Planning Act 1997 (Qld) (the IPA), as the development application was lodged when that Act was in force. DLA Phillips Fox acted for the Redland City Council in this case.

Argumen ts raised by the applican

The applicant argued that evidence of an entitlement was not required in this instance due to the fact that:

• It had received certain assurances from officers of the Council and the Department that it was excused from this requirement.
• The laying of pipes in the road reserve would not constitute 'taking or interfering with a State resource' as the laying of pipes was not adverse to the purpose of the road reserve.

Court's decision

The Court rejected both of the arguments put forward by the applicant.

First, the Court made a finding of fact that no assurances had been provided by either the Council or the Department that evidence of a State resource entitlement was not required. Furthermore, the Court found that had such assurances been given, these would not have been legally binding. In making that finding, the Court relied on an established general law principle that 'a representation cannot enable a government to dispense with the requirements in a statute'.

Second, the Court held that the laying of the pipes in the road reserve would constitute 'some clash with, or hampering or hindering of, the State's ownership or stewardship of the resource which amounted to taking or interfering with a State resource'.

On the basis of these findings, the Court held that the failure of the applicant to comply with the requirement that it provide evidence of an entitlement to interfere with the State resource meant that the development application was 'not properly made'. The Court followed the Court of Appeal's decision in Barro v Redland City Council [2009] QCA 310 which found that the Court's power under section 4.1.5A of the IPA to excuse non-compliance did not extend to situations where there was a failure to provide evidence of a State resource entitlement where one was required.

Would the outcome be different under the Sustainable Planning Act 2009 (Qld)?

The new Sustainable Planning Act 2009, which replaces the IPA, came into effect on 18 December 2009. Sections 818 and 820 of the new Act provide that the Court has the power to excuse a failure to provide evidence of a State resource entitlement depending on the circumstances. These sections in effect reform the limitations of the excusal powers from the Barro case.

However, the Court is only likely to excuse non-compliance of this nature in circumstances where the applicant has subsequently been able to obtain evidence of a State resource entitlement. The process for obtaining evidence under the new Act is the same as that provided under the IPA – the applicant must obtain evidence from the Chief Executive of the Department of Natural Resources that he or she is satisfied the proposed development is consistent with an allocation of, or entitlement to the State resource.

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