In brief

The case of Shannen Jane Bielby v Moreton Bay Regional Council [2018] QPEC 50 concerned an originating application to the Planning and Environment Court seeking orders relating to a development permit for a material change of use for multiple dwellings in relation to land located in Redcliffe (Development Approval).

The orders were not opposed by the Moreton Bay Regional Council (Council).  

The Applicant relevantly sought the following orders under section 37(1) (Discretion to deal with noncompliance) of the Planning and Environment Court Act 2016 (P&E Court Act): 

  • that the Development Approval be revived; and
  • that the currency period for the Development Approval be extended for a period of 6 months.

The Court made orders that the Development Approval be revived and that the currency period be extended to allow the Applicant time to make an extension application. The Court also ordered that each party bear their own costs.

Statutory background

The Development Approval and an initial application for an extension were both made by the Applicant under the now repealed Sustainable Planning Act 2009 (SPA). The Planning Act 2016 (Planning Act) replaced the SPA in July 2017.

The transitional provisions of the Planning Act state that a development approval under SPA is taken to be a development approval under the Planning Act. The Court noted that, under the Planning Act, if the Development Approval had not lapsed then the Applicant could have used section 86 (Extension applications) of the Planning Act to extend the currency period applicable for the Development Approval.

Section 86 of the Planning Act was not available to the Applicant because the Development Approval had lapsed. 

The Court agreed with the Applicant that section 37 of the P&E Court Act could be utilised to excuse the Applicant's non-compliance with section 86 of the Planning Act. The Court's excusal of the relevant non-compliance would effectively revive the Development Approval thereby allowing the Applicant the opportunity to make an extension application under section 86 of the Planning Act.   

Discretionary matters

Having determined that the Court could revive the Development Approval using its discretion under section 37 of the P&E Court Act, the Court then considered why it should do so.

The Applicant had failed to make an extension application within the required timeframe for the following reasons:

  • the Applicant had experienced a delay in receiving high-quality architectural plans from the original architect;
  • the Applicant had experienced significant delays in receiving the structural engineering work from the engineering consultants; and
  • the death of the Applicant's original architect and the subsequent transfer of the management of the development application passing to the Applicant's husband, who was in ill health, and who ultimately overlooked that the Development Approval had lapsed. 

Furthermore, the Court noted the following:

  • the Applicant otherwise demonstrated a desire and willingness to pursue the proposed development; 
  • the application to the Court was supported by uncontested evidence from a town planning expert which supported the Development Approval being revived and extended; and 
  • the Council also supported the Development Approval being revived. 

Conclusion

The Court decided to exercise its discretion under section 37 of the P&E Court Act and held that the non-compliance be excused, the Development Approval revived and that the currency period be extended to 21 December 2018. 

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 or financial advice. Please seek your own legal or financial 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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