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Coolum Chase Pty Ltd v Sunshine Coast Regional Council QPEC 45
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Coolum Chase Pty Ltd v Sunshine Coast Regional Council  QPEC 45
COOLUM CHASE PTY LTD
SUNSHINE COAST REGIONAL COUNCIL
501 of 2016
Planning and Environment Court
21 July 2017, ex tempore
21 July 2017
PLANNING AND ENVIRONMENT – APPEAL – Appeal against a refusal for an extension of the relevant period for a preliminary approval for the reconfiguration of a lot – Whether the preliminary approval has lapsed – If the preliminary approval has lapsed, whether s 440 of the Sustainable Planning Act 2009 (Qld) should be engaged to revive the development approval in the event it has lapsed
M Williamson and D Whitehouse for the appellant
C Hughes and M Batty for the respondent
Cardiff Law for the appellant
SCRC Legal Services for the respondent
- This is an appeal against the decision of the respondent on 7 January 2016 to refuse the request of the appellant to extend the relevant period for a preliminary approval for the reconfiguration of a lot on land situated at 2 Musgrave Drive, Yandina Creek, a preliminary approval for reconfiguration of one lot into 23 lots. The relevant period expired the same day.
- Two issues are listed for determination by way of the hearing before me today. Firstly, whether the preliminary approval has lapsed following the filing of the notice of appeal by the appellant, and secondly, if it has lapsed, whether section 440 of the Sustainable Planning Act 2009 (Qld) (“SPA”) should be engaged to revive the lapsed development approval pending the outcome of the appeal.
- Section 341 of SPA provides for the lapsing of approvals. Section 383 provides for the making of a request to extend the period of an approval. Relevantly, thereafter, section 387(4) states that the “assessment manager may decide the request, even if the development approval was granted by the court”. Although the word “court” is used juxtaposition to the term “assessment manager” in this provision nothing turns on this as it merely serves to clarify the breadth of the power to entertain such a request.
- Section 388 prescribes what the assessment manager must have regard to in deciding such a request. Significantly, section 390 states despite section 341, “the development approval does not lapse until the assessment manager decides the request”.
- Under the general provisions in section 495 of SPA, an appeal is by way of hearing anew. Section 496 confers a broad jurisdiction on the court in determining an appeal. Relevantly, it is stated:
“(1) In deciding an appeal the court may make the orders and directions it considers appropriate.
- Without limiting subsection (1), the court may-
- confirm the decision appealed against; or
- change the decision appealed against; or
- set aside the decision appealed against and make a decision replacing the decision set aside.
- (3)If the court acts under subsection (2)(b) or (c), the court’s decision is taken, for this Act, other than this division, to be the decision of the entity making the appealed decision.”
- In determining the first of the two issues before me today, the respondent submits that there is no provision for the development approval not lapsing, pending the outcome of an appeal. The language of section 390 is in clear terms. The development approval does not lapse until the assessment manager decides the request and that is all. Had the intention of the legislature been that the development approval not lapse until an appeal against the assessment manager’s decision ran its course, it could have said so. It has not. The respondent points to section 383, which makes provision for extending the period in section 341 before a development approval lapses and which could be utilised to extend the period of a development application pending the outcome of an appeal such as this. However, there is no guarantee that such a course would result in a favourable response from the assessment manager. Indeed, on the facts before me, the respondent determined to refuse the application for the extension of the relevant period on the day that it expired.
- Conversely, the appellant points to the fact that section 388 is prescriptive in stating what the assessment manager must have regard to in deciding such a request. It states that the assessment manager must only have regard to certain matters in deciding such a request. It is submitted that it is not the intention that, in the event there is an appeal such as this, the court have any wider jurisdiction in this regard and that the term “assessment manager” in section 388 must mean the court, in determining an appeal in these circumstances. It is submitted that once this is accepted, a consistent approach sees the term “assessment manager” in section 390 also referring to the court in determining such an appeal.
- Having regard to the established principles for construing legislation which are conveniently canvassed in Project Blue Sky v Australian Broadcasting Authority  194 CLR 355 at 381-382, it is important to read the Act as a whole and apply a consistent approach to the interpretation of various provisions. I accept the appellant’s submission that this requires the term “assessment manager” to mean the court in circumstances where there is an appeal, in both section 388 and section 390. This approach is consistent with the more general provisions of SPA, which address both the way an appeal is conducted by the court in section 495 and the breadth and effect of an appeal decision in section 496.
- Accordingly, I declare that the development approval the subject of the notice of appeal has not lapsed and will not lapse until the determination of the appeal.
- If I am wrong in this regard, there is a very broad power pursuant to section 440 of SPA to deal with matters involving non-compliance. It is in the following terms:
“(1) Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with.
- (2)The court may deal with the matter in the way the court considers appropriate.
- (3)To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application.”
- In the event that the development application the subject of this appeal has lapsed because the appellant failed to apply for an extension of the relevant period pending the outcome of the appeal, the relief set out in section 440 is open to the appellant. In this regard, the appellant submits that any non-compliance is not the product of a wilful breach of SPA and that it is seeking to pursue its rights pursuant to an appeal in circumstances where it has not engaged in any disentitling conduct and a favourable exercise of the discretion pursuant to section 440 would not put it in a better position than it would have been in if it had fully complied with the relevant provisions of SPA. The granting of relief pursuant to section 440 is not opposed by the respondent, and this is a significant relevant factor in the exercise of my discretion.
- Accordingly, in the event that it is necessary, I order that the relevant period for the development approval be extended up to and including the final determination of the appeal.
- Published Case Name:
Coolum Chase Pty Ltd v Sunshine Coast Regional Council
- Shortened Case Name:
Coolum Chase Pty Ltd v Sunshine Coast Regional Council
 QPEC 45
21 Jul 2017