Zenmak Pty Ltd & Zenonos v Moreton Bay Regional Council

[2010] QPEC 13

[2010] QPEC 13

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E No 90 of 2010

ZENMAK PTY LTD AND CHRISTOPHER ZENONOS	Plaintiff
and
MORETON BAY REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 05/02/2010

..ORDER

CATCHWORDS

Integrated Planning Act 1997 s 3.5.21, s 3.5.22(1), s 3.5.23(11), s 4.1.5A, s 4.1.55
Developer request for extension of development approval out of time (i.e. after it had "lapsed") - developer did not regard Council refusal to process request as "written notice of the decision" - Council did not meet request for a "formal notification" on basis of which an appeal could be instituted - extension of time for appeal granted - request granted - extension of time for appeal allowed

HIS HONOUR:  The Court makes an order in terms of the

initialled draft.

The appellants, or one of them, purchased land the subject

of a development approval for material change of use in

respect of a five storey building at Scarborough to contain

21 units.

The currency period, the traditional four year one, was to

expire in May 2008.

Some steps were taken by the appellants after their

acquisition of the property to make use of the approval; for

example, application was made for a development permit for

operational works - but nothing substantial has been done.

Application was made in the proper way for an extension of the

currency period which was granted by the council with a new

closing date of 11 May 2009.

By this stage the appellants' interest in proceeding with the

development waned and it was determined to sell the property.

Difficulties have arisen in that process and negotiations are

currently underway with a third potential purchaser.  Two

earlier purchasers went to contract but difficulties arose

which apparently culminated in litigation.

The Court accepts the evidence of Mr Zenonos, the principal of

the appellant company, that these matters distracted him from

attending to getting the currency period further extended.

It's surprising that this might have been the case. Section 3.5.22(1) of the Integrated Planning Act 1997 (IPA) requires a request for extension to be made before a development approval lapses under s 3.5.21.

The second of the purchasers, understandably interested, as

the potential purchaser in negotiations is, in having the benefit of the development approval, made inquiries of council to ascertain that the approval had lapsed which information was communicated to the appellants.

They promptly requested the council to extend time and

received a response by letter of 23 September 2009 which

referred to council having previously extended the currency

period under section 3.5.23 of the IPA.  It was noted that the

current request for further extension had been received by

council on 8 September 2009:

"There is no provision within the Act to allow council to

reinstate the permit once it has lapsed.

You are therefore advised the request is unable to be

processed as the permit is no longer valid.  A full refund of

the application fees submitted with the application will be

lodged in due course".

Understandably, the view was taken, as I accept, that the

application was in a kind of limbo.  The appellants engaged

new solicitors, those now acting, who wrote to the council on

19 November 2009 in reference to the council's letter

requesting that "council formally provide notice under

section 3.5.23 of IPA refusing the request for extension of

the relevant period made on 7 September 2009 on the limited

grounds the request was not made during the currency of the

development approval.  My client would then appeal the

decision pursuant to section 4.1.30(1)(a) of the IPA". Section 3.5.23(11) requires written notice of the decision to be given to the maker of the request for extension. Section 4.1.30 confers a right of appeal on a person who has received such a notice. The letter went on to foreshadow an application to the Court following council's entry of appearance in the appeal to act under section 4.1.5A of IPA to excuse the failure to comply with the IPA requirement to lodge the request during the currency of the relevant development approval. A copy of the decision in Brisbane Land Pty Ltd v. Pine Rivers Shire Council [2007] QPEC 126, which is in point, was provided to the council as part of this communication.

The response was some time in coming, arriving at an

inconvenient time of the year, 22 December 2009 at 4.46 p.m.. The writer's advice to Mr Timbs, the solicitor now looking after the appellants' interests was, "I have checked with council's legal services and confirmed that the letter council sent to you on 23 December 2009 should be sufficient to commence proceedings to seek relief from the Court under section 4.1.5A."

Unfortunately for the appellants, they were left without the

anticipated formal decision which might have set the appeal

period running, though plainly too late, if the date which set

the period running was identified by reference to the

council's letter of 23 September 2009.  Thus, not only the

Brisbane Land indulgence is necessary but an indulgence in

respect of the time for institution of the appeal.

The discussion of the topic of longer times being allowed for

appeal under section 4.1.55 in Fogg Meurling and Hodgetts,

Planning and Development Queensland is helpful.  It indicates

that extensions of time are not to be granted simply for the

asking.  Circumstances rendering the allowing of additional

time appropriate have to be established.

It seems to me, and for obvious reasons, that extensions may

be more readily granted to developers desiring to proceed who

have committed themselves to trouble and expenditure in respect of their proposals than to adverse submitters who, the cases show, often have trouble in getting additional time. The high water mark in special circumstances in Butler v Kingaroy Shire Council [2006] QPELR 10 (considered in Rynah Pty Ltd v Gold Coast City Council [2006] QPEC 104) was a siz month extension granted to a developer.

In my opinion, the circumstances of the appellants here are

sufficient to justify the Court's acting under section 4.1.55.

Some significant matters apart from the arguable inadequacy of

the “written notice” require from the Council, include that

the development proposal was an impact assessable one which went through public notification attracting no submissions.  It would not be attractive to the appellants to have to start all over again and with an impact assessable development application to suit the wishes or expectations of the purchaser with whom they're in negotiations, it may well not be inclined to wait.

At the time of the extension of the currency period referred

to above the latest amendments to the council's planning

scheme had come into effect.  It's significant to note that at

that point the council regarded the development as a suitable

one for the area.  Mr Skoien, representing it, confirms that

such is still  its attitude today and there's indeed in the material before the Court a letter of the council of 13th of November 2009 which confirms that the council would raise no objection should the appellants seek a declaration to grant a further extension of time "as the approval was not out of

character with existing development in the area, nor the

current unconstructed development approvals."

The section 4.1.5A relief should be granted on the same basis

as it was in Brisbane Land.  Public notification of the

“suitable” proposal occurred; no “opportunity” referred to in

subsection (11)(b) has been restricted.  We're in the

fortunate situation of being able to resolve the matter and spare the parties the need for further steps to be taken in the Court by the appeal being allowed at this stage, given the council's approach.

I might conclude by mentioning that the matter has been dealt

with on the basis that the Intergrated Planning Act 1997

applies.  Should it be the case that section 820 of the

Sustainable Planning Act 2009 is the relevant provision, it

would be clear that the appellants' task of obtaining the

indulgences sought would be much easier, certainly not more

difficult.

Does that cover everything?

MR SKOIEN:  Thank you, your Honour.

MR HUGHES:  Thank you, your Honour.

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