​Planning and Environment Court re-enlivens a lapsed development approval where the relevant Council was not opposed the re-enlivening

by Ian Wright, Nadia Czachor, Thomas Massey
30 November 2017

In brief

The case of Austin & Anor v Sunshine Coast Regional Council [2017] QPEC 50 involved an application to the Planning and Environment Court under section 440 of the Sustainable Planning Act 2009 (SPA) to re-enliven a lapsed development approval.

The Applicants were seeking to develop land to provide for their impending retirement. The Applicants obtained a development approval to reconfigure land and for a material change of use of land from rural to park residential. The development application took effect on 3 April 2007. The Applicants lodged eight further applications to the Council. Two were in relation to changes to the approval, three were in relation to operational works permits and three were requests to extend the relevant period of the development approval. 

The development approval lapsed on 3 April 2017 because the Applicants failed to make a further extension application to the Council while the development approval was current. As such, the Applicants were unable to make an application to the Council for a further extension and had to seek the Court's discretion to excuse non-compliance with the requirements of the SPA.

Court found that the SPA governed the application despite having been repealed

The Court had to determine whether the SPA continued to apply in the relevant circumstances, specifically the discretionary power in section 440 of the SPA which vests in the Court the power to excuse non-compliance with a provision of the SPA. This issue arose as the application was filed but had not been determined prior to the commencement of the Planning Act 2016 (PA) and the consequential repeal of the SPA. The Court accepted that section 311 of the PA operates to preserve the SPA's application, and relief under section 440 of the SPA was available.

Court identified a number of factors relevant to its decision to extend the relevant period

There were a number of matters the Court took into account in determining that it was appropriate for it to exercise its discretion.

The Court firstly noted the Council's lack of opposition to the application and preparedness to consent to the orders sought was relevant, citing Devy & Anor v Logan City Council [2010] QPEC 96 as the relevant authority. 

The Court also noted that the Applicants' failure to make the application for the extension to the Council before the expiration of the statutory deadline was a product of oversight only. It was also relevant that the application to the Court had been made in a timely fashion. 

Further, the Court thought it was relevant that the Applicants were continuing to take steps to complete the development by carrying out operational works and selling the proposed lots.

Lastly, the Court noted that no concurrence agencies needed to be consulted.

The Court therefore determined that it was appropriate to exercise its discretion under section 440 of the SPA and re-enlivened the lapsed development approval.

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Ian Wright Senior Partner

Nadia Czachor Special Counsel