Maher v Fraser Coast Regional Council
[2012] QPEC 67
•30 October 2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Maher & Anor v Fraser Coast Regional Council [2012] QPEC 67
PARTIES:
PETER MAHER AND SOFIA MAHER
(Applicants)V
FRASER COAST REGIONAL COUNCIL
(Respondent)FILE NO/S:
3399 of 2012
DIVISION:
Planning and Environment
PROCEEDING:
Originating Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
30 October 2012
DELIVERED AT:
Brisbane
HEARING DATE:
24 October 2012
JUDGE:
Andrews SC DCJ
ORDER:
Application dismissed
CATCHWORDS:
PLANNING AND ENVIRONMENT – application under Sustainable Planning Act for a declaration under s 818(2) and for order under s 820(1) – order sought to re-enliven a lapsed development approval by “extending time for making application for a related approval” – development approval lapsed 24 November 2010 unless a development application for operational works was made by 24 November 2008 – where applicants instructed consultant to lodge before 24 November 2008 development application for operational works – where consultant lodged 24 days later – where applicants acted promptly to seek relief – where planning controls have changed – where six years since development approval – where under current planning controls any new development application would realistically contemplate a 2-3 storey development rather than 6 storey - whether power under s 820 of the Sustainable Planning Act enlivened – whether “a provision of repealed IPA has not been complied with” – whether to extend two year time limit by 24 days for making application for related approval
STATUTORY INTERPRETATION – whether to rely on explanatory notes to interpret “a provision of repealed IPA…has not been complied with” in Sustainable Planning Act s 820(1)
Devy & Anor v Logan City Council [2010] QPEC 96, [2011] QPELR 112
Gibb v Federal Commissioner of Taxation 118 CLR 628
Lamb v Brisbane City Council & Anor 152 LGERA 100
Larrell P/L v Brisbane City Council [2012] QPERL 66
Tremellen & Anor v Southern Downs Regional Council & Anor [2010] QPEC 94; [2011] QPELR 56
Witheyman v Simpson [2009] QCA 388
Acts Interpretation Act1954 (Qld) s14B
Integrated Planning Act1997 (Qld) repealed (“repealed IPA”) s 3.5.21(7)
Sustainable Planning Act 2009 (Qld) s3, s820
COUNSEL:
JG Lyons for the applicants
Williamson for the respondent
SOLICITORS:
Carswell and Company for the applicants
Connor O’Meara for the respondent
How the development approval lapsed
On 24 November 2006 the Mahers obtained judgment in their favour in an appeal against Council’s refusal of a development application for a development permit for a material change of use (“mcu”) for multiple units (48) in excess of two storeys in height (six storeys). The result meant that the Mahers had a development approval for a mcu of premises. It would have allowed for construction of a tower of six storeys at the Esplanade at Torquay. The development approval would lapse if the first change of use under the approval did not happen within the period of 4 years starting the day the approval took effect.[1] The approval took effect on 24 November 2006, thus in order to avoid the development approval lapsing, the first change of use under the approval was required to occur before 24 November 2010. However, as the first change of use under the approval did not happen within this period, the approval lapsed.
[1]IPA s 3.5.21 (1)(a)
The approval need not have lapsed on 24 November 2010. It was possible to cause the starting date of the four year period to be taken to have started later. If there was “1 or more related approvals for the development approval” for mcu, the period of four years would be “taken to have started on the day the related approval takes effect”[2] instead of starting on 24 November 2006.
[2]IPA s 3.5.21 (4)
The Integrated Planning Act 1997 repealed (“repealed IPA”) did not expressly provide a date by which a related approval should be applied for or a date by which it should take effect if the period of four years was to start later than 24 November 2006. However, repealed IPA defined “related approval” by reference to the date the subsequent approval was applied for. If one wanted the period of four years to be taken to start later, repealed IPA made it imperative to make an application for the subsequent approval within two years from the date the development approval for mcu of premises takes effect. If one made an application later than two years from this date, there would be three consequences: the subsequent approval, when granted, would not fall within the definition of “related approval”; the starting date of the four year period would not be taken to have changed (from 24 November 2006); and significantly, the starting date would not be taken to be the day the subsequent approval takes effect.
On 16 December 2008 the Mahers’ town planning consultant made a development application for operational works vegetation clearing, to Council. It was approved by Council on 18 March 2009. If the application for approval for operational works vegetation clearing had been made by 24 November 2008, (within two years from the day the development approval for mcu of premises took effect - 24 November 2006) the subsequent approval on 18 March 2009, for operational works vegetation clearing would have fallen within the definition of “related approval, for a development approval” for mcu of premises. Because the application was not made by 24 November 2008, the approval on 18 March 2009 was effective as an approval, but it was not a “related approval” as defined. As a consequence, the start date of the four year period did not change from 24 November 2006 to 18 March 2009 and the lapsing date did not extend to 18 March 2013 but remained 24 November 2010.
Alternatively, the Mahers could have applied for an extension of the four year period prior to the lapse occurring. The merits of that request would have been decided by the assessment manager having regard to certain specified criteria, including: the consistency of the approval and its conditions with current laws and policies applying to the development.[3]Thus, the Mahers could have applied by 24 November 2010 for an extension.
[3]IPA s 3.5.22 and s 3.5.23 and SPA ss 383 and 388
The relief sought to revive the lapsed development approval
The Mahers seek to revive the lapsed development approval by changing the status of the approval granted on 18 March 2009 for operational works, vegetation clearing so that it will become a “related approval, for a development approval” for mcu of premises. To achieve that, the Mahers focus on the application made to Council on 16 December 2008, 24 days too late to convert the subsequent approval into a “related approval”. They apply for:
(a) A finding or a declaration that there has been a failure to comply with Integrated Planning Act s 3.5.21(7);
(b) An order that the time for making the first application for a “related approval” be extended to 16 December 2008.
The Mahers’ counsel explained:
The legal effect of making the above order is that the development application for operational works, vegetation clearing would be treated as if it were made within 2 years of the 6 storey tower development permit taking effect with the result being that the 6 storey tower development permit has not yet lapsed.
The issues
The power given to a court by the Sustainable Planning Act 2009 (“SPA”) s 820(1) arises if the court finds “a provision of repealed IPA…has not been complied with”. The first issue is whether the power is enlivened in this case. The Council argues that the Mahers have not identified a non-compliance with IPA repealed, but have identified that the operational works approval they obtained does not satisfy the definition for “related approval”. The Mahers submit the failure to lodge a development application for operational works approval by 24 November 2008 was non-compliance with s 3.5.21(7) of repealed IPA.[4] If that submission is rephrased to conform with the words of SPA s 820, the issue is: whether the Mahers by failing to lodge a development application for operational works approval by 24 November 2008 have failed to comply with s 3.5.21(7) of repealed IPA.
[4]T 1-5 lines 8-12
If the power in SPA s 820(1) is enlivened, there is a second issue as to whether the circumstances warrant the exercise of the discretion to give relief in this proceeding.
If the Mahers succeed on both issues, the council accepts that the relief sought would be appropriate.
The provisions of IPA repealed and SPA relevant to the first issue
The relevant provisions of IPA repealed from which the relevant propositions above were deduced are in s 3.5.21 subsections (1), (4) and (7) and they follow. Two cases relied upon for the Mahers deal with s 3.5.21 subsection (2)(b) of repealed IPA. It is also included:
3.5.21 When approval lapses if development not started
(1) To the extent a development approval is for a material change
of use of premises, the approval lapses if the first change of
use under the approval does not happen within the following
period (the relevant period)—(a) 4 years starting the day the approval takes effect; or
(b) if the approval states a different period from when the
approval takes effect— the stated period.
(2) To the extent a development approval is for reconfiguring a
lot, the approval lapses if a plan for the reconfiguration is not
given to the local government under section 3.7.2(2) within
the following period (also the relevant period)—…
(b) for reconfiguration requiring operational works—4
years starting the day the approval takes effect;
…
(4) Despite subsections (1) and (2), if there is 1 or more related
approvals for a development approval mentioned in
subsection (1)or (2), the relevant period is taken to have
started on the day the latest related approval takes effect.
…
(7) In this section—
related approval, for a development approval for a material
change of use of premises (the earlier approval), means—(a) the first development approval for a development
application made to a local government or private
certifier within 2 years of the start of the relevant period,that is—
(i) to the extent the earlier approval is a preliminary
approval—a development permit for the material
change of use of premises; or
(ii) to the extent the earlier approval is a development
permit or a preliminary approval for development
mentioned in section 3.1.6(3)(a)(ii) or (iii)—a
development permit for building work or
operational work necessary for the material change
of use of premises to take place; and
(b) each further development permit, for a development
application made to a local government or private
certifier within 2 years of the day the last related
approval takes effect, that is for building work or
operational work necessary for the material change of
use of premises to take place.
SPA s 820 (1) and the explanatory notes to the Bill
SPA s 820 relevantly provides:
820 Proceedings for particular declarations and appeals
(1) If, in a proceeding for a declaration mentioned in section
818(2) or an appeal mentioned in section 819(4) or (6), the
court finds a provision of repealed IPA, or another Act in its
application to repealed IPA, has not been complied with or has
not been fully complied with, the court may deal with the
matter in the way the court considers appropriate.
…
(3) To remove any doubt, it is declared that subsection (1) applies
in relation to a development application that has lapsed or is
not a properly made application.
The explanatory notes for the Sustainable Planning Bill 2009 in clauses 440 and
820 (which are relevant to SPA ss. 440 and 820 respectively) relevantly provide:
Clause 440 provides the court with broad discretionary powers to relieve against any non-compliance, partial non-compliance or non-fulfilment of any provision of the Bill.
This clause enables the court to give relief in response to proceedings
commenced for that purpose or in the context of other proceedings; and to give that relief notwithstanding any other provision of the Bill, including provisions which would otherwise provide than an application had lapsed.
The purpose of this clause is to ensure a person's rights to hearings are not compromised on the basis of technicalities concerning processes. The term, 'provision' is intended to be interpreted broadly and is not limited to circumstances where there is a positive obligation to take a particular action.
The court's power is not restricted to proceedings before it. This allows access to the court for declarations and orders about procedural disputes which do not form part of the wider proceedings.
Subclause (3) makes it clear that the clause applies in relation to a
development application which has lapsed or is not a properly made
application…
Clause 820: Subclauses (1) and (3) are intended to give the Planning and Environment Court the same broad excusatory power, in relation to transitional issues, as clause 440…
(Emphasis added)
Notably, the explanatory notes suggest the power in ss 440 and 820 is exercisable to relieve against non-fulfilment of a provision or non-compliance with a provision. SPA ss 440 and 820 each refer to provisions not “complied with” but neither refers to a provision not “fulfilled”. To that extent the wording of SPA fails to follow the wording of the explanatory notes and the explanatory notes arguably provide for more circumstances when the power may be exercised than is apparent from the words of SPA. In the peculiar circumstances of the non-compliance relied upon in this proceeding, if s 820(1) permitted relief against non-fulfilment of a provision it would arguably have assisted the Mahers.
May I resort to explanatory notes to resolve this issue? The Acts Interpretation Act relevantly provides:
14B Use of extrinsic material in interpretation
(1) Subject to subsection (2), in the interpretation of a provision
of an Act, consideration may be given to extrinsic material
capable of assisting in the interpretation—(a) if the provision is ambiguous or obscure—to provide an
interpretation of it; or
(b) if the ordinary meaning of the provision leads to a result
that is manifestly absurd or is unreasonable—to provide
an interpretation that avoids such a result; or
(c) in any other case—to confirm the interpretation
conveyed by the ordinary meaning of the provision.
(2) In determining whether consideration should be given to
extrinsic material, and in determining the weight to be given
to extrinsic material, regard is to be had to—(a) the desirability of a provision being interpreted as
having its ordinary meaning; and
…
(c) other relevant matters.
(3) In this section—
extrinsic material means relevant material not forming part of
the Act concerned, including, for example—
…(e) an explanatory note or memorandum relating to the Bill
that contained the provision…
ordinary meaning means the ordinary meaning conveyed by
a provision having regard to its context in the Act and to the
purpose of the Act.
SPA’s purposes appear at SPA s 3. In argument there was no reference to them and to the context of s 820(1) in SPA. SPA s 3 does not assist me materially in determining the ordinary meaning of SPA s 820(1). The interpretation issue before me is whether the Mahers, by failing to lodge a development application for operational works approval by 24 November 2008 have not complied with s3.5.21(7) of repealed IPA. That issue turns on the meaning of the words of SPA s820(1) “a provision of repealed IPA…has not been complied with or has not been fully complied with”. I do not regard those words as rendering the provision “ambiguous or obscure”. Reasonable minds might differ. If the words are capable of rendering the provision “ambiguous or obscure” the use to which I could put the explanatory note is limited.
In Witheyman v Simpson [2009] QCA 388, it was observed in respect of the use of extrinsic materials:[5]
[5]Per Muir JA at [52], Cullinane J at [82] and Fryberg J at [83]
The above authorities make it plain that, despite the clear ministerial statements, a court is not free to construe the IPA as if the language of the IPA had been altered to reflect the policy contained in the ministerial statements. The respondent’s argument, like the judge’s findings, was based on the erroneous premise that it was permissible to construe a statute, not by reference to its words, but by ignoring its words and applying a Legislative policy perceived to arise from extrinsic materials.
If the relief sought by the Mahers is refused on the basis of the ordinary meaning of the words “a provision of repealed IPA…has not been complied with or has not been fully complied with”, the result would not be “manifestly absurd or unreasonable”. Accordingly Acts Interpretation Act 1954 s 14B(1)(b) does not operate to allow use of extrinsic material in this proceeding.
It was not argued by Council that extrinsic materials should not be used as an aid to interpretation. Despite that, and despite reading the explanatory notes relied upon by the Mahers, for all practical purposes I have not used the explanatory notes. I find that they serve no practical purpose for the interpretation issue in this proceeding.
The Cases
Council submitted that s.3.5.21(7) repealed IPA operates as a definition. Section 36 of the Acts Interpretation Act 1954 defines “definition” in this way:
definition means a provision of an Act (however expressed) that –
(a) gives a meaning to a word or expression; or
(b) limits or extends the meaning of a word or expression…
The first limb of the definition in Acts Interpretation Act in s 36 fairly describes the function of s.3.5.21(7) of IPA, namely it is a provision that gives meaning to an
expression: the expression is “related approval”.In Gibb v Federal Commissioner of Taxation[6] it was written:
[6]118 CLR 628 at 635
…The function of a definition clause in a statue is merely to indicate that when particular words or expressions the subject of definition, are found in the substandard part of the statue under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to construction of the statue and do not operate in any other way. (emphasis added)
I accept that s.3.5.21(7) repealed IPA operates as a definition.
The issue of whether a party can “comply” with a definition in an Act was
examined by Keane JA in Lamb v Brisbane City Council & Anor 152 LGERA 100. The relevant facts in Lamb for present purposes can be summarised as follows:
(a) at the relevant time, the expression “development application (superseded planning scheme)” was defined;
(b) the definition contemplated that such an application was made to the local authority within 2 years after the day the planning scheme or planning scheme policy creating the superseded planning scheme or the superseded planning scheme policy was adopted;
(c) Mrs Lamb lodged an application with the Brisbane City Council after the expiration of the relevant two year period, but nonetheless described the application as one enlivening the definition for development application (superseded planning scheme);
(d) Mrs Lamb submitted, inter alia, before the primary judge that the failure to make the application within the 2 year period prescribed in the definition enlivened, in part, s.4.1.5A of IPA because it was a “requirement” of the Act;
(e) the argument was accepted by the primary judge, although the point did
not determine the proceedings.
The decision of the primary judge was the subject of an application for leave to appeal to the Court of Appeal wherein s.4.1.5A of IPA and its applicability to the case was examined. Ultimately, Keane JA did not accept that the alleged noncompliance enlivened s.4.1.5A for the reasons in paragraphs [47] and [48] of the judgment. His Honour wrote:
[47] It must be accepted that s 4.1.5A is expressed in wide terms and "should not be construed subject to limitations not appearing in the IPA". We are, however, with the greatest respect, unable to agree with the learned primary judge that "the definition [of DASPS] contains a time limit for the application to be made" and so "requires" the DASPS to be made within that time. No provision of IPA "requires" the making of a DASPS. The function of a definition such as that of DASPS in Sch 10, the Dictionary to the Act, is not to make requirements, as the following explanation from Gibb v Federal Commissioner of Taxation makes clear:
"The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way. As was said by Sutherland (Statutes and Statutory Construction, 2nd ed, vol 2, p 687), 'Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves.'"
[48] In not making the DASPS within two years, Mrs Lamb did not breach or fail to comply with any "requirement" of the Act. Mrs Lamb simply did not make a DASPS at any time.
Lamb’s case examined the predecessor to s.820 of SPA which was drafted in materially different terms. However Council submitted the principle nonetheless remains that there is no breach for the purpose of an excusatory provision where the focus of the examination is a definition in a statute, thus the Mahers could not discharge their onus. If Council is correct, there is no provision of IPA repealed that the Mahers have failed to comply with, and by making their application for an approval on 16 December 2008 the approval which was later granted was an effective approval but not a “related approval”.
For the Mahers, reliance was placed inter alia, on three cases where development approvals lapsed and the court granted relief using the broad powers of SPA s 820(1). The cases, in date order of decision were: Tremellen v Southern Downs Regional Council[7], Devy v Logan City Council[8]and Larrell P/L v Brisbane City Council.[9]
[7][2010] QPEC 94; [2011] QPELR 56; per Dorney QC DCJ
[8][2011] QPELR 207 per Rackemann DCJ
[9][2012] QPERL 66 per Robin QC DCJ
The developers in Tremellen had a development approval for reconfiguring a lot granted to them on 27 October 2004. They gave to council a plan for reconfiguration of a lot on 22 March 2010. If the developers had given a plan for the reconfiguration to council by 27 October 2008 the lapse would not have occurred. Subsection 3.5.21 (2)(b) of repealed IPA was relevant to fix the date when their development approval for reconfiguring a lot would lapse. The approval would lapse if a plan for the reconfiguration was not given to council in four years. Before Dorney QC DCJ there was no argument of the kind before me. It was not submitted to his Honour that the developers in that case failed to identify a provision that had not been complied with. It seems to have been accepted that the provision of IPA repealed that had not been complied with was s 3.5.21(2)(b). In that circumstance it is unsurprising that there was no specific attempt in the reasons to identify a provision which “had not been complied with”. Section 3.5.21(2)(b) did not impose a positive obligation upon the Tremellens to give council a plan for the reconfiguration. It was for the Tremellens to elect whether to give the plan of reconfiguration in four years. If they had done so, the lapse would not have occurred. The order made was that “the time to deliver a plan for the reconfiguration to that local government be extended to 25 June 2010.”
The application made in Tremellen is distinguishable from the Mahers’ application for two reasons: the Tremellens did not seek a finding that there had been a failure to comply with s 3.5.21(7) of IPA repealed, and did not seek an order that the time for making the first application for a “related approval” be extended. Thus there was no finding sought that there had been a failure of an operational works approval to comply with the definition of “related approval”. The implied findings in Tremellen were that the Tremellens failed to deliver their plan for the reconfiguration in four years thereby failing to comply with subsection 3.5.21 (2)(b) of repealed IPA and therefore they were given an extension of time to deliver a plan. If the Mahers applied for relevantly similar findings and a relevantly similar order before me, those findings would have been that they failed to make the first change of use under the development approval for mcu within four years thereby failing to comply with subsection 3.5.21 (1)(a) of repealed IPA and the order sought would have been to extend the time for making the material change of use. Instead, the Mahers applied for a finding that there has been a failure to comply with repealed IPA s 3.5.21(7) - a definition.
In determining whether to exercise the discretion, Dorney QC DCJ noted as an important matter, that the council provided an affidavit that if an application for an extension for time had been made at the appropriate time, the request for an extension would have been recommended for approval.
In Devy an approval for reconfiguration from one lot into three lapsed after four years by reason of the operation of s 3.5.21 of repealed IPA. Rackemann DCJ identified the failure to apply for an extension of the approval within the life of the approval as non-compliance with a provision of a statute, thus enlivening the power in s 820 of SPA. The developer was 13 months late and council, which would have been obliged to consider any application to extend if it had been brought in time, did not oppose. The relief sought is distinguishable from the relief sought by the Mahers. The foundation of the relief sought in Devy was repealed IPA s 3.2.22 or SPA s 383 by which the developer could have applied, in the life of the approval, to extend the life of the approval.
In Larrell circumstances were similar to those in Tremellen in that the approval for reconfiguration of a lot had lapsed. The form of noncompliance with a provision of a statute was not identified, but one inference is that the non-compliance was like that in Tremellen. The other is that the applicant in Larell framed the application for relief as was done in Devy. Two distinguishing features are that there was no argument raised of the kind raised against the Mahers and the relief sought by the Mahers is different. Council consented to the relief in Larrell. The delay was three months.
I reject the submission for the Mahers that by failing to lodge a development application for operational works approval by 24 November 2008 they failed to comply with s 3.5.21(7) of repealed IPA.
As a consequence, I do not accept that I have power to consider the exercise of the discretion to grant relief.
Discretionary considerations
If I could exercise the power in s 820 in this case, relevantly, the relief sought is, by its nature, discretionary. In determining whether to grant the relief sought the court has to weigh up and balance competing factors. In this case factors that are submitted to favour the court exercising the discretion in favour of the Mahers are:
o the Mahers are not experienced in the complexity of the IPA;[10]
[10]Affidavit of Mr Maher at paras [15]-[21].
o the Mahers relied upon their consultants and it is the fault of the town planner not the Mahers that the development permit has lapsed;[11]
[11]Affidavit of Mr Maher at paras [10]-[14].
o the Mahers instructed their former town planner within the requisite 2 year period to lodge a development application for a “related approval,” which if he had done, would have avoided the current problem;[12]
[12]Affidavit of Mr Maher at paras [13], [57]-[63].
o for the reasons set out in the affidavit material the Mahers have, in the circumstances, acted promptly in seeking this relief;[13]
[13]Affidavit of Mr Maher at paras [7]-[9], [13], [51]-[82].
o significant amounts of money have been expended by the Mahers in progressing the development permit for the 6 storey tower (including the legal fees for an appeal to the Planning and Environment Court);[14]
[14]Affidavit of Mr Maher at paras [22]-[26].
o significant amounts of money would have to be expended by the Mahers if a new development application for a 6 storey tower needed to be lodged; [15]
[15]Affidavit of Mr Maher at para [27] and affidavit of Cullen at paras [12]-[13].
o there is good prospect that, given the changed planning controls, any new development application to Council for a 6 storey tower would be unsuccessful;[16]
[16]Affidavit of Mr Maher at para [28] and affidavit of Cullen at para [14].
o there is a good prospect that any new development application for a 6 storey tower would require an appeal to the Planning and Environment Court, which would result in further expenses being incurred;[17] and
[17]Affidavit of Mr Maher at para [28] and affidavit of Cullen at para [14].
o having regard to the current planning controls, any new development application would, in order to have moderate prospects of success, have to contemplate a 2-3 storey development rather than 6 storey creating a large loss in yield and impacting upon the viability of the project for reasons including the price paid for the land.[18]
[18]Affidavit of Mr Maher at paras [29]-[32] and affidavit of Cullen at para [14].
The last matter above, is relevant reason for refusing relief. The plights of the Mahers and their consultant warrant sympathy but their interests are not the only interests to consider. Council and the community have an interest in the outcome. The Mahers are pursing a remedy in the Supreme Court against their town planning consultant and to that extent have some remedy if their allegations are established.
Repealed IPA permitted and SPA permits developers who time their applications for subsequent approvals for operational works to substantially prolong the period before their original development approval would lapse. Thus, the legislature permits the life of original approvals to be extended for so long that it is possible the planning laws and policies relating to a development may change during the life of the approval. Such changes are not a bar to applications for subsequent approvals for operational works and are not a bar to a subsequent approval. However, subsequent changes are relevant to consider when the issue is whether to exercise the power under SPA s 820(1) in a case where a developer is seeking, in essence, to extend the life of the original development approval. The legislature in repealed IPA and in SPA s 383 provided a mechanism by which developers could apply to the assessment manager to extend the life of the original approval. The Mahers have not made such an application. If they had, there were significant obstacles to success.
Council submits:
(a) the planning scheme under which the original approval was granted is
outdated - it took effect in March 1996;
(b) the development approval is already six years old and is materially inconsistent with contemporary planning decisions made in relation to this part of Queensland;
(c) no steps to implement the development approval were taken; and
(d) if the applicants had, as is the usual course, made a request to extend the relevant period for the development approval, there were very serious obstacles facing the success of such a request. One such obstacle was the need to satisfy Council about the matters prescribed in s 388 of SPA.
I accept submissions those submissions and that they are relevant.
If this were an application for an order extending the four years within which the Mahers could apply to the assessment manager to request it to extend the approval period and if such an order was made the consequence would be that the Mahers would then apply to the assessment manager to extend the approval period. The assessment manager would be obliged by s 388 of SPA to consider only certain matters. Those matters would create significant obstacles to a success.
The assessment manager would be obliged to consider and would note:(1) inconsistency of the development approval with current laws; (2) there is likely to be a lack of community awareness about the approval given, inter alia, its age; (3) the application if remade would be likely to provoke properly made submissions given, inter alia, the current laws applying to the land and given the significant changes to land ownership in the area.
Supreme Court proceedings are brought by the Mahers against the consultant. At paragraph 19(b) of their Amended Statement of Claim it is pleaded on the Maher’s behalf:
“while the Plaintiffs could apply for leave from the Court pursuant to
section 4.1.5A of the Integrated Planning Act 1997 for a further extension of the Development Approval, it was unlikely or impossible that the Court would grant a sufficient extension to make the development commercially viable”.
The reasons against granting relief prevail. If I had the discretion to exercise, I would refuse to exercise it.
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