Application – Court's jurisdiction to make
declarations – Where applicants sought relief to construct
roads and stormwater infrastructure in a road reserve without
further approvals under the Local Government Act 2009
Facts: This was a hearing of an Application in
Pending Proceeding brought by the First Respondent, South Burnett
Regional Council, within an Originating Application brought by the
developer and a number of residents in a partially constructed new
housing estate called 'Memerambi Village' in Memerambi,
The Originating Application sought a number of declarations,
under section 456 of the Sustainable Planning Act 2009
(SPA) that related to existing development
approvals over estate land.
Most of the declarations were not contested by the Council.
Those uncontested declarations had been made by the Court at a
previous Court mention. However, the Council disputed a declaration
being made that provided for the applicants to construct roads and
stormwater infrastructure in road reserves without further approval
from the Council.
While the Council conceded that the applicants did not require
any further approvals under the SPA to carry out the proposed works
in the road reserve, it contended that a declaration could not be
made by the Court under section 456 of the SPA, because other
approvals were still required from it under the Local
Government Act 2009.
Decision: The Court held, in refusing to grant
the relief sought and disposing of the Originating Application:
It would be wrong to construe section 456 of the SPA in such a
way as to purportedly render nugatory the operation of other
In circumstances where the plans referred to in the Originating
Application were not in accordance with, or were inconsistent with,
those identified in previous declarations made by the Court, then,
absent of satisfactory explanation and/or the consent of all
relevant parties, there were strong grounds for refusing the
application on discretionary grounds.
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