In brief

The case of Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34 concerned an appeal commenced by a company that specialises in temporary accommodation services (Applicant) against the decision of the Western Downs Regional Council (Council) to refuse the Applicant's application to extend the currency period for a development approval for a period of 12 months.

The Court found that there was an overriding need for the development approval and therefore ordered that an extension be granted for a period of 12 months.

The decision is the first decision of the Planning and Environment Court in respect of the legislative regime under the Planning Act 2016 (Planning Act) relevant to an extension application for a development approval. 

Background

The development approval was for a development permit for a material change of use for the establishment of non-residential workforce accommodation in Miles. Relevantly, the currency period for the development approval was stated to end on 15 April 2018. 

Prior to the Applicant’s extension application, the Applicant had already undertaken significant on-site works and spent the sum of $10 million dollars on the approved development since 2014. The approved development was subject to conditions which divided the development into 23 stages and stipulated that the approved development would be an interim use on the land for a total of 15 years, as the land had been commissioned for industrial uses. 

The Applicant explained that the reason for the delay in taking up the development approval related to unfavourable economic conditions beyond its control. 

The Council refused the extension application on the basis that the Applicant had not demonstrated that an overriding need exists for the approved development, and that the approved development is inconsistent with the Medium Impact Industry Zone (Zone) of the Western Downs Planning Scheme (Planning Scheme). 

Issues

The Court considered the following issues in order to determine whether the extension application ought to be approved:

  • whether the approved development is an inconsistent use within the Zone of the Planning Scheme; and
  • whether there is an overriding need for the approved development.

Court found that the approved development is not an "inconsistent use" under the Council's Planning Scheme

The Council argued that non-resident workforce accommodation is deemed as "inconsistent development" within the Zone. The Court initially agreed that non-resident workforce accommodation is a non-industrial use and therefore is an inconsistent use under the Zone. The Court, however, went on to add that section 6.2.2.2 of the Zone does contemplate non-industrial uses that support medium impact industry uses if it does not compromise the long-term use of the land. The Court found that the approved development does not compromise the long-term use of the land due to its interim nature.

The Court additionally placed weight on Overall Outcome 18 of the Zone, which relevantly provides that "where development is not consistent with the purpose and intent of the Zone, overriding community need will need to be demonstrated as well as valid planning justification provided as to why the proposed use cannot be reasonably established in a more appropriate zone". 

The Court found that the Council did not identify a more appropriate zone in which the approved development could be located and rather focused on the issue of need. The Court took no issue with the Council's approach as it found that non-resident workforce accommodation is an inconsistent use under all zones within the Planning Scheme. 

The Court therefore went on to consider whether there was an overriding need for the approved development. 

Court found that there was an overriding need for the approved development

The Court accepted the evidence of the Applicant's expert economist (Expert). The Expert concluded that there are known major projects within the region and that there is a current and anticipated ongoing demand for non-resident workforce accommodation. The Expert noted that there had been an increase in the non-resident workforce population in Miles in 2018, and that there is a projected increase in the non-resident workforce in Miles for the next five years. The Expert also concluded that the current non-resident workforce accommodation in Miles is limited, and does not accommodate for future growth and future spikes in demand.

The Court also had regard to the Council's Planning Scheme, in particular, section 3.2.2.2(3) of the Planning Scheme, which anticipates that mining and petroleum projects across the region are subject to demand spikes in non-resident workforce accommodation, as well as section 3.2.2.1(3) of the Planning Scheme, which provides that it is necessary to ensure that sufficient accommodation options are available for non-residential temporary workers, given that housing affordability can be an issue for people in low socio-economic brackets if non-residential workers reside in dwellings in residential areas. 

The Court held that the Expert's evidence coupled with the relevant provisions of the Planning Scheme established that there is clear economic and social planning need to support the approved development. 

Legal test under the Planning Act 2016

The Court noted that sections 86 and section 87 of the Planning Act are the relevant legislative provisions that concern an extension application. 

Section 86(1) of the Planning Act provides that "a person may make an application (an extension application) to the assessment manager to extend the currency period of a development approval before the approval lapses".

The Court noted that section 86 of the Planning Act "is a clear recognition by the legislature of circumstances where no town planning purpose is served by development repeating the statutory assessment and decision making process simply because the approval which authorises it has, or will lapse" (see [124]). 

The Court found that section 86 of the Planning Act informs the exercise of the discretion under section 87 of the Planning Act.

Section 87(1) of the Planning Act provides that "when assessing an extension application, the assessment manager may consider any matter that the assessment manager considers relevant, even if the matter was not relevant to assessing the development application". 

The Court noted that the breadth of the assessment includes matters that are irrelevant to the assessment of the original development application, such as personal circumstances. The Court found that the Applicant’s credible and accurate explanation for not starting development, the existence of significant on-site works and approvals, demonstration of town planning and community need for the approved development, and demonstration that the approved development is an interim use of the land, were relevant to the assessment of the extension application.

The Court noted that section 87(2) of the Planning Act provides that the Court may decide the extension application in one of the following ways:

(1) give the extension sought;

(2) refuse the extension; and

(3) extend the currency period for a period that is different from the extension sought. 

The Court noted that sections 87(1) and (2) of the Planning Act offer a broad discretion, as they invite an assessment manager to “ask itself…is there a town planning imperative for the development, and its approval, to be the subject of a fresh assessment and decision under the PA?” (see [125]). 

The Court concluded that the proposed development ought to not be assessed as a new development application as the extension does not give rise to a planning issue not already considered by the Council, the Planning Scheme is supportive of the proposed development, there is no public opposition to the proposed development, and the proposed development does not give rise to any unacceptable impacts.

Conclusion

The Court therefore held that an extension for a period of 12 months be granted. 

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 2019.

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