Application – Court's jurisdiction to make declarations – Where applicants sought relief to construct roads and stormwater infrastructure in a road reserve without further approvals under the Local Government Act 2009

Facts: This was a hearing of an Application in Pending Proceeding brought by the First Respondent, South Burnett Regional Council, within an Originating Application brought by the developer and a number of residents in a partially constructed new housing estate called 'Memerambi Village' in Memerambi, Queensland.

The Originating Application sought a number of declarations, under section 456 of the Sustainable Planning Act 2009 (SPA) that related to existing development approvals over estate land.

Most of the declarations were not contested by the Council. Those uncontested declarations had been made by the Court at a previous Court mention. However, the Council disputed a declaration being made that provided for the applicants to construct roads and stormwater infrastructure in road reserves without further approval from the Council.

While the Council conceded that the applicants did not require any further approvals under the SPA to carry out the proposed works in the road reserve, it contended that a declaration could not be made by the Court under section 456 of the SPA, because other approvals were still required from it under the Local Government Act 2009.

Decision: The Court held, in refusing to grant the relief sought and disposing of the Originating Application:

  1. It would be wrong to construe section 456 of the SPA in such a way as to purportedly render nugatory the operation of other relevant legislation.
  2. In circumstances where the plans referred to in the Originating Application were not in accordance with, or were inconsistent with, those identified in previous declarations made by the Court, then, absent of satisfactory explanation and/or the consent of all relevant parties, there were strong grounds for refusing the application on discretionary grounds.

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.