Maher v Fraser Coast Regional Council - [2012] QPEC 67

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rather than 6 storey - whether power under s 820 of the Sustainable Planning Act enlivened – whether “a provision of repealed IPA has not been complied with” – whether to extend two year time limit by 24 days for making application for related approval

STATUTORY INTERPRETATION – whether to rely on explanatory notes to interpret “a provision of repealed IPA…has not been complied with” in Sustainable Planning Act s 820(1)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Integrated Planning Act1997 (Qld) repealed (“repealed IPA”) s 3.5.21(7)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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QPEC 67
Decision Date: 30 October 2012

CaseChat Overview and Summary

The applicants sought a declaration and order from the court under the Sustainable Planning Act to revive a lapsed development approval by extending the time for making a related approval application. The original development approval lapsed on 24 November 2010, unless a development application for operational works was made by 24 November 2008. The applicants had instructed their consultant to lodge the development application before the due date but it was lodged 24 days late. The applicants promptly sought relief from the court once they became aware of the lapse. The planning controls in place had since changed, and any new development application under the current controls would realistically propose a 2-3 storey development rather than the original 6 storey proposal. The court had to determine whether the power under section 820 of the Sustainable Planning Act was activated and if the phrase "a provision of the repealed IPA has not been complied with" could be interpreted in light of the explanatory notes.

The court considered whether the explanatory notes could be used to interpret the phrase "a provision of the repealed IPA has not been complied with" in section 820(1) of the Sustainable Planning Act. The court found that the explanatory notes did not provide sufficient clarity to interpret the phrase in a way that would extend the two-year time limit by 24 days. The court also found that the change in planning controls and the six-year gap since the original development approval did not activate the power under section 820 of the Sustainable Planning Act. The court held that the applicants had not demonstrated any exceptional circumstances that would warrant the court extending the time limit for making a related approval application. The application was dismissed.

The court dismissed the application and made no orders. The applicants were not granted relief to revive the lapsed development approval or to extend the time limit for making a related approval application.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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