Coominya Sand & Gravel P/L v The Council of the Shire of Esk

The applicant, Coominya Sand & Gravel P/L, sought leave to appeal against the decision of the first instance application which dismissed its application to vary the conditions of a Town Planning Consent Permit (Permit) issued by the respondent, The Council of the Shire of Esk. The application to vary the Permit conditions was made on the basis that the applicant sought to undertake additional activities not originally contemplated under the Permit. The primary legal issue before the court was whether the Permit was capable of variation and whether it had expired.

The court considered that the Permit, being a planning consent, was not inherently capable of variation once issued. It held that the Permit had a fixed term, and the applicant’s argument that it had expired was also rejected. The court found that the Permit remained valid and enforceable as per its terms, and any attempt to vary the conditions post issuance would require a fresh application for consent. The court further noted that the Permit did not contain any explicit provisions allowing for its variation by the applicant or the Council. Consequently, the court dismissed the application for leave to appeal, affirming the earlier dismissal of the applicant’s request to vary the Permit conditions.