In brief

The Minister for State Development, Manufacturing, Infrastructure and Planning (Minister) has issued an applicable event notice under section 275E of the Planning Act 2016 (Planning Act) in response to the public health emergency caused by COVID-19, available here. The applicable event notice is necessary for the Minister to access the powers in Chapter 7 (Miscellaneous), Part 4B (Applicable Events) of the Planning Act which includes the power to:

  • make a declaration in respect of a use or class of uses (see sections 275N to 275P of the Planning Act);

  • issue a notice of extension or suspension of periods under the Planning Act (see sections 275Q to 275S of the Planning Act); and

  • issue temporary use licences (see sections 275G to 275M of the Planning Act).

To date, the Minister for the Planning Act has given one notice of declaration for use or classes of uses and has not given any extension or suspension notices. The declaration of use for classes of uses, which allows 24-hour, seven-days-per-week operating and supply conditions, has been given for shop uses and warehouse and transport depot uses where directly necessary for the supply of goods to a shop use. 

The Department for State Development, Manufacturing, Infrastructure and Planning (DSDMIP) has, however, assessed and issued several temporary use licences which change the relevant development conditions for the period that the applicable event notice is in effect. The change to the development conditions could be the introduction of a new development condition or the alteration of an existing development condition. The changes made by the temporary use licences given to date include the alteration of operational hours for business or construction activities, or the introduction of a condition which allows a new use, such as ethanol storage or production, or short-term accommodation.

Temporary use licences

Unless the Minister extends the applicable event period for the applicable event notice under section 275F of the Planning Act, the temporary use licences given to date are in effect until 20 June 2020.

To date, the following temporary use licences have been approved by DSDMIP:

  1. 4 Lewis Place, Manly West (Brisbane City Council) – removal of conditions in the relevant development approval which relate to the restriction of vehicle access onto Lewis Place, at all times, of vehicles associated with the approved multiple dwelling. 

  2. 5 Josephine Street, Loganholme (Logan City Council) – new use of premises for the distillation of ethanol for production of sanitiser and other products in accordance with the conditions in the relevant development approval.

  3. 264 E Drews Road, Westbrook (Toowoomba Regional Council) – alteration of development conditions, and insertion of new temporary conditions, which increase the operational hours, and service vehicle movement hours, to include 7:00 am to 5:00 pm on Saturday for sand blasting and spray painting.

  4. 137-151 Landsborough Avenue, Scarborough (Moreton Bay Regional Council) – varying a development condition to allow waterproofing to be undertaken on Sunday 5 April 2020. 

  5. 2 Esplanade, Coconuts (Cassowary Coast Regional Council) – alteration of a development condition in relation to the operating hours such that the preparation, loading and transportation of ice can occur at relevant times on Monday to Saturday inclusive.

  6. 195-199 Potassium Street, Narangba (Moreton Bay Regional Council) – alteration of a condition of the relevant development approval to allow decanting and storing of ethanol at the relevant site. 

  7. 47 Manilla Street, East Brisbane (Brisbane City Council) – new use of premises for the production of ethanol and sanitiser in accordance with conditions attached to the temporary use licence.

  8. 34 Sixth Avenue, 6, 8 & 11 Seventh Avenue, 39, 41, 43 & 45 Main Avenue, Coorparoo (Brisbane City Council) – alteration of a condition in an approved infrastructure designation in relation to hours of construction, and the production of noise, vibration and dust emissions as a result of construction, to be in accordance with the Environmental Protection Act 1994.

  9. 6 Lake Street, Cairns City (Cairns Regional Council) – new short-term accommodation use for the provision of short-term accommodation for tourists or travellers where the existing lawful use of the relevant unit is a holiday apartment (high density) use.

  10. 2 & 4 Smith Street, Cairns North (Cairns Regional Council) – change to a development condition to allow increased operational hours to 6:00 am to 8:00 pm for a Food and Drink Outlet use.

  11. 76A, 78 & 80 Ardargie Street, Sunnybank (Brisbane City Council) – change to a development condition in relation to the maximum number of children permitted to attend a child care facility. 

  12. 32 Colmslie Road & 506 Lytton Road, Morningside (Brisbane City Council) – change to a development condition which limited the development approval to the approved uses to insert a new use, and addition of a new condition limiting the use to an ancillary use within a specified building. 

  13. 10-20 Wyandra Street, Newstead (Brisbane City Council) – change to development conditions in a development approval relating to construction hours.

  14. 11-13 Bell Street, Ipswich (Ipswich City Council) – alteration of a condition in a development approval in relation to hours of construction, and the production of noise, vibration and dust emissions as a result of construction, to be in accordance with the Environmental Protection Act 1994.

  15. 603-611 Coronation Drive, Toowong; 188 Vulture Street & 53 Tribune Street, South Brisbane; 116 Merivale Street & 88 & 90 Ernest Street, South Brisbane; 15, 17 & 19 Regent Street, Woolloongabba (Brisbane City Council) – changes to relevant development conditions in several development approvals to allow short-term accommodation, particularly for off-site student accommodation. 

  16. 66 The Esplanade, Webb (Cassowary Coast Regional Council) – addition of a condition in a development approval allowing a short-term accommodation use for a maximum of two bedrooms.

Conclusion

A temporary use licence is a flexible way of making temporary changes to the conditions of a development approval to enable essential business owners to operate during the public health emergency. 

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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