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By: Anthony O’Dwyer, Esq. & James Deegan, Esq.
Mullins Lawyers
Brisbane, Australia

In determining an application to extend the period of a development approval, an assessment manager must have regard to certain statutory considerations. These considerations do not act as preconditions to determining an extension and may be applied with discretion.

In Mantle v Sunshine Coast Regional Council [2015] QPEC 30, the Planning and Environment Court upheld an appeal against the decision of the Sunshine Coast Regional Council to refuse to extend a development approval for a tourist accommodation facility, first approved in August 2004 and subsequently extended by the Court in June 2010.

In determining whether to grant an extension to a development approval, an assessment manager must only have regard to the following (Sustainable Planning Act 2009 (SPA) section 388(1)):

  1. consistency of the development approval with current laws and policies applying to the development;
  2. the community’s current awareness of the development approval;
  3. whether, if the request were refused, further rights to make a submission may be available for a further development application and the likely extent to which those rights may be exercised; and
  4. the views of any concurrence agency for the original approval.

The Council refused the application for extension on the grounds that the development approval did not achieve compliance with various current laws and policies, together with a lack of community awareness of the approval.

The appellant entered into negotiations with the Council after receiving the refusal of extension, the outcome of which was that the approval was changed to incorporate various conditions addressing the inconsistencies with the current laws and policies, resulting in the Council removing its opposition to the proposed extension of the approval.

Although these conditions satisfied the Court that the amended development approval addressed the issue of consistency, it was still required to address the remaining section 388 considerations, particularly regarding community awareness (s 388(1)(b)) and the likelihood of public submission rights being exercised (s 388(1)(c)).

The Court gave some weight to a community group submission which argued that public notification of the application commenced in 1999 and had therefore not been subject to community consideration for 14 years, and considered that there would be people who held concerns regarding the approval (notwithstanding the updated conditions).

Importantly, the Court held that despite there being a potential likelihood that public submission rights may have been exercised (if the proposal was to be subject to a fresh development application), that does not of itself prevent the Court from granting an extension of the approval. The Court stated [at 25]:

“The matters referred to in s 388 of SPA are matters for consideration. They are not preconditions. None of the stated considerations must necessarily prevail. The matter is one of discretion, to be exercised in the circumstances of each case having regard to the specified considerations.”

The Court was persuaded, in light of the recent negotiated changes to the development approval conditions, that it was appropriate to grant the extension to the approval, notwithstanding the potential issues with community awareness and submission rights.

Despite granting the extension to the approval, the Court conceded that community awareness and the availability of submission rights may become more substantial considerations when there is a significant inconsistency between the approval and the current planning documents.

Appropriately conditioning dated development approvals appears to be an effective means of ensuring the Court will exercise its discretion to grant extensions. Notwithstanding this, the Court held [at 32]:

“That is not to say that a developer can endlessly luxuriate in an approval, without acting upon it, on the assumption that it will be extended subject only to the updating of conditions. There may well be cases where the considerations in s 388(1)(b) and (c) are given decisive weight, notwithstanding the level of consistency with current laws and policies.”

The message from the Court is clear: development approvals ought to be promptly acted upon or the applicant will risk losing the benefit of the approval.

If an extension is required to be obtained, the considerations in section 388 SPA are required to be addressed, the relative weight of which are ultimately a matter for the discretion of the assessment manager, whether a local government or the Court.

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