Australia: You dont own me: Queensland Court of Appeal confirms lessees do not need to provide owner consent to development applications

A recent Queensland Court of Appeal (QCA) decision has confirmed that a development application does not need to be supported by the written consent of a lessee, as a lessee is not an 'owner' for the purposes of the planning legislation.

Under the repealed Sustainable Planning Act 2009 (SPA), and the current Planning Act 2016, an owner of land must provide consent to the lodgement of certain development applications.

An 'Owner' is defined as the person 'entitled to receive rent for the land'.

In the case of Bowyer Group Pty Ltd v Cook Shire Council & Anor (Bowyer v Cook Shire Council),1 the QCA confirmed that Crown lessees of land that was subject to a rolling term lease for pastoral purposes were not principally entitled to receive rent for the land, and were therefore not the 'owner' for the purposes of the SPA.

Under Queensland planning legislation, an owner should be understood as the person who principally receives the rent for the land. Provided that such consent is received, the application will be properly made, insofar as it relates to owners consent.

BACKGROUND

In Bowyer v Cook Shire Council, the State-owned subject land (Land) was the subject of a rolling term lease for pastoral purposes granted by the State to William, Kevin and Neville Jackson (Crown Lessees) under the Land Act 1994.

There was also a mining lease over the Land in favour of David Oriel Industries Pty Ltd (Oriel Industries).

Oriel Industries made a development application (DA) for a material change of use of the Land for sand and gravel screening and extraction. The DA was supported by the written consent of the State as the owner of the Land, but did not have the consent of the Crown Lessees.

The Cook Shire Council (Council) approved the DA. Bowyer Group Pty Ltd (Bowyer Group), the owner of the adjoining land, appealed the approval of the DA to the Planning and Environment Court on the basis that the consent of the Crown Lessees was required under section 263(1)(a) of the SPA, but was not obtained. Section 263(1)(a) provides:

"The consent of the owner of the land the subject of an application is required for its making if the application is for...a material change of the use premises..."

Schedule 3 of the SPA defines owner as follows:

"owner, of land, means the person for the time being entitled to receive the rent for the land or would be entitled to receive the rent for it if it were let to a tenant at a rent."

THE PLANNING AND ENVIRONMENT COURT DECISION

Bowyer Group contended that the definition of 'owner' is capable of referring to more than one class of owner, i.e. to include both the State and the Crown Lessees. If the definition contemplated only one owner, then Bowyer Group maintained that the owner whose consent should be sought should have been the Crown Lessees, because their interests would be most affected by the DA.

Oriel Industries submitted that there could only be one class of owner of the Land for the purposes of the definition, which was relevantly the State, as it was the entity actually entitled to receive the rent for the Land.

At first instance, Judge Morzone QC held that the Crown Lessees had not demonstrated an entitlement to receive the rent for the land under a sublease and therefore were not owners as contemplated by section 263(1)(a) of the SPA.2

Importantly, his Honour did not conclude that a Crown Lessee could never be an owner within the meaning of section 263 of the SPA but rather there was no entitlement to receive rent under the sublease.

THE DECISION ON APPEAL

On appeal, her Honour Justice Bowskill (with whom Fraser and Morrison JJA agreed) maintained the primary judge's conclusion but for different reasons.

Bowskill J followed the history of cases dealing with the meaning of the equivalent section 263 of the SPA under the previous planning regimes to conclude that the land is a passive object and the 'use' will determine the extent of the ownership.3

Her Honour analysed the definition of 'owner' in the SPA and found that the use of the word 'or' in the definition was to be construed as having its ordinary, disjunctive meaning. Furthermore, the natural and ordinary meaning of 'owner' is the person who is currently entitled to receive rent for the land or who would be entitled to receive rent if it were to let a tenant at a rent.4

In relation to the nature of leases, her Honour stated that a lease of Crown land is a creature of statute, and as such, the rights and obligations that accompany such a lease derive from statute.

The lease for pastoral purposes did not confer exclusive possession.5 Importantly, the Land Act 1994 does not contain any express provisions entitling a lessee of a lease that is sublet to rent.6 Here, the State was entitled to receive the rent for the land, from the lessees under the rolling term lease.

Bowskill J held as follows:

"Having regard to the purpose of section 263(1), there does not appear to be any reason why "owner" should be interpreted in an expansive way, so that it might include any person, in addition to the person principally entitled to receive the rent for the land (either actually or suppositiously), who may be or become entitled to receive a payment by way of rent..."

There is no reason, having regard to the context and purpose of the provision, and the language used, why a lessee , or sub-lessee, of land, should have a right to veto the making of a development application in respect of land which they have a limited interest."7

Ultimately, the Crown Lessees were not considered owners of the Land within the meaning of section 263(1)(a) of the SPA because they were not principally entitled to receive the rent for the land and remained liable to pay the rent for the Land to the State.8

However, this does not necessarily mean that a lessee does not have rights to object to a development application in the merits. Her Honour made a passing remark that the Crown Lessees were not required to be given notice under section 297(1)(c) of the SPA but there would be an expectation that public notification would bring such an application to their attention.

The application for leave to appeal was granted but the appeal was dismissed with costs.

Footnotes

1Bowyer Group Pty Ltd v Cook Shire Council & David Oriel Industries Pty Ltd [2018] QCA 159

2 Ibid at [30]

3Ibid at [34]; Bartlett v Brisbane City Council [2004] 1 Qd R 610, [23]; Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 501.

4 Bowyer Group Pty Ltd v Cook Shire Council & David Oriel Industries Pty Ltd [2018] QCA 159 at [42]

5 Ibid at [20]

6 Ibid at [26]

7 Ibid at [44]

8 Ibid at [50]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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