Wallace v Logan City Council

[2010] QPEC 66

[2010] QPEC 66

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 1734 of 2010

JAMES GRAHAM WALLACE AND ANOTHER	Applicant
and
LOGAN CITY COUNCIL	Respondent

BRISBANE

..DATE 28/07/2010

..DAY 1

ORDER

CATCHWORDS

Sustainable Planning Act 2009, s 341, s 480, s 801, s 815 Integrated Planning Act 1997 s 3.5.21, s 3.7.2, s 4.1.5A

Applicant developer fails to give plan (for reconfiguration) to Council while development permit still "has effect" - Council supportive of application to allow extended time for that step - substantial works done, no opposition from local people

HIS HONOUR: The Court makes an order in terms of the initialled draft which provides that time for the appellants to give a plan of reconfiguration to the Logan City Council pursuant to s 3.7.2(2) of the Integrated Planning Act 1997 (IPA) and s 341 of the Sustainable Planning Act 2009 (SPA) be extended to the 28th of October 2010.

The evidence indicates that the applicants and their advisers overlooked s 3.7.2(2) which provides that where a reconfiguration proposed to be effected by a plan is authorised by a development permit "the plan must be given to the local government for its approval while the permit still has effect."

The relevant development permit for a reconfiguration of one lot into two and a preliminary approval for operational works was granted by the Council on the 23rd of December 2005.  The SPA commenced on 18^th December 2009.  Some time after the 23^rd December following, the approvals may have failed (having regard to s 3.5.21(2)(b) and s 3.7.2(2) of IPA). Here, the approval has been acted on; substantial works have been done. By way of example the retaining wall to deal with the situation of lot levels being different has been constructed. Likewise, work has been done on relocation of services, including a sewer line.

Mr Ellerman estimates that some $100,000 has been spent.  On the ground the proposal is for retention of an existing dwelling house and creation of a new lot to accommodate an additional new dwelling.  That is a common type of development occurring in the relevant locality, which is around Trudy Crescent, Cornubia.

The Council are supportive of the applicants’ situation. The circumstances lead to some sympathy for them. Planning arrangements for the locality have changed. It may be a complex and expensive exercise for the applicants if they're required to go back to the beginning. The Council nonetheless is doubtful of its power to have matters proceed contrary to what s 3.7.2(2) clearly intends in the absence of some appropriate ameliorating order being made by the Court.

I expressed concern at the lengthy extension provided in the proffered draft order which rather suggested the applicants were still some distance away from being ready.  However, I accept from Mr Ellerman, and it's confirmed by Ms Cox representing the Council, that the applicants are ready to produce their plan within days.  It's the Council's preference to have a generous amount of time allowed to avoid its being required to do anything in haste.

This is not the first time that the IPA provision has been overlooked. An order indistinguishable from that made today was made by Judge Wilson SC in reliance on s 4.1.5A of the IPA on the 25th of February 2009 in appeal 3230 of 2008, Ferpro Pty Ltd as Trustee v Logan City Council. If his Honour gave reasons those aren't available. A copy of the submissions which he gave leave to read and file has been placed before the Court by Mr Ellerman, also a copy of the relevant application which sought broader relief in terms of an extension of currency period and a declaration that the respondent Council was obliged to approve under s 3.7.2 a plan of reconfiguration lodged late.

Section 341 of the SPA, which would appear to apply as under s 801 (see also s 815) of the IPA approval represents a “continuing” one, continues the concept of development approvals lapsing. Oddly, in the expanded equivalent of the old s 4.1.5A, in s 440, one finds provision in subsection (3) to make it clear that development applications which may have lapsed by statute are capable of revival. It says nothing about development approvals which have lapsed. In my opinion that subsection which is there "to remove any doubt" does not have the effect that a lapsed approval may not be directly or indirectly revived by an appropriate Court order.

Views as to whether life may be breathed back into something which has lapsed by statute differ.  So far as I'm aware there is as yet no Court of Appeal determination of this.  In the interests of comity I've abandoned concerns of my own on this score and followed the approach of other Judges of the Court, which is to be generous in permitting lapsed applications, et cetera, to be revived.

Mr Ellerman's outline relied on today contains reference to Brisbane Land Pty Ltd v Pine Rivers Shire Council [2007] QPEC 126 in which the Court exercised a s 4.1.5A discretion to extend the time for giving written notice as required under s 3.5.22(1) for an extension of a currency period where the development approval had lapsed.

The submissions extract the following from the Court's reasons: "The inclusion in the Act of provisions such as section 3.5.21 serves a very useful purpose. No one would want to have development approvals extant forever preserving to the owner of a site a never-ending ability to effect a particular development which, as the years passed, might become highly inappropriate for the site in its locality. The books contain examples of cases of that kind in which Local Governments have declined to extend currency periods. The present circumstances for all that appears are very different where the Council is supportive of the development. There's little attraction in the outcome which determines that an approval in such circumstances has irretrievably lapsed."

The Council here is similarly supportive.  Indeed, for what it's worth the applicants have canvassed nearby residents and with a high degree of success in eliciting expressions of support for what they want to do.  There's no opposition expressed, so the Court is left to speculate, perhaps, as to the views of those who it's not been possible to contact and extract a response from.  I think this particular aspect of seeking support from local people is a belt and braces step which is not really necessary in the circumstances.

...

HIS HONOUR:  Order as per initialled draft.

-----