Planning and Environment Court excuses Council's non-compliance with statutory timeframes for deciding development application and sets aside deemed approval for 175 lot subdivision

In brief

The decision of Moreton Bay Regional Council v Fairland Group Pty Ltd [2018] QPEC 19 concerns an application to the Planning and Environment Court by the Moreton Bay Regional Council which sought the exercise of the Court's discretion to excuse the Council's non-compliance with the statutory timeframes for deciding a development application by an Applicant for reconfiguring a lot (9 lots into 175, plus 5 balance lots).

The non-compliance arose from an administrative error whereby a notice to the Applicant's consultants extending the decision-making period for the development application was mistakenly sent the morning after the last day of the decision-making period. The Council's non compliance resulted in the Applicant obtaining a deemed approval without the Council undertaking a full assessment of the merits of the proposed development.

The Court ultimately excused the Council's non-compliance, set aside the deemed approval and returned the development application to the decision stage to be re-assessed and decided by the Council in the ordinary manner.
In exercising its discretion to excuse the Council's non-compliance, the Court had regard to the following matters:

• the Council's explanation and conduct leading to the non-compliance;

• whether the Applicant had acted to its detriment in reliance on the deemed approval; and

• the interests of the community, in particular the following:

  • the relevance of draft amendments to the Council's planning scheme; and

  • the lack of infrastructure planning in the location of the proposed development.

Council's non-compliance was due to an administrative error and not borne out of dilatory behaviour

The Court accepted evidence from a Council officer which explained that the non-compliance with the statutory timeframe was the result of a mistaken belief that the notice extending the Council's decision-making period had been successfully emailed on the evening of the final day for doing so, when in fact the email did not leave the Council's system until the following morning due to the Council's internal work flow processes.

The Court found that "it is tolerably clear that the officer was not sitting idle, and the non-compliance was not borne out of dilatory behaviour" (see paragraph [72]). The Court further found that the Applicant's development application had been the subject of a minor change for which the application fees were not paid until the day before the end of the decision-making period, such that in law the Council had less than one business day to assess and decide the changed development application.

Applicant had not acted to its detriment in reliance on the deemed approval

The Applicant conceded that it had not acted to its detriment in reliance on the deemed approval. The Court found that "within a day of the deemed approval notice, [the Applicant's] consultant was informed of the council's intention to commence these proceedings and [the] foreshadowed proceedings were filed the next day" (see paragraph [75]).

The Court was satisfied that the Applicant had not acted to its detriment in any material way.

Court's discretion to excuse non-compliance requires consideration of whether it is in the interests of the community that the development be subject to a full merits assessment rather than a deemed approval

Consistent with the Court's reasoning in earlier decisions regarding the exercise of the Court's discretion to excuse non-compliance, the Court observed that "these matters require consideration of the extent it is in the interests of proper planning and those of the public or community, for the relevant application to be subject to a full merits assessment process, rather than a deemed approval" (see paragraph [79]).

In considering the interests of the community, the Court had regard to the Council's arguments regarding draft amendments to the Council's planning scheme and the issue of unplanned infrastructure.

It was premature to consider the relevance of draft amendments to the Council's planning scheme in the absence of sufficient material

The Court considered arguments by the Council that the Applicant's deemed approval would, contrary to the Coty Principle, cut across and make more difficult to implement draft amendments to the Council's planning scheme. Those draft amendments would provide for development in the location of the Applicant's deemed approval to be brought within a Coordinating Infrastructure Agreement framework, which provides for the planning, coordination, sequencing, delivery and operation of infrastructure.

The Court considered the Council's reliance on the Coty Principle to be premature in the context of the exercise of the Court's excusatory powers given that "there is insufficient material to form any considered view about whether the proposal may significantly prejudice the proposed planning direction" (see paragraph [85]). The Court therefore did not form a view as to whether it should exercise its discretion to excuse the Council's non-compliance on the basis of the Coty Principle.

There was uncertainty around the infrastructure required to service the Applicant's deemed approval

The Court heard evidence from Council officers that the land which was the subject of the Applicant's deemed approval was not yet serviced by stormwater or transport infrastructure and was located within a future urban growth area for which limited planning had been carried out.

The Court found that "the type and density of the proposed development demands services that require significant assessment and planning to promote efficient and cohesive development … for example, necessary road upgrades for Clark Road, Lindsay and Oakey Flat Road including associated paths, intersections and drainage infrastructure" (see paragraph [91]).

The Court observed that the level of uncertainty around the infrastructure required for the Applicant's deemed approval was "reflected in the infrastructure charges sought in the council's draft deemed approval conditions", which the Court noted to be "incongruous with anticipated charges and other approvals" (see paragraph [91]).

Conclusion

Having considered the community interests, the Court concluded that the Applicant's development application "was not afforded the required level of assessment and consideration during the IDAS process" (see paragraph [92]), particularly in light of the fact that the development application was changed by the Applicant less than one business day before the Council was required to make a decision.

The Court concluded that "it is in the interests of proper planning and those of the public or community, for the changed application to be returned to the decision making stage to endure a full merits assessment process, rather than a deemed approval" (see paragraph [93]).