In brief

The case of Sevmere Pty Ltd v Cairns Regional Council [2021] QPEC 32 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Cairns Regional Council (Council) to refuse an application under section 87 of the Planning Act 2016 (Qld) to extend the currency period for a development approval for a material change of use for a multiple dwelling development (Development Approval).

The subject land is located in Stratford and has an area of 3.54 hectares. The Development Approval was granted by way of an order of the Court on 30 April 2010 and the currency period was extended in 2014 and 2016. There were no current related development applications or current development approvals for the operational work or building work. In addition, a related operational work approval, which was granted in 2012, had been allowed to lapse.

Under section 87 of the Planning Act 2016 (Qld), the assessment manager has a broad discretion and may consider any matter that the assessment manager considers relevant when assessing an extension application, even if the matter was not relevant to the assessment of the development application.

The Court dismissed the appeal and upheld the Council's decision to refuse the application to extend the currency period. 

Financial difficulties

The Applicant produced evidence of its long-running unsuccessful attempts to obtain finance, and submitted that that was one of the primary reasons why the development had not progressed. Despite the fact that multiple institutions had been engaged by the Applicant from 2011 to 2016 to finance the project, finance could not be secured.

The Court accepted that the Applicant had made other attempts to manage the project, including the engagement of lawyers and consultants to prepare sale and tender documentation, approving various management plans, and making efforts to market and promote the development. The Court found that it was clear that the Applicant was not disinterested in the project. 

However, in spite of the Applicant's optimism, the Court held that it was evident that the project's funding difficulties were chronic and persistent. The Applicant's explanation for the delay therefore could not persuade the Court to exercise its discretion to grant the extension.

Change in assessment framework

The development application for the Development Approval was made on 28 February 2007 as a development application superseded planning scheme. Under the repealed Integrated Planning Act 1997 (Qld), the development required code assessment. In contrast, a development application made for the Development Approval under the current Planning Act 2016 (Qld) would require impact assessment. 

As a consequence, the Court held that the proposed development would now be subject to the following:

  • A different development application process involving public notification.

  • A different kind and level of assessment requiring consideration of submissions in response to public notification.

  • Potential refusal by the Council as the assessment manager.

  • Different appeal rights.

The Court gave significant weight to the change in the assessment framework, and found that the proposed development ought to be the subject of fresh assessment and decision.

Change in planning policy

The Court observed that the 1996 Cairns Planning Scheme (1996 Scheme), under which the development application was assessed and decided, had been replaced by the CairnsPlan 2016 (2016 Scheme). Under the 1996 Scheme, the subject land was zoned Residential 3 Zone and subject to the provisions of the Hillslopes Development Control Plan, whereas the subject land is partly in the Environmental Management Zone and partly in the Conservation Zone under the 2016 Scheme.

Under the Environmental Management Zone Code, the development of residential dwellings is restricted so as to not adversely affect the environmental and scenic amenity values of the surrounding area. The Court found that these constraints supported the conclusion that a fresh development application be made.

Issue estoppel

The Applicant also submitted that the Council was estopped from alleging conflict with the 2016 Scheme because the Development Approval was given as a consequence of a consent order made in an appeal to the Court, and that the consent order is capable of founding an estoppel. This contention was rejected, as it was recognised that estoppel cannot operate to prevent the exercise of a statutory discretion exercised for the public benefit.

Assessment of future operational work

The Applicant also submitted that the Development Approval will not be acted upon until a new operational work approval is obtained under the 2016 Scheme and, as part of that future development application, constraints and impacts would be assessed. However, the Court held that the hypothetical possibility of future contemporary assessments was not enough to warrant an extension.

Conclusion

The Court was not persuaded by the Applicant's explanation for its failure to act on the Development Approval and held that the Applicant ought to make a new development application. Hence, the extension was not granted, and the appeal was dismissed.

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 2022.

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