102995-10 Permissible change request

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25 September 2015
Bunnings Group Limited
Bunnings Noosaville - Compliance with Conditions of ROL Permit



3            Development approval condition cannot require an indemnity
3.1          It is a long-standing common law position that a condition of a development
             approval cannot require an indemnity.
3.2          The principle was first established in the case of Galandon Pty Ltd v Narrabri
             Shire Council.' in which the applicant proposed to develop a new motel on flood
             prone land at Narrabri. The local government sought to impose a condition
             requiring an indemnity in respect of claims arising out of personal or property
             damage caused by flooding as a result of the local government having granted
             approval. The Court found that the imposition of a condition requiring an
             indemnity in favour of a local government was an unlawful condition.
3.3          Similarly, in Hutchinson 3G Australia Pty Ltd v Wavertey Council.' the local
             government sought to impose a condition on a development approval for a mobile
             phone tower which would indemnify the Council against any legal liability from
             health risks associated with electro-magnetic radiation. The Court again held that
             the indemnity condition was invalid.
3.4          Further, and as previously advised, even if Bunnings is willing to agree to the
             indemnity, that will not mean that a manifestly unlawful condition becomes
             lawful." Therefore, if an unlawful condition is imposed and is not challenged by
             Bunnings, an application can be made to the Court at a later time by a subsequent
             purchaser of Lot 102 to have the condition set aside."

4            Council is sufficiently       protected
4.1          We can understand Council's desire for the indemnity in the conditions, to ensure
             that it is protected for future legal liability. However, the registration of the
             covenant on Lot 102 will ensure that Council is sufficiently protected and
             'indemnified' from risk.
4.2          That is, the covenant will attach to Lot 102 at the time of registration and identifies
             the geotechnical requirements necessary to achieve long term stability of the site.
             If the requirements of the covenant (set out in the geotechnical report attached to
             the document) are satisfied, and subsequently there are stability issues for the
             purchaser, then it is Douglas Partners who is liable, not Council.
4.3          We have previously advised other local government clients on a range of
             developments where the imposition of a condition requiring the registration of a
             covenant under section 97A of the Land Title Act 1994 has sufficiently protected
             the local government from future liability. This is particular the case where, for
             example, the subdivision of steeply sloping land requires specific geotechnical
             requirements. Each of the approved lots is subject to a condition requiring the
             registration of a covenant that identifies the geotechnical requirements necessary
             to achieve the relevant factor of safety and long term stability. In those



1 (1983) 51 LGRA 5
2 (2002) 123 LGERA 75
3 City of Bradford Metropolitan Council v Secretary of State for the Environment (1986) 53 P&CR 55
4 Lewiac Pty Ltd & Ing Real Estate Joondalup BV v Gold Coast City Council & Ors [2003] QPELR 385 at 401; Rowlands
     Surveys v Council of the City of Thuringowa [1993] QPLR 217



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