In brief

The case of Annandale v Cairns Regional Council [2019] QPEC 49 concerned a lapsed development approval for operational work relating to a development permit for a material change of use for a dwelling house. 

The Applicant lodged an impact assessable development application for a material change of use for a dwelling house with the Cairns Regional Council (Council) in 2010 under the now repealed Sustainable Planning Act 2009 (Qld) (SPA). The Council refused the application and the Applicant appealed. 

The development application was approved by the Court subject to conditions which included design requirements for a lengthy access driveway.

The Applicant obtained a development approval for operational work for the access driveway in 2011 (Development Permit). The Development Permit lapsed and in 2014 the Applicant sought, and was granted an extension to March 2017. The Development Permit lapsed again and the Applicant sought, and was granted a further extension to 25 March 2019. The Development Permit lapsed again. In July 2019, the Applicant became aware that it had lapsed and in September 2019, the Applicant filed an application with the Court to revive and extend it.

The Council did not oppose the application. 

In making its determination, the Court considered the following:

  • the Court's jurisdiction under the statutory framework;
  • the assessment benchmarks of the Cairns Plan 2016 version 1.3 (Planning Scheme);
  • matters relevant to the exercise of the Court's discretion.

The Court held the Applicant's non-compliance in failing to lodge an extension application before the Development Permit lapsed is excused, and that any extension application lodged within four weeks of the date of the order by the Applicant was to be treated as a valid extension application. 

Statutory framework

The Court considered its jurisdiction to deal with non-compliances under the Planning Act 2016 (Qld) (PA) pursuant to section 37 of the Planning and Environment Court Act 2016 (Qld). It noted the broad and unfettered discretion for the Court to take particular action in relation to a lapsed development approval. 

The Court noted its jurisdiction extended to excuse the Applicant's failure to request an extension of the currency period before 25 March 2019, under section 86 of the PA.

The Applicant submitted that the Court should consider evidence and relevant matters under section 87 of the PA to extend the currency period of the development approval to 1 December 2020.

Assessment against the Planning Scheme

The Court observed that the Applicant appeared to be in default of condition 21 of the Development Permit, which related to bushfire management.

The Court reviewed the town planning report prepared by the Applicant's town planning consultant and concluded there was not compliance with the Bushfire Hazard Overlay Code in the Planning Scheme. 

The Court noted the recommendation of the town planning consultant to incorporate an additional condition on the Development Permit should the extension be granted. It noted that, despite the acknowledgement of non-compliance, the draft order did not contain such a condition.

The Court stated that it would be in the public interest for the Council, as the responsible assessment manager, to undertake a proper assessment of any extension application by the Applicant, including with respect to bushfire hazards.

Matters relevant to the exercise of the discretion

The Applicant submitted ten (10) matters to support the granting of the relief. These matters included the following:

  • there existed a reasonable explanation, described as "an administrative oversight", for the failure to apply for an extension;
  • the Applicant had acted promptly in attempting to remedy the situation;
  • the Council supported the application;
  • it would be prudent to allow an extension which gave the Applicant ample time to finalise the entire development, including compliance; 
  • there would be no town planning purpose served by requiring the Applicant to make a new development application.

The Court accepted that the matters relied upon by the Applicant supported the granting of the relief to excuse the non-compliance. However, the Court noted that if the Court was to extend the currency period, the Applicant would be in a better position than if the Applicant had adhered to the requirement to make an extension application to the Council as the Applicant would avoid assessment by the Council of the appropriateness of the extension application and therefore the non-compliance with condition 21.

The Court therefore held that it is not appropriate for the Court to grant the extension application.

Conclusion

The Court excused the Applicant's non-compliance in failing to lodge an extension application before the development approval lapsed, and ordered that any extension application lodged by the Applicant with the Council within four weeks of the date of the order was to be treated as a valid extension application under section 86 of the PA.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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