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In brief

The case of Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd & Another and; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 55 concerned three proceedings for declaratory relief in the Planning and Environment Court in respect of a development application made by Beerwah Land Pty Ltd to the Sunshine Coast Regional Council for reconfiguring a lot to create 16 lots, a new road and access easements on land situated at Geordy Close and Lloyd Street, Beerwah. Woodlands Enterprises Pty Ltd was also a party to the proceedings and was the operator of a nearby poultry farm which had concerns about reverse amenity impacts arising from the proposed development.

The development application was processed on the basis that it required code assessment. However, due to an error in calculating the length of the decision-making period, the Council did not decide the application within the decision-making period or extend the decision-making period for the development application. As a consequence, Beerwah Land gave a deemed approval notice which had the effect that the Council was taken to have decided to approve the development application. The Council exercised its powers under section 331 of the Sustainable Planning Act 2009 and gave a decision notice for the development application which imposed conditions which "in effect, denied approval for the majority of the lots sought and, in particular, those closest to the poultry farm" (at [7]).

The Court found that the conditions imposed on a deemed approval could not be used to effect a refusal of the development application. However, the Court determined that its broad power under section 440 of the Sustainable Planning Act 2009 to deal with matters of noncompliance was applicable where an assessment manager had failed to make a decision despite the application of the deemed approval provisions. The Court found that there was a planning and public/community interest in the development application being subject to merit assessment and that it was appropriate to exercise the discretion under section 440 and return the application to the decision stage.

Court found that the development application was properly made and subject to code assessment

The development application was, with the Council's agreement, made under the Caloundra City Plan 2004 as a development application (superseded planning scheme).

The Council and Woodlands submitted that there were a number of issues with the way the development application was made and processed as a code assessable application. The first being whether the development application made by Beerwah Land was the one which Council had agreed to assess under the Council's superseded planning scheme and the second being whether the development application required impact assessment.

Construing the application as a whole, the Court found that the application was the one which Council had agreed to assess under the Council's superseded planning scheme and that the development application was code assessable.

Court found that conditions imposed on a deemed approval could not amount to a partial refusal of the development application

It was contended that the proposed development conflicted with certain provisions of the Council's superseded planning scheme and that on this basis it could not be approved consistently with the decision rules under section 326 the Sustainable Planning Act 2009 or that the Council had power to subject the deemed approval to conditions directed at the conflict.

The Court emphasised that the regime for deemed decisions did not provide for a decision based on an assessment of the development application. Instead the regime was such that the development application was deemed approved after the giving of a deemed approval notice due to the failure of the assessment manager to make a decision within the decision-making period. 

From the point a deemed approval notice was given, the assessment manager's "only remaining role is to give a decision notice which either… approves the application or… approves the application subject to conditions" (at [26]). The Court found that the power to refuse a development application was lost where the deemed approval regime of the Sustainable Planning Act 2009 was enlivened and that "the conditions power cannot be used to effect a refusal, even one which would be consistent with the planning scheme provisions" (at [27]).

The decision notice given by the Council included a condition which expressly stated that 13 of the 16 lots were "not approved" (at [7]). The Court found that this was a partial refusal of the development application which was not within the Council's powers under section 331 of the Sustainable Planning Act 2009 in circumstances where a deemed approval notice had been given.

Court exercised its discretion under section 440 of the Sustainable Planning Act 2009 to return the development application to the decision-making stage

Section 440 of the Sustainable Planning Act 2009 gives the Court a broad discretion where a provision of the Act has not been complied with, or has not been fully complied with, to deal with that matter in the way the Court considers appropriate.

The Court found that there had been a failure to comply with section 318(1) of the Sustainable Planning Act 2009, in particular the requirement that the Council would decide the development application within the decision-making period.

Beerwah Land submitted that section 440 should not apply on the basis that:
  • the relief under that section was only available to an applicant and not an assessment manager; and
  • the failure to comply with section 318(1) was not a non-compliance for the purpose of section 440 but rather generated other rights.
The Court found no justification for these submissions in the language of the provision or in the statutory scheme otherwise. The non-compliance which gave rise to a deemed approval did not dictate a different application of section 440.

It was further submitted by Beerwah Land that the Court should not exercise its discretion under section 440 in circumstances where the statutory scheme provided for other consequences, namely a deemed approval. The Court relevantly stated (at [50]) as follows in respect of granting a remedy under section 440 where there is a deemed approval:
Certainly it should not be seen as a remedy to be applied whenever a deemed approval arises by reason of an assessment manager’s honest mistake, but equally it should not be approached on the basis that the discretion should never be exercised in a way which interferes with a deemed approval. Nor do I consider that some disentitling conduct on the part of the holder of the deemed approval is required, before the exercise of the discretion under s 440 could be justified.

In determining whether to exercise its discretion, the Court noted the following:
  • the Council's non-compliance arose by accident;
  • Beerwah Land had not acted to its detriment in reliance on the deemed approval;
  • there was a significant planning and public/community interest in a merit assessment of the development application arising from concerns surrounding reverse amenity impacts arising from the proximity of the residential subdivision to the poultry farm.
On balance, the Court decided that the discretion under section 440 should be exercised to return the development application to the decision-making stage, meaning that the deemed approval would no longer be of effect.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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