Planning and Environment Court of Queensland dismisses an appeal to extend the currency period of an approval which authorised development prohibited under current planning laws

In brief

The case of Coolum Chase Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 24 concerned an appeal to the Planning and Environment Court of Queensland (P&E Court) against the decision of the Sunshine Coast Regional Council (Council), which refused to extend the relevant period of a preliminary approval for reconfiguring a lot into 23 rural residential lots (Preliminary Approval). 

The appeal was commenced under the Sustainable Planning Act 2009 (Qld) (SPA) and therefore the SPA continued to apply under section 311(2)(a) of the Planning Act 2016 (Qld). 

The P&E Court was required under section 388(1)(a) of the SPA to have regard to the consistency of the Preliminary Approval with the "…current laws and policies applying to the development…", which included the South East Queensland Regional Plan 2017 (SEQRP 2017), the Planning Regulation 2017 (Qld) (Planning Regulation), and the Sunshine Coast Planning Scheme 2014 (Planning Scheme), which made the development the subject of the Preliminary Approval prohibited development.

The Preliminary Approval contemplated a subdivision of land which was completely inconsistent with the current planning intentions in the SEQRP, Planning Regulation, and the Planning Scheme. The P&E Court therefore held that there was no justification for permitting further development under the Preliminary Approval, and dismissed the appeal.

History of the Preliminary Approval 

The relevant history of the Preliminary Approval was as follows: 

• In October 2002, the Council issued under the Integrated Planning Act 1997 (Qld) a development permit for Stage 6A for lots 122 to 146 and a preliminary approval for Stage 6B for lots 99 to 121 (Development Approval).

• An appeal in respect of the Development Approval resulted in a negotiated change of Stage 6A to be one larger lot described as lot 124, and the preliminary approval for Stage 6B remained the same by a decision notice dated 7 December 2005, which became the current Preliminary Approval. 

• In November 2015, the Applicant sought to extend the currency period of the Preliminary Approval for two years, which the Council refused.

• The appeal was filed with the P&E Court on 8 February 2016 under the SPA, and on 21 July 2017 the P&E Court declared that the Preliminary Approval had and would not lapse until the appeal was determined.

Consideration of the statutory requirements 

The P&E Court was required by section 388(1) of the SPA to only have regard to the following matters: 

"(a) the consistency of the approval, including its conditions, with the current laws and policies applying         to the development…

(b) the community’s current awareness of the development approval…

(c) whether, if the request were refused—

(i) further rights to make a submission may be available for a further development application; and

(ii) the likely extent to which those rights may be exercised…"

In respect of section 388(1)(a) of the SPA, the P&E Court held as follows: 

• The Subject Land is within the regional landscape and rural production area of the SEQRP, is for a subdivision, and is assessable development under Schedule 10, Part 14, section 21 of the Planning Regulation. Therefore, under Schedule 10, Part 16, section 23 of the Planning Regulation the proposed development is prohibited development. 

• The Subject Land has constraints under the Planning Scheme, including "…being subject to landslide hazard, being almost exclusively within a State Key Resource Area – Separation Area, subject to bushfire hazard and numerous environmental constraints."

In respect of section 388(1)(b) of the SPA, the P&E Court held that the community was aware of the proposed development because the Development Approval was essentially an identical layout to the Preliminary Approval. 

In respect of section 388(1)(c) of the SPA, the P&E Court held that it was satisfied there would be no further rights to make a further development application, because the proposed development is now prohibited development. 

Applicant's submissions not accepted

The Applicant submitted that the currency period of the Preliminary Approval ought to be extended despite the development being prohibited for the following reasons: 

• To enable the completion of the final stage of the development, which is "infill development for a small area of land already surrounded by existing rural residential development…where all of the parkland for the…development had already been dedicated, and all of the infrastructure…" already provided.

• The Council had issued the Development Approval in 2005 when the South East Queensland Reginal Plan 2005-2026 (SEQRP 2005) was in force, which had placed the Subject Land in the regional landscape and rural production area. 

The P&E Court did not accept the Applicant's submission for the following reasons: 

• The infrastructure was required under the previous stages of the development, which was notably before obtaining a development permit for the final stage of which there was no guarantee. 

• The position of the parkland and other infrastructure assumed no meaningful significance of the exercise of the discretion in section 388 of the SPA.

• It was not relevant that the Council did not have regard to the SEQRP 2005, because the Council's assessment was required to be against the relevant planning instruments in effect at the time the application was made, being, 2002. Further, the SEQRP 2005 expressly stated that it did not apply to a development approval lodged prior to 27 October 2004.

Conclusion

The P&E Court held that the Preliminary Approval is completely inconsistent with the current planning strategies, which prohibited the proposed development and there was no justification for permitting further development under the Preliminary Approval. The appeal was dismissed.