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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Vancard Pty Limited v Central Highlands Regional Council  QPEC 12
VANCARD PTY LIMITED ACN 010 660 867
CENTRAL HIGHLANDS REGIONAL COUNCIL
D 25 of 2020
Planning and Environment
Planning and Environment Court at Maroochydore
27 March 2020 (order)
2 April 2020 (reasons)
23 March 2020
Long SC DCJ
PLANNING AND ENVIRONMENT – APPLICATION TO REVIVE LAPSED DEVELOPMENT PERMIT – Where the applicant failed to apply to extend the currency period of the development permit pursuant to s 86 of the Planning Act 2016 – Whether the applicant’s failure to extend the currency period of the development permit is excused – Whether it is necessary to change the terms of the development permit rather than granting an extension of the currency period effected by a condition in that permit
Planning Act 2016, ss 37, 86, 87, 88, 286, 299
Planning and Environment Court Act 2016, ss 37, 86
Sustainable Planning Act 2009, ss 341, 343
Bon Accord Pty Ltd v Brisbane City Council  QPELR 23
Brassgrove KB Pty Ltd v Brisbane City Council  QPEC 42
Moreton Bay Regional Council v Fairland Group Pty Ltd  QPEC 19
Room2Move.com Pty Ltd v Western Downs Regional Council  QPEC 34
Tremellan & Tremellan v Southern Downs Regional Council & Ors  QPELR 56
P&E Law for the applicant
King and Company Solicitors for the respondent
- These are the reasons for the orders made on 27 March 2020, upon the Originating Application filed 14 February 2020, whereby the applicant effectively sought an exercise of the jurisdiction of this Court and the powers provided, pursuant to s 37 of the Planning and Environment Court Act 2016 (“PECA”), in order to revive a lapsed development approval, by seeking excusal of a failure to have sought an extension of the currency period and an order now extending that currency period.
- The development approval the subject of these proceedings (“Development Approval”) comprises:
- (a)a preliminary approval for a Material Change of Use to override the Emerald Shire Planning Scheme (Amendment No1-2009) (“Preliminary Approval Component”); and
- (b)a development permit for reconfiguring a lot (3 lots into 23 lot subdivision) (“RAL Component”).
- The land the subject of the Development Approval is owned by the applicant, and is located at the Corner of Capricorn Highway and Chalcedony Road, Emerald, and is described as: Lots 6, 199 and 200 on SP252432; and Lot 6 on RP895593 (collectively “the Land”).
- Although both components of the Development Approval have lapsed, the applicant seeks the revival of only the RAL Component and an extension of the currency period of that permit, which had previously been fixed by condition 3A of the approval.
- The uncontested evidence before the Court is that:
- (a)On 11 December 2009, the development application was lodged with the respondent by the applicant;
- (b)The application was assessed in accordance with the Integrated Planning Act 1997 (IPA) against the Emerald Shire Planning Scheme (Amendment 1 – 2009) (now superseded) (the Superseded Planning Scheme) and required referral to:
- (i)Department of Infrastructure and Planning (now referred to as the Department of State Development, Manufacturing, Infrastructure and Planning) as an advice agency triggered by applying for a preliminary approval overriding the planning scheme;
- (ii)Department of Main Roads (now referred to as the Department of Transport and Main Roads) as a concurrence agency for impacts on the State-controlled road network; and
- (iii)Department of Environment and Resource Management (now referred to as the Department of Environment and Science) for third party advice on good quality agricultural land matters.
The application was impact assessable and attracted no properly made submissions during public notification;
- (c)Under the Superseded Planning Scheme, the Land was zoned partly Rural and partly Town Zone – Light Industrial Precinct;
- (d)On 19 July 2011, the respondent issued a Decision Notice approving stage 1 of the development and refusing stage 2 of the development and on 19 September 2011, the respondent issued the Development Approval under a Negotiated Decision Notice;
- (e)Condition 3 of the Development Approval stated –
“This approval has a currency period of four (4) years and will remain in force until 18 July 2015. Should the development not be completed within this timeframe this approval shall lapse and a new application will need to be made to Council, unless an approval has first been obtained for an extension of this period.”
- (f)On 23 December 2011 the applicant paid the infrastructure charges for the Development Approval totalling $1,245,216.00;
- (g)In or around March 2012, the applicant applied for a change to the Development Approval, which was approved by the respondent on 24 April 2012. The changes related to the sub-staging of stage 1, so that:
- (i)Stage 1a permitted a 2 lot into 3 lot subdivision to create lots 6, 199 and 200; and
- (ii)Stage 1b permitted the further 21 lot subdivision;
- (h)On 30 April 2012 stage 1a was completed by creating and titling Lots 6, 199 and 200 on SP252432 and cancelling lots 6 and 7 on SP203782;
- (i)On 16 October 2013 the respondent approved an operational works application for roadworks, stormwater, drainage, earthworks, water & sewer;
- (j)On 3 December 2013 the applicant applied for a further change to the Development Approval. The changes included revised sub-staging of stage 1 into stages 1a, 1b and 1c and the respondent approved the change application on 9 December 2015. The relevant changes included:
- (i)deleting condition 3; and
- (ii)the addition of condition 3A which reads:
“The reconfiguration of a lot development must be completed in accordance with the following timeframes:
- (a)Stage 1b must be completed by 3 November 2017;
- (b)Stage 1c must be completed by 3 November 2019.
Pursuant to section 342 of the Sustainable Planning Act 2009, where a stage of the development has started but has not been completed by the date prescribed in this condition this development approval, to the extent it relates to all stages not completed at that time, will lapse.”
- (iii)The addition of advisory note 1 as follows:
“1. RELAVANT PERIOD
In accordance with section 341 of the Sustainable Planning Act 2009 the relevant period for Development Permit for the Reconfiguration of a Lot, at the time this permissible change request was decided, expires on 16 October 2017.
In accordance with section 343 of the Sustainable Planning Act 2009 the relevant period for the Preliminary approval, at the time this permissible change request was decided, expires on 18 July 2016.”
- Once again any potential for confusion or inconsistency as to the currency period for the changed development approval has been overtaken by subsequent events and in understanding that it is, in part, explained on behalf of the applicant, that there had been inability to complete the development because of economic downturn in Emerald and that it was not until October 2018 and in the context of meetings with representatives of the respondent, in relation to another prospective development on adjoining land, that the respondent advised, by correspondence dated 7 November 2018, that the currency period for the subject development approval, had lapsed. That expression of view was undoubtedly correct in that, at the latest and in the context of the following statutory context, the approval had lapsed, as far as the RAL component was concerned, on 3 November 2017:
- (a)On 3 July 2017 the Planning Act 2016 (the PA) commenced;
- (b)The RAL Component was taken to be a development permit under the PA and the PA applied to the permit as if it had been made under the PA; and
- (c)Notwithstanding the effect of s 299 of the PA in preserving the application of s 341 of SPA and excluding the operation of s 85 of the PA, in determination of the relevant “currency period” for such an approval previously granted under SPA, s 88 of the PA is otherwise applicable and relevantly provides:
“88 Lapsing of approval for failing to complete development
- (1)A development approval, other than a variation approval, for development lapses to the extent the development is not completed within any period or periods required under a development condition.
- (2)A variation approval for development lapses to the extent the development is not completed within—
- (a)if a development condition required the development to be completed within a stated period or periods—the stated period or periods; or
- (b)if paragraph (a) does not apply—the period or periods the applicant nominated in the development application; or
- (c)otherwise—5 years after the approval starts to have effect.”
- Also any earlier lapsing of the preliminary approval aspect of the development approval, may be put aside in the circumstances, as are further noted below, that there is no application to revive that preliminary approval.
- Although the application, as made, and the common position of the parties at the hearing of it, was to present an alternative focus upon non-compliance and excusal in reference to a failure to seek a minor change of the development approval, it was readily conceded that the application, in actual effect, is for the necessary excusal of the failure to seek, before the approval lapsed, an extension of the currency period, such as could have occurred pursuant to s 86 of the PA.
- The applicant now seeks orders reviving the RAL Component and to extend the periods allowed in condition 3A so that:
- (a)Stage 1b must be completed by 3 November 2021; and
- (b)Stage 1c must be completed by 3 November 2023.
- As explained by the applicant, revival of the Preliminary Approval Component is not sought because:
- (a)On 15 September 2017 the Central Highlands Regional Council Planning Scheme 2016 (the Current Planning Scheme) commenced, zoning the parts of the Land approved for subdivision within the Specialised Centre Zone.
- (b)The Applicant’s town planner provides the opinion that the Light Industrial Precinct of the Town Zone under the Superseded Planning Scheme is comparable to the Specialised Centre Zone under the Current Planning Scheme with respect to strategic land use intent and variety. And provides a comparison of code assessable uses under the Superseded Planning Scheme and Current Planning Scheme for the relevant zones and further notes that a revival of the Preliminary Approval Component is not required because the zoning of the Land under the Current Planning Scheme is consistent with the outcomes available under the Preliminary Approval.
- Although the materials and submissions provided on this application, were particularly focussed upon the concept of “minor change” to the development permit, they were fortunately also directed to the prospect of an exercise of an extension application, as could have been made pursuant to s 86 of the PA. And ultimately it was properly recognised by the parties, that in now seeking excusal of such a failure to do so and the exercise of the power of the court to grant an extension as to the currency period of the development permit, it is not necessary that this be done by making changes to condition 3A of the pre-existing permit (whether or not together with any desirable modification or clarifying change of related parts of that pre-existing permit) but rather by an order having the effect of reviving the lapsed permit and extending the currency period of it, to an appropriate date in the future.
- Accordingly and in consideration of such an application, the court will be concerned with the requirements for making the application that could have been made pursuant to s 86 and the assessment that would then be required by the respondent pursuant to s 87 of the PA. However and as noted in the Brassgrove decision, by express reference to the earlier observations expressed in Room2Move.com Pty Ltd v Western Downs Regional Council, in noting:
- (a)“a point of context” in respect of the wide discretion allowed in the assessment of extension applications, being that provisions like s 86 of the PA, have only been necessary because of the prospect of the loss of the right to carry out assessable development under a development approval, if not exercised within a relevant currency period, with the consequence of lapsed approval otherwise being, a fresh application for a new development approval and potentially of considerable public and private expense; and
- (b)the legislative recognition in s 86 of the PA of potential avoidance of that potential for expense, where it might be appropriately concluded that no town planning purpose would be served by any such new assessment process.
In the Room2Move.com Pty Ltd decision, it was then observed that:
“This context informs the exercise of the discretion under s 87 of the PA. It invites the assessment manager (and this court on appeal) to ask itself this question: Is there a town planning imperative for the development, and its approval, to be the subject of a fresh assessment and decision under the PA?”
- Accordingly and in respect of such applications, including those which are made, as here, in conjunction with an application to the jurisdiction of this court to excuse the applicant’s conduct in allowing an approval to lapse and so as to revive it, so that a currency period may be extended, it will also be of substantial importance to have regard to the planning considerations relating to the development which is sought to be made the subject of extension of the efficacy of an approval.
- That will be so, in addition to or even in the absence of sufficiently identified circumstances otherwise supportive of any such excusal of failure to act to protect a private interest. And it may be noted that such circumstances may often entail purported subjective errors or misunderstandings, which may be contestable. For example, in this instance, there is a contention that the applicant paid the total infrastructure charges for the approved development, in the amount of $1,245,216, on 23 December 2011, with a “misunderstanding” (purportedly arising from an unspecified discussion with an unnamed officer of the respondent) that doing so “would lock in the approval and preclude it from being subject to any changes over time; indefinitely preserving the currency of the approvals) and only became aware of the lapsing of the permit on 7 November 2018, without any elaboration as to any familiarity with the express terms of condition 3 of the original approval, or the extension of the currency periods which were effected in conjunction with the subsequent applications to change the approval, in order to allow for the staging of the development and ultimately the inclusion of the expressly stated currency periods in condition 3A.
- The discretion granted to the Court pursuant to s 37(1) of the PECA, has been noted, in respect of preceding similar provisions, as both wide and unfettered. And it is to be noted that in Tremellan & Tremellan v Southern Downs Regional Council & Ors, the discretionary considerations identified in favour of a similar application, there included:
- (a)council’s support of the application;
- (b)the expense incurred by the applicant to carry out the subdivision and likely costs and delay if a new development application had to be made;
- (c)that no third-party rights would be substantially restricted; and
- (d)that it was not in the public interest for a new application to be made.
- Here the applicant relevantly points to support of its application in that:
- (a)Supportive views are expressed by a town planner, to the effect that the previously approved development is substantial in the context of its local area, and appropriate for an extension of the currency period because:
- (i)The creation of the lots under the RAL Component would support the continued growth of Emerald by creating suitable lots for employment generating land uses;
- (ii)The development is expected to service the growing needs of the Emerald community;
- (iii)The development will service passing trade along the Capricorn Highway;
- (iv)The RAL Component remains consistent with the intention for the Land, as set out in the Current Planning Scheme;
- (v)The Preliminary Approval Component of the development, which is not sought to be extended, has effectively been reflected in the Current Planning Scheme;
- (vi)If the application is successful, it will enable the reconfiguration of the Land to occur which will facilitate further development as intended by the Planning Scheme; and
- (vii)The absence of identified community or other benefit from requiring a new development application, particularly in that any such application for a reconfiguration of a lot would be code assessable under the Current Planning Scheme so there would be no opportunity for public notification and otherwise noting the potential for substantial expense to the applicant, in both time and money.
- (b)Stage 1a of the reconfiguration has been undertaken, which created lots 6, 199 and 200 on SP 252432;
- (c)The applicant has spent $1,245,216 in infrastructure charges, and $538,000 in operational works, noting that some of the works permitted by the Operational Works permit which are necessary to carry out the remaining stages, have been completed, in that water and sewer reticulation has been constructed. And the Operational Works permit remains effective, pursuant to s 341(3)(a), as it was substantially started within 2 years after obtaining the approval;
- (d)The Chief Executive of the Department of State Development, Manufacturing, Infrastructure and Planning (DSDMIP) is now taken to be the referral agency for the development approval. The Chief Executive was served with a copy of this Originating Application on 14 February 2020 but has not joined these proceedings;
- (e)That after specific attention was drawn to the lapsed approval in November 2018, the applicant sought town planning advice and subsequently engaged solicitors in May 2019, with the only further delay being in addressing the complications of the situation, particularly in obtaining and preparing the materials as they have been noted above; and
- (f)The respondent has indicated that it is supportive of this application.
- In that context, it is the last aspect relating to the support of the respondent (who would have been the assessment manager for any application as might have been brought pursuant to s 86 of the PECA) which is of substantial relevance and influence. This is particularly because:
- (a)notwithstanding expressly acknowledging, on the hearing of the application, the obviousness of the permit lapsing in the context of a period of very significant economic downturn in Emerald;
- (b)that support was expressly stated as strong support in the context of express acknowledgment of the extent to which the completion of this development is not only consistent with the current planning scheme but important to the achievement of the planning intent in the rezoned circumstances of this and adjoining land.
- In those circumstances it was considered to be an appropriate exercise of discretion pursuant to s 37 of the PA to excuse the non-compliance in the applicant’s failure to have made an application to extend the currency period of the development permit prior to it lapsing pursuant to s 88 of the PA and to effectively revive it by making the following orders:
- The Development Permit to Reconfigure a Lot (three into twenty-three lots) on land at the corner of Capricorn Highway and Chalcedony Road, Emerald (development application number 4125/09) is revived.
- The completion date in condition 3A(a) is extended to 3 November 2021.
- The completion date in condition 3A(b) is extended to 3 November 2023.
 See Brassgrove KB Pty Ltd v Brisbane City Council  QPEC 42 at -.
 Affidavit of C A Morawitz, filed 26/2/20 at .
 The Sustainable Planning Act 2009 (SPA) had commenced on 18/12/09 and pursuant to s 802(7) of SPA, once given, the Development Approval was taken to be a Development Approval under SPA.
 Some uncertainty may have been introduced in the understanding that the reference to 18/7/15 was four years from the date of the resolution of council to partially approve the development application, rather than from the date when the approval took effect on 19/9/15. However nothing now turns on this in light of subsequent events.
 It is noted that as a plan of survey was given prior to the approval lapsing, the effect of s 341(2) of SPA was that stage 1a of the RAL Component of the approval was preserved at that point in time.
 Affidavit of C A Morawitz, filed 26/2/20 at -.
 s 286 of the PA.
 Affidavit of B W Bell filed 25/02/20 at BWB-2, p 15.
 Table 1 at p 15.
  QPEC 42 at .
  QPEC 42 at -.
  QPEC 42 at .
 Affidavit of C A Morawitz, filed 26/2/20 at -.
Bon Accord Pty Ltd v Brisbane City Council  QPELR 23 at - and cf: Moreton Bay Regional Council v Fairland Group Pty Ltd  QPEC 19 at .
  QPELR 56.
 See affidavit of BW Bell filed 25/2/20.
 Although it was noted and conceded, on the hearing, that at least some part of that sum would be refundable, should the remaining stages of the development not be completed.
 See s 944A of repealed Sustainable Planning Act 2009 and s 299(3) of the PA.
- Published Case Name:
Vancard Pty Limited v Central Highlands Regional Council
- Shortened Case Name:
Vancard Pty Limited v Central Highlands Regional Council
 QPEC 12
Long SC DCJ
23 Mar 2020