In this case the Court of Appeal considered whether the consent of a Crown lessee was required in order for a development application to have been properly made. That depended on whether they were an “owner” pursuant to s 263(1) of the Sustainable Planning Act 2009. The court concluded that the disjunctive language used in the definition of “owner” in the Act, and the limited purpose for which consent was required, supported a narrower construction of “owner” - namely, that it denotes only the person “principally entitled to receive the rent for the land” (which was only the Crown, and not any Crown lessee).
Fraser and Morrison JA and Bowskill J
6 July 2018
David Oriel Industries applied to the Cook Shire Council for development approval for a material change of use of land – namely for sand and gravel extraction. . The Council granted the application, but the matter was then appealed to the Planning and Environment Court by the owner of adjoining land, Bowyer Group Pty Ltd. The appeal had not yet been determined substantively on its merits, but the primary judge had determined two preliminary issues raised by Bowyer Group favourably to David Oriel Industries. In this application, Bowyer Group sought leave to appeal in relation to one of those issues. –.
The issue concerned the proper construction of s 263(1) of the Sustainable Planning Act 2009(“SPA”), which provides that “[t]he consent of the owner of the land the subject of an application is required for its making if the application is for … a material change of use of premises”. . The issue was whether the holder of a Crown lease over the land would be an “owner”for the purpose of that provision.
The applicant’s argument concerning the meaning of “owner” in s 263(1) SPA
The word “owner” is defined in schedule 3 of the SPA as follows:
“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.” [Underlining added for emphasis.]
Bowyer Group submitted that the holders of a rolling term lease for pastoral purposes, granted pursuant to s 15(2) of the Land Act 1994, met the definition of “owner” and their consent was therefore required for any development application to be properly made. It contended that “owner” in s 263(1) could refer to more than one class of owner, and included both the State and the Crown lessees – the latter because they would be entitled to receive rent if they were to sublease the Crown lease. .
The primary judge’s reasoning
The primary judge did not conclude that a Crown lessee could never be an “owner” within the meaning of s 263(1) SPA, but instead found that, as a matter of fact, there was no evidence that the Crown lessees in this case had an entitlement to receive the rent for the land under a sublease (in accordance with the definition of “owner” in the schedule). This was for two reasons: firstly, the lease gave no general entitlement to sub-lease – instead, the Minister’s consent was required by the Act in order for this to occur. There had been no such consent given. Secondly, there was no evidence of any sublease having actually been entered into. .
The Court of Appeal’s construction
Bowskill J, with whom Fraser and Morrison JJA agreed, concluded that a Crown lessee could not constitute an “owner” within the meaning of s 263(1) SPA. In reaching this conclusion, her Honouremphasised two considerations. Firstly, the use of the word “or” in the definition of “owner” in the schedule (extracted above), should be given its ordinary, disjunctive meaning, so that the second limb of the definition only arises where there is no person currently entitled to receive the rent. . In this case the Crown was entitled to receive the rent, and would be so entitled even if there was a sublease. . Secondly, her Honour considered that the purpose of the requirement for the consent of the “owner” was to ensure that development is “realistically proposed” and that the time of authorities is not wasted by applications that are pointless. . In light of this limited purpose, “the right of veto which is effectively given to an ‘owner’ is appropriately limited”. .
Her Honour concluded that, in context, “owner” should be understood as . Her Honour also quoted a District Court decision, seemingly with approval, which described “owner” in an equivalent provision as denoting “a person who is entitled to the possession of land without having to pay rent for it”. . Others with an interest in the land, such as a Crown lessee, may still object to a development proposal on its merits, but would not have a right to veto the making of the application. .
In the result, her Honour concluded that there was no error by the primary judge in concluding that the development application was properly made as it was accompanied by the consent of the “owner” – namely, the Crown alone. Leave was granted but the appeal dismissed with costs. .