(Robin QC, DCJ - 16 September 2011)
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Appeal out of time – developer contending that Council's decision to conditionally approve application for a private airstrip be set aside – application and decision allegedly void – whether Council approval required – inconsistency with Commonwealth control in aviation matters – Originating Application seeking similar relief – assertion of inconsistency of planning scheme regulation of private airstrip with Commonwealth laws rejected – private airstrip not ancillary to any existing use – proceeding not a suitable vehicle for consideration of validity of particular conditions – s.109 Constitution of The Commonwealth of Australia – Civil Aviation Act 1988 (Cth) – Civil Aviation Safety Regulation 1988 (Cth) – Integrated Planning Act 1997 – ss. 367, 369 and 497 Sustainable Planning Act 2009

Facts: Mr McIlwraith obtained from the Respondent Council a development permit for material change of use (superseded planning scheme) for a private airstrip in February 2008. On 9 September 2010, Mr McIlwraith commenced the present Appeal seeking orders setting aside the development permit on the basis that approval of the Council was not required. An order was also sought seeking an extension of time for the commencement of the Appeal. A separate Originating Application seeking effectively the same relief was filed on 3 December 2010.

Mr McIlwraith contended that the Council did not have the legislative power under the Integrated Planning Act 1997 (IPA)or the Sustainable Planning Act 2009 (SPA) to regulate the operation of aircraft on, from and above the surface of the relevant land. He argued that the land was subject to the constitutional control of the Commonwealth of Australia, and any express or implied function pursuant to the IPA or the SPA was rendered invalid by s.109 of the Australia Constitution.

It was contended that there was inconsistency between the Commonwealth laws and the requirements under the State laws, such that they could not be simultaneously satisfied. Mr McIlwraith pointed to a Civil Aviation Order which appeared to be at odds with the requirements of the conditions of the development approval.

Mr McIlwraith argued that, alternatively, his use of land to take off and land aircraft did not require development approval as it was an ancillary use.

Decision: The Court held, in dismissing the Appeal and the Originating Application, that:

  1. The focus of the Commonwealth arrangements is air safety. It was the Council's focus to protect the local environment and amenity, and to keep records to assist in policing. While Commonwealth authorities regulate major airports, they do not do so in respect of private airstrips.
  2. The "inconsistency" relied on by Mr McIlwraith was with Civil Aviation Orders, which were not laws of the Commonwealth. There was no inconsistency, direct or otherwise, between the Commonwealth and State regimes in the present circumstances. Compliance with both regimes was possible.
  3. There was no reason why a developer, who made a successful development application by mistake, ought not to be entitled to establish that the approval should never have been given in order to free himself from onerous conditions. It was unusual but not unprecedented for a developer to challenge its own approval.
  4. However, the appeal was well out of time, by some two and a half years. No case had been made for the granting of such an extension as that necessary here.
  5. In relation to the "ancillary" argument raised by Mr McIlwraith, the introduction of aircraft activity, even for personal transport to and from home, is the start of a new use. In the present circumstances, it was a use for which Mr McIlwraith had to get Council consent given the terms of the 1985 planning scheme.

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