The ‘C’eys to extending the life of a development approval

Requests to extend the relevant period for development approvals are on the rise. Consistency, contemporariness, changes in surrounding land ownership, community awareness, challenges identified in public notice submissions and concurrence agency views are the keys to whether a request to extend a development approval will be granted.

In this alert, Partner James Ireland and Special Counsel Olivia Williamson examine judgments from the Planning and Environment Court to distil the essential considerations for successfully extending the life of a development approval.

Take Home Points

• The matters referred to in section 388 of SPA are simply matters for consideration. They are not preconditions and none of the stated considerations prevail over another.
• Inability to comply with one of the criteria, for instance if evidence indicates that a person would make a submission if opportunity allowed, does not mandate refusal of the request.
• Whether or not the relevant period of a development approval will be extended is the discretion of the decision maker and favourable exercise of the discretion will depend on the circumstances of each case having regard to the specified considerations.
• The older a development approval becomes, the less it is likely to conform with current laws and policies, however attempts should not be made to draw a numerical line in the sand based on the age of a development approval.
• Consistency with the current laws and policies may not necessarily have decisive weight, however it may be regarded as particularly significant in establishing reasonable expectations which is relevant to informing the considerations of community awareness and potential submission rights.
• Current community awareness, the potential availability of public submission rights and the likelihood of their exercise may become weightier considerations where there is significant inconsistency between the approval and current planning laws and policies.  
• Existing case law is likely to provide guidance into the future based on the current drafting of section 85 in the consultation draft Planning Bill 2015 released in September 2015.

Any application to extend the relevant period for a development approval must be made before the development approval lapses.^[1]

In deciding such a request, section 388 of the Sustainable Planning Act 2009 (SPA) provides that the assessment manager (or the Court on appeal) must only have regard to:

• The consistency of the approval, including its conditions, with the current laws and policies applying to the development including, for example, the amount and type of infrastructure contributions, or charges payable under Chapter 8, Parts 2 and 3; and
• The community’s current awareness of the development approval; and
• 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 exercise; and
• The view of any concurrence agency for the approval given under section 385.

Section 85 of the consultation draft Planning Bill 2015 released in September 2015 is proposed to be the successor of section 388 of the SPA. Section 85 provides that “when assessing an extension application, the assessment manager may consider any relevant matter whether or not the matter was relevant to assessing the development application.” In our view, relevant matters are likely to include the matters currently detailed in section 388 of the SPA.

Case Law

Section 388 of the SPA, and its predecessor 3.5.23 of Integrated Planning Act 1997 (IPA), has not generated much discussion by the Court. There are only a handful of reasons handed down by the Planning and Environment Court in the context of an appeal with respect to a local government’s refusal of a request to extend the relevant period for a development approval.

These cases helpfully provide guidance with respect to the interpretation of the considerations set out in section 388. To set the context for our analysis, below is a brief outline of the facts and conclusions reached in four of the decisions.

Ardmore Holdings Pty Ltd v Brisbane City Council [2008] QPEC 115

In February 1990 the Brisbane City Council granted a development permit for a three storey apartment building (containing eight units) on land at Highgate Hill. The proposal was advertised to the public in 1989 and one objection was received from a nearby resident.

In May 1999, Council approved some modifications to the plans to reduce the number of units from eight to three, although the building scale and bulk remained the same as the earlier approval.

Between May 1999 and 2005 Council agreed to two further extensions to the approval, taking the relevant period of the approval to December 2006. An application for a third extension was made and refused by the Council in September 2006. Council opposed the further extension of time (and the subsequent appeal) on four grounds, namely:

• The GFA exceeded the site area contained in Brisbane City Plan 2000 and the building was not otherwise consistent with other buildings in the locality, in terms of scale and bulk;
• The building exceeded the number of storeys contemplated in Brisbane City Plan 2000 for the locality;
• The development is contrary to the Desired Environmental Outcome for the low-medium density residential area in City Plan 2000; and
• There had been a significant change in ownership of the properties around the subject site since public advertising in November 1989.

Although this case was decided on the basis of section 3.5.23 of the IPA, the requirements for deciding the request are in similar terms to section 388 of the SPA (save that section 3.5.23 did not include a consideration of the view of any concurrence agency for the approval).

In dismissing the appeal (and refusing the extension), two factors were most important:

1. 19 years had passed since the last notification of the proposal to members of the public. The Court accepted that there had been many changes of ownership of properties in the surrounding area and because several people said they would oppose the development if they had the chance to do so, it should be accepted that the time had come for it to be notified again to members of the public.
2. The previous approval was not consistent with the current laws and policies which applied to the development, including City Plan 2000 and that inconsistency included the failure to comply with the performance criteria not just in insignificant details.

Cleveland Power Pty Ltd v Redland Shire Council [2013] QPEC 9

Following a submitter appeal, the Court granted a development approval to the Appellant to develop land at Mount Cotton with a bio-mass power plant. The relevant period for the development approval was four years. Over 300 submissions were made during public notification of the development application.

In November 2011, the Appellant lodged a request to extend the relevant period of the development approval which was refused by the Council.

In considering section 388 the Court made the following observations:

1. Section 388(1) of the SPA does not contemplate that any one of the four considerations prevails over the others and it does not contemplate that a failure to comply with one of the criteria mandates refusal.
2. It was particularly significant that the development approval was consistent with current laws and policies. This consistency is important because it founds a reasonable expectation on the part of the public that development of the kind approved may occur in the area.
3. The Appellant and the Court accepted that members of the public had “maintained a rage” against the proposal and that if the request was refused, members of the public would exercise rights to make a submission in respect of a further development application.
4. There would be little utility in forcing the Appellant to undergo an extensive impact assessment process for the purpose of obtaining a development approval that would be, for all intents and purposes, consistent with the existing development approval and which would be unlikely to provoke a public submission that would raise any new issue for consideration.

Ultimately the Court was prepared to extend the relevant period of the development approval for a further two years.

Langton and Anor v Douglas Shire Council [2014] QPEC 71

The development approval the subject of the request was dated 18 June 2010 and authorised a material change of use for four multiple dwellings (tourist) on land at Port Douglas. The relevant period for the development approval was four years and the request sought a further four years. The original development application was publicly notified and one submission was received from an adjoining owner.

The development application was assessed against the 1996 Douglas Shire Planning Scheme. Under that scheme, the land was located within the Residential B Zone and the Medium Density Tourist Accommodation Area of the Development Control Plan.

In 2006 a new planning scheme came into force. Under the new scheme, the land was included in the Residential 1 Planning Area of the Port Douglas and Environs Locality. The development fell within the definition of “holiday accommodation” in the new scheme and this was impact assessable (inconsistent) under the new scheme.

In dismissing the appeal (and refusing the requests), the Court had regard to:

1. The “significant shift” in how the land was treated in the 2006 planning scheme compared to the 1996 planning scheme, including with respect to desired environmental outcomes, maximum plot ratio and access requirements.
2. The approval was not consistent with the underlying planning strategy for the land in the new scheme which seeks less intensive residential development and discourages Holiday Accommodation.
3. The extent of the inconsistency with the new scheme was enough to dismiss the appeal on that ground alone.
4. The submitter still owned the adjoining land and the Court was of the view that if the appeal was dismissed and the proposed development assessed under the current planning controls that submitter would exercise his right to make a submission and other persons may also exercise rights to make a submission.

Mantle v Sunshine Coast Regional Council [2015] QPEC 30

This decision concerned a request to extend the relevant period of a development approval for a tourist accommodation facility on the shores of Lake Weyba. The development approval was granted by the Court in August 2004 (after the resolution of two submitter appeals) with a four year relevant period. The relevant period of the approval was extended by the Court in June 2010 and the appellant sought a further extension.

The development application was publicly advertised in 1999 and seven submissions were received, two of which supported approval.

Council’s grounds for refusing the request made reference to a letter from “Friends of Lake Weyba” which stated that if the proposal was placed before the community for comment, Friends of Lake Weyba (and possibly others) would make a submission.

In relation to consistency with current laws and policy:

1. The development approval was changed by the Court in August 2014. A number of conditions relating to acid sulphate soil, koalas and koala habitat trees, bushfire management and native acid frog habitats were replaced to address contemporary standards and controls.
2. The previous extension of the relevant period was granted during the currency of Maroochy Plan 2000 and the second request was also made during the currency of Maroochy Plan 2000. The Sunshine Coast Planning Scheme 2014 commenced in May 2014.
3. Expert evidence was presented to the Court addressing the issue of consistency between Maroochy Plan 2000 and Sunshine Coast Planning Scheme 2014.
4. The Court was ultimately satisfied on the material that there were no material differences between mapping or Code requirements and the conditions of approval appropriately respond to the requirements of the Codes and provide flexibility to adjust the development at the detailed design stage.

In relation to the community’s awareness of the development approval, the Court considered that:

1. Lake Weyba is an important feature and its environment is likely to be of general interest within the region, beyond simply those who live nearby.
2. Despite changes in ownership the broader locality since 1999, there is likely to be a reasonable level of knowledge of the approval.
3. In December 2012 a different development application was made in respect of the subject land. That development application is the subject of an appeal in the Court.
4. The likelihood of public submissions being exercised if the proposal were to be subject of a fresh development application could not be discounted. That however, does not preclude a grant of the requested extension.
5. The issues which were the subject of the submissions to the original development proposal were largely addressed by the changes to the approval made in 2014 aimed at addressing contemporary standards and controls.

Ultimately, the Court was prepared to grant the requested extension to the changed development approval. In doing so however, the Court confirmed that it would not have been inclined to grant the request in relation to the unchanged development approval. In reaching this conclusion the Court cautioned that a developer ought not to “endlessly luxuriate in an approval, without acting upon it, on the assumption that it will be extended subject only to the updating of conditions.”

Commentary

The cases confirm that the matters referred to in section 388 of SPA are simply matters for consideration. They are not preconditions and none of the stated considerations prevail over another. The outcome is in the discretion of the decision maker and whether or not the discretion will be exercised favourably will depend on the circumstances of each case having regard to the specified considerations.

Consistency between the approval and current planning laws or policies is important but will not necessarily have decisive weight.

Consistency however is the primary source of reasonable expectations and as such informs other considerations, namely, community awareness and potential submission rights. Where there is significant inconsistency, current community awareness and potential submission rights may become weightier considerations.

To obtain specific guidance on how to successfully extend the life of an existing development approval, please call HopgoodGanim Lawyers’ Planning and Environment team.

[1] Section 383 of the SPA