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. Leanne is currently Chair of the Planning and Environment Committee of the Queensland Law Society. She also has a particular interest in resources industries and infrastructure and has been actively involved in the Queensland Resources Council s Environment Committee for well over a decade. Leanne Bowie Lawyers ABN 93 373 393 260 AMP Place, 10 Eagle Street, Brisbane Direct telephone: 07 3303 03260 Fax: 07 3303 8787 leanne.bowie@bowielaw.com.au
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 requirement 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 consents or resource consents, this is probably the single most common way to invalidate an approval and have to start 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 regarding errors in owners consents and resource consents with special caution. Therefore, this 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 consents, 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 consent or both and fails to include these, it is not a properly made application. 1 If the applicant is fortunate, the assessment manager will see the error and give a notice explaining that the application was not properly made and the reasons 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 application to progress validly onto the next stages. 2 The application stage is only stated to end for a properly made application. 3 Unfortunately, the 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 relating to the scenario where the assessment manager has picked up the error within the first 10 business days and given a notice about it, Section 266. That means that if the assessment manager does not immediately notice the error and instead issues an acknowledgement notice, strictly speaking, the assessment manager does not have an obligation to return the application and refund the proportion of the fee which has not been 1 Section 261(a) SPA. 2 Barro Group Pty Ltd v Redland Shire Council (2009) 169 LGERA 326 (Court of Appeal). At that time, the excusatory power was also not as broad as it now is, under SPA, discussed below. 3 Section 269 SPA.
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 example, when a referral agency observes that a resource consent is not attached. Although both applicants and assessment managers may normally apply to the building and development committee for declarations about whether or not applications have been properly made, there is a specific exception for questions about owners consents and resource consents. 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 the applicant corrects the error, it can be converted to a properly made application without the need to relodge the application according to a recent case in the Court of Appeal, Stockland Property Management v Cairns City Council. 5 (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 Section 440 Sustainable Planning Act 2009. 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 should exercise this discretion in relation to owners consents, in Gascoyne v Whitsunday Regional Council. 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 10 in finding that there was no need to include the common property access areas anyway. However, relevantly to the topic of this paper, he then 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 the excusatory discretion under Section 820 in relation to absence of the 4 Section 510(4) SPA. 5 [2009] QPELR 511. 6 Section 820(3) SPA. 7 [2008] 2 QdR 1 8 The same applied to missing State resource evidence: Barro Group Pty Limited v Redland Shire Council [2009] QCA 310 at [57], where the relevant State resource was a road. 9 [2010] QPEC 150 10 [2006] QPELR 737 (Robin QC DCJ).
consent of the body corporate. First, His Honour noted that the explanatory notes stated that the intention was to allow the court to apply its excusatory powers in a wider range of proceedings 11 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 of circumstances to warrant the exercise of the discretion to excuse such non-compliance. 12 In this particular case, that special set of circumstances would have been found because the evidence was that each of the members of the body corporate at the time of the application and each of the current members was aware of the application and would have consented; additionally, the issue would not have substantially restricted the rights available to the public in making a submission. 13 It was not entirely clear whether Andrews SC, DCJ meant that there was greater emphasis in IPA than in SPA upon the importance of owner s consent, so that perhaps 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 particular, the awareness and intended support of the owner, to justify excusing failure to lodge an owner s consent. 14 3. 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. 15 Gradually, as the range of development applications increased under IPA, with new roll-ins, it became more and 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 of premises or reconfiguring a lot; or (b) work on land below high-water mark and outside a canal as defined under the Coastal Protection and Management Act 1995; or (c) work on rail corridor land as defined under the Transport Infrastructure Act. In other words, the requirement does not apply to most applications for operational work or building work. 11 At [56]. 12 At [58]. 13 At [60] to [64]. 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 evidence that, if the State resource evidence had been sought, it would have been obtained: Vidler v Fraser Coast Regional Council [2011] QPEC 18; cf Northeast Business Park Pty Ltd v Moreton Bay Regional Council [2010] QPEC 112. 15 For example, under Section 4.1(2)(d) of the repealed Local Government (Planning and Environment) Act 1990; section 3.2.1 IPA (as passed).
From a property owner s perspective, there is a possible concern that this relaxation has gone too far. For example, landlords might not necessarily 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 requirements 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 contractual requirements for landlord s consent to applications, even if there is not a statutory requirement. Often, this is a simple matter of searching the conditions of the registered lease.
(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 summary, the principles derived from a combination of caselaw and the statutory exceptions include the 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 required, 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 the 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(1)(a), (b) or (c), the consent of the 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 individual who is a freehold landowner, and if there is also a State agency resource consent required for the land, the freehold landowner s consent as owner should not be required because Section 264 does apply, to the same extent, to the application. It would be helpful if the expression of these provisions could 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 chief executive of the department in which that Act is administered is taken to be the owner of particular rail corridor land or non-rail corridor land under that Act. For rail corridor land which is leased by the State and then subleased, this is then 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 subleased) by the State would Section 247 remain relevant, meaning that owner s consent is required from 16 Schedule 3 SPA. There is also a note, considered below. 17 Schedule 14 item 1 Sustainable Planning Regulation 2009.
the Department of Transport and Main Roads, rather than resource consent. There does not seem to be any obvious purpose to creating this maze of exceptions within exceptions, but there it is.
(ii) Owner is not the tenant or sub-tenant Strictly speaking, a tenant may be a person who is entitled to collect rent for the land, if there is a head lease 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 commercial requirements for sub tenants to seek the contractual consent of the 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 Generally, the courts have tried to avoid an interpretation that the consents of all the individual lot owners for a building are required in order to make an application which only practically relates to part of a community titled building. The Court of Appeal decided that an application which only related to work within the applicant s own unit only required the applicant s consent, in Bartlett v Brisbane City Council. 19 Similarly, in the NSW Court of Appeal case, Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Ltd, 20 it was 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 consequently partly about the 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, 21 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 of facilities on common property, such as a garden, barbeque area, swimming pool or toilets will be an important part of the proposed use, in which case they are part of the land the subject of the application. Use of common property for its established function of providing access has been held not to require its inclusion as part of the land but it could well be that even use of common 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. 22 (iv) Easements 18 [2001] QPELR 96. 19 [2004] 1 QdR 610. 20 [2003] NSWCA 5 21 [2006] QPELR 737. 22 P743.
Historically, one of the most difficult issues has been the situation where the proposed development has relied on an easement access, on someone else s land, in which case the consent of the landowner for the easement was required. Now, there is a statutory exception, as follows: 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 of the easement, the consent of the owner of the servient tenement is not required Note that this is not a complete exception. It is still important to check the terms of the easement and form an opinion that the development is not inconsistent with the terms of the easement. If in doubt, the consent 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 amended to remove the doubt). Also, if the easement 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 consistent with the terms of the easement. The land the subject of the easement should, of course, still be included in the application, if the proposed development relies on the easement for access, even if the 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 to be included in the application in the first place: Ecovale Pty Ltd v Gold Coast City Council. 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 consent of the Commonwealth was required. If there is an easement traversing the development site, this is called a dominant easement, as opposed to a servient easement. For the development application purposes, the grantee of the easement is not entitled to collect rental and is not an owner of the easement land, so their consent is not required 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 the easement or (In the case of utility easements) whether it could even be inconsistent with the requirements of other legislation, in which case, there could be a risk that proceeding with the application without consulting with the easement grantee could put the landowner in contractual breach of the easement, or possibly even risk an argument that 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, 26 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) 23 [2001] QPELR 163 at 166. 24 [2003] QSC 478 at [44] 25 Howard Street Developments Pty Ltd v Maroochy Shire Council [2002] QPELR 423. 26 (1987) 64 LGRA 1 at 5 (Full Court of the Supreme Court ofqueensland)
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 Honour also thought that this worked no injustice to the registered proprietor, who could still object, although it is unclear how this reasoning would logically follow through to other types of applications which are not subject to submissions, and Shepherson J dissented. To get around this problem, smart landowners tend to take more care specifying in their written consents exactly what application they are consenting to, so that if the application later changes to something they would not have supported, they can argue there is no longer a consent for the changed application. In particular, landlords who want to make sure that an application is in accordance with the permitted use under a lease or agreement to lease are likely to specify that the application to which they consent is only for that particular use. It is also quite common for contractual arrangements to be entered between the owner and the applicant on the side, spelling out the various scenarios in which further consultation is required between the parties, or the landowner can direct the applicant to withdraw an application or the landowner is appointed as the 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 of the land the subject of the application is required for the making of the application (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, option (ii) seems to be just bizarre. If you have obtained the written consent of the owner, why would you not simply attach it, rather than provide your own declaration that you obtained it? The mind boggles imagining the scenarios that might have occurred where a consent was obtained and then lost, after which the owner presumably became suddenly incapacitated preventing him or her from signing another consent and without having appointed anyone with power of attorney. Otherwise, it is quite straightforward that the owner can sign on the form or on a separate document which accompanies the application. There is not a lot of room on the form, particularly if there are multiple owners, so it is common to obtain consents as separate letters, which should be signed by the correct owners (checked 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, to minimise the risk that the version of the application that the landowner has seen could change to something quite different by the 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. 27 P5. 28 Section 260(1)(e) SPA.
4. The Requirements for Resource consents (a) What are resource consents? The term resource consent is just a short-hand way of referring to a requirement which is much more long-winded in Section 264 (1) of SPA (Development involving a State resource), as follows: (1) To the extent the development 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 development is consistent with an allocation of, or an entitlement to, the resource; (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 resource, the State agency has all three of these choices, but rather, they have a selection of the above choices which are set out in the regulation, sometimes two choices, or sometimes only one type of evidence can be given. A table setting out the 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 2009. The types of resource range from State land tenures through to the State s powers to control access to or impacts on issues such as fisheries, water and quarry materials. Part of the reason why the State resource consent system has become so difficult to work with, from the perspective of both applicants and some of the State agencies, is that this is such a generic way of dealing with different types of resources. In other words, an ordinary person can understand that if the State owns the land, it would be fair for the State to have reasonably similar rights to a private landholder, In terms of the breadth of its discretion whether to support an application or not and how long this takes, that is, a private landholder can consent or refuse, or tell the applicant to wait a few years, unless there are already contractual arrangements about the proposed development. If the State s freehold land ownership had continued just to be treated as an owner s consent issue, this would have remained 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 statutory timeframes and procedures for resource consents, if the question is just about impacts on a resource, particularly if there is a related statutory framework under other legislation for corresponding permits, such as water licensing or quarry products permits.
Until these kinds of issues have been worked through, resource consents will 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 those relevant to owner s consent, that is, resource consents may be required for operational 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 general 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 the development to be covered by the general authority. A copy of the general authority must be attached to the application. 29 In Bon Accord Pty Ltd & v Brisbane City Council & Ors, 30 Rackemann DCJ held that where a copy of the former Department of Natural Resources and Water s 'general authority' had not been physically attached to a development application (and also the general authority did not cover some 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 check whether your application involves one of the listed State resources in Schedule 14. There was a recent Court of Appeal case which considered the meaning of involves, Stockland Property Management Proprietary Limited v Cairns City Council, 31 where there 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 that time, the Integrated Planning Regulation 1998 included an additional test for State resource evidence: involves taking or interfering with a resource. Those words ( taking or interfering ) have now been removed from Section 14 of the SP Regulation, so it is likely that State resource evidence will be needed more often than it used to be. The Court of Appeal in the Stockland case thought that the word involves by itself means no more than that there is a connection between the proposed development 29 Section 14(4) Sustainable Planning Regulation 2009. 30 [2008] QPEC 119 (16 December 2008). 31 [2009] QCA 311.
and the State resource, and it follows that this would now be the legal position for applications under SPA. A related question is whether the 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 the safe side and seek State resource evidence even for consequential 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 and Resource Management has created its own form, to try to ensure that it receives the information it needs. Other agencies, such as delegates within the Rail Ports and Freight and Integrated Transport Planning at Transport and Main Roads, prefer 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 acknowledgements, which sometimes differs from delegate to delegate, so it is necessary to check with the relevant delegate first about how to set out the letter and what to include. The reason for requiring the acknowledgements is so that the applicant does not read too much into the mere grant of the resource consent which enables the application to be lodged, that 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 expectations, such as that a lease will progress to freeholding or an agreement to lease will progress to a lease. It would be desirable if the agencies could work out some consistency in their expectations about the way of seeking resource consent and perhaps some guidelines about the considerations that agencies take into account when exercising their discretion, particularly when exercising a discretion that 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 agency) 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 correspondence) could spell out what is not implied by the granting of resource consent, this would also save a lot of space and negotiating time, setting out acknowledgements on this topic. 32 Herberton Land Corporation Pty Ltd v Tablelands Regional Council (unrep) Appeal 3100 of 2009 (Brisbane), judgment delivered in Townsville in 20 July 2010. As noted by His Honour Judge Robin QC DCJ in Vidler v Fraser Coast Regional Council and Chief Executive Department of Main Roads [2011] QPEC 18 at [25], the Herberton case was not referred to during argument in Northeast Business Park Pty Ltd v Moreton Bay Regional Council [2010] QPEC 112 and presumably the participants were ignorant. In Vidler, His Honour Judge Robin ultimately decided to follow the decision in Northeast Business Park, in the interests of pursuing judicial comity [27].
One of the problems addressed in the recent case, Stockland Property Management Pty Ltd v Cairns City Council, 33 was that a district director of the former Department of Main Roads had signed question 20 of the form 1 application, by giving the land owner s consent to the application, rather than expressing this properly as evidence that the chief executive of the department was satisfied that the development was consistent with an allocation of, or an entitlement to, the relevant State resource. Ultimately, the Court of Appeal found that this had not invalidated the application because it was considered that the resource consent was not required anyway. However, one practical lesson to be learned from this case is the importance of checking that the State agency has correctly copied out the wording of the legislation for the applicable type of resource consent selected, rather than trying to sign an owner s consent. In Queensland Construction Materials Pty Ltd v Redland City Council, 34 the Court of Appeal held: In summary, the general approach to compliance with s 3.2.1 in respect of State resources issues should have regard to: the terms of s 3.2.1(1) and (5) which require the application to be supported by evidence provided in accordance with the prescribed form; the contents of the prescribed form which require the application to be accompanied by evidence that the chief executive is satisfied the development is consistent with an allocation of, 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 relevant department, the delegated officer s name, position and signature, the date of signature and the expiry date (if any) of evidence. 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 of satisfaction and the application is not accompanied by a document that records that state of satisfaction. In such a case the application will not have been supported by evidence, as required by s 3.2.1(5) of the IPA and s 12 of the IPR. In such a case, the application will not be a properly made application and the Council will not be entitled to treat it as a properly made application under s 3.2.1(9). 35 In the 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 than one State resource, but the consent is only expressed in relation to one of them. In situations where there is a particular 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 33 Supra. 34 [2010] QCA 182 (McMurdo P Chesterman JA and Applegarth J) 35 per Chesterman JA and Applegarth J at para 140.
documentation showing that they hold the appropriate delegation. 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 considerable room for errors by both applicants and the agencies concerned. Ultimately, it is the applicant s problem if State resource evidence is not expressed correctly, so it is worth taking the time to check and make any appropriate enquiries to follow up areas of doubt, rather than just assuming that it is right. The author acknowledges the research assistance of Jacqui Robertson, senior associate, Leanne Bowie Lawyers, particularly with citations of the cases and relevant quotations from the cases, which are referred to in this paper.