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(superseded planning scheme) for a private airstrip in February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
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:
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.
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.
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.
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.
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
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