Never seek government advice
A common mistake among development consultants and their clients is to seek advice, or a point of view, from Government about difficult issues.
An example is where a town planning consultant has asked the Queensland Department of Local Government and Planning if, based on some facts set out in an email to the Department, use rights exist on a site or have been abandoned. The answer to that will have a substantial bearing on whether a development application needs to be made and approved before a particular development can take place.
Another example might be whether a particular State Government Department is required to be involved in the assessment of a development application, or whether a p[articular development application requires public notification and the prospect of third party appeal rights being enlivened.
There’s a few points to be made.
First, in Queensland planning legislation, there are no provisions that state that the view of an arm of the Government constitutes the answer to the problem. In most areas of the law, contentious issues are determined by a Court. Planning law is no different.
Second, those working in Government are naturally cautious. If there is any doubt, Government will almost always err on the side of caution. There is nothing wrong with this, and it is good to see that Government employees in this Country have high regard for the rule of law.
Third, the answer you get back from the Government may, in fact, be wrong. It could be a point of view in your favour, or it could be a point of view not in your favour. The difficulty for the developer and the developer’s consultant is that it is highly doubtful that the Government owes either of you a duty of care in respect of that answer.
Fourth, only the development consultant owes the duty of care to their client. If the consultant is wrong, at least the client has the protection of the consultant’s insurance policy for professional liability.
My advice is – Don’t ask Government about threshold issues like use rights, levels of assessment, triggers for referral, and so on. Seek advice from properly briefed consultants. The best consultant may someone with technical expertise on certain subject matter, or lawyer with a skill set in planning and environment law, or both. It depends on whether the issue of conjecture is factual issue, a legal issue or a bit of both.
If the answer is clearly in the developer’s favour, there is no need to anguish any further about what is the best course of action.
If the answer is less than clear, and there may be risks to proceeding only on the view you have formed yourself, then, and only then, might (and I emphasise might) you consider approaching the Government to explain your point of view, and to invite Government to consider the issue and to take the same or a different point of view. If the view is different, recourse is to the Court to decide the issue. The Court’s view will be binding, and will provide protection to both the Government, the developer and the developer’s consultants, about what the actual answer is.