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- Unreported Judgment
Jenkinson v Tablelands Regional Council QPEC 69
PLANNING AND EVIRNOMENT COURT OF QUEENSLAND
Jenkinson v Tablelands Regional Council  QPEC 69
KELENE MARIE JENKINSON
TABLELANDS REGIONAL COUNCIL
Planning and Environment
Planning and Environment Court, Cairns
DELIVERED EX TEMPORE ON:
6 December 2018
4 May 2018
Morzone QC DCJ
1.Orders as per draft
PLANNING & ENVIRONMENT – application to extend a lapsed development approval – where the development permit lapsed pursuant to s 341 of the Sustainable Planning Act 2016 (Qld) – whether the non-compliance ought be excused and orders made to review and extend the development permit.
Integrated Planning Act 1997 (Qld)
Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld) ss 11, 37, 76
Sustainable Planning Act 2009 (Qld) ss 341, 440
Brooks Earth Moving and Quarries Pty Ltd v Lockyer Valley Regional Council  QPEC 51
Jakel Pty Ltd and others v Brisbane City Council and another
 QPEC 21
V Maruna of Holding Redlich for the applicant
R Wallerstein of P & E Law for the respondent
- The applicant seeks through a mechanism of declaration and related orders to revive and extend a lapsed development approval in the form of a development permit to reconfigure one lot into seven lots in relation to land at 5 Drysdale Road, Herberton and also described as Lot 1 MPH2545. The merit of the application is plain in a commercial and common sense perspective but some complication has added to the change of the planning legislative regime as to the court’s power to deal with the circumstances in an appropriate way within the proper exercise of the court’s jurisdiction.
- It is undisputed that the development permit lapsed pursuant to s 341 of the former legislation the Sustainable Planning Act 2009 (Qld) (SPA). It’s also undisputed that the applicant failed to comply with the provisions of that act in failing to apply to extend the relevant period within the time prescribed. The question is how and whether the non-compliance ought be excused and whether orders ought be made for the development permit to be revived and extended.
- The approval was first given by a decision notice issued on the 27th of June 2008 under the auspices of the Integrated Planning Act 1997 (Qld). By that approval the land was to be reconfigured from one lot into a seven lot subdivision subject to appropriate conditions. The relevant period for the approval was four years. On the 28th of May 2012, the applicant requested an extension of that period which was granted on the 4th of July 2012 so that the relevant period for the approval was then extended to the 30th of June 2013. The applicant requested a further extension on the 9th of April 2013 and a second extension was approved such that the relevant period for the approval was extended to the 30th of June 2015.
- In pursuance of the development, on the 19th of July 2013 the respondent council granted a development permit for operational works, roadworks, stormwater, water infrastructure and earthworks. In accordance with the conditions of that decision notice a pre-start meeting was held on the 26th of August 2014 with the relevant operational works commencing on the land in April 2015 comprising:
- (a)a water main installed between the 27th and the 30th April 2015 and inspected on about the 30th April 2015;
- (b)the kerb and channel installed on about the 7th of May 2015;
- (c)the Telstra pit and pipe was installed on about 21 May 2015;
- (d)the bitumen pavement was laid on around 31 July 2015; and
- (e)the electricity installation commenced on about 9 December 2015.
On the 16th of June 2015 a further request was made for an extension of the development approval. That third extension was granted on the 14th of July 2015 such that the relevant period for the approval was then extended until the 30th of June 2017.
The lapse of the approval slipped under the guard of those who were furthering the development. At that time the SPA was enforced. The Planning Act 2016 (Qld) commenced on the 3rd of July 2017. In about May 2018, the realisation was had that the approval had lapsed when consideration was being given to the issuance of currency of the development permit following discussions with a town planner.
- Some legislative complication arises as a result of the change of planning legislation and the advent of this court’s own enabling legislation being the Planning and Environment Court Act 2016 (Qld) which in turn is enabled by “an enabling act” so as to feed the court’s work. This court has given consideration to the transitional provisions such as to consider whether the appropriate course for an application like this is s 37 of the Planning and Environment Court Act subject to whether or not the repealed SPA was an “enabling act”. The matter received consideration in the cases of Brooks Earth Moving and Quarries Pty Ltd v Lockyer Valley Regional Council,1 and was affirmed later in Jakel Pty Ltd and others v Brisbane City Council and another.2
- In that case her Honour Judge Kefford concluded that the SPA, having been repealed by the time of the commencement of the Planning and Environment Court Act, could not be regarded as an enabling act for the Planning and Environment Court Act and accordingly resort to s 37 of the Planning and Environment Court Act was not available for an application of this type. It seems, in light of those matters, that an alternative course would be appropriate to deal with the matter and such a course was and identified in the case of Brooks and the parties here have relied upon those authorities to urge the court’s engagement to grant the relief sought pursuant to s 11 (4), s 76 (6) of the Planning and Environment Court Act and s 440 of the SPA.
- It is curious that s 76 (4) of the Planning and Environment Court Act itself purports to enliven the operation of s 440 of SPA in certain circumstances. That is, at least for this limited and narrow purpose, set out in that subsection. The former act had an enabling effect but not one broad enough to fall to the court’s use of s 37 and the exercise of the broader discretion. Section 11 provides for the court’s jurisdiction under the Planning and Environment Court Act when considering declarations, it enables the court to make an order about any declaration it so makes. Section 76 deals more broadly with proceedings with subsection (6) being of particular relevance here as follows:
“(6) Also, to relieve any doubt, it is declared that repealed SPA, section 440
- (a)applies also for a development approval that has lapsed;(and then) is not limited to –
- (i)circumstances in relation to a court proceeding under appealed SPA or a current P and E court proceeding; or
1 Brooks Earth Moving and Quarries Pty Ltd v Lockyer Valley Regional Council  QPEC 51.
2 Jakel Pty Ltd and others v Brisbane City Council and another  QPEC 21.
- (ii)provisions under which there is a positive obligation to take particular action; and…
- (c)applies as if a reference to a provision not being complied with, or not being fully complied with, is taken to include –
- (i)non-fulfilment of part or all of the provision; and
- (ii)a partial non-compliance with the provision.”
- Section 440 of the Sustainable Planning Act 2009 provides as follows:
“440.How a court may deal with matters involving non-compliance.
- (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 that the court considers appropriate
- (3)To relieve 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.”
- By the terms of the provisions, the court’s discretionary excusal power is properly broad and untrammelled. That power can be exercised under s 11 (4) of the Planning and Environment Court Act. To make an order about any declaration as to non-compliance including excusing non-compliance and ordering that the matter be dealt with in a way that the court considers appropriate. Having regard to the intent and effect of ss 11 (4) and 76 (6) of the Planning Environment Court Act and by reference s 440 of the SPA, it seems to me that the court is properly seized of jurisdiction to deal with the matter as contemplated by the parties’ comprehensive and well considered submissions.
- The matters identified by the parties and supported by the material relied upon as relevant to the proper exercise of the discretion for the relief sought include:
- The approval and conditions are consistent with the current laws and policies including the Tablelands Regional Council Planning Scheme 2016. That scheme, by its terms, supports this type of development on the land in circumstances where it is within the priority infrastructure area in the emerging community zone and within the Herberton South expansion area under the Herberton local plan. The purpose of such an area is to earmark land suitable for urban purposes and conserve that land for that purpose through urban development into the future. The intent of the Herberton Southern Expansion precinct is also met by the proposed application of the proposed approval continuing by the subdivision and supply of new
residential lots within the precinct. And the size of the proposed lots subject of the approval are consistent with, and compliant with, the relevant provisions including the reconfiguring a lot code.
- The applicant has completed a considerable amount of work at some significant cost. The operational works including the installation of water mains and construction of roads is estimated at the cost of $99,765.
- Both the applicant and the respondent council appreciate the obvious merit of the development and seek, by joining in this application, for its extension consistent with all of the planning instruments.
- The cost of forcing the applicant to make a new development application so as to take up the tools and further the work that’s already been done, is likely to impose further delay, cost and inconvenience upon that party. The impost that is likely to be passed on to ultimate purchasers would be in the order of $80,000.
- The practical utility of a new development application has no greater advantage in its form or substance to this court simply extending or allowing an extension of the current approval which endured all of the rigor appropriately afforded to the application at the earlier stages including each of the extensions. The approval lapsed, it seems to me, due to an administrative oversight. It was not purposeful or otherwise attended by conduct that ought draw criticism except for an administrative lapse allowing the date to pass whilst actively carrying out the approval processes required.
- In those circumstances it seems to me this is an appropriate case for the court to make declarations that the development permit has lapsed and that there has been a non-compliance with the requirements of the SPA by the applicant failing to apply to extend the relevant period prior to that lapsing. It seems to me that it’s an appropriate case for orders to be made in respect of that declaratory relief that the non-compliance is excused so that the development permit be revived and the relevant period extended to the 30th of July 2019.
- Accordingly I make orders to that effect in terms of the draft which I have initialled and will place with the file.
Judge DP Morzone QC
- Published Case Name:
Kelene Marie Jenkinson v Tablelands Regional Council
- Shortened Case Name:
Jenkinson v Tablelands Regional Council
 QPEC 69
06 Dec 2018