Australia: 56/14 Golder v Maranoa Regional Council [2014] QPEC 68

P&E Court Updates – November 2014

You might also be interested in...

(Robertson DCJ - 28 November 2014)
Download the judgment

Planning and environment court – originating application – where submitter appellant / applicant seeks declarations in an Originating Application filed in the context of extant submitter appeals by him and Fourth Respondent against a Council decision to approve a development approval for a waste water storage pond for receipt of treated and untreated effluent from CSG operations in region – DEHP was a concurrence agency and had issued its response which included an environmental permit to conduct an Environmentally Relevant Activity subject to conditions

Facts: This was a hearing of three preliminary matters raised in an Originating Application filed by the applicant (Golder) in the context of submitter appeals made by Golder and the fourth respondent (Westrex).

The submitter appeals challenged the Maranoa Regional Council's decision made on 23 November 2013 to approve a development application by the second respondent (We Kando) over land at Carnarvon Road, Euthulla. The development application sought a development permit for a material change of use for High Impact Industry (wastewater storage pond) and a development permit for Environmentally Relevant Activity 56 – Regulated Waste Storage.

The Department of Environment and Heritage Protection was a concurrence agency for the development application. On 22 May 2013 it notified Council and We Kando that it had no requirements relating to the application and provided a permit under the Environmental Protection Act 1994 subject to conditions.

Golder submitted that:

  1. We Kando had failed to give adequate public notification because the sign placed on the land was not on or within 1,500mm of the road frontage and that the sign was not visible from the Carnarvon Highway;
  2. Condition 21 of the approval (which required an Environmental Management Plan to be submitted to Council for approval prior to the commencement of the use) lacked finality as it left for later decision an important aspect of the approval which could alter the nature of the use approved; and
  3. in making its decision to approve the application, Council was led into procedural error by the officer's report, such that the decision was invalid (the "abdicating responsibility" point).

In relation to the "abdicating responsibility" point, Golder and Westrex referred to parts of the officer's report which suggested, among other things, that since the issue of the environmental management of wastewater storage facilities was controlled by an environmental authority approved by the Department, the Council should not refuse the development application on any grounds which were within the scope of the environmental authority.

In considering this issue, the court had regard to sections 3, 4 and 5 of the Sustainable Planning Act 2009 (SPA) which identified that the purpose of the SPA was to "seek to achieve ecological sustainability" and Schedule 3 of the SPA which defined "Impact assessment" as meaning the assessment of "the environmental effects of the proposed development" and "the ways of dealing with the effects".

The Council and We Kando submitted that none of the points had merit and that as the approval had not taken effect, the Court was required to consider the merits of the proposal de novo and that there was therefore no utility in sending it back to the Council to make a fresh decision. Further, it was submitted that if an error had been made, the court had a wide power to deal with the matter under s. 440 of the SPA.

Decision: The Court held:

In relation to the public notification point:

  1. On a road reserve including a highway that has a speed limit of 100km/h and a larger road reserve than the constructed carriageway, there would always be difficulty, if not impossibility, for parties trying to read the contents of a public notification sign. The evidence showed that the sign was visible.
  2. A person considering making a legitimate submission would not obtain the precise details of the application from the sign on the land but could be expected to inspect the application proper.
  3. We Kando had complied with the requirement in relation to placing the public notification sign on, or within, 1,500mm of the road frontage and, on best evidence, the sign was visible from the road.

In relation to the Condition 21 issue:

  1. When construed as a whole the nature and extent of the approved development was clear and certain.
  2. When construed in light of all the conditions, Condition 21 did not have the potential to significantly alter the nature of the development, nor did it leave for later decision an important aspect of the development.

In relation to the "abdicating responsibility" point:

  1. It was well established that a decision maker would fall into procedural error and err in law by failing to take into account a consideration that it was bound to take into account in making the decision, and by taking into account a consideration that was not relevant to the making of the decision.
  2. It was fundamental that the decision must be made by the decision maker upon whom authority was conferred by the relevant statute. In consequence, it was an error of law for a decision maker to act at the "dictational behest of another" or to give " real independent attention to the discretion which was conferred upon him or her, so that exercise of discretion is really the exercise of that discretion by some other person".
  3. The "environmental effects of the proposed development" and "the ways of dealing with [those] effects" were considerations that the assessment manager was bound to take into account in deciding an impact assessable development application under the SPA. As the assessment manager for the development application, the Council was the sole repository of authority to decide that application but it was obliged to consider the Department's response.
  4. The clear unequivocal evidence was that only the officer's report was before the Council and the inescapable conclusion was that it formed the basis of the decision. It followed that regard should be had to the whole of the report and the other evidence put on by the Council should be disregarded.
  5. The Council impermissibly abrogated its duty to properly assess the application to the concurrence agency and therefore its decision was invalid.
  6. Section 440 did not extend to such a fundamental error and it would be inappropriate to excuse under that provision what was in effect an unlawful decision by the local authority as assessment manager.
  7. The error made by the Council was so fundamental that the relief sought by Golder should be granted.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.