Precedent Nominees No. 48 Pty Ltd v Tablelands Regional Council
[2023] QPEC 21
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- Precedent Nominees No. 48 Pty Ltd v Tablelands Regional Council[2023] QPEC 21
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Precedent Nominees No. 48 Pty Ltd v Tablelands Regional Council[2023] QPEC 21
Precedent Nominees No. 48 Pty Ltd v Tablelands Regional Council[2023] QPEC 21
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Precedent Nominees No. 48 Pty Ltd v Tablelands Regional Council [2023] QPEC 21 |
PARTIES: | PRECEDENT NOMINEES NO. 48 PTY LTD ACN 010 777 4289 (applicant) v TABLELANDS REGIONAL COUNCIL (respondent) |
FILE NO: | 162 of 2022 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application |
ORIGINATING COURT: | Planning and Environment Court at Cairns |
DELIVERED ON: | 10 March 2023 (ex tempore) |
DELIVERED AT: | Cairns |
HEARING DATE: | 10 March 2023 |
JUDGE: | Fantin DCJ |
ORDER: |
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CATCHWORDS: | PLANNING AND ENVIRONMENT – APPLICATION TO REVIVE A LAPSED DEVELOPMENT APPROVAL – where the applicant sought to revive an existing development approval in the form of a development permit for reconfiguration of a lot – where the development approval was originally granted in 2013 – where the applicant failed to lodge an extension application under s 86 of the Planning Act 2016 (Qld) (‘Planning Act’) and the existing developmental approval lapsed as a result – whether the applicant’s non-compliance with s 86 of the Planning Act should be excused – whether the Court should exercise its discretion to revive the lapsed development approval |
LEGISLATION: | Planning Act 2016 (Qld), s 86 Planning and Environment Court Act 2016 (Qld), s 37 Sustainable Planning Act 2009 (Qld), s 299, s 341 |
CASES: | Annandale v Cairns Regional Council [2020] QPELR 438; [2019] QPEC 49 Bielby v Moreton Bay Regional Council [2019] QPELR 197; [2018] QPEC 50 Brassgrove KB Proprietary Limited (as Trustee for Martha KB Trust) v Brisbane City Council [2020] QPELR 119; [2019] QPEC 42 |
COUNSEL: | Badya S (solicitor) for the applicant. Knauer T (solicitor) for the respondent. |
SOLICITORS: | Holding Redlich for the applicant. P&E Law for the respondent. |
FANTIN DCJ: This is an application to revive a development approval in the form of a development permit for the reconfiguration of a lot (staged 34 lots and balance lot) over land at Millstream on the Kennedy Highway, to the west of the Atherton Tablelands. The development approval is dated, having originally been granted on 25 September 2013. It was then the subject of a negotiated decision notice. It has also been the subject of a number of subsequent decisions issued by the respondent Council; specifically, one extension application and two minor change applications made by the applicant. The most recent of those was a minor change decision granted on 30 October 2020.
Unbeknownst to the applicant company and its consultants, the development approval lapsed on 12 August 2021. This application and the relief now sought seeks that the approval be revived for a short period, to 12 June 2023. That period is intended to allow sufficient time for the applicant company to lodge an extension application pursuant to section 86 of the Planning Act 2016 (Qld) (‘Planning Act’), together with a minor change application intended to formalise an agreed amendment to a condition of the approval with respect to water supply.
I had considerable assistance from detailed written submissions by the applicant’s solicitor as well as oral submissions from her and the respondent’s solicitor. Significantly, the respondent Council supports the orders sought. Of course, that is not determinative.
The original development approval was granted under the repealed Sustainable Planning Act 2009 (Qld) (‘Sustainable Planning Act’). The transitional provisions of the Planning Act, and the interaction between that legislation, the Planning and Environment Court Act 2016 (Qld) (‘PECA’) and historical development approvals is not without complexity. However, I am satisfied on the basis of the detailed consideration that has been given to jurisdictional issues, as set out in the written submissions (supported by authority), that the Court does have jurisdiction to hear this application and to make the orders sought in the way contended for by both parties.
The approval was affected by section 341 of the Sustainable Planning Act in that it lapsed if development had not started within a particular period. Section 299 of the Planning Act has the effect that section 341 of the Sustainable Planning Act continues to apply to the relevant development approval in this case. However, section 86 of the current Act, that is, the Planning Act, is the applicable section with respect to an application for an extension to the currency period of a development approval. That applies notwithstanding that the original approval was under the old Act.
In this case, the applicant failed to make an extension application to extend the currency period of its development approval before that approval lapsed. It is not in dispute, and I accept on the basis of the authorities that I was referred to, that section 37 of the PECA gives this Court jurisdiction, through the exercise of its broad excusatory powers, to excuse that non-compliance with section 86 of the Planning Act and to revive a lapsed development approval: see, for example, Brassgrove KB Proprietary Limited (as Trustee for Martha KB Trust) v Brisbane City Council[1]at paragraphs [32] to [33] inclusive. A number of decisions of this Court have considered exercising the Court’s discretion to extend a lapsed development approval or make orders to facilitate an applicant to lodge an extension application with the assessment manager: see, for example, Bielby v Moreton Bay Regional Council[2] and Annandale v Cairns Regional Council[3].
There are many discretionary factors that may be relevant in the exercise of the Court’s discretion. They include whether any town planning or other public purpose would be served by making a new development application which outweighs the public and private expense associated with doing so. Specifically: whether there are any planning issues that were not considered by the respondent when it assessed and granted the approval originally; whether the current planning scheme in effect supports the approved development; whether there was any public opposition to the development that might have provoked adverse submissions; and whether the approval development, if implemented, would create any unacceptable impacts that require consideration over and above the original assessment of the development application or subsequent change request.
The Court may also consider: any explanation for not starting the development within the statutory period; whether significant onsite works have been started and related approvals obtained; the assessment manager’s position in relation to the application; and any other matter the Court considers relevant.
Here, I am satisfied that the development approval lapsed through an oversight, both of the applicant’s project manager, and its consultants. Although the original development approval is very dated, it has been before the council on a number of occasions relatively recently for consideration. In addition, it benefited from a Minister’s extension notice under the Planning Act during the COVID-19 period. That had the effect of the final extension of the currency period until 12 August 2021.
A significant part of the delay in effecting the development approval has been the lengthy period of time necessary to obtain approvals from the Department of Transport and Main Roads; specifically, a separate approval for the design and construction of an intersection at the Kennedy Highway, and a new road proposed to be constructed to it.
The process of applying for and obtaining that approval took more than one year and four months. I am satisfied that that delay was beyond the applicant’s control. There is affidavit evidence which demonstrates that the Department issued information requests and then took several months to consider in each case what was a relatively prompt response to the information request. I am also satisfied that there have been delays as a consequence of disruptions to supply of material and access to labour as a result of COVID-19.
I am satisfied that the applicant acted relatively promptly upon becoming aware that the approval had lapsed. In fact, the applicant had, through its engineering consultant, mistakenly applied to Council for an extension application for the operational works approval without realising that the reconfiguration approval had lapsed. Once the respondent Council informed it of that fact, the applicant acted reasonably promptly to obtain legal advice and file an originating application.
What is significant in this case, in particular, is the absence of unacceptable town planning impacts for the proposed development and the relief sought. That is because, although the original application was assessed under a planning scheme dated 2005, there is town planning evidence that there are not significant differences between the treatment of the land under that scheme and the current planning scheme which commenced in 2019. Specifically, under the original planning scheme the land was in the rural residential planning area and affected by a number of overlays and codes. In the current planning scheme, the land remains in the rural residential zone (one hectare), and is affected by similar overlays and codes.
It remains code assessable, as it was when originally assessed. The level of assessment therefore has not changed, and no public notification would be required if the application were required to be remade.
I am satisfied there is a consistent intent for the use of the land by virtue of its similar zoning. I am also satisfied that there is a likelihood the application would be approved if a fresh application were lodged under the scheme. In addition, there is evidence of community awareness of the approved development, specifically because of works which have been completed on the land, signage, and the advertising of lots.
The applicant has incurred significant expense and expended effort in pursuing the development approval. It has obtained a related operational works approval which remains in effect until 2024. Work on the land to facilitate or progress the approval has included site assessment for waste water treatment, the connection of services, vegetation removal, preliminary earthworks, removal of rock, levelling of sub-base material, installation of roadway levels and survey pegs, and erection of fencing. The applicant has incurred significant expense in undertaking this work.
I am satisfied that the Chief Executive was served with the application and has not elected to join the proceeding.
The respondent Council supports the orders sought and supports an extension application being made subject to a minor change being applied for with respect to a water supply condition. The respondent anticipates that any extension application can be lodged, assessed and determined within the short period provided for in the draft orders.
In all of the circumstances, I am well satisfied that it is appropriate to grant the relief sought, that is, to excuse the applicant’s non-compliance with section 86 of the Planning Act and to revive the development approval for the limited time to 12 June 2023 to permit the applicant to make an extension application to be lodged with Council. This is not a case where the applicant seeks to have the Court make the assessment of any extension application. For all of those reasons, I am satisfied it is appropriate to grant the relief sought. I make an order in terms of the draft handed up, signed by me and placed with the papers.
The orders are: (1) pursuant to section 37 of the PECA, the non-compliance is excused; and (2) the Development Approval is revived and the currency period for the Development Approval is extended to 12 June 2023, for the purpose of enabling an extension application to be lodged with Council.