​Lapsed development approval revived where Applicant misunderstood effect of related approvals

by Ian Wright, Nadia Czachor, Russell Buckley
30 November 2017

In brief

The case of 1770 Nominees Pty Ltd v Gladstone Regional Council [2017] QPEC 59 concerned an application to the Planning and Environment Court seeking declarations and orders to extend the currency period of a development approval for a material change of use and to excuse non-compliance with section 341(1) of the Sustainable Planning Act 2009 (SPA). 

The Applicant applied to the Council for operational works permits based on a mistaken understanding that this action would effectively extend the currency period of an earlier development approval for a material change of use.

The Court identified that by the time the Applicant applied for the operational works permits they were unrelated to the material change of use development approval and therefore failed to extend its currency prior to its lapse.

The Court ultimately found that several factors favoured the Applicant being granted relief under section 440 of the SPA and ordered that the currency period of the material change of use development approval be extended.

The Applicant lodged a development application for a material change of use

The Applicant’s family owned and operated a marina for some 30 years on land leased at 535 Captain Cook Drive, Seventeen Seventy.

In September 2007 the Applicant lodged a development application with the Council for a code assessable material change of use for eight additional marina berths under the now superseded Miriam Vale Shire Planning Scheme

The Council approved the development application on 19 December 2008, subject to conditions. A negotiated decision notice was subsequently given by the Council on 22 December 2009 following further representations. The approval was given for the standard currency period of four years, pursuant to section 3.5.21 of the repealed Integrated Planning Act 1997.

The approved material change of use lapsed as a consequence of the Applicant's misunderstanding 

The Applicant applied to the Council on 26 February 2014 for operational works permits. The Applicant believed that the operational works permits would effectively commence the earlier material change of use development approval as they fell within the meaning of "related approvals" under sections 341(7) of the SPA.

The Court identified that the operational works permits were not applied for within two years of the start of the relevant period for the material change of use approval. Having reached this finding, the Court determined that the operational works permits were not within the meaning of related approvals and therefore had no effect on the currency period of the material change of use development approval.

Uncontested evidence confirmed that the Applicant had misunderstood the effect of the operational works permits and had therefore subsequently neglected to apply to extend the currency period of the material change of use development approval. Accordingly, the material change of use development approval lapsed on 22 April 2015. 

The Applicant filed an originating application 

The Applicant filed an application with the Court on 5 May 2017 which sought the following declarations and orders:
  • excusal of non-compliance with section 341(1) of the SPA in accordance with section 440 of the SPA; and
  • the granting of an extension to the material change of use development approval, upon the Court hearing a new request made under section 383 of the SPA.

The Court recognised that discretionary factors favoured granting relief to the Applicant

The Court found that the following discretionary factors favoured orders being given to provide the Applicant with relief:
  • a vessel loading facility at the Applicant's marina satisfied an increasing demand for marina berths within the surrounding locality;
  • delays in carrying out the approved material change of use were primarily due to changing economic circumstances;
  • the Applicant would be forced to incur significant financial burden if a new development application was required;
  • the Council consented to the relief sought by the Applicant; and
  • the application to extend the material change of use development approval was necessary following the Applicant's misunderstanding of the effect of the operational works permits.

The hearing was adjourned as the Applicant failed to provide the Court with necessary materials 

The Court identified that the Applicant had neglected to include evidence of landowner's consent as required by section 383(3)(d) of the SPA.

The Applicant was unable to rely upon section 383(4) of the SPA as there was no evidence to suggest that the landowner's had unreasonably withheld consent or that the number of landowners' meant that obtaining consent was impracticable. The Court accordingly adjourned the application at the Applicant's request.

The Planning Act 2016 had commenced when the Application next came before the Court

The application came before the Court again on 25 August 2017 at which point the Applicant provided evidence of owner's consent. At this date the SPA had been repealed and replaced by the Planning Act 2016.

The Court identified that pursuant to section 311 of the Planning Act 2016, the application continued to be decided subject to the provisions of the SPA. The Court ordered that the Applicant's non-compliance with section 341 be excused and that the relevant period for the material change of use development approval be extended to 1 December 2016.  

 


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