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HG Paper: Providing evidence of entitlement to a State resource - 23 Nov 2009

The Court of Appeal recently handed down two decisions related to providing evidence of an entitlement to a State resource under section 3.2.1(5) of the Integrated Planning Act 1997 (IPA):

  • Barro Group Pty Ltd v Redland Shire Council & Ors [2009] QCA 310 considered the application of section 4.1.5A of the IPA to a development application where the requisite evidence of an entitlement to a State resource was not provided.
  • Stockland Property Management P/L v Cairns CC & Ors [2009] QCA 311 considered whether a development application ‘involved’ a State resource for the purposes of being a properly made application.
The reasoning of the Court creates interesting questions, including as to how the new excusatory powers in section 440 of the Sustainable Planning Act 2009 (SPA), in relation to the requirement to provide owner’s consent and evidence of State resource entitlement, will be applied and interpreted by the Court.

This issue is further complicated by the fact that, while section 440 takes effect in relation to all appeals taking place at the time of the SPA’s commencement, the Integrated Development Assessment System (IDAS) process as it exists under the IPA will continue to apply transitionally to all development applications in existence at that time.

This paper considers four questions:

  1. What is the status of the Court’s excusatory powers as it applies under the IPA?
  2. How will the Court apply section 440 of the SPA with respect to new development applications proceeding under the SPA IDAS process?
  3. How will the Court apply section 440 of the SPA transitionally with respect to development applications continuing to be processed under the IPA?
  4. What are the other consequences of these decisions?

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