Court rescues landowner from oversight which results in lapsing of development approval

The Planning and Environment Court made a declaration that a development approval for residential purposes over land in Beerwah had lapsed and an order that the time for the making of a request to extend the relevant period of the development approval be extended. This decision was determined under the provisions of the now repealed Sustainable Planning Act 2009.

Implications

• The Sustainable Planning Act 2009 will continue to apply to those proceedings that were started before the commencement of the Planning Act 2016 and not decided before the commencement;
• The Court has a broad discretion to excuse matters of non-compliance under the Sustainable Planning Act 2009;
• The Court in determining whether to apply its discretion to extend the time for the landowner to make a request to extend the period of the development approval to the Council had regard to the following matters:
  • the level of sophistication of the applicant;
  • the attitude of the Council and its preparedness to consent to the orders being sought;
  • the timing of the making of the application as soon as it was determined the development approval had lapsed;
  • the steps taken to complete the development and total financial investment to date;
  • the reason for the lapsing of the development approval.

Decision

Richard and Joan Austin made an application to the Court in June 2017 seeking a declaration that their development approval for a residential development had lapsed and an order that the time for making an application to the Council to extend the relevant period of the approval be extended.

Mr and Mrs Austin were not experienced developers and had made a total of eight further applications to the Council to either extend the relevant period of the approval or carry out work in order to implement the approval.

Mr and Mrs Austin however failed to extend the relevant period of the development approval prior to it lapsing in April 2017. At the time of the approval lapsing, Mr and Mrs Austin had undertaken significant works to the land in order to make available six of the proposed lots which had already been presold to third parties.

The Council was agreeable to the declaration and order sought by Mr and Mr Austin.

The Court having regard to the matters above resolved to make the declaration and order being sought by Mr and Mrs Austin.

Authored by:
Stafford Hopewell, Partner
Elton Morais, Senior Associate