Planning and Environment Court revives a development approval granted under the repealed planning legislation, which lapsed without the knowledge of the Applicant

In brief

The case of Jenkinson v Tablelands Regional Council [2018] QPEC 69 concerned an application by the Applicant to the Court to revive and extend a lapsed development approval in the form of a development permit to reconfigure a lot. 

The development application was approved by the Tablelands Regional Council (Council) on 27 June 2008 under the Integrated Planning Act 1997. The approval period for the development approval was for four years. Between the years of 2012-2015, the Applicant made three extension requests for the approval period and each extension request was granted by the Council. However, the Applicant made an administrative oversight whilst furthering the development and allowed the final extension to lapse without submitting a further extension request. At the time the approval period lapsed, the Sustainable Planning Act 2009 (SPA) was in force. It was only until May 2018 when the lapse of the development approval was realised by the Applicant and as a result the Applicant sought to have the development approval revived. 

The Applicant did not dispute that the development approval had lapsed under the now repealed SPA and also did not dispute that it failed to comply with the provisions of SPA to extend the approval period within the time prescribed. 

The main issue for the Court to determine was how and whether the non-compliance be excused and whether orders ought be made for the development approval to be revived and extended?

In order to determine this, the Court had to consider the following: 

• Did the Court have jurisdiction to revive a lapsed development approval which lapsed under the repealed SPA?

• If the Court has jurisdiction, what other matters ought the Court consider?

The Court held that due to the combination of sections 11(4) and 76(6) of the Planning and Environment Court Act 2016 (PEC Act) and section 440 of the SPA, the Court had jurisdiction and ultimately held that the development approval be revived. 

Did the Court have jurisdiction to revive a lapsed development approval which lapsed under the repealed SPA?

The Court noted that legislative complication arises when there has been a change in planning legislation as the Court’s own enabling legislation, the PEC Act, is enabled by “an enabling Act” to conduct the Court’s work. The Planning and Environment Court has, in previous decisions, considered whether section 37 of the PEC Act is the appropriate provision for an application like the one in this case, and also whether the repealed SPA was an enabling Act. 

The case of Brooks Earthmoving and Quarries Pty Ltd v Lockyer Valley Regional Council [2018] QPEC 51 (Brooks) considered these issues and applied the decision in Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21 (Jakel). In the case of Jakel, the Court held that the SPA, having been repealed by the time of the commencement of the PEC Act, could not be an enabling Act under section 37 of the PEC Act for an application of the type before the Court. The case of Brooks provided an alternative course to deal with matters of this nature, with the application of sections 11(4) and 76(6) of the PEC Act and section 440 of the SPA. 

The Applicant sought relief based on the provisions applied by the Court in the Brooks case. Section 11(4) of the PEC Act provides for the jurisdiction of the Court to make an order about any declaration it so makes. Section 76(6) of the PEC Act applies more broadly to the current proceedings and relevantly provides as follows: 

“(6) Also, to remove any doubt, it is declared that repealed SPA, section 440—

(a) applies also for a development approval that has lapsed; and

(b) is not limited to—

(i) circumstances in relation to a court proceeding under repealed SPA or a current P&E Court proceeding; or

(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 noncompliance with the provision”

Section 440 of the SPA provides how a Court may deal with matters involving non-compliance. Section 440 relevantly provides as follows: 

“(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.”

The Court determined that under these provisions, the Court has the jurisdiction 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 manner considered appropriate. The Court therefore determined that sections 11(4) and 76(6) of the PEC Act and section 440 of the SPA applied and thus held that the Court has jurisdiction to deal with the case. 

If the Court has jurisdiction, what other matters ought the Court consider?

As the Court held that it had jurisdiction to decide the matter, the Court then used its discretion to grant the relief sought. 

The Court firstly considered whether the development approval and conditions were consistent with the Planning Scheme. The Court noted that the Planning Scheme supported development such as the Applicant's on land within the priority infrastructure area in the emerging community zone and within the Herberton South expansion area. The Court determined that the development approval complied with the above and was consistent with the relevant provisions of the reconfiguring a lot code. 

The Court also made the following findings: 

• the Applicant had already completed a considerable amount of work with significant cost; 

• the Applicant and the Council both recognise the merit of the development and seek for its extension; 

• by requiring the Applicant to submit a new development application it would cause further cost and delay; 

• a new development application would have no practical utility. 

The Court therefore held that it was appropriate to grant the Applicant the relief sought and revive the development approval.

Conclusion

The Court determined that it was appropriate for the Court to make declarations that the development approval had lapsed and that there was non-compliance with the SPA as the Applicant had failed to apply for an extension for the approval period. The Court, however, held that sections 11(4) and 76(6) of the PEC Act and section 440 of the SPA applied and therefore revived the development approval until 30 July 2019.