Devy & Anor v Logan City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Devy & Anor v Logan City Council [2010] QPEC 96

PARTIES:

JOHN ANDREW DEVY AND MAXINE GAYLE DEVY (AS TRUSTEE FOR THE DEVY FAMILY TRUST)

(applicants)

v

LOGAN CITY COUNCIL

(respondent)

FILE NO/S:

2478/2010

DIVISION:

Planning and Environment

PROCEEDING:

Originating application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

22 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2010

JUDGE:

Judge Rackemann

ORDER:

That the development approval for reconfiguration of a lot lapsed on or about 13 August 2009.

That it be taken that the said approval was extended to 30 October 2010.

CATCHWORDS:

PLANNING AND ENVIRONMENT – application for a declaration under s818(2) of the Sustainable Planning Act (2009) for order under s820(1) – orders to re-enliven a lapsed development approval – honest mistake to be corrected within a reasonable time

Flamingo Enterprises Pty Ltd v Sunshine Coast Regional Council [2009] QPEC 101

Pacific Seven Pty Ltd v City of Sandringham (1979) 43 LGRA 395

Tremellen v Southern Downs Regional Council [2010] QPEC 94

COUNSEL:

Mr Trotter for the applicants

SOLICITORS:

Anderssen Lawyers for the applicants

Corrs Chambers Westgarth for the respondent

HIS HONOUR: This is an application for a declaration under section 818(2) of the Sustainable Planning Act (2009) (SPA) and for orders under section 820(1). 

The purpose of the application is to obtain orders which will, in effect, re-enliven a lapsed development approval. 

The applicants are the owners of land which was subject to a development approval for reconfiguration from one lot into three.  That approval was granted on the 18th of August 2005.

By letter dated the 30th of January 2008 the Council approved an application for operational works. Works then commenced in July 2008 and were eventually completed in October 2009.  A substantial amount of money was spent on those works, including by way of headworks and parks contributions. 

It is accepted that the approval lapsed in August 2009 by reason of the operation of section 3.5.21 of the Integrated Planning Act (1997) (IPA).  At the relevant time, however, the applicant was under the misapprehension that the approval would not lapse until four years after the operation of the works approval.  Consequently, no request for an extension was made within the time allowed under the IPA.

The applicants and, indeed, the council, thereafter continued to act in a manner which was consistent with the approval still being in force, although, it has now been recognised that that was not so.

Under the IPA the Court's power to make orders, in effect, excusing non-compliance was restricted.  Section 4.1.5A provided as follows:

"4.1.5A  How court may deal with matters involving substantial compliance;

(1)         Subsection (2) applies if in a proceeding before the court, the court:

(a)finds a requirement in this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but

(b) is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for…