Agnes Bridge Pty Ltd v Central Highlands Regional Council [2015] QPEC 61 [2016] QPELR 170

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Agnes Bridge Pty Ltd v Central Highlands Regional Council [2015] QPEC 61 PARTIES: AGNES BRIDGE PTY LTD (applicant) v CENTRAL HIGHLANDS REGIONAL COUNCIL (respondent) FILE NO/S: 39/14 DIVISION: Planning & Environment PROCEEDING: Hearing of an application ORIGINATING COURT: Planning & Environment Court of Queensland at Brisbane DELIVERED ON: 2 November 2015 – ex tempore DELIVERED AT: Brisbane HEARING DATE: 2 November 2015 JUDGE: R S Jones DCJ ORDER: Orders as per draft CATCHWORDS: PLANNING AND ENVIRONMENT – lapsed development permit – section 820 Sustainable Planning Act 2009 – discretionary considerations – project delay Sustainable Planning Act 2009 Devy & Another v Logan City Council [2010] QPEC 96 Tremellen & Tremellen v Southern Downs Regional Council [2010] QPEC 94 Wallace & Another v Logan City Council [2010] QPEC 66 COUNSEL: SOLICITORS: N Kefford for the applicant D Kevin for the respondent Cooper Grace Ward for the applicant King and Company for the respondent -- 1 of 4 -- 2 [1] I am concerned here with an application which essentially seeks to revive, change and extend a lapsed development permit. That permit was concerned with what is described as a retail and commercial complex at Emerald. Absent an order from this Court, that development will only be able to proceed if a fresh development application is lodged, considered by the Respondent council and approved. [2] On 16 June 2010, following proceedings in this Court, relief was granted in the form of a development permit for the making of a material change of use for the land. The Department of Main Roads was a concurrency agency in respect of that application, and I was referred to a letter from the Department of Infrastructure, Local Government and Planning dated 30 October 2015 which indicates that that department and, indeed, the Department of Transport and Main Roads are aware of this proceeding, and that the latter have no difficulty with the relief sought. [3] The approval was granted subject to conditions. Relevant to this Applicant, condition 1 provided: “The use permitted as part of this approval is retail/commercial complex. This approval has a currency period of four years and will remain in force until 16 June 2014. Should the development not be completed within this timeframe, this approval will lapse. A new application will need to be made to council unless an approval has been obtained for an extension of this period.” [4] I would note at this stage that the council was legally represented before me today, and it is quite clear that they do not intend to enforce that part of the condition requiring a fresh application, and, indeed, made it quite clear that it supported this application. [5] On 11 June 2014, that is only five days before the timeframe specified in the condition, the Applicant applied to this Court for an extension of the period. That proceeding was commenced by way of an originating application filed on 11 June 2014. It was a document prepared by a town planning consultancy firm. I will touch on that in a moment a bit further. [6] Here, where the development approval has lapsed pursuant to a particular condition of that approval, section 390 of the Sustainable Planning Act 2009 does not operate to prevent the approval from lapsing whilst the permissible change request is being decided. In this context, I should note that section 367 of the Sustainable Planning Act defines what constitutes a permissible change. It is not necessary to go into that in any detail. I am satisfied that the changes proposed fall within that description. [7] Ms Kefford counsel for the Applicant, in her written submissions at paragraph 19, notes that pursuant to section 6, part 8 of the Sustainable Planning Act, if the Applicant wanted to extend the currency of the approval, it was obliged to make a request for a permissible change to the approval pursuant to section 369 of the Sustainable Planning Act and, further, that that request could only have been made while there was an effective approval in existence and, further, in order to prevent the approval lapsing whilst the permissible change request was being decided, that request would have to have been made well in advance of 16 June 2014 to allow sufficient time for the responsible entity to assess and decide the request. -- 2 of 4 -- 3 [8] I have already referred to the position of the Department of Main Roads and also to that of the Respondent council here today. The relief contended for is set out in Ms Kefford’s written outline, where it is relevantly said: “Having regard to the circumstances of the case and sections 374, 388 and 440 of the Sustainable Planning Act, it is appropriate for the Court to excuse the Appellant’s non-compliance with the Sustainable Planning Act and make orders that revives the changes to the approval.” [9] At the commencement of this hearing, I indicated that, but for my concerns regarding the jurisdictional issue, I would have been inclined to grant the relief sought, essentially for the reasons articulated in Ms Kefford’s outline of argument dealt with between paragraphs 20 and 28. [10] Relevant to the question of jurisdiction is the relief as pleaded in the originating application. Paragraph 1 which provides: “A declaration pursuant to section 456 of the Sustainable Planning Act 2009 (Sustainable Planning Act) that the development permit for making a material change of use of premises for a retail/commercial complex with respect to the property located at Gregory Highway and Pilot Farm Road, Emerald, and more particularly described as lot 29 on RP187499, granted by judgment of the Planning and Environment Court delivered on 16 June 2010 has lapsed. Further, a declaration pursuant to section 456 of the Sustainable Planning Act that the Applicant has failed to comply with section 369 of the Sustainable Planning Act in that it has not made an effective application for a permissible change in that it has not made the application in sufficient time to permit the responsible entity to assess and decide the request.” And then: “Finally, an order pursuant to section 440 of the Sustainable Planning Act that failure to make an effective request under section 369 of that Act be excused.” [11] Effectively, what the amended originating application seeks is for me to excuse the non-compliance referred to and to now deal with the application filed on 11 June 2014, when the development approval was still alive, notwithstanding the fact that that development approval has now, in fact, lapsed. Section 440 of the Sustainable Planning Act relevantly provides: “(1) Subsection (2) applies if the Court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with. (2) The Court may deal with the matter in the way the Court considers appropriate. (3) To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application.” -- 3 of 4 -- 4 [12] Here, of course, I am dealing with a lapsed development approval and not a lapsed development application, but clearly relief under section 440 was not meant to be restricted to lapsed development applications because of the wording of subsection (3). In this regard, I would refer also to the judgment of Judge Robin QC in Wallace & Another v Logan City Council [2010] QPEC 66 at page 4 and also to the more recent decision of his Honour Judge Rackemann in Devy & Another v Logan City Council [2010] QPEC 96. [13] In that case, Judge Rackemann was concerned with an application for orders to re- enliven a lapsed development approval. His Honour, at page 3 of the judgment, went on to say: “The declaration which is sought under section 818, in the current circumstances, is one that the development approval lapsed under the IPA.” [14] Section 820 of the Sustainable Planning Act provides if, in a proceeding, under section 818, subsection (2) the Court finds that a provision of the repealed Act has not been complied with, or has not been fully complied with, the Court may deal with the matter in a way the Court considers appropriate. [15] Section 820 is in terms identical to section 440 insofar as this proceeding is concerned, that is, it was the transitional equivalent of section 440. There his Honour went on to consider subsection (3) of section 440 and formed a similar view to that of Judge Robin and also of Judge Dorney QC in the case of Tremellen & Tremellen v Southern Downs Regional Council [2010] QPEC 94. His Honour went on to grant the relief sought. There his Honour referred to the fact that both the developer and the council had been acting under an honest mistake that the approval was still alive at all material times. [16] Here, there is no mistake involved. The project has been delayed for various reasons, but it seems to me that, critically, the original originating application was filed but not served in sufficient time to allow the relevant authority to consider the matter and was not prosecuted in an expeditious way. Here I consider, again, the attitude of the Respondent to be a relevant consideration in the exercise of my discretion. [17] I have already referred to the fact that the proposed changes which are sought to be permitted as permissible changes are identified in Ms Kefford’s written outline of argument, and the most material being, in my view, relevant to this proceeding, the extension of the operational period of the approval by replacing the condition 1 with a new condition to the effect that the approval will lapse if the first change of use under the approval has not commenced by 1 November 2019. For the reasons given, I am satisfied that I have the jurisdiction to make the orders and the declarations sought in the draft judgment, which I will initial and have placed on the file. -- 4 of 4 --