Council or court - who was the responsible entity which gave the original approval?

In brief

The case of Forde v Toowoomba Regional Council [2016] QPEC 5 concerned a permissible change application made by John Forde in the Planning and Environment Court with respect to the development permit given to him. The Court was requested to determine two preliminary matters namely, whether Mr Forde's permissible change application should have been made to the Toowoomba Regional Council rather than the Court and whether the development permit had lapsed on the basis that the Court's previous order did not effectively extend the relevant period of the development permit.

The Court found that the council was the responsible entity to which Mr Forde's application should have been made rather than the Court, as the development permit was originally given by the council's predecessor, the Crows Nest Shire Council.

The Court also found the Court's previous order extending the relevant period of the development permit was valid.

Court found that Mr Forde's permissible change application should have been lodged with the council, not the court, as the original development permit was given by the council

Mr Forde contended that the Court was the responsible entity because the Court's previous order extending the relevant period of the development permit was the subject of Mr Forde's application, rather than the initial development permit given by the council's predecessor.

In reliance on Orchard (Oxenford) Developments Pty Ltd (CAN (sic) 167 310 509) v Gold Coast City Council [2015] QPEC 11, Mr Forde argued that a development approval was the approval as amended from time to time, for the purpose of section 369 (Request to change development approval) of the Sustainable Planning Act 2009, not the approval in its original form.

The Court was of the view that the Orchard Developments case provided little support to Mr Forde's argument as it was concerned with which version of the development approval should form the basis of comparison with the permissible change application rather than determining the responsible entity to which the application should be made.

The Court, by reference to Aqua Blue (Noosa) Pty Ltd v Noosa Shire Council [2002] QPEC 42, observed that the original development approval would be the relevant approval for the purposes of a permissible change application and that the application must therefore be made to the responsible entity who gave the original approval.

In this instance, as the original development permit was given by the council's predecessor, the Court held that Mr Forde's application should have been made to the council, rather than the Court. The Court therefore dismissed Mr Forde's application.

Court found that the previous court order extending the development permit was valid unless and until it was set aside and that it was too late now for the council to assert that the application made to the court should have been made to the council

The Court observed that the council took no objection to the Court's previous order extending the relevant period of the development permit when it was made.

The Court considered that it was too late for the council to now assert that Mr Forde should have made the application the subject of the previous court order to the council not the Court in circumstances where Mr Forde would have been in a position to have the issue determined had it been raised then and, if necessary, seek an order under section 440 (How court may deal with matters involving noncompliance) of the Sustainable Planning Act 2009 to regularise any irregularity.

The Court referred to Attorney-General v Kowalski [2014] SASC 1, where the Court said "… in more recent times, it has been established that, unless a plain intention to the contrary by the legislation is manifested, a judicial order of an inferior court or tribunal exercising judicial power is valid unless and until set aside even if it is contended that it acted beyond jurisdiction" (At [202]).

Accordingly, the Court considered that the previous Court order extending the relevant period of the development permit was valid. The Court nonetheless declared that if required, under section 440 (How court may deal with matters involving noncompliance) of the Sustainable Planning Act 2009, "…any irregularity inherent in the application heard by His Honour Judge Jones be regularised to the intent that DA597 has not yet lapsed and will remain extant until 28 November 2016 unless further changed" (At [26]).