In brief

The case of Monaco Street Pty Ltd v Ipswich City Council [2020] QPEC 21 concerned an application in pending proceeding to the Planning and Environment Court (Court) seeking relief intended to re-enliven a lapsed development permit for reconfiguring a lot at Riverview.

The applicant sought to have the currency period for the development permit extended to 19 March 2022. The Council did not resist the relief sought.

The Court had "serious misgivings" about the form of the relief sought by the applicant, and the reliability of the applicant's evidence, and refused to grant the relief sought.

Court restated the matters which an applicant ought to assist the Court with where seeking to invoke the Court's declaratory jurisdiction

The Court stated that it expects a party to assist the Court in the following three ways when seeking to invoke the Court's declaratory jurisdiction:

  1. Firstly, the party is to identify the jurisdictional source of the grant of the declaration, and persuade the Court that the declaration falls within the source. 

  2. Secondly, the party is to precisely identify the declaration sought and persuade the Court that it ought to be made and is of utility. 

  3. Thirdly, the party is to demonstrate that the Court ought to make the declaration sought taking into account any other relevant matters.

Court held that it did not have jurisdiction to grant the declaration that the development permit had lapsed in the terms sought

The first form of relief sought by the applicant was a declaration that the development permit had "lapsed under section 85(1)(b)(i) of the Planning Act 2016 (Qld) on 19 March 2018". The applicant submitted that the Court had the jurisdiction to grant the relief under section 11(1)(a) of the Planning and Environment Court Act 2016 (PEC Act), which states that a party may start a proceeding in the Court seeking a declaration about "a matter done, to be done or that should be done for this Act or the Planning Act". The Applicant submitted that the declaration was in respect of a "matter done". The Court did not agree and held that it was a declaration about the legal status of a development approval.

The Court went on to consider the appropriateness of granting the declaration, if it was persuaded that it was appropriate to do so. It held that it was not appropriate for two reasons. Firstly, the Court was not convinced that the applicant was an entity directly affected by the relief sought. The applicant asserted it was the mortgagee in possession of the land. However, the Court was not satisfied that this fact was established on the evidence before it. Secondly, the Court was not convinced that the declaration would have utility in correcting the Court record in circumstances where, as submitted by the applicant, a previous Court judgment had purported to make a change to a development approval which did not exist at the time. 

The Court held that, if that was the case, the granting of the declaration would result in two judgments of the Court that would be mutually inconsistent and, to correct the error, an application ought to be made under rule 667 or rule 668 of the Uniform Civil Procedure Rules 1999.

Court held that the applicant had not identified any relevant non-compliance under section 37 of the PEC Act and there was therefore no discretion to be exercised

The second form of relief sought by the applicant was an order under section 37 of the PEC Act that the lapse of the development permit be excused, and a consequential order that the development permit be revived under section 11(4) of the PEC Act.

The applicant argued that the following ten grounds justified the exercise of the Court's discretion to grant the relief sought:

  1. The applicant, the Council and the Court did not intend for the development permit to lapse prior to 19 March 2020.

  2. The Council supported the relief sought.

  3. The Department of State Development Manufacturing, Infrastructure and Planning had no objection to the relief sought.

  4. The applicant had not unjustifiably delayed seeking the relief sought.

  5. The development permit was consistent with, and encouraged by, the current planning for the land.

  6. The land is benefited by two related development permits.

  7. The proposed development was in line with community expectations for the land.

  8. The applicant would suffer undue delay and expense if the relief sought was not granted and a new development application was required.

  9. The Council had purported to approve the extension application.

  10. There was no public interest in refusing the relief sought.

The Court was not persuaded that the evidence supported these ten grounds and was not persuaded that it ought to excuse the lapse and order the revival of the development permit.

Court held that the evidence did not support matters relevant to an order that the relevant condition be changed so that the lapsing date is extended

The third form of relief sought by the applicant was an order under section 81A(2)(a) of the Planning Act 2016 that the relevant condition of the development permit be changed so that the lapsing date is deleted and replaced with a reference to 19 March 2022.

The Court repeated its earlier stated concerns about the state of the evidence. The Court found that the evidence did not establish that the applicant was the mortgagee in possession, that the development application was properly made or that the correct extracts of the planning scheme had been exhibited to an affidavit. The cumulative relevance of these matters was that the Court was not satisfied that the applicant had adduced admissible evidence as to the relevant zoning at the time the acknowledgement notice was given and therefore the applicable planning scheme provisions at that time and whether they had since changed, such matters being relevant to the applicant's submission that the planning controls had not changed in any material way.

A representative for the applicant stated that the applicant did not intend to act on the development permit and intended to sell the land, which also weighed on the mind of the Court.

The Court also did not accept that the concerns raised by submitters in respect of the development application had been resolved by the passage of time since the development application was properly made, and this was another factor which weighed in favour of not granting the extension. The Court focused on the nature of the submissions, being about traffic impacts, and found that there was no evidence demonstrating safe and efficient operation of the local road network. 

Lastly, the Court found that there was no evidence that the original residents are still there today and therefore did not accept the applicant's submission that no town planning purpose would be served by requiring the development application to be made again, and for the statutory assessment and decision-making process to be repeated.

Conclusion

The Court therefore held that the Court did not have jurisdiction to make a declaration that the development permit had lapsed, the evidence did not support the appellant's grounds as to why the Court ought to exercise its discretion to excuse the lapse and revive the development permit, and similarly that the evidence did not support the appellant's grounds as to why the relevant condition ought to be changed so that the lapsing date is 19 March 2022. The Court therefore dismissed the application.

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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