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Queensland Construction Materials Pty Ltd v Redland City Council

 

[2010] QCA 182

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Queensland Construction Materials P/L v Redland City Council & Ors [2010] QCA 182

PARTIES:

QUEENSLAND CONSTRUCTION MATERIALS PTY LTD
ACN 002 202 548
(appellant/respondent)
v
REDLAND CITY COUNCIL
(respondent/not a party to the application)
DON BAXTER, BIRKDALE PROGRESS ASSOCIATION INC.
(first co-respondent/second applicant)
FRIENDS OF STRADBROKE ISLAND INC.
(second co-respondent/third applicant)
STRADBROKE ISLAND MANAGEMENT ORGANISATION INC.
(third co-respondent/fourth applicant)
LUCY TRIPPETT
(fourth co-respondent/not a party to the application)
ELISABETH GONDWE
(fifth co-respondent/sixth applicant)
WILDLIFE PRESERVATION SOCIETY OF QUEENSLAND BAYSIDE BRANCH (QLD) INC
(sixth co-respondent/fifth applicant)
CREINA MOORE
(seventh co-respondent/seventh applicant)
JOSEPHINE WELLS
(eight co-respondent/ninth applicant)
GEOFFREY MOORE
(ninth co-respondent/eighth applicant)
KERRIE TAPP
(tenth co-respondent/first applicant)
DALE RUSKA
(eleventh co-respondent/tenth applicant)
CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY
(twelfth co-respondent/not a party to the application)
CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS
(thirteenth co-respondent/not a party to the application)

FILE NO/S:

Appeal No 12616 of 2009

Appeal No 12627 of 2009

DC No 2627 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

23 July 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

26 March 2010

JUDGES:

McMurdo P, Chesterman JA and Applegarth J

Joint reasons for judgment of Chesterman JA and Applegarth J; separate reasons of McMurdo P, concurring as to the orders made

ORDERS:

1.Leave to appeal be granted in CA 12616 of 2009 and CA 12627 of 2009.

2.Each appeal be allowed.

3.The third declaration made by the Planning & Environment Court on 29 September 2009 be set aside and in lieu thereof it is declared:

“The development application did not satisfy subsections 3.2.1(3) and (5) of the Integrated Planning Act 1997.”

4.The appeal to the Planning and Environment Court be dismissed.

  1. The parties are given leave to make submissions as to the costs of this appeal in accordance with paragraph 52 of Practice Direction No 2 of 2010.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – FORM AND CONTENTS OF APPLICATION – CONSENT AND IDENTITY OF OWNER – where respondent applied for a development permit for a material change of use of land held under a mining lease – where part of the application concerned land not part of the mining lease but subject to a registered native title claim of some of the applicants – where respondent did not give notice to or obtain the consent of the native title claimants for the application – where Council refused the application but respondent successfully appealed – whether the native title claimants should be regarded as “owners” of the land for the purposes of s 3.2.1(3) and s 3.4.4(1) of the Integrated Planning Act 1997 (Qld) (IPA), whose consent to the application was required – whether the Racial Discrimination Act 1975 (Cth) and/or the Native Title Act 1993 (Cth) deem the applicants to be “owners” of the land for the purposes of the IPA

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – FORM AND CONTENTS OF APPLICATION – VALIDITY OF APPLICATION GENERALLY – DESCRIPTION OF LAND – where s 3.2.1(5)(a) IPA required the application to be supported by evidence that the chief executive was satisfied the development was consistent with the allocation of the State resource – where the only such evidence was separate approved forms signed by two officers of the Department of Natural Resources and Water – where the forms had first been partially completed by QCM’s consultant – where the application did not identify or correctly identify all the parcels of land the subject of the application – where a box was incorrectly marked on one of the forms – whether the application was made in accordance with the approved form – whether there was sufficient evidence of the officer’s satisfaction as required under s 3.2.1(5) – whether the incomplete description of the land could be waived pursuant to s 3.2.1(9) IPA – whether there was an allocation of, or entitlement to, the State resources being the land the subject of the application – whether the trial judge erred in deeming the application was “properly made” under s 3.2.1(9) IPA

Aboriginal Cultural Heritage Act 2003 (Qld)

Integrated Planning Act 1997 (Qld), s 3.2.1, s 3.2.1(1), s 3.2.1(3), s 3.2.1(5), s 3.2.1(6)(a), s 3.2.1(7)(e), s 3.2.1(9), s 3.2.1(10), s 3.2.8, s 3.4.4(1), s 3.4.4(5)(h), s 5.9.1, sch 10

Integrated Planning Regulation 1998 (Qld), s 12, sch 10

Forestry Act 1959 (Qld), s 57

Native Title Act 1993 (Cth), s 24AA(1), s 24MA, s 24MB, s 24MD(6), s 24MD(6A), s 24OA, s 190, s 223, s 223(1), s 224, s 226(2), s 227, s 253

Racial Discrimination Act 1975 (Cth), s 10(1)

Barro Group Pty Ltd v Redland Shire Council (2009) 169 LGERA 326; [2009] QCA 310, applied

Fejo v Northern Territory (1998) 195 CLR 96; [1998] HCA 58, applied

Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11, cited

Lardil Peoples v State of Queensland (2001) 108 FCR 453; [2001] FCA 414, followed

Mabo v Queensland [No 2] (1992) 175 CLR 1; [1992] HCA 23, cited

Queensland Construction Materials Pty Ltd v Redland City Council & Ors [2009] QPEC 85, cited

Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28, applied

Wik Peoples v Queensland (1996) 187 CLR 1; [1996] HCA 40, applied

COUNSEL:

D C Rangiah SC, with J S Brien, for the first applicant

T W Quinn, with S P Fynes-Clinton, for the second to tenth applicants

M Hinson SC, with H R Milne, for the respondent

SOLICITORS:

Just Us Lawyers for the first applicant

Carew Lawyers for the second to tenth applicants

Robert Milne Lawyers for the respondent

  1. McMURDO P: This case concerns the respondent's, Queensland Construction Materials Pty Ltd (QCM), development application to remove and transport stockpiled sand tailings from its sand mining operations on North Stradbroke Island, overland to Dunwich for transport by barge to the mainland.  The facts, issues and relevant statutory provisions have been canvassed by Chesterman JA and Applegarth J in their joint reasons for judgment.  This has enabled me to state my reasons for agreeing with the orders they propose more briefly than otherwise.
  1. The applicants have, in my view, established that the primary judge erred in law.[1] The case additionally raises questions of considerable public interest about State owned land and resources on the popular south-east Queensland recreational centre of North Stradbroke Island.  For those reasons, this is an appropriate case in which to grant leave to appeal under s 4.1.56 Integrated Planning Act 1997 (Qld) (repealed) (IPA).[2] 
  1. All parties, including the Redland City Council (which is not a party to the two related appeals to this Court) asked the Planning and Environment Court to determine identified preliminary points before adjudicating QCM's appeal to that court.  The primary judge made three declarations, only two of which the applicants ultimately challenged in this Court.  These declarations were:

"1  The question contained in the first preliminary point, concerning native title, is answered in terms that it was not necessary for the development application to contain or be supported by the written consents of native title holders or the registered native title claimants; and neither was it necessary for notice to be given to them;

3  The development application satisfied and was sufficient for the requirements of s 3.2.1(3) and (5) of the Integrated Planning Act 1997."

  1. The primary judge heard and determined the preliminary points prior to the delivery of this Court's decision in Barro Group Pty Ltd v Redland Shire Council.[3]  I agree with the reasons of Chesterman JA and Applegarth J for concluding, consistent with Barro, that QCM's application for development approval was not a "properly made application" as required by s 3.2.1(5) IPA and so could not be treated as such under s 3.2.1(9) IPA.  This was because the application did not contain and was not accompanied by evidence that QCM's proposed development was consistent with an allocation or entitlement to the sand.[4]  That conclusion is sufficient to set aside the primary judge's third declaration in each appeal and to instead declare that: "The development application did not satisfy sub-sections 3.2.1(3) and (5) of the Integrated Planning Act 1997" and to order that QCM's appeal to the Planning and Environment Court be dismissed.
  1. It is, therefore, unnecessary to further determine whether QCM's development application also failed to comply with s 3.2.1(5) because it wrongly described the land to which it related and that it therefore contained no "evidence of an allocation of, or an entitlement to, the [State] resource,"[5] namely, the land concerned in the application.
  1. Like my colleagues, I also consider that the primary judge's first declaration was correct, although my reasons for doing so differ from theirs. That first declaration responded to the first question framed for preliminary determination:

"Whether, assuming persons were and are native title holders or registered native title claimants in relation to the land the subject of the development application … it was necessary for the development application to contain or be supported by the written consent of the native title holders or the registered native title claimants with respect of the subject land and for notice to be given to the native title holders or registered native title claimants with respect to the adjoining land".[6]

  1. The first applicant, Kerrie Tapp, contended in this Court, as an alternative argument to those pursued by all applicants concerning the Native Title Act 1993 (Cth) and Racial Discrimination Act 1975 (Cth), that preliminary determination of the first question was premature.  As Chesterman JA and Applegarth J note, all parties, including Ms Tapp, consented to the determination of that preliminary point before the Planning and Environment Court so that this makes Ms Tapp's present contention unattractive.  However, if a declaration has been made which should not in law have been made at this time, this Court should not refuse to exercise its jurisdiction to set it aside.  If the interests of justice require, any unsatisfactory conduct by way of encouraging QCM to wrongly incur costs by having the Planning and Environment Court determine a matter prematurely, could be remedied by an appropriate costs order.  But, as I will explain, I do not consider the determination of the first question was premature.
  1. It is clear from the terms of the first question[7] that the nature and content of the native title, which it was assumed the registered native title claimants had, was undetermined at the time of the primary court hearing and decision.  And nor was there any agreement between the parties, or evidence, as to its nature and content before the Planning and Environment Court.  The primary judge recognised, in my view rightly, that this was a fundamental hurdle for the applicants.[8]
  1. Under s 3.2.1(3) IPA, QCM's development application had to contain or be supported by the written consent of the owner of the land the subject of the application and s 3.4.4(1) required that notice be given to both the general public and to the owner of the land the subject of the development application. Schedule 10 of IPA states "owner, of land, 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".  QCM's development application had to have the applicants' consent only if the applicants were "owners" under IPA at the time of the development application.
  1. I do not accept QCM's contention that it is necessarily impossible for a native title holder to be an "owner" in the sense described in IPA. QCM's contention relies upon comments made by Brennan J in Mabo v Queensland [No 2][9] and observations made by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Western Australia v Ward.[10]  QCM argues that no form of native title holding can equate to the concept of "owner" as defined under IPA.  Native title at common law may not include a right to receive rent, because of the inalienable nature of the title, as Brennan J explained in Mabo [No 2] in his summary of the relationship of the common law to native title.[11]  But Mabo [No 2] predated the Native Title Act 1993 (Cth) which is now the starting point to determine questions of native title: Western Australia v Ward.[12]
  1. Ward differed from the present case in that it concerned claims for native title over land, some of which was subject to existing pastoral leases, and most of which had previously been subject to pastoral leases which were later abandoned or forfeited.[13]  In 1998, Pt 2 Div 3 was added to the Native Title Act to allow for native title owners to negotiate with governments of the Commonwealth or of a State or Territory and to enter into Indigenous Land Use Agreements (ILUAs).[14]  Ward did not concern, and the court did not consider, the nature of rights of native title holders under ILUAs, in particular, whether under an ILUA a native title holder could be an "owner" under IPA.  Clearly, the effect of an ILUA will depend on its contractual terms.  The Native Title Act, through ILUAs, is capable of giving holders of native title under s 223 rights in respect of land additional to those derived from the native title itself, perhaps including the right to receive rent for land subject to the native title.
  1. It follows that it is possible that those applicants who are registered native title claimants under the Native Title Act, may have as yet unidentified rights in respect of land the subject of QCM's development application which may make them owners under IPA.  But, as the primary judge identified, because the full nature and content of those rights are not presently known, QCM was not obliged to have their consent to the development application.  The applicant relied on subdivision M, Pt 2 Div 3 Native Title Act to argue to the contrary.  But, in my opinion, that subdivision is not concerned with the subject matter of this appeal.  In any case, the rights of those applicants who are registered Native Title claimants remain completely unidentified so that it is impossible to yet predict whether they may become or are presently owners under IPA.  The subdivision does not apply in the present case.  This was the approach taken by the Full Federal Court in the comparable case of Lardil Peoples v Queensland.[15]  I note, however, that since Lardil was decided, s 24MD(6A) Native Title Act has been amended to include not just "native title holders" but also "any registered native title claimants".  But that does not detract from my opinion that subdivision M of Pt 2 Div 3 Native Title Act has no application to QCM's development application whilst the nature and content of the applicants' rights under the Native Title Act remain undetermined. 
  1. It follows that the determination of the first preliminary question was not premature and the first applicant's alternative contention to that effect should be rejected.
  1. But what can be said, in my view, is that, until the nature and content of any native title rights held by those applicants who were registered native title claimants under the Native Title Act over the land the subject of QCM's development application are determined, it is impossible to deal with the applicants' argument under the Racial Discrimination ActIf those rights, once identified, are such as to bring them within the definition of "owners" under IPA, the provisions of IPA (were it not repealed) would apply equally and without discrimination to them as it would to other "owners", so that the Racial Discrimination Act would not apply.
  1. I note that the Redland City Council submitted to the Planning and Environment Court that those applicants who are registered native title claimants should have been notified of QCM's development application under s. 3.4.4(1)(c) IPA and their consent obtained under s3.2.1(3) IPA. If I am wrong and the Council was correct about the legislative intent under IPA, it will be a simple matter for the parliament to clarify this through legislative amendment.

Costs

  1. The parties asked for the opportunity to make submissions as to costs after the delivery of this Court's substantive orders. My preliminary view is that as the applicants were successful (although only on one of a number of issues raised, and the applicants' arguments could adequately have been canvassed by one set of lawyers rather than two) the respondent should pay one half of the applicants' costs of this application and appeal. After all, the applicants have been successful in their appeal and the respondent's appeal to the Planning and Environment Court is now dismissed.
  1. I agree with the orders proposed by Chesterman JA and Applegarth J.
  1. CHESTERMAN JA & APPLEGARTH J:  The respondent (“QCM”) is a wholly owned subsidiary of Stradbroke Rutile Pty Ltd which in turn is wholly owned by Consolidated Rutile Limited.  QCM’s parent companies hold mining leases on North Stradbroke Island and operate mining activities to extract minerals from the sand on the leases.  In November 2007 QCM applied to the Redland City Council (“Council”) for a development permit to make a material change of use to some of the land under lease.  The change was to extractive industry (removal and transportation of sand from one of its mines).  QCM’s intention is to stockpile sand, from which minerals have been removed, on the area of mining leases and then transport the sand by truck over land to Dunwich where it would be loaded onto barges for transfer to Brisbane.
  1. Part of the activity for which approval was sought from the Council, the carriage of sand by truck, would occur on land other than the mining leases. Stockpiling and transport of sand are distinct from QCM’s sand mining operations. It is assessable development which requires approval under the Integrated Planning Act 1997 (Qld) (“IPA”).
  1. The Council refused the application in August 2008. QCM then appealed to the Planning & Environment Court. A number of the co-respondents to that appeal are applicants to this Court for leave to appeal the judgment of the learned primary judge who, on 29 September 2009, made declarations disposing of three questions which were determined as preliminary points tried separately and in advance of the substantive appeal. 
  1. Some of the applicants are claimants in a native title claim registered pursuant to s 190 of the Native Title Act 1993 (Cth) (“NTA”) over land which includes the land the subject of QCM’s development application.  The native title claim is wide in its ambit and includes:

“… the right and interest to possess, occupy, use and enjoy the determination area, to the exclusion of all others, and, in particular, to maintain and manage the application area and its natural resources for the benefit of the native title group, including:

(a)making decisions about, controlling, and imposing conditions upon, the use and enjoyment of the application area and its natural resources; and

(b)making decisions about, controlling, and imposing conditions upon, access to the application area and its natural resources”.

  1. The claim was filed 15 years ago, in 1995. It has not yet progressed to the point of trial.
  1. The questions which were identified as being suitable for early, separate determination were:

“1.Whether, assuming persons were and are native title holders or registered native title claimants in relation to the land the subject of the development application … and/or land adjoining that land, it was necessary for the development application to contain or be supported by the written consent of the native title holders or the registered native title claimants with respect to the subject land and for notice to be given to the native title holders or registered native title claimants with respect to the adjoining land.

  1. The application is not piecemeal by excluding from the scope of the approval sought the activity creating on the Land itself sand stockpiles for the very purpose of providing the sand the subject of the proposed removal and transportation referred to in the application.
  1. Whether there are procedural defects in QCM’s application involving non-compliance with sections 3.2.1(3) and (5) of the Integrated Planning Act 1997”.
  1. On 29 September 2009 the primary judge declared:

“1The question contained in the first preliminary point, concerning native title, is answered in terms that it was not necessary for the development application to contain or be supported by the written consents of native title holders or the registered native title claimants; and neither was it necessary for notice to be given to them;

2The development application was not piecemeal; and

3The development application satisfied and was sufficient for the requirements of s 3.2.1(3) and (5) of the Integrated Planning Act 1997.”

  1. The application for leave to appeal against the declarations raises novel points of some difficulty which are likely to arise in future applications for development approval when the land in question is subject to claims for native title. It is, therefore, an appropriate case in which to grant leave to appeal.
  1. The point which was determined by the first declaration was whether the native title claimants were to be regarded as having the rights of an owner of land for the purposes of the IPA.  Two sections of that act are relevant.  The first section provides:

“3.2.1(3)… each application must contain, or be supported by, the written consent of the owner of the land to the making of the application if the application is for –

(a)a material change of use of premises … ”.

  1. Schedule 10 to the IPA contains the dictionary for the Act.  It provides:

owner, of land, 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”.

  1. Section 3.4.4(1) required QCM as the applicant for development approval to give notice of its application “to the owners of all land adjoining the land” the subject of the application. There is a separate definition of “owner” for this section. It appears in s 3.4.4(5)(h). It is relevantly identical:

“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”.

  1. QCM did not give notice of the application to the native title claimants nor did it have their consent to its application.
  1. Put very shortly the applicants submit that certain provisions of the Racial Discrimination Act 1975 (Cth) (“RDA”), and/or the NTA have the effect of deeming those applicants who were native title claimants owners of the land as defined by, or for the purposes of, the IPA

The Racial Discrimination Act issues

  1. It is convenient first to deal with the argument that the RDA gave the native title applicants the status of owners to whom notice of the application had to be given and whose consent to it was required. 
  1. The first preliminary point for decision proceeded on the assumption that there are persons who are native title holders in relation to the land the subject of the development application. There was no agreement, or evidence, as to the content of the native title rights.
  1. Section 223 of the NTA defines native title.  It provides:

“(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)the rights and interests are recognised by the common law of Australia”. (emphasis in original)

  1. Section 224 defines a native title holder.

“The expression … in relation to native title, means:

(a)if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust – the prescribed body corporate; or

(b)in any other case – the person or persons who hold the native title”.

  1. The first applicant’s argument is that if there is native title, as the first preliminary question assumes, then those rights may or may not include a right to receive rent with respect to the land over which there is native title. In the event that the native title rights extended to the receipt of rent then the native title holders were owners of the land as defined by the IPA.  They should therefore have received notice of QCM’s development application which was incomplete without their consent. 
  1. Alternatively, the argument runs, if the native title holders do not have rights which make them owners of land for the purpose of s 3.2.1(3) of the IPA that result is racially discriminatory, so that s 10(1) of the RDA operates to supply the deficiency and create in them the same rights of property which the owners of a freehold or leasehold interest have in the land.  They were therefore entitled to notice of QCM’s application and had the right to withhold their consent to the development. 
  1. Section 10 provides:

Rights to equality before the law

(1)If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethic origin”. (emphasis in original)

  1. The operation of s 10 of the RDA was explained by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Western Australia v Ward.[16]  Their Honours said:

“That to which (s 10(1)) … is directed is the enjoyment of rights by some but not by others or to a more limited extent by others; there is an unequal enjoyment of rights that are or should be conferred irrespective of race, colour or national or ethnic origin.  ‘Enjoyment’ of rights directs attention to much more than what might be thought to be the purpose of the law in question.  Given the terms of the Convention which the (RDA) implements … that is not surprising. The Convention’s definition of racial discrimination refers to any distinction, exclusion, restriction or preference based … on race which has the purpose or effect of nullifying or impairing … the enjoyment of certain rights.  Further, the basic obligations undertaken by States party to the Convention include taking effective measures to nullify laws which have the effect of creating or perpetuating racial discrimination … .  It is therefore wrong to confine the relevant operation of the (RDA) to laws whose purpose can be identified as discriminatory … .

… (Section) 10(1) operates by force of federal law to extend the enjoyment of rights enjoyed under another federal law or a … State law”. (emphasis in original)

  1. The applicants then complain that the racial discrimination involved in this case is of the type described by Mason J in Gerhardy v Brown:[17]

“If racial discrimination arises under or by virtue of State law because the relevant State law merely omits to make enjoyment of the right universal, i.e. by failing to confer it on persons of a particular race, then s. 10 operates to confer that right on persons of that particular race.  In this situation the section proceeds on the footing that the right which it confers is complementary to the right created by the State law.  Because it exhibits no intention to occupy the field occupied by the positive provisions of State law to the exclusion of that law the provisions of the State law remain unaffected”.

  1. There are several answers to these arguments. The first is that, despite the phrasing of the preliminary question, it was established in the proceedings before the primary judge that none of the applicants has a recognised native title. Several are claimants whose claim has been registered but, as we mentioned, the claim was made 15 years ago and remains undetermined. The native title claimants may, or may not, succeed in establishing a right to native title.
  1. The relevant provisions of the IPA are concerned with ensuring that notice is given to owners of land that might be affected by the development for which permission is requested, and it is the consent of owners which must accompany the application.  Ownership of land, obviously, can and does change over time.  The IPA is concerned with the state of ownership when an application is made.  Notice must be given to owners not to those who might or might not become owners in the future.  Consent is required from those who are owners, not some indeterminate class of persons, who, depending on time and circumstance, may become owners.
  1. Moreover the applicants made no attempt to prove before the primary judge what their rights in respect of the land might be. Their claim is wide in its ambit but no evidence was adduced to show what rights or interests they may actually be able to establish. That course was open to them, even on a provisional or interlocutory basis.[18] 
  1. Not all native title rights extend to the exclusive possession of land. Those are a feature of some but not all native title rights and interests in relation to land. Toohey J pointed out in Wik Peoples v Queensland:[19]

“Inconsistency can only be determined … by identifying what native title rights … upon which the appellants rely are asserted in relation to the land contained in the pastoral leases.  This cannot be done by some general statement; it must ‘focus specifically on the traditions, customs and practices of the particular aboriginal group claiming the right’ … .  …  It is apparent that at one end of the spectrum native title rights may ‘approach the rights flowing from full ownership at common law’ … .  On the other hand they may be an entitlement ‘to come on to land for ceremonial purposes, all other rights in the land belonging to another group’ … ”.

  1. Native title varies with the laws and customs of the group asserting it. The point was made in the joint judgment in Ward.  Their Honours said:[20]

“Several points should be made here.  First, the rights and interests may be communal, group or individual rights and interests.  Secondly, the rights and interests consist ‘in relation to land or waters’.  Thirdly, the rights and interests must have three characteristics: (a) they are rights and interests which are ‘possessed under the traditional laws acknowledged, and the traditional customs observed’, by the relevant peoples; (b)              by those traditional laws and customs, the peoples ‘have a connection with’ the land … in question; and (c) the rights and interests must be ‘recognised by the common law of Australia’.

The question in a given case whether (a) is satisfied presents a question of fact.  It requires … the identification of the laws and customs … (and) the rights and interests in relation to land … possessed under those laws or customs.  … it is important to notice that there are two inquiries required by the statutory definition …”.

  1. The applicants made no attempt to provide evidence to satisfy either inquiry. No attempt was made to identify the rights they claim on the land or their customs and laws which might give rise to those rights. They provided no basis for thinking that any native title rights they might establish will include a right to receive rent from the land.
  1. The second answer is that the rights of native title holders do not extend to a right to receive rent from the land. There is a categoric statement to this effect in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Western Australia v Ward.[21]  Presumably the reason for that is that native title is inalienable to persons who are not members of the indigenous people who by traditional laws and customs have a relevant connection with the land, as Brennan J explained in Mabo v Queensland [No 2].[22]
  1. The third answer is that s 10 of the RDA has no application whether or not the native title claimants can eventually establish rights which would extend to the receipt of rent.  The section requires a comparison to be made between the rights enjoyed by a member of one race and the rights enjoyed by a member of another race.  Mason J explained in Gerhardy:[23]

“Consequently, s. 10 should be read in the light of the Convention (on the elimination of all forms of racial discrimination) as a provision which is directed to lack of enjoyment of a right arising by reason of a law whose purpose or effect is to create racial discrimination.”

Where that is so, s 10 confers the right on the person who does not enjoy it pursuant to State law.  The purpose of s 10 is to ensure equality of rights where, by reason of State law, there is inequality based on some racial distinction.  Section 10 does not apply to those cases of inequality where the rights in question are conferred or withheld on some basis other than race.

  1. The right conferred by s 3.4.4(1) of the IPA is the right to receive notice of an application for development.  Section 3.2.1(3) does not itself confer a right but it requires the owner’s consent if an application is to be validly made.  To that extent it confers a right to refuse consent.  These two rights are enjoyed by the owners of land as defined by the IPA, those persons entitled to receive rent for the land.  The entitlement is conferred upon freehold and leasehold owners of the land.  Owners of other interests in land which do not include that right are not entitled to notice of development applications and their consent is irrelevant.  The distinction between those whose consent is needed and those whose consent is unnecessary does not differ according to race.  It is determined by proprietary rights. 
  1. If, for example, the native title claimants succeeded in establishing native title which gives them a right to exclusive possession of the land and a right to receive rent for it they will be owners for the purposes of the IPA.  Section 10 of the RDA will be unnecessary to bring about that result.  The IPA does not confer a right on one racial group but not another.  The IPA makes no distinction about the source of an entitlement to receive rent from land.  If there be such a right, whether derived from native title or the ordinary incidence of ownership, the IPA will designate the person entitled to rent an owner and confer on the owner the right to notice and to withhold consent to the development application. 
  1. The applicants’ arguments, if accepted, would equate any native title right with the rights of freeholders and leaseholders with respect to the notice and consent provisions of the IPA.  Their argument is that the IPA discriminates against them on the basis of race; their native title rights do not carry the rights conferred on owners of land under the ordinary system of land title.  Therefore it is said s 10 operates to confer on them enjoyment of the same right.
  1. The argument, if accepted, would result in native title holders with a right to go on land once a year to perform a ceremony having the same rights under the IPA as an ordinary freeholder.  But there are many interests in land under ordinary title the owners of which are not given rights by s 3.2.1(3) or s 3.4.4(1) of the IPA.  Mortgagees not in possession, and owners of all incorporeal hereditaments are in that category.
  1. The distinction made by these sections of the IPA is not based on race but upon different proprietary interests in land.  A native title holder entitled, by that right, to receive rent from land is as much protected by the IPA in terms of notice and consent as the registered proprietor of an estate in fee simple.  If an ordinary title holder whose rights do not extend to the receipt of rent may be ignored by an applicant for a development permit, s 10 does not oblige an applicant to treat a native title holder not entitled to rent any differently.
  1. The IPA does not discriminate between holders of interests in land on the basis of race, or because one holds native title and one holds ordinary title, but on the basis of the incidence of the interest held.  If the title held confers a right to receive rent the IPA insists that notice be given to the holders of that title and that they consent to the application, regardless of the type of title held.
  1. For these three reasons the applicants have failed to demonstrate that the RDA made them owners of the land. 

The Native Title Act issues

  1. It is now necessary to consider the applicants’ arguments based upon the NTA.  Before passing to the detail it will be helpful to recall the explanation of the legislation given by six judges of the High Court in Western Australia v Commonwealth (Native Title Act case).[24]  Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said:[25]

“The first of the enacted objects of the Native Title Act is ‘to provide for the recognition and protection of native title’ (s 3(a)).  This object is achieved by a statutory declaration (s 11(1)) that native title ‘is not able to be extinguished contrary to this Act.’  The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title.  By that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code.  Conformity with the code is essential to the effective extinguishment or impairment of native title.  The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title”.

  1. A further exposition was given by Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Fejo.  Their Honours said:[26]

“Native title is not able to be extinguished contrary to the Act (s 11) but the Act does not forbid all conduct that may affect native title … .  Rather, it classifies some conduct affecting the use of or the title to land as ‘future acts’ … and identifies some of these as ‘permissible future acts’.  Generally speaking, a ‘permissible future act’ is an act which can be done, on the same terms, to ordinary title-holders …, as, for example, the grant of a mining lease which could also be granted ‘if the native title holders [concerned] … held ordinary title to [the land in question]’…  .  Any future act that is not a permissible future act is an ‘impermissible future act’ (s 236).

Section 22 provides that … ‘if an act is an impermissible future act, the act is invalid to the extent that it affects native title’.  Section 23 provides that subject to … (… the right to negotiate) acts which are permissible future acts are valid.  Thus the scheme of the Act, so far as presently relevant, is not to prohibit certain future conduct and permit other conduct.  Rather, it deals with the consequences of that conduct.  Some conduct will affect native title; some will not.”

  1. Later, their Honours said:[27]

“The appellants contended that subdiv B of Div 3 … impliedly prohibits the grant of Crown leases and, also, the surrender of those leases in exchange for freehold title without the government of the Northern Territory first undertaking the negotiation processes that are prescribed by the subdivision. 

… the subdivision contains no explicit provision to this effect.  Nor can it be read as containing an implied prohibition of the kind alleged.  … to imply such a prohibition would be to engraft on the scheme of the Act something that is foreign to it.  As has been pointed out … the Act does not proceed by way of prohibiting conduct; it prescribes the consequences of conduct (or, more accurately, prescribes that certain kinds of conduct will not have consequences adverse to native title).  If the granting of leases and conversion of leases to freehold title are not permissible future acts, s 22 will apply because the grant or the conversion … would be impermissible future acts.  And if they are impermissible future acts they will not validly affect native title.”

  1. Central to the applicants’ arguments is the existence of a future act as defined by the NTA.  They argue that QCM’s development application was a future act which was made impermissible by the terms of the NTA and is therefore invalid.  We greatly oversimplify the applicants’ submissions but giving that summary now provides a basis for understanding the relevance of some statutory definitions which must be set out. 
  1. Section 233 provides:

“(1)Subject to this section, an act is a future act in relation to land or waters if:

(a)either:

(i)it consists of the making, amendment or repeal of legislation … on or after 1 July 1993; or

(ii)it is any other act that takes place on or after 1 January 1994; and

(b)it is not a past act; and

(c)apart from this Act, either:

(i)it validly affects native title in relation to the land or waters to any extent; or

(ii)the following apply:

(A)it is to any extent invalid; and

(B)it would be valid to that extent if any native title in relation to the land or waters did not exist; and

(C)if it were valid to that extent, it would affect the native title”. (emphasis in original)

  1. Section 226(2) defines an act to include any of the following:

“(a)the making, amendment or repeal of any legislation;

(b)the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;

(c)the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;

(d)the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;

(e)the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;

(f)an act having any effect at common law or in equity”.

  1. An “act affecting native title” is, by s 227, such

“… if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise”.

  1. The applicants contend that QCM’s application for development approval was an act as defined by the NTA.  The contention seems erroneous.  The application did not create, vary, extend, renew or extinguish any interest or legal or equitable right in relation to land.  Nor, of course, was it an exercise of legislative or executive power.  Had the application succeeded and the Council given development approval the approval would, we think, amount to an act.  The point need not be taken further. 
  1. The statutory definition of future act does not make immediately clear the characteristics of such an act. French J explained in Lardil Peoples v State of Queensland:[28]

“A future act by definition is an act which, the NTA apart, validly affects native title in relation to the land … to any extent or is invalid because of the effect it would have on native title were it to be valid … ”.

Dowsett J pointed out in the same casethat afuture act is defined as one that occurred after a specified date, not one that is prospective at any relevant time.

  1. The validity of future acts is regulated by Pt 2 Div 3 of the NTA.  Section 24AA(1) provides:

“This Division deals mainly with future acts … .  Acts that do not affect native title are not future acts; therefore this division does not deal with them … ”. (emphasis in original)

Section 24OA provides:

“Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title”.

  1. Within Pt 2 Div 3 one finds several subdivisions each dealing with a particular subject matter by reference to which future acts may be valid. Only Subdiv M, “Acts passing the freehold test”, was recognised in the arguments as being a possible source of validity of the act here in question: the making of an application for development approval, or the grant of the approval.
  1. Section 24MB is headed “Non-legislative acts”. It provides:

Freehold test

(1)This Subdivision applies to a future act if:

(a)it is an act other than the making … of legislation; and

(b)either:

(i)the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or

(ii)… ; and

(c)a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

(i)in the area to which the act relates; and

(ii)of particular significance to Aboriginal peoples … in accordance with their traditions”.

  1. Section 24MB would be satisfied if there were a State law which made provision for the preservation or protection of areas or sites of particular significance to Aboriginal peoples in accordance with their traditions. The applicants contend that the Aboriginal Cultural Heritage Act 2003 (Qld) (“the Heritage Act”) is such a law.  The respondent did not argue to the contrary but the Court was not assisted by submissions from any party which might assist in determining whether that Act makes provision:

“in relation to the preservation or protection of areas, or sites, that may be … in the area to which the act relates … and … of particular significance to Aboriginal peoples … in accordance with their traditions”.

  1. The phrase calls attention to the area to which the act (development application or approval) relates but there was no evidence (other than the existence of the native title claim) that the area here in question, or sites within it, are of particular significance to Aboriginal peoples in accordance with their tradition, and so are protected or preserved by the Heritage Act
  1. Despite the unsatisfactory aspect of the argument we accept, as the respondent appeared to do, that the Heritage Act satisfies s 24MB(1)(c) of the NTA.  Therefore the provisions of Subdiv M will permit a future act validly to affect native title if the conditions found in the sections of the Subdivision are met. 
  1. Subsection 24MD(6) provides, with irrelevant exceptions:

“In the case of any future act which this Subdivision applies … the consequences in subsections (6A) and (6B) apply”.

  1. Subsection (6A) is important to the applicants’ argument. It provides:

“The native title holders, and any registered native title claimants in relation to the land … concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned … ”.

Section 253 defines procedural rights “in relation to an act”.  They are:

(a)a right to be notified of the act; or

 (b)a right to object to the act; or

(c)any other right that is available as part of the procedures that are to be followed when it is proposed to do the act”.

  1. The applicants’ argument proceeded on these premises:

(a)Section 24MD(6A) gives any registered native title claimants in relation to the land concerned the same procedural rights they would have in relation to ‘the act’ on the assumption that they were freeholders of the land;

(b)The making of a development application under s 3.2.1(1) is the relevant act and is also a future act as described by the NTA;

(c)Registered native title claimants have the same procedural rights in relation to the making of the development application as they would have if they were freeholders;

(d)A freeholder has the right to refuse consent to a development application under s 3.2.1(3) of the IPA and without their consent the application cannot be processed or approved;

(e)Consequently s 24MD(6A) required the consent of the native title claimants to the development application before it could be made or approved.

  1. Some of the premises are not contested. There is no doubt that a development application which does not have the consent of the owner of the land to which the application relates is not a properly made application and cannot proceed to assessment or approval. It is also common ground that an owner of land can, by withholding consent, prevent the assessment of a development application for the granting of approval over the owner’s land.
  1. Fundamental to the argument is that the making of the development application or, as we would think, the grant of approval for the application, is a future act to which the NTA and, in particular, Subdiv M applies. 
  1. What is in issue between the parties is the existence of a future act and the effect of s 24MD(6A).  QCM submits that there is no future act and the section does not operate so as to invalidate a development application which was made and approved without notice to native title claimants or, indeed, native title holders.  These two points must be considered separately. 
  1. It is clear from s 24MA that Subdiv M of Pt 2 Div 3 of the NTA only applies if there is a future act which affects native title.  For an act to affect native title it must be established that there is a title which may be affected.  This is the rock on which the applicants’ case foundered in the Planning & Environment Court.  It remains a barrier to the applicants’ success on this appeal.
  1. The Full Federal Court held in Lardil that an act is not a future act if, on the evidence, it might affect native title.  Unless it be established that the act in question will affect native title it cannot be a future act.  The point is that when native title rights remain to be determined one cannot know whether an act will or will not affect those rights which might or might not be found to exist.  That case decided that an act done in relation to land which is the subject of a registered native title claim is not, by that circumstance alone, an act which affects native title.  It is not sufficient that the act, said to be a future act, may affect native title. 
  1. The facts in Lardil were relevantly indistinguishable from those in the present appeal.  The Lardil peoples were registered native title claimants over certain areas of the seabed in the Gulf of Carpentaria.  A company which mined zinc near Mt Isa stockpiled the mineral at the coastal town of Karumba where it was transported by a self propelled barge to a point offshore for transfer onto a large bulk carrier for export.  Because the Gulf waters are exposed to cyclones the barge needed a safe anchorage where it could ride out such storms.  Accordingly the mining company obtained from the relevant Queensland Government official an authority to lay down a very substantial mooring on part of the seabed of the Gulf included within the Lardil claim.  Those claimants had not been notified of the mining company’s application for the mooring.  They sought a declaration that the authority for the mooring was invalid and an injunction requiring its removal.  The basis for relief was that the “future act provisions” of the NTA had not been complied with.  Their application failed, at first instance and on appeal. 
  1. French J (as the Chief Justice then was) said:[29]

“The protective mechanisms in respect of future acts … are to be found in Div 3 of Pt 2 of the (NTA).  The characterisation of an act as a future act is critical to the application of the Division.  For ‘[a]cts that do not affect native title are not future acts; therefore this Division does not deal with them’ (s 24AA(1)).

To fall within the definition of ‘future act’ an act must ‘affect native title’.  It does so if ‘it extinguishes the native title rights and interests or if it is otherwise inconsistent with their continued existence, enjoyment or exercise’.  The definition speaks in the present tense on the evident premise that the future act is done.  This is consistent with the provisions of Div 3.  The Division conditions the validity of each of various classes of future acts by the application to it of a subdivision relevant to that class.  The subdivisions also impose procedural requirements such as prior notification of proposed future acts to registered native title claimants and others and the provision of an opportunity to comment on the proposed future act”.

  1. His Honour said later:[30]

“… there was nothing put to his Honour or to this Court by way of contention that the granting of the … Mooring Authority affected native title rights and interests.  In other words, there was no contention that the grant of the … Authority was a future act.  It was submitted that the definition of a future act could be understood as encompassing an act which ‘may’ affect native title.  But this would require a re-writing of the statutory definition in s 233 which would significantly alter the operation of the act.  Such a course is not justified by the language of a statute.

…  However in Fejo the Court went on to say (at 125):

‘But the Registrar’s administrative act of accepting an application does not put the question of title beyond debate on an application by a registered native title claimant… .’

This is the complete answer to the appellants’ case based on the (NTA).  The procedural rights which they assert as registered native title claimants will only operate in relation to future acts.  Absent any basis for contending that the grant of the authority affected native title rights and interests, there is no basis for concluding that it was a future act”.

  1. Merkel J said:[31]

“As French and Dowsett JJ have explained, for the purposes of the (NTA), a future act is an act that affects native title and not an act that might affect native title.  Thus, the grant of the … Authority … is only capable of being a future act if the appellants establish that it affects native title.  The appellant’s claim in their motion before the primary judge was presented solely on the basis that they are registered claimants of the native title rights and interests specified in their claim for a determination of native title.  It was therefore inevitable that the motion would fail as the appellants did not seek to establish the existence of any such rights or interests”.

  1. Dowsett J said:[32]

“… the … authority is an apparently valid exercise of executive power under state legislation.  The only possible reason for invalidity under the (NTA) is s 24OA which applies only to future acts.  Until it is demonstrated that the issue of the first authority satisfies the definition of ‘future act’ in s 233, and may therefore be invalidated by s 24OA, it is not necessary to seek any basis for validity under the (NTA).  Section 233 requires that the act in question affect native title.  The applicants have not sought to establish any such affect and so have not demonstrated that the issue of the first authority was a future act.  There is therefore no reason to believe that the (NTA) deprives it of validity …”.

  1. Lardil authoritatively decides that Subdiv M of Pt 2 Div 3 of the NTA does not apply if all that is shown is that the act complained of affects land the subject of a native title claim.  Unless there be proof that native title rights exist over or in relation to the land the act in question cannot affect native title and cannot therefore be a future act.  The case decided as well that a registered native title claimant does not have procedural rights conferred by s 24MD(6A) in the absence of proof that the claimant actually has native title rights.  Subdivision M in which s 24MD(6A) appears does not apply, and does not operate to confer rights, unless there is first a future act. 
  1. The decision in Lardil is not binding on this Court but intermediate appellate courts should construe Commonwealth legislation alike and not depart from the construction of a statute such as the NTA adopted by another such appellate court unless it is clearly convinced that the construction is wrong.[33]  Lardil is a considered, unanimous decision on legislation familiar to the Federal Court.  In our opinion we should depart from it reluctantly and only if convinced it is clearly wrong.  In our respectful opinion the decision is plainly right and should be followed.
  1. What we have said is enough to dispose of this ground of appeal but for completeness’ sake we will mention the applicants’ further argument that s 24MD(6A) conferred on them the procedural right to notice of the application.  We have pointed out that the section does not apply because there is no future act and the sections within Subdiv M have no application. 
  1. Even if the section applied and the applicants should have been given notice of QCM’s development application the absence of that notice would not have invalidated the development application, or a permit which followed it.
  1. As the passages we quoted earlier from Fejo demonstrate the validity of which the NTA speaks is the power of an act to affect, diminish or extinguish, native title rights.  If a future act is invalid by reason of non-compliance with an applicable subdivision of the NTA the consequence is that the act does not affect native title, which remains intact, and can be asserted by appropriate means, injunctions or claims for damages.  Invalidity under the NTA does not mean invalidity of acts done pursuant to State legislation such as the grant of mooring authorities, leases or development applications.  Those acts may be valid exercises of State executive power but nevertheless not affect native title rights.
  1. So had s 24MD(6A) applied, but QCM not given the native title claimants notice of the development application, the application could nevertheless have proceeded to assessment and approval. It would be, for the purposes of the IPA, a valid approval.  If the approval were a future act and the provisions of Subdiv M were not complied with the approval would not affect, diminish or extinguish, native title and the applicants could enforce their rights as they saw fit.
  1. We would accept the correctness of QCM’s submission:

“Division 3 does not prohibit the doing of future acts, but only prescribes the consequences of that conduct by providing that some conduct will affect native title and some will not.  A future act that is not validated under Division 3 is not void – it is simply ineffective to affect native title but is effective for all other purposes.  A future act which is invalid under the NTA has no lawful effect on native title but is otherwise valid and effective.

The NTA does not require State laws, regulating the doing of a future act, to be read as incorporating the procedural rights afforded by s.24MD(6A).  It does not mandate compliance with s.24MD(6A) as a condition of validity of the act under State law.  It simply attaches a consequence (valid effect on native title) to a future act done in compliance with s.24MD(6A) and a different consequence (no valid effect on native title) to a future act not done in compliance with that provision”. (footnotes omitted)

  1. French J noted in Lardil:[34]

“As appears from the provisions of each of the subdivisions referred to in Div 3 of Pt 2, the acts which they validate must be future acts.  Their validation by a particular subdivision is conditioned upon their characterisation as a future act to which that subdivision or a section within it applies.  The subdivisions which provide for prior notification to registered native title claimants and others do not appear to condition the validity of the future acts to which they apply upon compliance with that requirement.  …  The subdivisions which accord procedural rights to registered native title claimants, which are the same as those accorded analogous interest holders, are similarly structured to the subdivisions providing for notification.  Absent some express provision, as in subdiv P, it is not to be supposed, having regard to the statutory setting, that non-compliance with those procedural requirements goes to validity”.

  1. Dowsett J observed:[35]

“… it is clear that the (NTA) contemplates registered native title claimants having procedural rights.  However substantial difficulties may be encountered in determining:

  • the circumstances in which a registered claimant is entitled to procedural rights;
  • the content of those rights; and
  • the consequences of any non-observance of them”.
  1. The applicants have failed to make out their case that the NTA gave them a right to notice of QCM’s application and a right to withhold their consent to it. 

The determination of the preliminary question

  1. The first applicant, had, however, a further argument. It was that the primary judge should not have embarked upon a hearing of the preliminary question because it:

“… proceeded on an assumption that there are native title holders in relation to the land the subject of the development application.  It was impossible for there to be evidence of the hypothetical rights and interests of the hypothetical native title holders.  For this reason, the relevant facts were not all ascertainable”.

  1. The argument is unattractive, coming as it does from a party who agreed to the procedure and participated in it but failed because of the manner in which she presented her case.
  1. It is not right that there could be no evidence of the native title rights or interests which the native title applicants claimed. Fejo is direct authority against the applicant’s proposition.  One would expect that in the 15 years that have elapsed since the claim was made the native title applicants would have some idea of what rights they think they can prove and have gone some way towards gathering the evidence in support of their claim.
  1. This plea comes down to a request that the preliminary point be recommitted for determination at the appeal before the Planning & Environment Court so that the applicants may have the opportunity to rectify their strategic error. This is not how litigation is ordinarily conducted.
  1. Alternatively the applicants argue that there was evidence:

“… that the rights claimed included exclusive possession, occupation and use and that QCM had admitted that the native title claim was ‘Highly likely to be successful’.  On this basis it was open to conclude … that the claimed rights would be established”. (footnote omitted) (emphasis in original)

  1. The submission overstates the position. It is right that the primary judge had evidence of the native title claim but that was, as we mentioned, an ambit claim in the widest terms. There was no evidence led in support of the claim or any part of it.
  1. The admission referred to appears in an Environmental Management Overview Strategy prepared by Consolidated Rutile Limited in October 2003, presumably in connection with its application for the grant, renewal or extension of a mining lease. Extracts from the overview were exhibited to Mr Smith’s affidavit. He was the Environment and Community Relations Manager of Consolidated Rutile Limited. The author or authors of the overview are not identified. It contains the sentences:

North Stradbroke Island and the area of surrounding waters … is currently under Native Title claim by the QLC, and is highly likely to be successful.

Whether or not the claim prevails, CRL is committed to pursuing an ongoing and productive working relationship with the QLC … through a long-term good will agreement with the QLC”.

This is the “admission” relied upon.  It is to be noted that Mr Smith was not cross-examined about it when he gave evidence.  The court was not referred to any evidence that any of the applicants in these proceedings are members of “the QLC”, nor does the “admission” identify what rights may be successful.  The admission is no more than an opinion by an unidentified writer who provides no basis for his opinion or expertise to give it.  It does not supply the lacuna in the applicants’ case.

The Integrated Planning Act, s 3.2.1 issues

  1. The applicants submit that the primary judge misconstrued and failed to correctly apply the law as to the validity of development applications, and the law as to the power of local authorities to waive invalidity, contrary to this Court’s holding in Barro Group Pty Ltd v Redland Shire Council.[36]
  1. QCM’s application for development approval was governed by s 3.2.1 of the IPA.  For the application to be a “properly made application” in the circumstances, s 3.2.1(7)(e) of the IPA required it to be supported by evidence that the chief executive of the department administering certain State resources was “satisfied the development is consistent with an allocation of, or an entitlement to, the resource”.  The applicants contended that the completed application forms did not contain evidence that the chief executive’s delegate was satisfied of that matter.  They seek leave to challenge the primary judge’s conclusion that s 3.2.1(9) of the IPA applied to deem the application to be “a properly made application”.  They submit that this conclusion is inconsistent with this Court’s decision in Barro Group, which was determined after the primary judge’s decision.

Legislative background to the s 3.2.1 issues

  1. Section 3.2.1 of the IPA relevantly provides:

3.2.1  Applying for development approval

(1)Each application must be made to the assessment manager in the approved form.

  1. The approved form -

(a)must contain a mandatory requirements part including a requirement for an accurate description of the land; ...

...

  1. ... each application must contain, or be supported by, the written consent of the owner of the land to the making of the application if the application is for -

(a)a material change of use of premises or a reconfiguration of a lot;

...

(5)To the extent the development involves a State resource prescribed under a regulation, the regulation may require the application to be supported by 1 or more of the following prescribed under the regulation for the development -

(a)evidence of an allocation of, or an entitlement to, the resource;

(b)evidence the chief executive of the department administering the resource is satisfied the development is consistent with an allocation of, or an entitlement to, the resource;

(c)evidence the chief executive of the department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or an entitlement to, the resource.

(5A)The document containing the evidence may state a day, not less than 6 months after the date of the document, after which the evidence in the document may not be used under subsection (5).

(6)Subsection (3) does not apply for an application to the extent -

(a)subsection (5) applies to the application; 

...

(7)An application is a properly made application if -

(a)the application is made to the assessment manager;  and

(b)the application is made in the approved form;  and

(c)the mandatory requirements part of the approved form is correctly completed;  and

...

(e)if subsection (6) applies – the application is supported by the evidence required under subsection (5);  and

...

(8)The assessment manager may refuse to receive an application that is not a properly made application.

(9)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.

(10)Subsection (9) does not apply to an application -

(a)unless the application contains -

(i)the written consent of the owner of any land to which the application applies;  or

(ii)any evidence required under subsection (5);

...”

  1. The application was not supported by the written consent of the owner of the land under s 3.2.1(3), and hence QCM relied on s 3.2.1(6)(a) which provides that subsection (3) does not apply “for an application to the extent” subsection (5) applies to the application. To the extent the development involved a “State resource prescribed under a regulation”, the application had to be “supported by the evidence required under subsection (5)” in order to be a “properly made application”.[37]
  1. Section 3.2.1(5) sets out three different categories of evidence. Section 12 of the Integrated Planning Regulation 1998 (“the IPR”) relevantly provides:

12State resources (schedule 10)

(1)For section 3.2.1(5) of the Act, schedule 10 prescribes State resources and the evidence required to support an application that involves taking or interfering with a resource.

...

  1. In this section -

chief executive means the chief executive of the department administering the resource.”

  1. Schedule 10 of the IPR relevantly provides:

State Resource

Department administering resource

Required evidence

2.Land subject to a lease (including a freeholding lease), or a reserve or deed of grant in trust, under the Land Act 1994

(a)if the lessee or trustee is not, or does not represent, the State;  and

(b)other than to the extent that item 17 applies to the land

The department in which that Act is administered.

Evidence the chief executive of that department is satisfied the development is consistent with an allocation of, or an entitlement to, the resource

4.Land subject to a permit to occupy or licence under the Land Act 1994, other than to the extent that item 17 applies to the land

The department in which that Act is administered

Evidence the chief executive of that department is satisfied the development is consistent with an allocation of, or an entitlement to, the resource

6.Land that is unallocated State land under the Land Act 1994, other than to the extent that item 17 applies to the land, other than –

(a)a canal under the Coastal Protection and Management Act 1995; or

(b)land mentioned in item 11, 12 or 13;  or

(c)the bed and banks of a watercourse or lake, under the Water Act 2000, section 21, to the extent that item 14 or 15 applies to the land

The department in which that Act is administered

Evidence the chief executive of that department is satisfied-

(a)the development is consistent with an allocation of, or an entitlement to, the resource;  or

(b)the development application may proceed in the absence of an allocation of, or an entitlement to, the resource

17Quarry material taken under the Forestry Act 1959

The department in which parts 6 and 6A of that Act is administered

Evidence of the chief executive of that department is satisfied the development is consistent with an allocation of, or an entitlement to, the resource

  1. Accordingly, in respect of relevant State resources QCM’s application was required to be supported by evidence that the chief executive of the department administering the State resource was “satisfied the development is consistent with an allocation of, or an entitlement to, the resource”. A failure to support the application with the required evidence meant that the application was not a “properly made application”.
  1. Subsection 3.2.1(9) provides that 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. However, by virtue of s 3.2.1(10) subsection 3.2.1(9) does not apply to an application unless the application contains, amongst other things, any evidence required under subsection 3.2.1(5).  This Court in Barro Group[38] confirmed that s 3.2.1(10)(a)(ii) does not permit a Council to excuse an application from the requirements of s 3.2.1(5) of the IPA and to treat it as a properly made application.  In reaching that conclusion the Court had regard to the scheme and purposes of the IPA.  An interpretation of the IPA which provided an incentive to developers and local authorities to comply with “the irreducible minima of a viable application referred to in s 3.2.1(10)(a) and (b)” was said to promote efficiency in decision-making processes under the IPA.[39]
  1. Section 3.2.8 of the IPA obliges a Council to keep “available for inspection and purchase” by members of the public the application and any supporting material.  This provision facilitates the involvement of members of the public in the Integrated Development Assessment System process by ensuring that information is made available.  This Court observed in Barro Group:

“... In order to make that involvement meaningful the information should include the application completed in conformity with s 3.2.1.  Section 3.2.1(8) and (9) expressly permit a local authority to treat some applications which are not truly “properly made applications” as if they were, and so to allow them to proceed to a decision in conformity with the IDAS process.  This Court should be slow to adopt an interpretation of the IPA which diminishes the protection which s 3.2.1(7)(e), s 3.2.1(10) and s 3.2.8 are apt to afford the public interest and the opportunity for community involvement in decisionmaking.”[40]

Factual background to the s 3.2.1 issues

  1. QCM originally intended that its application be supported by the written consent of the owner of the land pursuant to s 3.2.1(3). However, that consent was not forthcoming. QCM’s consultant then sent separate forms to two officers of the Department of Natural Resources and Water, who signed them.
  1. Section 3.2.1(1) of the IPA requires a development application to be made in the approved form.  Section 5.9.1 authorises approved forms for use under the IPA.  A form approved under an Act may require specified information or documents to be included in, attached to or given with the form, and for such information or documents to be verified in a specified way.[41]  The prescribed development application form (Form 1) deals with resource entitlement in Parts 21, 22 and 23. 
  1. Parts 21, 22 and 23 are as follows:
  1. Does this application involve a State resource prescribed under a regulation (other than involving quarry material on State coastal land under the Coastal Protection and Management Act 1995)?

NOgo to Q24                          YES – go to Q22

  1. This application is accompanied by evidence:  (tick applicable box)

(i)of the allocation of, or entitlement to, the resource – attach evidence and go to Q23(vi)

(ii)the chief executive of the department administering the resource is satisfied the development is consistent with an allocation of, or entitlement to, the resource – go to Q23

(iii)the chief executive of the department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or entitlement to, the resource – go to Q23

Judgment-Image23.

Judgment-ImageThe following instructions about completing these Parts appear in the margin beside Parts 21, 22 and 23:

“Section 3.2.1(5) of the IPA requires evidence of resource entitlement be given for applications that involve a prescribed State resource.

Section 3.2.1(10)(a)(ii) of the IPA prescribes that an application cannot be taken to be properly made without evidence of the resource entitlement.

Advice for completion Q21 & 22

Refer to schedule 10 of the Integrated Planning Regulation 1998 that prescribes the nature of evidence required by the State in support of the lodging of this development application.

Advice for completing Q23

The information in (i) – (iv) is mandatory if evidence is required under Q22(ii) or (iii) above.

The official stamp of the Department of Natural Resources, Mines and Water is mandatory where the application involves any water or riverine quarry material under the Water Act 2000.

Section 3.2.1(5A) allows the resource manager to limit the time the evidence may be used.  Q23(vi) must be completed if the evidence is time limited.”

  1. The separate forms that were sent by QCM to the officers of the Department of Natural Resources and Water were partially completed by QCM’s consultant before they were sent. The box beside 22(i) was crossed by the consultant. This apparently was done because the consultant understood that the application needed to be accompanied by “evidence of allocation of entitlement to the resource”.[42]  The words “Department of Natural Resources and Water” were inserted in the box beside 23(i) for resource entitlement/ authority details.  The letters NA were inserted in the box beside 23(vi).
  1. One form was sent to a Mr Walker who completed Part 23 of the form by inserting his name, his position (General Manager, Forest Products), his signature and the date in the boxes provided in Parts 23(ii) – (v) of the form.
  1. The second form was completed by a Mr Rogers. He amended the form that was given to him by striking out the cross in the box beside 22(i) and instead crossing the box beside 22(ii). He completed Part 23 of the form by inserting his name, his position (Principal Land Officer), his signature and the date in the boxes provided in Parts 23(ii) – (v) of the form. Mr Rogers also struck out the letters NA in 23(vi) and inserted the date 5 May 2008 as the expiry date of evidence.[43]
  1. Before the Planning & Environment Court, QCM’s consultant explained that a representative of Consolidated Rutile Limited had the task of getting the signatures of Mr Walker and Mr Rogers.  The consultant also explained that a letter of consent from the landowner, as contemplated from the way in which Part 20 of the form was completed, was not pressed because “my client was extremely keen to lodge the application as soon as possible and that there were officers at DNRW that were prepared to sign the Part A form we obtained” in Part 23 of the form.[44]
  1. QCM relied upon the completion and signing of this part of the form as the evidence that supported the application for the purposes of s 3.2.1(5). No other evidence by way of attached letter or other document was relied upon as evidence of each officer’s satisfaction that the development was consistent with an allocation of, or entitlement to, a relevant State resource.
  1. Mr Rogers gave evidence in the Planning & Environment Court. Of course, his evidence in that proceeding about the state of his knowledge and belief at the time he completed the form about the development application, relevant State resources and other matters, could not constitute the evidence that the legislation obliged QCM to provide in or with the approved form of application. Mr Walker did not give evidence in the proceedings.
  1. The application did not identify, or correctly identify, all of the parcels of land which were the subject of the application. Parcels described as Lots 18 – 22 on SP 112298 and Lots 15 – 17 on SP 106438 (which we shall refer to as “the road lots”) were not included in the application forms that were signed by Mr Walker and Mr Rogers and lodged with the Council.  The forms included amongst the parcels of land Lot 1 on SP 117361 instead of Lot 2 on SP 117361.  The Council acknowledged receipt of the application and the letter that did so adopted the description of the lots appearing in the application.

The decision of the Planning & Environment Court on the s 3.2.1 issues

  1. QCM’s case before the Planning & Environment Court was that it provided satisfactory evidence about the matters referred to in s 3.2.1(5) because the form lodged with the Council contained the signatures of Mr Walker and Mr Rogers. The applicants (who were co-respondents in the Planning & Environment Court) contended that these signatures were insufficient evidence and that Mr Rogers’ evidence was not directed to the land resources described in Items 2, 4 and 6. The primary judge observed that the parties’ submissions focused strongly upon the form and the error involving a cross in the incorrect box in Part 22, which meant that the form failed to meet the requirements of the IPA.  The applicants’ submissions intended no criticism of Mr Walker who merely completed and signed the otherwise completed form that had been prepared by QCM’s consultant by crossing the box beside 22(i) in the apparent belief that what was required was “evidence of allocation of or entitlement to the resource”. 
  1. In addressing the submission that the form failed to meet the requirements of the IPA the primary judge stated:

“Materially, Council accepted the application and should be deemed to have given it the relevant consideration within the meaning of IPA s 3.2.1(9).  As in Stockland Developments Pty Ltd v Thuringowa City Council (2007) 157 LGERA 49, it is reasonable to infer that Council accepted the application, despite the mistake, and deemed it to be properly made under s 3.2.1(9) because it is improbable the error could have been overlooked.”[45]

  1. The primary judge otherwise concluded that Mr Walker’s completion of Part 23 of the form satisfied the requirements of the IPR and the IPA.  The primary judge said that there was:

“convincing evidence that Mr Walker’s completion of Q 23 was proper:  he signed the sale agreement on 31 October 2007 and the IDAS form on the same day.  Accepting the propriety of a development which involved taking sand (the subject of the sale agreement) is entirely consistent with an acknowledgment of an entitlement to take that resource.”[46]

  1. The primary judge then dealt with Mr Rogers’ evidence and the applicants’ submission that the form as completed by him was not properly directed towards certification of an entitlement with respect to State resources (other than sand) or was insufficient. The primary judge had regard to the evidence concerning the sequence of events in obtaining evidence from Mr Rogers and Mr Walker in the form of their completion of the approved form. This evidence was found to establish that in the course of that exercise Mr Rogers, as Principal Land Officer, responded to inquiries about and focused his responses upon the various parcels of land. The primary judge accepted QCM’s analysis that Mr Rogers was, in truth, concerned with the land the subject of the development application and “his evidence and the IDAS form relates to that resource and the parcels which here, relevantly, comprise it”.[47]
  1. The primary judge then addressed the applicants’ submissions that Mr Rogers’ evidence was insufficient as a foundation for the operation of s 3.2.1(5) and that the completed form was not properly accompanied by evidence (as required by Part 22 of the form); was incorrectly completed (in respect of Part 23(i)); proceeded on an erroneous basis in respect to the allocation or entitlement of parcels of land away from the sand resource; and that by completing the form in the way that he did Mr Rogers proceeded on an incorrect basis, namely that because QCM held a mining lease that itself was an “allocation to the land” directing allocations and entitlements in respect of the other parcels. 
  1. The applicants’ submissions were rejected on the basis that they took a mistaken, or unduly restrictive, analysis of the form. Only Part 22(ii) of the form was relevant and the primary judge concluded that the evidence it required was set out in Part 23. Unlike part 22(i), this does not require, evidence of the allocation of, or entitlement to, the resource. His Honour analysed aspects of the evidence relating to parcels of land and entitlements granted pursuant to s 57 of the Forestry Act 1959 (Qld).  He concluded that the actual question confronting Mr Rogers was whether or not he was satisfied the development was consistent with an allocation or entitlement to the various parcels, that the evidence established he was aware of the land constituting the relevant State resources, the nature of the proposed development, and the location of the haul route, and that his expression of satisfaction of consistency (reflected in his completion of Part 23) “cannot be said to have been wrong”. 
  1. In the circumstances, the applicants’ lengthy individual analysis of the nature of the title for each discrete parcel affected by the haul route became immaterial, save in one respect. That related to the applicants’ contention that various lots were not included in the application, but should have been. The primary judge concluded that this shortcoming was a product of misdescription or oversight. The reference to Lot 1 rather than Lot 2 on SP 117361 appeared to involve “a plain misdescription, overlooking the subdivision of the Lot into two separate parcels”.[48]  It was found to be a non-compliance with IPA s 3.2.1(7)(c) which had been overtaken by the Council’s acceptance of the application under s 3.2.1(8).
  1. The parcels which we have described for convenience as “the road lots” were found to be “part of an existing haul route”. The primary judge stated:

“Lots 18 – 22 are, however, within Lot 21 on USL 20674, which was included in the application;  and Lots 15 – 17 are within Lot 2 on USL 20675, which was also included.”[49]

  1. The primary judge dealt with other submissions advanced by the applicants before concluding that the evidence was sufficient to satisfy the requirements of s 3.2.1(5). Mr Walker’s evidence, incorporated in the form he signed, was sufficient for the purposes of s 3.2.1(5)(b) (and in particular Schedule 10, Item 17) and Mr Rogers’ similar evidence was sufficient for the same purposes (in particular Schedule 10, Items 2, 4 and 6). His Honour answered the third question raised for preliminary determination by concluding that the application satisfied the requirements of s 3.2.1(5) of the IPA, and it was not necessary for owners’ consent to be given under s 3.2.1(3).  A declaration reflecting that conclusion was made.

The s 3.2.1 issues before this Court

  1. The applicants seek leave to appeal on the grounds that the questions of law raised by them, including those involving the construction and application of s 3.2.1, are matters of public importance. The written submissions for the applicants were lengthy. To some extent their length was the consequence of the need to address issues concerning native title, the RDA and issues under the IPA, and the factual complexities of aspects of the evidence concerning the location of parcels of land and the entitlements granted in respect of them.  The applicants’ initial submissions were 16 pages in length.  Their submissions in reply were an excessive 31 pages.  The parts of the applicants’ submissions concerning the 3.2.1 issues, and QCM’s submissions in response, canvassed matters at considerable length. It is unnecessary and inappropriate to set out or summarise these submissions at length.  Instead, it is convenient to address them, as did the parties’ submissions on the 3.2.1 issues, under the headings:

(a)The general approach to State Resources Issues;

(b)State Resources Issues – Sand;

(c)State Resources Issues – Land.

The general approach to State Resources Issues

  1. Subsection 3.2.1(5) of the IPA required the application in this matter “to be supported by” one or more of the categories of evidence prescribed by regulation.  By comparison, s 3.2.1(3) requires an application to “contain, or be supported by” the written consent of the owner of the land in certain circumstances.  The applicants do not go so far as to submit that s 3.2.1(5) of the Act does not permit the evidence contemplated by s 3.2.1(5) to be contained in the application, as distinct from attached to it.  Instead, they note that QCM chose to do no more than tick Part 22 and complete Part 23 of the form, rather than providing “speaking evidence” in the form of an accompanying document or some other form.  The applicants submit that because QCM chose this mode it was necessary for it to take care in the completion of the form.
  1. QCM correctly submits that s 3.2.1(5) in referring to an application being “supported” by evidence and s 12 of the IPR in referring to evidence to “support” an application needs to be viewed against the background of s 3.2.1(1) and s 5.9.1 of the IPA, which together require an application to be made in the approved form.  Against that background, and having regard to s 49 of the Acts Interpretation Act, QCM submits that it was open to specify in the approved form how the required evidence was to be provided in support of an application.  This submission should be accepted.  The relevant issue, then, was whether the application was made in accordance with the form. 
  1. That issue falls to be determined in the context of the requirements of s 3.2.1(5) and the policy of the Act.
  1. Reference to the approved form indicates that the form did not require the evidence to be written on the form itself. The first page of the form states by way of guidance “Any information requested in the form may be provided in an attachment to the application.” The opening words of Part 22 of the form contemplate that the application will be “accompanied by evidence” of one or more of the three matters appearing below, with provision to tick the matter or matters which is to be the subject of accompanying evidence.
  1. The form does not prescribe that the evidence that is to accompany the application is to be attached, save for the category in Part 22(i) where the form includes an instruction in respect of evidence of the allocation of, or entitlement to, the resource “attach evidence and go to Q23(vi)”.
  1. Part 23 of the form is not clearly adapted to constituting evidence of the chief executive’s satisfaction that “the development is consistent with an allocation of, or entitlement to, the resource”. The completion of the box beside 23(i) may serve to identify the resource entitlement. However, in this case it was completed by simply inserting the name of the Department of Natural Resources and Water. The completion of Part 23 serves to at least identify the chief executive’s delegate. There is no box or space in Part 23 specifically adapted to recording the state of satisfaction of the chief executive’s delegate.
  1. Part 23 of the form is headed: “Evidence of the resource entitlement”. Despite this, it is arguable that the completion of Part 23 constitutes evidence of the delegated officer’s satisfaction. However, the terms of Part 22 and Part 23 suggest otherwise. The form requires the application to be “accompanied by evidence” of the chief executive’s satisfaction of the relevant matter. The Shorter Oxford English Dictionary definition of ‘accompany’ includes:

“1. To add or conjoin to; to send (or give) with the addition of.”

The Macquarie Dictionary includes the following definitions of ‘accompany’:

“1. To go in company with; join in action

  2.To be or exist in company with.”

The Oxford English Dictionary defines “accompany” to include:

“I. To accompany one thing to or with another

  1. To accompany (a person or thing) to (another): add as a companion; to associate; to add or conjoin to.
  1. To accompany (a person (obs.) or thing) with (another): to send it with (or give it) the accompaniment or addition of; to supplement it by; to join to it.”
  1. We conclude that the completion of Part 23 in a manner that simply identifies the relevant department, the name of the delegated officer, the officer’s position, their signature, the date it was signed and the expiry date (if any) of evidence, and which does not also record the fact of the officer’s satisfaction does not constitute evidence of the officer’s satisfaction that accompanies the application.
  1. This conclusion is supported by two considerations. First, an obligation to record the officer’s satisfaction in evidence that accompanies the application is not onerous. Such a statement of satisfaction is not required to give the reasons for the officer’s state of mind. A simple statement that the officer is satisfied would do.
  1. Second, the information which is required by s 3.2.1(5) is one of the “irreducible minimum requirements” that promote efficiency in decision-making processes under the IPA.[50]  An interested member of the public may have no statutory right under the IPA to make submissions to the chief executive about the involvement of a State resource in the development.  However, members of the public are entitled to submit to the Council that it should not acquiesce in the view taken by the chief executive about the involvement of a State resource in the development.[51]  Members of the public may wish to challenge the chief executive’s decision by legal proceedings[52] or by other legitimate processes.  A member of the public affected by the development may wish to consider whether an official could possibly be satisfied that the development is consistent with the relevant allocation of, or entitlement to, a particular State resource, and to contest the officer’s view in some appropriate forum.  For example, and without impermissibly entering into the merits of the dispute, a member of the public may wish to contest the view that the removal of large quantities of tailings from a mining lease is consistent with the entitlement granted under a mining lease if the mining lease requires the material to be kept on the mining lease for the purposes of, amongst other things, rehabilitation.  In short, the policy of the IPA, as discussed in Barro Group, favours an approach to s 3.2.1 which facilitates access by members of the public to the evidence relied upon by the developer in support of its application. 
  1. In summary, the general approach to compliance with s 3.2.1 in respect of State resources issues should have regard to:
  • the terms of s 3.2.1(1) and (5) which require the application to be “supported by” evidence provided in accordance with the prescribed form;
  • the contents of the prescribed form which require the application to be “accompanied by” evidence that the chief executive is satisfied the development is consistent with an allocation of, or an entitlement to, the State resource;  and
  • the policy of the IPA.

These support the conclusion that for QCM’s application it was not sufficient simply to tick one or more of the boxes in Part 22 and only include in Part 23 of the form the name of the relevant department, the delegated officer’s name, position and signature, the date of signature and the expiry date (if any) of evidence.  This is particularly so where, as in this case, Part 23(i) does not identify the relevant resource entitlement, the form does not itself record the delegated officer’s relevant state of satisfaction and the application is not accompanied by a document that records that state of satisfaction.  In such a case the application will not have been supported by evidence, as required by s 3.2.1(5) of the IPA and s 12 of the IPR.  In such a case, the application will not be a “properly made application” and the Council will not be entitled to treat it as a “properly made application” under s 3.2.1(9). 

State Resources Issues – Sand

  1. The applicants contend that the form signed by Mr Walker did not constitute evidence that he, as delegate of the chief executive, was satisfied that the development was consistent with an allocation of, or entitlement to, the relevant State resource, namely sand. In response QCM contends that an error was made in the completion of Part 22, that Mr Walker correctly completed Parts 23(i) – (v) and that the error in completing Part 22 does not engage s 3.2.1(10) so as to prevent the assessment manager accepting the application under s 3.2.1(9). We are unable to accept QCM’s submissions in this regard.
  1. There is no evidence that Mr Walker intended to tick the box beside Part 22(ii) so as to record his satisfaction that the development was consistent with an allocation of or entitlement to the sand resource and simply made a mistake by ticking the wrong box in Part 22. The wrong box was ticked by QCM’s consultant before the form was given to Mr Walker. It was ticked by the consultant in the apparent belief that what was required was “evidence of the allocation of, or entitlement to, the resource”. The completion of Part 23 and Mr Walker’s signature in that part do not constitute evidence that he was satisfied that the development was consistent with an allocation of, or entitlement to, the sand resource. The application was not accompanied by evidence of Mr Walker’s satisfaction in this regard.
  1. It is unnecessary to determine whether the correct completion of the form required the relevant resource to be identified in the box beside Part 23(i). However, the form seems to contemplate that the resource entitlement will be stated in this box, and one would expect a development application to identify the relevant resource entitlement in that box or in an accompanying document. The application in this case did not do so.
  1. We conclude that the application did not contain, and was not accompanied by, evidence that Mr Walker was satisfied that the development was consistent with an allocation of, or entitlement to, the sand resource. It is not to the point that Mr Walker may have been satisfied of this, given that he signed a sale agreement in respect of sand on the same day as he signed the form.  The application was not supported by the required evidence of his state of satisfaction because evidence of his satisfaction did not accompany the application in accordance with the prescribed form. 
  1. The application failed to comply with the requirements of the IPA for a “properly made application” because it was not supported by the evidence required under s 3.2.1(5).  The primary judge should have concluded that, as a consequence, the application was not a “properly made application”, and that s 3.2.1(9) did not permit the Council to treat it as a “properly made application”.

State Resources Issues – Land

  1. The development involved the State resources described in Schedule 10 of the IPR, Item 2 (land subject to a lease under the Land Act 1994 (Qld)), Item 4 (land subject to a permit to occupy under that Act) and Item 6 (unallocated State land).  The applicants submit that:

(a)there were lots involved in the development application that should have been, but were not included in the application, and there was no State resource evidence about those lots;  and

(b)there was no allocation of or entitlement to the State resources being the land that was included in the development application. 

As to the omission to refer to Lot 2 on SP 117361, the primary judge accepted that this was a case of plain misdescription, and involved a non-compliance with IPA s 3.2.1(7)(c) which had been overtaken by the Council’s acceptance of the application.[53]  The primary judge was correct in concluding that Part 10 of the development application form misdecribed Lot 1 on SP 117361 as “Part of Mining Company Road”.  This was an apt description of the use of Lot 2 on SP 117361, which was a private road used to haul mineral sand.

  1. The applicants accept that the defect in the description of the relevant lot could be addressed by the Council pursuant to s 3.2.1(9). They submit that this may overcome a failure to comply with the requirement to provide an accurate description of the land pursuant to s 3.2.1(2)(a) of the IPA, but does not overcome a failure to provide the evidence required by s 3.2.1(5).  This submission should not be accepted.  Mr Rogers was familiar with the proposed haul route.  His evidence before the Planning & Environment Court touched upon Lot 1 (being a sewerage treatment plant of the Redland City Council) to which he gave consideration,[54] but his evidence overall made clear that he also was familiar with Lot 2.  Once it is accepted that the reference to Lot 1 was a misdescription, then any evidence of Mr Rogers’ satisfaction in or accompanying the form should be taken to relate to the actual haul route and the lots traversed by it, including Lot 2. 
  1. Other lots that we have earlier described as the road lots (Lots 15 – 17 on SP 106438 and Lots 18 -22 on SP 112298) were not included in the application amongst the lot descriptions.  The primary judge described these road lots as being part of an existing haul route, that Lots 15 – 17 are within Lot 2 on USL 20675 which was included in the application, and that Lots 18 – 22 were within Lot 21 on USL 20674, which was also included in the application.  The applicants make the point that the road lots are distinct parcels of land and are held on trust by the Queensland Bulk Water Supply Authority as a water reserve.  They complain about the primary judge’s description of the road lots as being within larger parcels of unallocated State land and submit that by not treating the road lots as distinct parcels the primary judge erred in law.  We interpret his Honour’s reference to the road lots being within other lots as a description of their physical location.  Mr Rogers understood that the development proposed haulage of sand along a route that included these road lots. 
  1. To comply with s 3.2.1(2)(a) the application should have included a description of the road lots, and not simply the large lots within which they were contained. The application contained an inadequate description of the land. However, Mr Rogers’ consideration of the relevant State resources issue included the road lot parcels which were physically situated within the lots described in the application. The Council’s consideration of the application also appears to have proceeded on the basis of an accurate understanding of the haul route as including what it described as a Private Mining Company road and included Lot 2 on USL 20675 and Lot 21 on USL 20674 as being the location of the proposed sand stockpile and part of the transport route.
  1. Given Mr Rogers’ correct understanding of the proposed haulage route along what was described in the application as part of a Mining Company road, the primary judge did not err in finding that Mr Rogers’ completion of Part 22 and Part 23 of the form extended to the road lots that were physically within two of the lots described in the application. As the primary judge found, Mr Rogers was aware of the land constituting the relevant State resources, the nature of the proposed development and the location of the haul route. The application included an incomplete description of the land. That incomplete description was able to be waived by the Council’s acceptance of the application pursuant to s 3.2.1(9). Insofar as the form purported to evidence Mr Rogers’ satisfaction pursuant to s 3.2.1(5) of the IPA it evidenced his satisfaction of the lots that he correctly understood to be subject to the application.  The primary judge did not err in treating the omission from the application of the road lots as an incomplete description of the land, and in finding that the Council accepted the application despite this defect in description.  Contrary to the applicants’ submission, the matter did not involve an incurable gap in the evidence required pursuant to s 3.2.1(5) of the IPA
  1. The applicants next contend that there was no allocation of, or entitlement to, the State resources being the land that was involved in the development application. The applicants argue that there must be some allocation of, or entitlement to, the various State resource land parcels. They further argue that the allocation or entitlement must find its source in the Land Act 1994 itself, and that an allocation or entitlement could not be conferred by a mining lease. 
  1. There is no doubt that there was an allocation of or entitlement to the lands described in Items 2 and 4. These items refer to land that is subject to a lease under the Land Act 1994, is a reserve under that Act or is land subject to a permit to occupy under that Act.  Item 6 in Schedule 10 of the IPR refers to “unallocated State land under the Land Act 1994”.  That Act defines unallocated State land as being all land that is not freehold land or land contracted to be granted in fee simple by the State; a road or reserve including a national park, conservation park, State forest or timber reserve; or subject to a lease, licence or permit issued by the State other than a permit to occupy issued by the chief executive under the Land Act.  The applicants’ submission that the allocation or entitlement must find its source in the Land Act would give Item 6 little, if any, operation.  An allocation or entitlement under the Land Act (other than a permit to occupy issued by the chief executive) would remove the land from Item 6 and place it in some other category, depending on the nature of the allocation or entitlement.  The Act should be interpreted in a way that does not render Item 6 “superfluous, void, or insignificant.”[55]  The interpretation contended for by the applicants would render Item 10 practically superfluous and should not be accepted.  A sensible interpretation of Item 6, and one which gives the provision a practical operation, is that it deals with cases in which there is an allocation or entitlement to an allocated State land, other than an allocation or entitlement under the Land Act which would result in the land being included in another item.  A mining lease is an example of an entitlement to unallocated State land.
  1. It is not to the point that QCM did not itself hold the mining lease or that the mining lease confers rights to mine minerals which are not prescribed as State resources under the IPA.  The relevant issue for the chief executive’s delegate was whether the development application was consistent with an entitlement to use the parcels of land for mining purposes pursuant to the mining leases.  This was the matter about which Mr Rogers had to be satisfied before he signed the form.  The issue of consistency was a matter about which Mr Rogers needed to be satisfied, and was not an issue for the Planning & Environment Court in determining the preliminary issues.  The relevant point of law for present purposes is whether an entitlement under a mining lease can be an entitlement to unallocated State land.  The better view is that they are and that the applicants’ submissions on this point of law should be rejected.
  1. The applicants next argue that the primary judge erred in construing s 57 of the Forestry Act by failing to exclude from its operation land that was a “reserve”.  This submission related to various parcels of land reserved for water purposes.  The applicants note that the Forestry Act’s definition of “Crown land” excludes reserves and contend that the primary judge erred in construing s 57 as giving rights of access to parcels other than Lot 2 on USL 20675.  The issue arose because QCM, as the holder of a sales permit to take sand on Lot 2 on USL 20675 had the right pursuant to s 57(1) and (1A) of the Forestry Act to enter upon the land in relation to which the permit was granted “and upon any other Crown land or land comprised in a Crown holding in, into, over, upon and out of which it is necessary to pass for the purpose of exercising or enjoying the aforesaid rights of entry upon the land in relation to which the permit or licence is granted”.  The applicants contend that because the Forestry Act’s definition of “Crown land” excludes reserves and therefore the parcels of land that were reserved, the Forestry Act did not confer an entitlement to enter upon the reserves. 
  1. One lot to which this issue relates is Lot 117 on SL 7338.  In response, QCM relies on the fact that Lot 117 is subject to a permit to occupy under the Land Act 1994 and, as a consequence is land comprised in a “Crown holding” for the purpose of the Forestry Act and is subject to s 57(1).  The applicant in reply notes that the permit to occupy limits use of the area to “access purposes to bores and for no other purpose whatsoever.”  However, this is no real answer to QCM’s submission that there is a right of access across this land by virtue of s 57 of the Forestry Act.
  1. The issue for Mr Rogers in respect of this lot and other lots that the development application proposed to be used as part of a transport route was whether the development application was consistent with the entitlement to the State resource. The lots earlier described as road lots, being Lots 15 – 17 and 18 – 22 were part of the same reserve for water purposes as Lot 117.  The applicants note that s 57 of the Forestry Act does not create any right of access through reserves and that the description by the primary judge that these road lots were part of “an existing haul route”[56] does not mean that they involve an entitlement to the reserve.  However, the survey plans in evidence indicate that these haul routes cross mining leases.
  1. The final parcel of land in contention is Lot 152 which is a parcel reserved for water supply purposes.  Within Lot 152 is Mining Lease 1105.  The part of Mining Lease 1105 within Lot 152 is part of an existing haul route.  QCM contends that this is a sufficient entitlement for the purposes of s 3.2.1(5).  The applicants contend that although part of Lot 152 is subject to Mining Lease 1105 it is a relatively small part of the parcel and that QCM’s reliance upon the existence of Mining Lease 1105 can, at best, be only a partial answer.  However, the fact that the relevant entitlement affects only part of the parcel is not to the point.  The issue for Mr Rogers’ consideration was whether the development application which sought to use an existing haul route to haul sand was consistent with the entitlement given by Mining Lease 1105 in respect of Lot 152.  Mining Lease 1105 creates an entitlement for the purposes of the State land resource entitlements.

Conclusion – Integrated Planning Act, s 3.2.1 issues

  1. The primary judge erred only in one respect in dealing with the s 3.2.1 issues. That concerned whether each form signed by Mr Walker and Mr Rogers constituted evidence that he was satisfied that the development was consistent with an allocation of, or an entitlement to, a relevant State resource. For the reasons given by us, we conclude that it did not. The completion of Part 23 of the form in the way it was completed did not constitute evidence of each officer’s satisfaction of the relevant matter. Neither application was accompanied by what the form and s 3.2.1(5) required, namely evidence of the officer’s satisfaction that the development was consistent with an allocation of, or an entitlement to, a relevant State resource.
  1. The application was not a “properly made application” and by force of s 3.2.1(10) the Council could not treat it, pursuant to s 3.2.1(9), as if it was.

Orders

  1. Each application for leave to appeal should be granted because of the importance of the issues raised.
  1. Each appeal should be allowed. The third declaration made by the Planning & Environment Court on 29 September 2009 should be set aside and in lieu it should be declared:

“3. The development application did not satisfy subsections 3.2.1(3) and (5) of the Integrated Planning Act 1997.”

  1. We would order:-
  1. Leave to appeal be granted in CA 12616 of 2009 and CA 12627 of 2009.
  1. Each appeal be allowed.
  1. The third declaration made by the Planning & Environment Court on 29 September 2009 be set aside and in lieu thereof it is declared:

“The development application did not satisfy subsections 3.2.1(3) and (5) of the Integrated Planning Act 1997.”

  1. The appeal to the Planning and Environment Court be dismissed.
  1. The parties are given leave to make submissions as to the costs of this appeal in accordance with paragraph 52 of Practice Direction No 2 of 2010.

Costs

  1. The appeal to this Court was conducted on the basis that following the publication of reasons for judgment the parties would have an opportunity to make submissions as to costs in accordance with the Practice Direction. Our preliminary view on costs is as follows.
  1. The applicants succeeded on one of the three substantial issues argued before this Court, and lost on two issues, being the RDA and the NTA issues.  If costs were awarded according to the outcome or “event”[57] of those issues, the applicants might be ordered to pay two-thirds of QCM’s costs, and QCM might be ordered to pay one third of the applicant’s costs.  The cost and complexity of having two assessments of costs pursuant to such orders should be avoided, and one costs order should be notionally set off against the other.[58]  A fair reflection at the “relative victories”[59] of the applicants and QCM would be to order that the applicants pay one-third of QCM’s costs of and incidental to both applications.

Footnotes

[1] Integrated Planning Act 1997 (Qld) repealed, s 4.1.56(1)(a).

[2] IPA has been repealed by the Sustainable Planning Act 2009 (Qld). Appeals started under IPA before the commencement of the Sustainable Planning Act are to continue to be heard and decided under IPA: s 822 Sustainable Planning Act.

[3] [2009] 169 LGERA 326; [2009] QCA 310.

[4] See the reasons of Chesterman JA and Applegarth J, [100]-[145].

[5] See s 3.2.1(5).

[6] See order of His Honour Judge Alan Wilson SC 29 January 2009, Further Preliminary Points 3(a).

[7] Set out in [6] of these reasons.

[8] Queensland Construction Materials Pty Ltd v Redland City Council [2009] QPEC 85 at [17].

[9] (1992) 175 CLR 1 at 70.

[10] (2002) 213 CLR 1 at 169.

[11] See fn 9.

[12] (2002) 213 CLR 1 at 69; Butt P, Land Law 6th ed, Law Book Co 2010, para 2507.

[13] (2002) 213 CLR 1 at 169.

[14] Native Title Amendment Act 1998, Act No 97 of 1998, Schedule 1, s 9.

[15] (2001) 108 FCR 453.

[16] (2002) 213 CLR 1 at 99.

[17] (1985) 159 CLR 70 at 98.

[18] See Fejo v Northern Territory (1998) 195 CLR 96.

[19] (1996) 187 CLR 1 at 126-7.

[20] (2002) 213 CLR 1 at 66.

[21] (2002) 213 CLR 1 at 169.

[22] (1992) 175 CLR 1 at 70.

[23] (1985) 159 CLR 70 at 99.

[24] (1995) 183 CLR 373.

[25] (1995) 183 CLR 373 at 453.

[26] (1998) 195 CLR 96 at 118-119.

[27] (1998) 195 CLR 96 at 124.

[28] (2001) 108 FCR 453 at 470.

[29] (2001) 108 FCR 453 at 470-471.

[30] (2001) 108 FCR 453 at 473-474.

[31] (2001) 108 FCR 453 at 476.

[32] (2001) 108 FCR 453 at 486.

[33] See Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151-2.

[34] (2001) 108 FCR 453 at 473.

[35] (2001) 108 FCR 453 at 485-486.

[36] (2009) 169 LGERA 326, [2009] QCA 310 (“Barro Group”).

[37] IPA s 3.2.1(7).

[38] Supra at [25], [50], [55] and [62].

[39] Ibid at [71].

[40] Ibid at [51].

[41] Acts Interpretation Act 1954 (Qld) s 49(2).

[42] Affidavit of Anne Linley Meijer filed 16 February 2009 para 7;  Appeal Book (AB) at 94.

[43] IPA s 3.2.1(5A) permits an expiry date to be stated.

[44] AB at 53-54.

[45] Queensland Construction Materials Pty Ltd v Redland City Council & Ors [2009] QPEC 85 at [68].

[46] Queensland Construction Materials Pty Ltd v Redland City Council & Ors [2009] QPEC 85 at [70].

[47] Queensland Construction Materials Pty Ltd v Redland City Council & Ors [2009] QPEC 85 at [73].

[48] Queensland Construction Materials Pty Ltd v Redland City Council & Ors [2009] QPEC 85 at [83].

[49] Queensland Construction Materials Pty Ltd v Redland City Council & Ors [2009] QPEC 85 at [84].

[50] Barro Group Pty Ltd v Redland Shire Council (supra) at [71].

[51] Ibid at [28].

[52] It is unnecessary to dwell upon the limitations on judicial review of a decision that an officer is satisfied that a matter exists, as distinct from the objective fact that such a matter exists, particularly where that matter is one about which opinions may reasonably differ:  Buck v Bavone (1976) 135 CLR 110 at 118 – 119.

[53] Queensland Construction Materials Pty Ltd v Redland City Council & Ors [2009] QPEC 85 at [83].

[54] AB at 84 ll 10-20.

[55] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71] citing The Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ.

[56] Queensland Construction Materials Pty Ltd v Redland City Council & Ors [2009] QPEC 85 at [84].

[57] Uniform Civil Procedure Rules 1999 (Qld) rules 681, 684.

[58] Colburt v Beard [1992] 2 Qd R 67 at 71, 75; Thiess v TCN Channel Nine Pty Limited (No 5) [1994] 1 Qd R 156 at 208-210.

[59] Thiess v TCN Channel Nine Pty Limited (No 5) [1994] 1 Qd R 156 at 209.

Close

Editorial Notes

  • Published Case Name:

    Queensland Construction Materials P/L v Redland City Council & Ors

  • Shortened Case Name:

    Queensland Construction Materials Pty Ltd v Redland City Council

  • MNC:

    [2010] QCA 182

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Chesterman JA, Applegarth J

  • Date:

    23 Jul 2010

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment - - QPEC
Appeal Determined (QCA) [2010] QCA 182 23 Jul 2010 -
Special Leave Refused [2011] HCASL 131 09 Jun 2011 -

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)