1770 Nominees Pty Ltd v Gladstone Regional Council [2017] QPEC 59 (2018) QPELR 136

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: 1770 Nominees Pty Ltd v Gladstone Regional Council [2017] QPEC 59 PARTIES: 1770 NOMINEES PTY LTD (applicant) v GLADSTONE REGIONAL COUNCIL (respondent) FILE NO/S: D48 of 2017 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court, Maroochydore DELIVERED ON: 25 August 2017 (orders) 25 October 2017 (reasons) DELIVERED AT: Maroochydore HEARING DATE: 25 August 2017 JUDGE: Long SC DCJ ORDER: Application granted CATCHWORDS: ENVIRONMENT AND PLANNING – APPLICATION – Where an application was filed seeking orders, pursuant to s 440 Sustainable Planning Act 2009 (“SPA”), excusing non- compliance with a provision of that Act, in particular, in relation to an approval for material change of use that has lapsed and to effectively grant an extension of that approval – Whether it is appropriate to grant such relief LEGISLATION: Planning Act 2016 s 311(2)(a) Sustainable Planning Act 2009 ss 341(1); 341(4); 341(7); 383; 383(3)(d); 383(4); 440 COUNSEL: A Williams (sol) for the applicant J Brennan (sol) for the respondent SOLICITORS: p&e Law for the applicant MRH Lawyers for the respondent -- 1 of 4 -- 2 [1] What follows are the reasons for the findings and orders made in this matter, on 25 August 2017. [2] By originating application filed on 5 May 2017, the applicant sought declarations (or findings) and orders in respect of an issued development permit, allowing a material change of use (marina berths) for land situated at 535 Captain Cook Drive Seventeen Seventy, described as Lot 14 on SP 210496 and Lots 29 and 30 on SP 234769. [3] The necessity for the application is to be understood from the following circumstances: (a) In or around September 2007, the applicant lodged a code assessable material change of use application, under the now superseded Miriam Vale Shire Planning Scheme, for eight additional berths in a marina that had been operated as a family business for approximately 30 years; (b) On 17 December 2007, the applicant entered a lease of Lots 29 and 30 on SP 234769 for use as a marina; (c) The respondent approved the development, subject to conditions, on 19 December 2008 and after negotiations and on 22 April 2009, the respondent issued a negotiated decision notice, approving the development, subject to conditions. That approval was for the standard currency period of four years, in accordance with s 3.5.21 of the Integrated Planning Act 1997; (d) Accordingly, the first change of use under the approval was to occur before 22 April 2013. However and after approving a change to the approval, on 13 September 2011, the respondent approved the following extensions to the approval: (i) On 24 April 2013, an extension to 22 April 2014; and (ii) On 21 February 2014, an extension to 22 April 2015; (e) On 26 February 2014, the applicant applied for relevant operational works permits for the purpose of effecting the material change of use, which, on 15 August 2014, were granted by the respondent, with a currency period of two years until 15 August 2016. [4] Accordingly and because they were not applied for within two years of the start of the relevant period, the operational works permits were not within the meaning of -- 2 of 4 -- 3 “related approvals” in s 341(7) of the Sustainable Planning Act 2009 (“SPA”), s 341(4) of the SPA was not engaged and the approval for the material change of use lapsed on 22 April 2015. The uncontested evidence is that this occurred as the applicant misunderstood the effect of the operational works approval and neglected to apply for a further extension of the approval for material change of use. And this was notwithstanding that the operational works continued to completion around November 2016 and in accordance with permits obtained under the Marine Parks Regulation 2006, so as to enable berth extension and dredging, and that the use then commenced. [5] As is not unusual in such circumstances, the applicant applied, pursuant to s 440 of SPA, for orders excusing the non-compliance with s 341(1) of SPA (in that the first change of use under the approval for the material change of use had not occurred before that approval had expired) and to effectively grant an extension of that approval, as might have been granted by the respondent, upon application made pursuant to s 383 of SPA, before that approval had lapsed. [6] When that application came before the Court for hearing, on 2 June 2017, it was appropriately recognised that the discretionary factors favouring the relief that was sought, included that: (a) This would be for an approval to extend an existing and unique loading facility for commercial and private vessels in its locality and where there was increasing demand for marina berths; (b) In circumstances where the delays in carrying out the development before the approval lapsed, were mainly due to changing economic circumstances and the process of operational works application and assessment and that significant additional costs added upon those already incurred in carrying out the completed operational works, would be incurred if a new development application was required. And that this would be likely to be a substantial financial burden on the applicant; (c) The respondent was in favour of the relief sought and was prepared to consent to the application; and (d) The application was necessary due to misunderstanding of the effect of the operational works approval and oversight of the need for a -- 3 of 4 -- 4 further application to the respondent in respect of the currency of the approval for the material change of use. [7] However and at the hearing on 2 June 2017, it was identified that the material then placed before the Court, did not include any indication of the consent of the owners of the leased land, Lots 29 and 30 on SP 234769, and as would have been necessary to obtain the respondent’s consent pursuant to s 383(3)(d). Accordingly and as there was no application of the kind referred to in s 383(4), and at the applicant’s request, this application was adjourned to a date to be fixed for the obtaining of the necessary additional material. [8] Such consent was ultimately obtained, after some requirements of the owner of the leased land, were satisfied. But and as it transpired, when the matter again came before the court for further hearing, on 25 August 2017 the SPA had been replaced by the Planning Act 2016, the latter Act relevantly coming into effect on 3 July 2017. Notwithstanding that eventuality and pursuant to s 311(2)(a) of the Planning Act 2016, the application remained to be decided pursuant to the provisions of SPA and to which reference has already been made. And for these reasons and on 25 August 2017 the following findings and orders were made: “UPON THE COURT BEING SATISFIED that the requirements of the Sustainable Planning Act 2009 have been satisfied in relation to service of this application, AND UPON THE COURT FINDING that there has been non- compliance with Section 341 of the Sustainable Planning Act 2009 because the first change of use under the material change of use approval (Marina Berth) (DA/4414/2007) did not occur within the relevant period, IT IS ORDERED THAT 1. The non-compliance is excused. 2. The relevant period for the material change of use approval be extended to 1 December 2016.” -- 4 of 4 --