Olivia Williamson, Associate
In our recent alert entitled More problems with resource allocations - Interfering with overland flow water, we suggested reform in the nature of a pro forma resource allocation, which could be appended in cases where development applications may potentially take or interfere with overland flow water.
Such reform seemed necessary in light of the cases of Vidler v Fraser Coast Regional Council & Anor [2011] QPEC 18 and BGM Projects Pty Ltd v Fraser Coast Regional Council (unreported Maroochydore matter 98/11) and because of the potential for many development applications for Material Change of Use or Reconfiguration of a Lot to involve secondary applications for building work or operational work that, in turn, will result in some degree of interference with overland flow water.
Since publication of that alert, the Department of Environment and Resource Management (DERM) has released a General Authority & Chief Executive Consent: State's Water Resource (General Authority), dated 19 July 2011.
This General Authority addresses, in some part, the need for reform that was highlighted by us in our earlier alert.
Here, Associate Olivia Williamson looks at the General Authority and what it relates to specifically.
What is a General Authority?
The General Authority is evidence that the chief executive of DERM consents that certain development applications can proceed in the absence of an allocation of or an entitlement to the State's water resource.
It is important to note that the General Authority relates only to development applications under the Sustainable Planning Act (SPA) for:
- material change of use of premises; or
- reconfiguring a lot; or
- operational works other than operational works to take or interfere with water as outlined in Schedule 3, Part 1, Table 4, Item 3 of the Sustainable Planning Regulation 2009.
The General Authority is quite clear in its terms that it does not purport to provide any evidence of the chief executive's satisfaction or the chief executive's consent for applications for a development permit for operational works that take or interfere with water.
Having regard to the decision in Vidler, it is strongly recommended that development applications for material change of use of premises or reconfiguration of a lot or operational works (that do not take or interfere with water) attach a copy of this DERM General Authority.
For development applications for operational works that take or interfere with water (as outlined in Schedule 3, Part 1, Table 4, Item 3 of the Sustainable Planning Regulation) the General Authority does not provide the requisite evidence satisfying the requirements of section 264 of the SPA and section 14 and Schedule 14 Item 15 of the Sustainable Planning Regulation.
Such applications will accordingly require evidence that the chief executive of DERM is satisfied:
- that the development is consistent with an allocation of, or an entitlement to, the resource; or
- that the development application may proceed in the absence of an allocation of, or an entitlement to, the resource.
For more information about DERM's General Authority or other any Planning or Environment matter, please contact HopgoodGanim.
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