Annandale v Cairns Regional Council [2019] QPEC 49 (2020) QPELR 438

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Annandale v Cairns Regional Council [2019] QPEC 49 PARTIES: MARK GRAHAM ANNANDALE (applicant) v CAIRNS REGIONAL COUNCIL (respondent) FILE NO: 162 of 2019 DIVISION: Planning and Environment PROCEEDING: Originating Application ORIGINATING COURT: Planning and Environment Court, Cairns DELIVERED ON: 21 October 2019 DELIVERED AT: Cairns HEARING DATE: 18 October 2019 JUDGE: Fantin DCJ ORDER: 1. Leave is granted to amend the originating application; 2. Pursuant to section 37 Planning and Environment Court Act 2016 (Qld), the applicant’s non-compliance in failing to lodge an extension application before the development approval lapsed is excused; and 3. any extension application lodged by the applicant with the respondent pursuant to section 86 Planning Act 2016 (Qld) within four weeks of the date of this order, is to be treated as a valid extension application under that section. CATCHWORDS: PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – DECLARATORY PROCEEDING – where the applicant’s material change of use approval had lapsed – where the period of approval was extended on two earlier occasions – where the applicant failed to make an application to extend the currency period of the approval before the lapse – where the planning scheme’s treatment of the bushfire risk assessment of the land had changed since the approval was given – whether the Court should excuse the -- 1 of 7 -- 2 failure to make an extension application – whether the material change of use approval should be revived and extended – where the respondent does not oppose the application Legislation Planning Act 2016 (Qld) s 86 Planning and Environment Court Act 2016 (Qld) s 11, s 37, s 76, s 81 Sustainable Planning Act 2009 (Qld) Cases Brassgrove KB Pty Ltd v Brisbane City Council [2019] QPEC 42 Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45 SOLICITORS: Miller Bou-Samra Lawyers (L Bou-Samra) for the Applicant McInnes Wilson Lawyers (S McCabe) for the Respondent [2] In this application the applicant seeks to revive, and extend (for the third time), a lapsed development approval granted over nine years ago. [3] The respondent (‘council’) does not oppose the application. [4] Nonetheless, the application requires the Court to exercise its discretion to grant the orders sought. [5] The development is almost completed and it is in the parties’ interests that I determine this application as quickly as possible. These are my reasons. Background and relevant chronology [6] The applicant owns 27 hectares of land on hillslopes at Stratford in Cairns. The land is steep, includes numerous gullies and seasonal watercourses and is well vegetated. The land adjoins a conservation park. [7] In May 2010, the applicant lodged an impact assessable application for Material Change of Use for a House with council. The application was lodged and assessed under CairnsPlan 2009 (‘the former scheme’), and superseded legislation, the Sustainable Planning Act 2009 (Qld) (‘SPA’). [8] There were four submissions made in response to the application. [9] Council refused the application. [10] The applicant appealed against the refusal. No submitters elected to co-respond to the appeal. [11] In March 2011, following a “minor change” application, the appeal was resolved by a consent order approving the development subject to conditions. The approved house site spans a gully and is located about 165 metres up the hill from the street frontage. -- 2 of 7 -- 3 [12] Condition 21 prescribed design requirements for the lengthy access driveway. The driveway is to be properly engineered and designed. It is to be constructed of reinforced concrete incorporating anti-slip groove profile to its surface, similar to that installed on boat ramps. It must have guard rails, a passing bay, and must be certified by an engineer. The condition also requires all excavation, filling and construction of the driveway to be in place before construction (of the house) commences, to protect the environment from any further erosion and sediment control with heavy vehicles being used to access the building site. [13] In 2011 the applicant obtained an operational works approval for the access driveway. However he did not act upon it and it lapsed. [14] In 2014 the applicant sought, and was granted, an extension to the currency period of the development approval, to March 2017. [15] In 2017 the applicant sought, and was granted, a second extension to the currency period, to 25 March 2019. [16] In 2018 the applicant obtained a building approval from a private certifier. In mid 2018, the applicant started building the house. He did not construct the driveway in accordance with condition 21 before starting construction of the house. At that stage, the development approval was still current. Completion was delayed by weather. [17] In March 2019, the development approval expired without the applicant’s knowledge. In July 2019 he became aware it had lapsed. The applicant immediately met with a council officer and sought legal and town planning advice. [18] The subject application was filed on 16 September 2019.1 [19] The house is nearing completion and is almost at lockup stage. Condition 21 has not yet been complied with. Statutory framework [20] The applicant seeks declarations2 that the development approval has lapsed and the applicant has failed to bring the necessary application for extension.3 It seeks orders4 to the effect that the approval has not lapsed and be extended until such date as the Court determines. In the alternative, it seeks an order that the currency period be extended for such time as necessary to permit the applicant time to lodge with council a request to extend the currency period. [21] For the purposes of this application, which was unopposed, I proceed on the basis that I have jurisdiction to make the orders sought. The Court has power under section 37 PECA to deal with a noncompliance in the way it considers appropriate. The discretion is broad and unfettered. It must be exercised judicially. That section applies for a development approval that has lapsed and is not limited to provisions under which there is a positive obligation to take particular action. Section 37 extends to a development approval under repealed SPA: section 81. 1 The applicant made an oral application for leave to amend the originating application, which was unopposed. I granted leave. 2 Pursuant to Planning and Environment Court Act 2016 (Qld)(‘PECA’) ss 11(1), 76(4). 3 Pursuant to Planning Act 2016 (Qld)(‘PA’) s 86. 4 Pursuant to PECA s 11(4); PA s 37. -- 3 of 7 -- 4 [22] The noncompliance sought to be excused is the applicant’s failure to request an extension of the currency period before 25 March 2019, pursuant to section 86 PA. [23] The applicant submits that, rather than require the applicant to make an extension application pursuant to section 86 of the PA to council, the Court should consider the evidence and any matters that it considers relevant, pursuant to section 87 PA, and extend the currency period of the development approval to 1 December 2020. Assessment against current planning regime [24] The applicant’s town planning consultant, Ms Taylor, assessed the development against the current planning scheme. Ms Taylor prepared her report on 6 September 2019 and assessed the development against CairnsPlan 2016 version 1.3 (‘the current scheme’). A few days after that, a new version of CairnsPlan 2016 took effect, version 2. The parties agreed that, for the purposes of this application, nothing turned on that. [25] The town planning report does not undertake a comparative assessment against the overarching planning strategy and policy provisions in each of the former scheme and the current scheme. Instead, it is confined to whether the development approval addresses the additional codes in the current scheme, identifies any areas of “significant difference” and whether the conditions address these differences. [26] Ms Taylor concludes that the development approval is generally compliant with the relevant provisions of the current scheme and the conditions adequately address the assessment benchmarks, except for those in the Bushfire Hazard Overlay Code. [27] The bushfire risk assessment of the land has changed. In the former scheme, assessment was not required against that code because the development was for a house and the land was mapped as “part medium risk hazard”. In the current scheme, assessment is now required against that code and the land is mapped “part very high, high and medium potential intensity and buffer”. The conditions of approval do not include any conditions or requirements relating to compliance with bushfire provisions. [28] The conditions of approval require all existing vegetation to be retained except for those areas affected by the construction of the access driveway and house. The conditions also require registration of a statutory covenant for environmental purposes preventing removal of native vegetation over about 75% of the land. The photographs show the house nestled among vegetation. The vegetation appears to be within just metres of the roof. [29] There was no evidence from an appropriately qualified bushfire expert about compliance with the Bushfire Hazard Overlay Code. The only evidence, which was unchallenged, was in Ms Taylor’s report. Ms Taylor assessed the design, use of materials and siting of the house for bushfire purposes. She recommended that if the approval were revived and extended, it contain an additional condition requiring an additional water tank with a reticulated soaker system for fire-fighting purposes. [30] Despite this, there is no provision in the applicant’s draft order for such a condition, should the development approval be revived and extended. -- 4 of 7 -- 5 [31] Council has previously advised the applicant that, had a request to extend the currency period been submitted to it within the statutory timeframe, council officers would have recommended approval of such a request, on the basis that the development complied with the conditions of the development approval. But condition 21 has not been complied with. Matters relevant to the exercise of the discretion [32] The applicant relies upon the following matters said to favour granting relief: 1. there is a reasonable explanation for the lapse of the MCU approval, described as “an administrative oversight”. In short, the applicant says that he moved to Brisbane in 2012 and did not return to Cairns to live permanently until March 2019. He says that he relied upon his consultants and they failed to inform him of the need to apply for a further extension. However the applicant is an environmental consultant who works throughout Queensland. In that capacity, he would be expected to have some familiarity with planning assessment. He had also obtained two extensions to the currency period so was familiar with the notion of an approval lapsing. 2. the applicant has acted promptly in attempting to remedy the situation. He met with council in July 2019. He sought legal and town planning advice. He filed the subject application in mid September 2019. 3. the Court would accept the uncontested expert opinion of Ms Taylor that the development approval and its conditions are generally consistent with the current planning scheme; 4. the applicant has incurred considerable expense (approximately $500,000) in effecting the development approval to date; 5. the applicant expects to be in a position to complete the house component by 31 October 2019 and would be prejudiced, to some extent, if forced to make a new development application; 6. further time may be required to finalise the terms of, and register, the covenant with the Department of Natural Resources, Mines and Energy; 7. it would be prudent to allow an extension which gives the applicant ample time to finalise the entire development including compliance; 8. the council supports the application; 9. there would be no town planning purpose served by requiring the applicant to make a new development application; and 10. it is open to the Court to impose a further condition to address the Bushfire Hazard Overlay code as proposed by Ms Taylor. Discussion [33] I accept that those matters relied upon by the applicant support the granting of relief to excuse the noncompliance in this case. -- 5 of 7 -- 6 [34] Usually that power would be appropriately exercised by orders placing the party in default in the same or no worse position than the party would be in if there had been compliance.5 That is, the orders would place the applicant in the position he would have been in, had he not failed to file an application to extend the currency period before the development approval lapsed. [35] Here the applicant seeks orders not only to revive the lapsed approval but also to extend it to 1 December 2020 without having to go through the statutory process of making an extension application to council. He does so in circumstances where the planning regime has changed and he appears to be in default of one of the conditions of approval. In effect, the relief sought by the applicant seeks to avoid assessment by council as the assessment manager, and asks the Court to act as assessment manager and assess the appropriateness or otherwise of the extension application. [36] Ms Taylor is an experienced town planner and expert witness. While her evidence on the bushfire provisions of the current scheme was of assistance, she is not a bushfire expert. [37] In any event, the applicant’s proposed draft order (which council consents to) does not include Ms Taylor’s recommended condition to address compliance with the Bushfire Hazard Overlay Code. [38] There was no evidence from an appropriately qualified bushfire expert. Council did not adduce any evidence at all on the application. Council’s solicitor conceded that council had not done any bushfire assessment. How, then, council considered it appropriate to consent to an order that did not provide for any additional condition regarding bushfire, in the face of Ms Taylor’s unchallenged evidence, is unclear. [39] There is also no evidence about how any non-compliance with condition 21 is to be addressed. In response to a question from me, the applicant’s solicitor suggested it could be addressed by an application to change the development approval. [40] Whether the development approval complies with the current scheme and whether any extension application should be granted requires an evaluative judgment about the merits of the development approval. Where there is a change to the town planning regime that relates to an aspect of the development that is not insignificant, that is a factor that bears on the approach the Court would take. In addition, the Court is not in a position to deal with the non-compliance with condition 21. In the circumstances of this case, it is not appropriate for the Court to undertake that assessment. [41] I accept that the excusal power under section 37 is wide and its object, broadly, is to avoid a waste of time and assets (both public and private), which might result from nothing more than a technical deficiency with no consequences of any substance. But that must be balanced against the public interest in permitting an assessment manager to undertake the merits assessment of a development where there have been changes to the planning regime. I respectfully agree with the observations of Kefford DCJ in Brassgrove KB Pty Ltd v Brisbane City Council6 on the latter point. Here, the evidence does not suggest that the changes to the planning regime are fundamental. Nonetheless even on Ms Taylor’s report there are significant changes to the scheme’s 5 In the context of repealed legislation where the power was slightly different, see Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45, 54-55 [30]-[32]. 6 [2019] QPEC 42 [87]. -- 6 of 7 -- 7 treatment of bushfire hazards, which the lapsed development approval does not deal with. It is in the public interest that council undertake a proper assessment of any extension application, including with respect to bushfire hazards. That has not yet occurred. [42] Here the applicant seeks to be placed in a better position than he would have been in had he adhered to the requirement to make an extension application before the development approval lapsed. Replacing the development assessment process provided for in the PA with a determination by the Court is not, in my view, appropriate in the circumstances of this case. Orders [43] I do not consider there is any utility in making the declarations sought. The noncompliance and lapsing are not in dispute. There is no controversy to quell. [44] I propose to make the following orders: 1. Leave is granted to amend the originating application; 2. Pursuant to section 37 PECA, the applicant’s non-compliance in failing to lodge an extension application before the development approval lapsed is excused; and 3. any extension application lodged by the applicant with the respondent pursuant to section 86 PA within four weeks of the date of this order, is to be treated as a valid extension application under that section. -- 7 of 7 --