The importance of owner’s consent

Where the applicant for a development application is not the owner of the land to which the application applies, the application is required to be supported by the written consent of the owner of the land to the application applies in a range of circumstances.

The need for, and consequences of, not providing owner’s consent is highlighted in the following cases.

Planning Act

Under section 51 of the Planning Act 2016 (PA), owner’s consent is required if the application is for:

• a material change of use of premises or reconfiguration of a lot
• work on land below high-water mark and outside a canal as defined under the Coastal Protection and Management Act 1995 or
• work on rail corridor land as defined under the Transport Infrastructure Act (though this applies only under SPA).

Under Schedule 2 of the PA ‘owner’ of the land or premises is defined to mean:

• 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.

In the case of Bowyer Group Pty Ltd v Cook Shire Council [2018] QCA 159, the adjoining owner of the land that was the subject of a development application argued that the developer did not obtain adequate owner’s consent. As the land the subject of the development application was subject to a Crown lease, the Appellant contended the development application required consent of the lease holders. It submitted:

• “owner” can include more than one class of owner, and thus here includes both the State and Crown lessees; or
• alternatively, the Crown lessees are the owner because their interests would more likely be affected by the activities associated with the development application.

The Court rejected the Appellant’s arguments and such an expansive interpretation. The “owner” includes only the person principally entitled to receive the rent for the land. It does not include others who may be or become entitled to receive rent payment, for example through sub-leasing. This aligns with the limited purpose of the owner’s consent requirement, that is “to permit the application to go forward, so that the planning authority can in fact assess it on its merits”. This merely assures the planning authority that the development is “realistically proposed…. Not just an academic exercise which could put the Council to considerable wasted effort and expense”. Thus, in this case, the Crown lessees were not owners of the land for the purpose of consent.

Building Act

Under section 65 of the Building Act 1975 (BA), owner’s consent is also required if there is a building development application for land subject to –

• A registered easement; or
• A registered statutory covenant for which the registered holder is –
  • The State; or
  • A statutory body representing the State; or
  • A local government.

The assessment manager must not approve the application unless each registered holder of the easement or covenant has consented to the building work.

In the case of ISPT Pty Ltd v Brisbane City Council [2017] QPEC 52, a development application for a preliminary approval for building work was made, being the proposed partial demolition of the heritage-listed Embassy Hotel in the Brisbane CBD. The parcel of land was subject to various easements in favour of adjoining landowners, one of which being the Appellant.

The application did not include the easement holders’ consent to the proposed works. Council when assessing the application also overlooked the issue of owners’ consent and subsequently approved the application.

The Appellant, an adjoining landowner, appealed the Council’s approval to the Court on various grounds, mainly relating to inconsistencies with the heritage provisions of the Brisbane City Plan 2014. The Appellant further argued, that the Court was required to refuse the development application (and allow the appeal) because of the developer’s failure to obtain the easement holders’ consent.

The Court allowed the appeal and refused the development application given the failure by the Applicant to obtain consent from the easement holders. The Court commented by saying that it would have approved the development application on the merits. However, the developer’s failure to obtain the easements holders’ consent was fatal, and the developer’s grounds were not sufficient to overcome this.

The Court has discretionary powers to excuse a non-compliance with legislation. However, the Court characterised the consent requirement as a statutory right of the easement holders, that ‘should not lightly’ be interfered with.

In further refusing to exercise the Court’s further discretion, the Court was also influenced by the fact that, since commencing the appeal, the developer had not obtained consent from the other easement holders or given them notice of its intention to seek to have the Court exercise its discretion.

This case, and the strict approach taken by the Court, shows the importance of obtaining owners consent, even in instances where the Applicant might think that the easement will not be affected by the work or change being applied for.

Key takeaway

For certain types of the applications under the PA and BA, it is a mandatory requirement that applications be supported by the consent of the owner of the land.

For section 51(2) of the PA, the ‘owner’ is the person that is principally entitled to receive rent for the land.

For section 65 of the BA, where development includes building works, an ‘owner’ can be any registered easement holder.

The failure to obtain owner’s consent where required can be fatal to the approval of an application.

Authored by:

Stafford Hopewell, Partner
Ben Leong, Solicitor