A Planning & Environment Court appeal struck out last Friday, 20 March 2009, highlights the importance of ensuring that development applications which involve a State resource include all necessary evidence of the entitlement to interfere with the resource.

The full text of the decision is available here. 

Barro Group lodged a development application in April 2006 seeking to extend its quarrying operations.  The proposal involved the construction of certain infrastructure on a road reserve administered by the Department of Natural Resources and Water (a State resource). Barro declared its development application did not interfere with the resource.  Council assessed and refused the application. The applicant then appealed to the Court.

The Council applied for a declaration that the application was not "properly made" within the meaning of section 3.2.1(7) of the Integrated Planning Act 1997 (Qld), as it was not supported by evidence of an entitlement to interfere with the State resource, as required under section 3.2.1(5).

The Court accepted that the proposal would 'interfere' with a State resource as it would inhibit the full exploitation of rights attaching to the road and:

• declared that the development application was not a "properly made application" (section 3.2.1(7)(e)); and
• struck out the appeal.

Barro’s failure to identify the issue at the time of lodging its development application or even during the early stages of the DA process now means that it must lodge a fresh development application, some years 3 years after its original application. There is no requirement for a Council to refuse to deal with an application that is not properly made (see section 3.2.1(8)).

If you have any queries you can contact a member of our team on 07 3231 2444.