Insights

In brief

The case of Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPEC 25 involved an appeal against the Council's decision to refuse an application under section 383 of the Sustainable Planning Act 2009 (SPA) for an extension of a currency period for a development approval for a multi-unit residential development.

Extending the period for a development approval

The case was decided under the SPA. Relevantly the assessment manager was to have regard to the matters under section 388 of the SPA when considering whether an extension under section 383 of the SPA should be granted. The Court determined that the test in Mantle v Sunshine Coast Regional Council [2015] QPEC 30 is to be applied when determining matters under section 388 of the SPA. In that case, it was held that the matters under section 388 of the SPA are to be considered but do not form preconditions to an approval. Hence, the matter is one of discretion which is to be exercised in the circumstances of each case having regard to the specified considerations.

The assessment manager must have regard to the consistency of the approval, including its conditions, with the current laws and policies

The Court must take into consideration the relevant provisions of the SPA and the local planning policies when determining the consistency of a development approval. In this case, the relevant local planning policy was the Gladstone Regional Council Planning Scheme 2015 (Planning Scheme). In particular, the Court took into consideration the provisions in the Planning Scheme that related to the Low density residential zone code and the relevant assessment criteria for low density residential developments in deciding whether an approval is consistent with the current laws and policies under section 388 of the SPA.

Both parties relied upon the expert evidence of town planners in advancing their case before the Court.

Low density residential zone code

The Planning Scheme relevantly stated that the Low density residential zone code aims to provide for "predominantly detached dwelling houses… supported by community uses and small scale services and facilities that cater for local residents".

The Council's expert submitted that the approved development failed to satisfy the purpose of the Low density residential zone code. The Low density residential zone, "only provides for predominantly detached dwelling houses within existing suburban areas". It was contended that if the Court was to rely on the exact wording of the Planning Scheme, the approved development failed to satisfy the purpose of the Low density residential zone code and as such was not consistent with the respective laws and policies in place.

The Applicant's expert submitted that the term "predominantly" is not to be mistaken for the word "exclusively". "Predominantly" should not be taken as a prohibition on the other type of development in the Low density residential zone. The expert contended that the approved development was consistent with the Planning Scheme provisions as the approved development would not detract from the predominant form of detached dwelling houses in the area and that the development is a low rise development that is consistent with the low density character of the region.

The Court determined in favour of the Applicant and held that the development was consistent with the purpose and requirements of the Low density residential zone.

Built form assessment criteria (Performance Outcome PO3)

The Council's expert opined that the approved development did not satisfy the assessment criteria for built form under Performance Outcome PO3 on the basis that a multi-unit dwelling was unsuitable in the Low density residential zone.

The Council's expert accepted that the approved development would satisfy the built form criteria under Performance Outcome PO3 if the expert's interpretation of the development was incorrect and a multi-unit development was suitable within the Low density residential zone.
The Applicant's expert considered that the approved development satisfied the requirements under Performance Outcome PO3.

The Court preferred the opinion of the Applicant's expert, having performed a site visit of the area in question, and accepted that the approved development satisfied the assessment criteria under Performance Outcome PO3.

Residential density assessment criteria (Performance Outcome PO4)

The Council's expert considered, in relation to the residential density assessment criteria (Performance Outcome PO4), that the width and form of the approved development was not in keeping with the amended low density character of the area.

The Applicant's expert claimed that having regard to the density ratio provided in Performance Outcome PO4, the approved development satisfied the assessment criteria and was consistent with the low density character of the area.

The Court was persuaded by the evidence of the Applicant's expert who identified factors indicating that the approved development was consistent with the low density character of the area.

In summary, the Court found that although the approved development is not the predominant form of housing contemplated in the Low density residential zone, this fact alone does not mean that the development is inconsistent with the Planning Scheme provisions. As such, the Court preferred the view of the Applicant's expert and determined that the approved development was consistent with the current laws and policies under the relevant Planning Scheme.

The assessment manager must have regard to the community's current awareness of the development approval

The Court found that although the Council's expert contended that the population in the development area had changed since the original application was approved, it was reasonable to infer that there was a general level of community awareness about the approved development.

The assessment manager must have regard to the likelihood of a submission if the request for an extension was refused

The Council's expert considered that since there was a change in the economic climate since the original development approval was granted, there would likely be an adverse submission made by the public in relation to the proposed development. The Court found that although this may occur, since the development approval was consistent with the current laws and policies, the possibility of a submission being made does not warrant a refusal to an extension request.

Summary

In summary, the Court granted the Applicant an extension to the relevant period for the development approval

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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