Part 1 Owners' consents and State resource evidence

Transcription

1 How to make a properly made development application under the Sustainable Planning Act 2009 Part 1 Owners' consents and State resource evidence Leanne Bowie Planning Institute of Australia seminar - 8 February 2011 (Updated for North Queensland region seminar 18 March 2011) Contact details and author's background: Leanne Bowie is the Principal of leanne Bowie Lawyers, a boutique firm specialising in planning, environment and resumption law. Before establishing this new firm in August 2010, leanne was head of the Brisbane Environment & Project Approvals practice at Minter Ellison Lawyers for the previous decade and she has specialised in this field for nearly 22 years. Leann e is currently Chair of the Planning and Environment Committee of the Queensland Law Society. Sh e al so has a particular interest in resou rces industries and infrastructure and has been actively involved in the Queenslan d Resources Council's Environment Committee for well over a decade. Leanne Bowie Lawyers ABN AMP Place, 10 Eagle Street, Brisbane Direct telephone: Fax: leanne.bowie@bowielaw.com.au

2 1. Introduction Queensland has a long history of requiring owners' consents as a prerequisite to progressing a development application, to a greater extent than in some other jurisdictions. Under the former Integrated Planning Act 1997 (Qld) (IPA) and now under the Sustainable Planning Act 2009 (Qld) (SPA), a corresponding system relating to State agency consideration of State resources has been added, which is informally known as 'resource consents' or 'State resource evidence'. A requi rement which started quite simply has gradually become fiendishly complex, with room for many different types of error or shades of doubt. If errors are made with owners' co nsents or re source consents, this is probably the single most common way to invalidate an approval and have to sta rt again from the beginning or almost the beginning. While the Planning and Environment Court's excusatory powers have expanded under SPA, assessment managers do not have correspondingly expanded powers, and it is likely that the Court will continue to exercise its discretion rega rding errors in owners' consents and reso urce consents with special caution. Therefore, t his paper starts by looking at the consequences of non-compliance, so as to set the scene about why these issues are so important. Then the paper goes on to examine the specific requirements for owners' co nsents, then resource consents. 2. Consequences of non-compliance (a) Applications that are not properly made If a development application is required to include owner's consent or resource co nsent or both and fails to include these, it is not a 'properly made application,.l Ifthe applicant is fortunate, t he assessment manage r will see the error and give a notice explaining t hat the application was not properly made and the re asons why not. However, often the assessment manager does not pick up the error and incorrectly gives an acknowledgement notice on the basis that the application is assumed to be properly made. An incorrect acknowledgement notice does not make an invalid application into a valid application. If the application was not properly made in objective terms, there is nothing in the legislation which authorises the application stage of IDAS to end, allowing the app lication to progress validly onto the next stages. 2 The application sta ge is only stated to end for a properly made application. 3 Unfortunately, t he provisions setting out all the practical steps which should occur in the event of an application which is not properly made are buried in the section relat ing to the scenario where t he assessment manage r has picked up the error within the first 10 business days and given a notice about it, Section 266. That mea ns that jf the assessment manager does not immediately notice t he error and instead issues an acknowledgement notice, strictly speaking, the assessm ent manager does not have an obligation to return the application and refund the proportion of the fee which has not bee n used for assessment, which appears to be a perverse result. It is not unusual for errors in failing to obtain resource consents not to be picked up until later stages of processing, for exa mple, when a referral age ncy observes that a resource consent is not attached. Altho ugh both applica nts and assessment ma nagers may normally apply to t he building and development committee for declarations about whether or not applications have been properly 1 Section 261(a) SPA. 2 Barra Group Pty Ltd v Redland Shire Council (2009) 169 LGERA 326 (Court of Appeal). At that time, the excusatory power was al so not as broad as it now is, under SPA, discussed below. 3 Section 269 SPA.

3 made, t here is a specific exception for questions about owners' consents and resource co nsents. 4 That means the Planning and Environment Court is the only appropriate forum for this type of question. If an application is not properly made and then t he applicant corrects the error, it can be converted to a properly made application without the need to re-iodge the application according to a recent case in t he Court of Appeal, Stockland Property Management v Cairns City Council.s (b) The expanded excusatory powers of the Court While an assessment manager does not have power to approve an application which does not have necessary owner's consent or resource consents, the Planning and Environment Court now has been given Significantly increased excusatory powers under Sect ion 440 Sustainable Planning Act In summary, the Court may now deal with an application which was not properly made 'in the way the court considers appropriate'. There is no exception regarding applications which failed to include owner's consent or resource consent. The Court now has this power even in relation to applications which were not properly made under the repealed Integrated Planning Act 1997 (Qld) (IPA).6 This contrasts with the previous position under IPA, where the Court of Appeal in Fawkes Pty Ltd v Gold Coast City Council 7 had decided that a missing owner's consent could not be excused by the court in the exercise of its discretion under IPA. 8 The Planning and Environment Court has recently specifically considered how it sho uld exercise this discretion in relation to owners' consents, in Gascoyne v Whitsunday Regional Coun cil. 9 In this case, a submitter argued that an application had not been properly made, because, among other things, he believed it should have included common property used for access and that the consent of the body corporate as owner of the common property should have been obtained. Andrews SC, DCJ followed Davis v Miriam Vale Shire Council JO in f inding that there was no need to include the common property access areas anyway. However, relevantly to the topic of this paper, he the n went on to discuss what would have been the hypothetical position if that area should have been included, that is, whether it would be appropriate to exercise t he excusatory discretion under Section 820 in relation to absence ofthe consent of t he body corporate. First, His Honour noted that the explanatory notes stated that the intention was to allow t he court 'to apply its excusatory powers in a wider range ofproceedings...,ll On the other hand, His Honour also took into account that 'the scheme of IPA is not to allow applications to progress where there is no owner's consent. It would therefore take a special set ofcircumstances to warrant the exercise of the discretion to excuse such non-compliance.'u In this particular case, that special set of ci rc umstances would have been found because the evidence was that each of the members of the body co rporate at t he time of the application and each of the current members was aware of the application and would have consented; additionally, the issu e would not have substantially restricted the rights availa ble to the pub lic in making a submission. 13 It was not entirely clear whether Andrews SC, DCJ meant that there 4 Section 510(4) SPA. s [2009] QPELR 511. o Section 820(3) SPA. 7 [2008J 2 QdR 1 8 The same applied to m issing State resource evidence: Barro Group Pty Limited v Redland Shire Council [2009J QCA 310 at [5 7J, where the releva nt State resource was a road. 9 [2010J QP EC ] QPELR 737 (Robin QC DCJ ). l! At {56}. 12 At [58}. 13 At (60) to [64].

4 was grea ter emphasis in IPA than in SPA upon the importance of owner's consent, so that perh aps it would not require such a specially strong set of circumstances to justify excusing lack of owner's consent if the application had been lodged under SPA instead of IPA. In the interests of Queensland's property owners and State resource agencies, it is to be hoped that there will always need to be strong evidence of special circumstances, in part icular, the awareness and intended support of the owner, to Justify excusing failure to lodge an owner's consent The Requirements for Owners' consents (a) What are the types of applications requiring owners' consents? Historically in Queensland, owner's consent used to be required for all planning applications, where the applicant was not the owner.i S Gradually, as the range of development applications increased under IPA, with new 'roll-i ns', it became more an d more unwieldy to try to obtain owners' consents for all types of development applications, particularly minor applications transecting numerous properties. Under SPA, owner's consent is only a requirement for the following types of applications: '(a) a material change of use ofpremises ar reconfiguring a lot; or (b) work on land below high-water mark and outside a canal as defined under the Coas tal Protection and Management Act 1995; or (c) work on rail corridor land os defined under the Transport Infrastructure Act.' In other words, the requirement does not apply to most applications for operational work or building work. From a property owner's perspective, there is a possible concern that this re laxat ion has gone too far. For example, landlords might not necessa rily want their tenants to be making operational work applications to clear vegetation which the landlord might prefer to keep, eg, for future offset purposes. If so, the landlord now needs to be more careful to spell out those types of requirements in the lease documents, effectively creating a contractual requirement for owner's consent. More sophisticated leases have been doing this for a long time anyway, in relation to all types of applications, but that was not particularly important to developers' planners when the statutory re quirements were about the same as the contractual requirements anyway. It is now becoming increasingly common that contractual requirements are more stringent than the statutory requirements. That means, if you are working for a developer who is not the landowner, it has become more important to check whether there are co ntractual requirements for landlord's consent to applications, even if there is not a statutory requirement. Often, this is a simple matter of searching the co ndit ions of t he registered lease. 14 In a recent case where an IPA application failed to include State resource consent, the Court declined to exercise its discretion under Section 820, taking into account that there was no evi dence that, if t he State resource evidence ha d been sought, it would have been obtained: Vidler v Fraser Coast Regional Council [2011J QPEC 18; cf Northeast Business Park pty Ltd v M oreton Bay Regional Council [201 OJ QPEC For exam ple, under Section 4.1(2)(d) of the repealed Loca l Government (Planning and Environment) Act 1990; section 3.2.1IPA (a s passed).

5 (b) Who is the 'owner' and what are the exceptions? The statutory definition of 'owner' is deceptively simple, but has led to a long history of complex caselaw. The definition is 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.,16 This definition is then, in effect, qualified by a set of exceptions in Section 263 (2) SPA. In sum mary, the princi ples derived from a combination of caselaw and the statutory exceptions Include t he following key points: (i) Normally, the owner can no longer be the State, with one anomalous exception Previously, if the Crown was the head landlord, the State's consent as owner used to be requi red, but now, in effect, this requirement has been converted to State agency resource consent under Section 264. The relevant exceptions are set out in Section 263(2)(b) and (c) and they are rather strangely worded (copied from t he previous corresponding provisions of IPA): '(b) to the extent section 264(1) applies to the application, the consent of the owner of the land the subject of the application is not required; and (c) to the extent another Act requires an application to be supported by 1 or more of the things mentioned in section 264(l){a), (b) or (c), the consent ofthe owner of the land the subject of the application is not required... ' Reading these provisions strictly literally, which, of course, is not what is done in practice, if there is an ind ividual who is a freehold landowner, and if there is also a State agency resource consent required for t he la nd, the freehold landowner's consent as owner should not be required because Section 264 does apply, to the same extent, to t he application. It would be helpful if the expressio n of these provisions co uld be fixed some time so as to say what is meant in plain English. The anomalous exception is referred to in the note to the definition of owner: 'Note- See the Transport Infrastructure Act, section 247, for when the chiefexecutive of the department in which that Act is administered is taken to be the owner of particular rail corridor land or noll-rail corridor land under that Act. ' For ra il corridor land which is leased by the State and then subleased, this is t hen picked up as a State resource/ 17 overriding the requirement for owner's consent and replacing it with resource consent, rendering Section 247 redundant. Only if the land is not leased (and su bleased) by the State would Section 247 remain relevant, meaning that owner's consent is required from the Department of Transport and Main Roads, rather than resource co nsent. There does not seem to be any obvious purpose to creating this maze of exceptions within exceptions, but there it is. 16 Schedule 3 SPA. There is also a note, considered below. 17 Schedule 14 item 15ustainable Planning Regulation 2009.

6 (Ii) Owner is not the tenant or sub-tenant Strictly speaking, a tenant may be a person who is entitled to collect rent for t he land, if there is a head lea se and sub-lease. However, in Australian Conservation Foundation Gold Coast Inc v Gold Coast City Council,18 Newton DCJ considered that the intent of the definition was that it was only the consent of the head landlord was required. As a result of this decision, it is has become normal for sub-leases to include commerci al requirements for sub tenants to seek t he contractual consent ofthe head tenant prior to lodgement, in addition to complying with statutory requirements. Sub-tenants's planners need to be aware of this, so as to avoid breaching sub lease conditions. (iii) Community titles Generall y, th e courts have tried to avoid an interpretation that the consents of all t he individual lot owners for a building are required in order to make an application which only pra ctically relates to part of a community titled building. The Court of Appeal decided that an applicat ion which only re lated to work within the applicant's own unit only required the applicant's consent, in Bartlett v Brisbane City Council.l'j Similarly, in the NSW Court of Appeal case, Owners Strata Plan No v Cameron North Sydney Investments Pty Ltd,20 it wa s held that each lot owner should be treated as the 'owner' in relation to his or her own strata lot and the body corporate in relation to common property. Cases about common property are commonly a mix of arguments, partly about how much land should be included in the application (essentially, the Pioneer Concrete principle) and con sequently partly about t he extent to which owner's consent of the body corporate or other unit holders should have been required. In Davis v Miriam Vale Shire Council, U Robin QC DCJ observed that: 'I do not think there is room for any blanket rule that the common property need not be included where a development application, on its face, relates to some particular lot{s}. It may be that associated use offacilities on common property, such as a gorden, barbeque area, swimming pool or toilets will be on important port of the proposed use, in which case they are port of the land the subject of the application. Use of common property for its established f unction ofproviding access has been held not to require its inclusion as port of the land... but it could well be that even use ofcommon property as access amounted to a use on its own, if the proposal were to run a fleet of taxis or rental vehicles from a lot, for example.'21 (iv) Easements Historica lly, one of the most difficult issues has been the situation where t he proposed development has relied on an easement access, on someone else's land, in which case the co nsent of t he la ndowner for the easement was required. Now, there is a statutory exception, as follows: 18 [2001) QPEl R [2004)1 QdR [2003) NSWCA 5 21 {2006} QPELR P743.

7 'to the extent the land the subject of the application has the benefit of an easement, and the development is not inconsistent with the terms oj the easement, the consent oj the owner oj the servient tenement is not required... ' Note t hat this is not a complete exception. It is still important to check the terms of the easement and form an opi nion that the deve lopment is not inconsistent with the t erms ofthe easement. If in doubt, the con se nt of the landowner for the easement (known as the 'grantor of the easement) should still be obtained (or the terms of the easement should be amend ed t o remove the doubt). Also, if the ea sement grantor is supportive of the application, bear in mind that the simple step of obtaining the grantor's formal consent avoids the need for the assessment manager to have to work out for itself whether or not the proposed development seems to be con sistent with the terms of the easement. The land the subject of the easement should, of course, still be include d in t he application, if the proposed development relies on the easement for access, even ifthe owner's consent is not required. If the proposed development does not rely on that access, because other adequate access is available, the easement land does not need t o be included in the applicat ion in the first place: Ecovale Pty Ltd v Gold Coast City Counci/.23 In RSL (Qld) War Veterans' Homes v Gold Coast City Council,24 a right of way over Commonwealth land was treated as akin to an easement and the co nsent ofthe Commonwealth was required. If t here is an easement traversing the development site, t his is called a 'dominant' easement, as opposed to a 'servient' ea sement. For the development application purposes, t he grantee of the easem ent is not entitled to collect renta l and is not an 'owner' of the easement land, so their co nse nt is not re quired for these purposes.25 However, bear in mind that it is still important to check whether the proposed development is inconsistent with the express terms of t he easement or (In the case of utility easements) whether it could eve n be inconsistent wit h the requirements of other legislation, in which case, there could be a risk t hat proceeding with the application without consulting with the easement grantee co uld put the landowner in contractual brea ch of the easement, or possibly even risk an argument t hat the application is a futility (for example, if the easement grantee decides to become a submitter). (c) Owner's consents cannot be withdrawn In Read v Duncanson & Brittain (Quarries) Pty Ltd/ 6 the local government as owner consented to a rezoning application but then withdrew its consent. His Honour Mr Justice Connolly (who, together with Vasta J formed the majority) held: 'There is.., no basis on which it could be suggested that this would deprive the council of the power, and indeed the duty, to decide the application.' 27 His Honou r also thought that this worked no injustice to the registered proprietor, who could still object, although it is unclear how this reasoning would logica lly follow t hrough to other types of applications which are not subject to submissio ns, and Shepherson J dissented. To get around t his problem, smart landowners tend to take more care specifying in their written co nsents exactly what application t hey are consenting to, so that if t he application lat er changes t o something t hey would not have supported, they can argue there is no longer a consent for the cha nged applicat ion. In pa rticu la r, landlords who wa nt to make sure that an application is in accordance with the pe rmitted use under a lease or agreement to lease are likely to specify t hat t he 23 [2001] QP ELR 163 at [2003] QSC 478 at [44] 25 Howard Street Developments Pty Ltd v Maroochy Shire Council [2002J QPELR (1987) 64 LGRA 1 at 5 (Full Court a/the Supreme Court ojqueens/and) 27 P5.

8 application to which they consent is only for that particular use. It is also quite common for contractual arrangements to be entered between t he owner and the applicant on the side, spelling out the various scenarios in which further consultation is required between t he parties, or the la ndowner ca n direct the applicant to withdraw an application or t he landowner is appointed as t he applicant's agent to take over the application or withdraw it. (d) What is sufficient to meet the requirements? The statutory requirements are: 'if, under section 263, the consent of the owner ofthe land the subject ofthe application is required for the making of the opplication (i) contain or be accompanied by the owner's written consent; or (ii) include a declaration by the applicant that the owner has given written consent to the making of the application...,28 On the face of it, opt ion (ii) seems to be just bizarre. If you have obtained t he written consent of tile owner, why would you not simply attach it, rather than provide your own decla ration that you obtained it? The mind boggles imagining the scenarios that might have occurred where a consent was obtained and t hen lost, after which the owner presumably became sud denly incapacitated preventing him or he r from sign ing another consent and without havi ng appointed anyone with power of attorney. Otherwise, it is quit e st raightforward that the owner can sign on t he form or on a separate document which acco mpanies the application. There is not a lot of room on the form, pa rticularly if there are multiple owners, so it is common to obtain consents as separat e letters, which should be signed by the correct owners (ch ecked against a titles search), and as a minimum, specify the correct land and a basic description of the application being consented to. These days, it is becoming more common for owners to specify a more detailed and exact description of the application being consented to, t o minimise the risk that the version of t he application that the landowner has seen could change to something quite different by t he time of lodgement. It is suggested that the statutory word 'consents' should be used, rather than some other terminology, such as 'supports', to avoid confusion. 4. The Requirements for Resource consents (a) What are resource consents? The term Iresou rce consent' is just a short-hand way of referring to a requirement which is much more long-winded in Sect ion 264 (1 ) of SPA (Development involving a State resource), as follows: '(1) To the extent the de velopment to which an application relates involves a State resource prescribed under a regulation, the regulation may require the application to be supported by 1 or more of the following prescribed under the regulation for the development (a) evidence of an allocation of, or an entitlement to, the resource; (b) evidence the chief executive of the department administering the resource is satisfied the de velopment is consistent with an allocation of, or an entitlement to, the resource; 28 Secti on 260(l)( e) SPA.

9 (c) evidence the chief executive of the department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or an entitlement to, the resource.' This does not mean that for each nominated reso urce, the State agency has all three of these choices, but ra ther, they have a selection of the above choices which are set out in t he regulation, sometimes two choices, or somet imes only one type of evidence can be give n. A table setting out t he list of nominated State resources, the agency administering each resource and the choices of evidence open to them for each resource, is located in Schedule 14 of the Sustainable Planning Regulation The types of resource range from State land tenures through to the State's powers t o control access to or impacts on issues such as fisheries, water and quarry materials. Part of the reaso n why t he State resource consent system has become so difficult to work with, from t he perspect ive of bot h applicants and some of the State agencies, is that this is such a ge neric way of dealing with different types of resources. In other words, an ordinary person can understand that if the Stat e owns t he land, it would be fair for the State to have reasonably sim ilar rights to a private landholder, In t erms ofthe breadth of its discretion whether to support an application or not and how long this takes, that is, a private landholder can co nsent or refuse, or tell the applicant to wait a few years, unless th ere are already contractual arrangements about the proposed development. If the State's freehold la nd ownership had continued just to be treated as an owner's consent issue, t his would have re mained a lot more clear and would have led to much less angst about the State's discretion and time to consider. Conversely, ordinary people do not understand why there should not be stat utory timeframes and procedures for resource consents, if the question is j ust about im pacts on a resource, particularly if there is a related statutory framework under other legislat ion for corresponding permits, such as water licensing or quarry products permits. Until t hese kinds of issues have been worked through, resource consents w ill remain a festering issue with the development application system in Queensland. The types of applications for which resource consents may be required is not restricted to t hose relevant to owner's consent, that is, resource consents may be required for operationa l work and building work applications, as well as material change of use and reconfiguring a lot. (b) General authority Section 14 of the Sustainable Planning Regulation 2009 allows State agencies the option of issuing a 'genera l authority' which is sufficient evidence to support each of the types of development specified in the general authority, for a prescribed State resource. However, it is not enough just for t he development to be covered by the 'genera l authority'. A copy of the general authority must be attached to the application. 29 In Bon Accord Pty Ltd & v Brisbane City Council & Ors/o Rackemann DCJ held that where a copy of the former Department of Natural Resources and Wa ter's 'general authority' had not been physically attached to a development application (a nd also the general authority did not cove r some 2.9 Section 14(4) Sustai nable Planning Regulation [2008] QPEC 119 (16 December 2008).

10 of the works), it could not support a valid approval, but he exercised his discretion in favour of the developer anyway. (c) Time limit Section 264(2) allows State agencies a discretion to impose a time limit on using the resource consent, as follows: 'The document containing the evidence may state a day, at least 6 months after the date of the document, after which an application to which the evidence in the document relates may not be made using the evidence.' (d) How to apply and what to check for The first step is to ch eck whether your application 'involves' one of the listed State resources in Schedule 14. The re was a recent Co urt of Appeal ca se w hich considered the meaning of 'involves', Stockland Property Management Proprietary Limited v Cairns City Council/,l w here t here was a wording error in the Main Roads State resource evidence (discussed below), but the Court of Appeal did not consider that this State resource evidence was required anyway, because at t hat time, the Integrated Planning Regulation 1998 included an additional t est for State resource evidence: 'involves taking or interfering with a reso urce'. Those words ('taking or interfering') have now been removed from Section 14 of the SP Reg ulation, so it is likely that State resource evidence wil' be needed more often than it used to be. The Court of Appeal in the Stockland case thought t hat the word 'involves' by itself 'means no more than that there is a connection between the proposed development and the State resource', and it follows t hat t his would now be the legal posit ion for applications under SPA. A relat ed question is whether t he particular development, which is the subject of the application, involves the State resource, or whether it would really be some future associated or foreshadowed development which would involve the State resource, in which case, there are now conflicting decisions as to whether State resource evidence is required, 32 so it is better to be on t he safe side and seek State resource evidence even for consequent ial issues, rather than necessarily those more directly involved in the development applied for. There is no statutory application process for resource consents. The Department of Environment an d Resource Management has created its own form, to try to ensure that it receives t he information it needs. Other agencies, such as delegates w ithin the Rail Ports and Freight and Integrated Transport Planning at Transport and Main Roads, pref er to see the entire application, including supporting information and plans, with a cover letter requesting the resource consent, mentioning which State resources are impacted and also providing some formal acknowledgements about what a resource consent means and what it does not mean. TMR has a preferred form of wording about these ack nowledgements, which somet imes differs from delegate to delegate, so it is necessary to ch eck w ith the re levant delegate first about how to set out the letter and what to include. The reason for re quiring the acknowledgements is so that the applicant does not re ad too m uch into the mere grant of the resource consent which enables the application to be lodged, that 31 [2009] QCA Herberton Land Corporation Pty Ltd v Tablelands Regional Council (unrep) Appeal of 2009 (Brisbane), judgment delivered in Townsville in 20 July As noted by His Honour Judge Robin QC DCJ in Vidler v Fraser Coast Regional Council and Chief Executive Department ofmain Roads [201 1J QPEC 18 at [25], the Herberton case 'was not referred to during argu ment' in Northeast Business Park Pty Ltd v Moreton Bay Regional Council [2010] QPEC 112 an d 'presumably the participants w ere ignorant'. In Vidler, His Honour Judge Robin ultimately decided to follow t he decision in Northeast Business Park, in the interests of 'pursuing judicial comity' [27].

11 is, it does not fetter the agency's subsequent discretion in its capacity as a referral agency and is also not intended to give rise to any particular contractual or commercial expectat ions, such as that a lease will progress to freeholding or an agree ment to lease will progress to a lease. It would be desirable if the agencies could work out some consistency in their expectations about t he way of see king resource consent and perhaps some guidelines about the considerations that agencies take into account when exercising t heir discretion, particularly when exerc ising a discretion tha t the application may proceed in the absence of an allocation of, or an entitlement to, a resource. In practice, there is also a wide degree of discrepancy between the interpretations of different agencies (and even different delegates within the same age ncy) about what is meant by an 'entitlement' or an 'allocation'. Guidelines would assist to achieve greater consistency, which would be desirable in terms of creating a more level playing field. If the legislation (or a guideline which could then be simply adopted in the co rrespondence) could spell out what is not implied by the granting of resource consent, this would also save a lot of space and negotiating t ime, setting out acknowledgements on this topic. One ofthe problems addressed in the recent case, Stockland Property Ma nagement Pty Ltd v Cairns City Council,33wa s t hat a district director of t he former Department of Main Road s had signed question 20 of the form 1 applicat ion, by giving the land owner's con se nt to t he application, rather t han expressing this properly as evidence that the chief executive of the department wa s satisfied that the development was consistent with an allocation of, or an entitlement to, the relevant State resource. Ultimately, the Court of Appeal found tha t t his had not invalidated the application because it was considered that the resource consent was not required anyway. Howeve r, one practical lesson to be learned from this case is the im portance of checking that t he State agency has correctly copied out the wording of t he legislation for the applica ble type of resource consent selected, rather than t rying to sign an 'owner's consent'. In Queensland Construction Materials Pty Ltd v Redland City CounCil, 34t he Court of Appeal held: 'In summary, the general approach to compliance with s in respect of State resources issues should have regard to; the terms ofs 3.2.1{1} and (5) which require the applicat ion to be "supported by" evidence provided in accordance with the prescribed form; the contents ofthe prescribed form which require the application to be "accompanied by" evidence that the chief executive is satisfied the development is consistent with an allocation ot or an entitlement to, the State resource; and the policy of the IPA. These support the conclusion that for QCM's application it was not sufficient simply to tick one or more of the boxes in Part 22 and only include in Part 23 of the form the name of the relevont department, the delegated officer's name, position and signature, the date of signature and the expiry date (if any) ofevidence. This is particularly so where, as in this case, Part 23{i} does not identify the relevant resource entitlement, the form does not itself record the delegated officer's relevant state ofsatisfaction and the application is not accompanied by a document that records that state ofsatisfaction. In such a case the application will not have been supported by evidence, as required by s 3.2.1(5) of the IPA ond s 12 of the IPR. In such a 33 Su pra J QCA 182 (M CMurdo P Che!>'terman JA and App legarth J)

12 case, the application will not be a "properly made application" and the Council will not be entitled to treat it as a "properly mode application" under s (9).135 In t he author's experience, a common way for resource consents to be completed incorrectly is where the same agency should give resource consent in relation to more t han one State resource, but the consent is only expressed in relation to one of them. In situations where there is a pa rticular concern that the application is likely to be subject to intense scrutiny from submitters, it may also be worth checking that the delegates giving the resource consent have the necessary documentation showing that they hold the appropriate delegat ion. If they do hold the delegation, it should not be difficult for them to provide a copy. In summary, the system of resource consents is so complex that there is cons iderable room fo r errors by both applicants and the agencies concerned. Ultimately, it is t he ap plicant's problem if State resource evidence is not expressed correctly, so it is worth taking the time to ch eck and make any appropriate enquiries to follow up areas of doubt, rather than just assuming t hat it is right. The author acknowledges the research assistance of Jacqui Robe rtson, senior associate, Leanne Bowie Lawyers, particularly with citations of the cases and relevant qu ot ations from the ca ses, which are referred to in this paper. 35 per Chest erman JA and Ap plegarth J at para 140.