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Planning and Environment Alert: More problems with resource allocations - Interfering with overland flow water - 8 July 2011

The question of whether the requirement for a State resource entitlement arises with respect to overland flow water has been the subject of consideration in two recent decisions of the Planning and Environment Court of Queensland.

Here, Partner David Nicholls and Associate Olivia Williamson look at these two recent decisions and discuss the potential problems associated with them.

What you need to know

  • Potential interference with overland flow of water remains a significant legal issue for development applications
  • Water is a State resource, including the overland flow of water
  • Development applications (whether they be a preliminary approval or a development permit) need to have the necessary evidence from DERM if the development will interfere with or alter the conveyance of overland flow of water across land, or a statement from DERM that this evidence is not necessary
  • Reform is called for to allow a pro forma resource allocation to be appended in all cases to applications that potentially may take or interfere with overland flow water under the Water Act

Having regard to the potential fatal consequences associated with development applications that are not supported by the evidence required under section 260(1)(f) of the Sustainable Planning Act 2009 (SPA) (formerly, section 3.2.1(5) of Integrated Planning Act 1997 (IPA)), the matter of potential interference with overland flow of water remains a significant legal issue for development applications.

What is overland flow water?

Water is a State resource and all rights to the use, flow and control of all water in Queensland are vested in the State (section 19 of the Water Act 2000). This applies to overland flow water (definition of "water" in schedule 4 of the Water Act). We note that any water that traverses land is likely to be what is understood by the Water Act 2000 as "overland flow water".

Section 20(6) of the Water Act authorises a person to take overland flow of water, without an allocation or entitlement, for any purpose unless certain prescribed circumstances exist. "Taking" is defined in the Water Act as "taking, for water, includes diverting water" (definition of "taking" in schedule 4 of the Water Act).

Section 20(6) of the Water Act however does not authorise "interference" with overland flow. "Interference" is not defined in the Water Act and it would seem that having regard to the legislative history of the Water Act, "interfering" with water is intended to be dealt with under the SPA/ IPA when a person makes an application for development, such as operational work (previously, s20 had included reference to "interfering with" overland flow water). Thus, the matter of "interfering" with overland flow water is resolved under the planning legislation rather than under the Water Act.

Schedule 14 of the Sustainable Planning Regulation (previously schedule 10 of the Integrated Planning Regulation) prescribes the "State resources and evidence required". Items 15 and 17 (respectively for the SPR and IPR) relevantly provide that "Water taken or interfered with under the Water Act 2000" is a State resource requiring evidence that the Chief Executive of the Department Environment and Resource Management (DERM) is satisfied that the development is consistent with an allocation of, or an entitlement to, the resource; or that the development application may proceed in the absence of an allocation of, or an entitlement to, the resource.

Accordingly, the necessity for evidence relating to a State resource arises from a taking or an interference with water taken or interfered with under the Water Act.

The impact of recent decisions

The Planning and Environment Court of Queensland has had occasion to consider in the cases of Vidler v Fraser Coast Regional Council & Anor [2011] QPEC 18 and BGM Projects Pty Ltd v Fraser Coast Regional Council (unreported Maroochydore matter 98/11) whether, by reference to s3.2.1(5) of the IPA, development involves interfering with overland flow water under the Water Act.

In Vidler, the issue was considered in the context of a preliminary point in an applicant appeal. The subject development application, for a preliminary approval, was made on 14 December 2006. The Fraser Coast Regional Council raised a fundamental objection to the application on the basis that it was not supported by the evidence required under s3.2.1(5) of the IPA, with the consequence that the application was not properly made and could not be processed.

It was Council's argument that because the proposed development would alter the conveyance of overland flow across the land in a manner quite different from existing conditions, this constituted an interference with water such that a connection between the resource and the development was readily established. As the proposed development involved interfering with a State resource, namely water, evidence was required from the DERM. No such evidence accompanied the subject development application and Council made submissions that this failure to provide evidence of the kind contemplated by section 3.2.1(5) of the IPA was fatal and that any steps taken to progress the application beyond the application stage of IDAS were a nullity and of no legal effect (having regard to section 3.2.1(9) and (1) of IPA and Barro Group Pty Ltd v Redland Shire Council & Ors [2009] QCA 310).

Both parties accepted that the approach to be taken to the concept of "interference" was as indicated by the Court of Appeal in Stockland Property Management Pty Ltd v Cairns City Council [2009] QCA 311 at [36]-[41]. The appellant however submitted that the interference alleged with the water as a result of this development application did not meet the test set out in Stockland Property. Although the water still ran off the property and flowed through sedimentation basins and wetlands, the appellant argued that this was not "interference" suggestive of a "concrete effect in the nature of the clash with the State's enjoyment of its ownership or stewardship of the State resource". This tied in with another aspect of the appellant's argument being that a preliminary approval, not authorising development, of its very nature cannot involve any taking or interference with a State resource.

The Court rejected any relevant distinction between a preliminary approval and a development permit in relation to State resource entitlement (at [24]) and concluded on the basis of the evidence that proposed stormwater management works described in the application would result in "interference" with overland flow.

The next issue for the Court was whether the excusatory power contained in s820 of SPA could be availed of to avoid the consequences of the absent resource allocation. Ultimately it was held that the subject development application did not comply with s3.2.1(5) of IPA and that no order should be made under s820 of SPA to allow it to be processed because of the absence of any evidence supporting the use of the excusatory power.

In BGM Projects Pty Ltd v Fraser Coast Regional Council (unreported Maroochydore matter 98/11), the Respondent Council raised a concern with an applicant about whether a MCU and a later ROL application involved a State Resource under the Water Act, namely interfering with overland flow of water.

The Applicant brought originating proceedings in the Court seeking declarations that the subject development applications did not involve a State resource and also seeking declarations that the applications were properly made. Similarly to Vidler, there was an absence of accompanying material referring to s3.2.1(5) of IPA in relation to State resource entitlement such that if a State resource was involved, the applications were not properly made under the IPA.

On 5 May 2011, the Department of Environment and Resource Management provided advice to the Applicant that, in its view, there were no watercourses, lakes or springs (as defined by the Water Act 2000) on the subject land and that the development proposed would not hamper, hinder or any other way take or interfere with a State resource under the Water Act 2000.

The Department also confirmed that if, contrary to the view above, the development proposed by the applications did involve a State resource prescribed under a regulation as in force at the time of the making of the relevant development applications, the Department was satisfied that the application may proceed in the absence of an allocation of, or an entitlement to, State resource under the Water Act 2000.

Evidence to the above effect was absent in Vidler's case.

In late May 2011, His Honour Judge Robertson made final orders, upon being satisfied that to the extent that there was any non-compliance with s3.2.1(5) of the IPA, that the development applications be taken to be properly made as from the date of lodgement. At the date of this article no reasons have been published by His Honour.

Reform is called for

The attitude of the DERM seems a critical distinction between Vidler and BGM. In light of this and particularly having regard to the fact that both of these cases involved a Local Government pressing the point and not the State, it would appear that a change is required to the regulations to allow a pro forma resource allocation to be appended in all cases to applications that potentially may take or interfere with overland flow water under the Water Act. Such reform is necessary because of the potential for many development applications for MCU or ROL to involve secondary applications for building work or operational work that in turn will result in some degree of interference with overland flow water. The need for such reform is particularly emphasised where the resource allocation point has been raised by a Local Government as a technical blocking tactic in the absence of any support from the responsible State agency.

Should you wish any further information on either of these cases or you have an issue you need to seek legal advice on, please contact HopgoodGanim's Planning and Environment team.

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