Stayin’ alive: Revival of lapsed Development Approvals

29 November 2018
Stafford Hopewell, Special Counsel, Brisbane

The currency period / expiry period for a development approval can be extended by making an extension application under section 86 of the Planning Act 2016, but only if the request is made to the assessment manager prior to the lapsing of the development approval.

The Court has a wide discretion to excuse non-compliance with the Planning Act and the now repealed Sustainable Planning Act 2009. This discretion applies to lapsed development approvals.

Such an application to the Planning and Environment Court is not a ‘tick the box’ process as it requires the Court to consider the facts and circumstances surrounding each case. The Court’s power is discretionary, meaning that a wide array of factors may be taken into account when determining whether to revive a lapsed development approval.

There is no hard and fast rule as to the matters the Court will take into account. However, guidance can be gleaned from the following two recent Planning and Environment Court cases.

The recent decision of Shannen Jane Bielby v Moreton Bay Regional Council [2018] QPEC 50 (Beilby) considered a lapsed development approval for multiple dwelling units (11 units). An application was filed in the Planning and Environment Court seeking declarations and orders to excuse the non-compliance and revive the development approval and extend the currency period of the approval.

In Beilby, the following factors were taken into account which held weight in the Court exercising its discretion in favour of the applicant:

  • the applicant experiencing delays with her consultants in the preparation of architectural plans for the purposes of obtaining a building permit, which in the end required the engagement of a different architect;
  • the provision of design plans for the structural engineering works and the delay by the engineering consultant lodging the development application for operational works with Council;
  • a desire and willingness by the applicant to implement the development and the associated costs incurred in pursuing the development;
  • prejudice to the applicant if she was effectively forced to make a brand new development application;
  • supporting town planning evidence as to the consistency of the proposed development with the current planning controls; and
  • the support of the respondent Council in the making of the proposed orders.

The second recent decision of Brooks Earthmoving & Quarries P/L v The Lockyer Valley Regional Council [2018] QPEC 51 (Brooks Earthmoving), considered a lapsed development approval for extractive industry. Again, an application was filed in the Planning and Environment Court seeking declarations and orders to excuse the non-compliance and revive the development approval and extend the currency period of the approval.

In Brooks Earthmoving, the Court held at paragraph [37] that:

In circumstances where there is evidence of some oversight of the time limit on the currency of the approval imposed by the condition, in the context of evidence of some confusion in dealing with related permits, any absence of strength of extenuation may be overcome by the level of support of the respondent and as to what is accepted before this Court as an appropriate ongoing use of the subject land and the acceptance of the applicant of both a further limitation as to the currency period of that use and that such occur under contemporary standards and conditions and such as might have been expected to be imposed upon a further application for development approval. 

The Court in Brooks Earthmoving exercised its discretion in favour of the applicant and ordered (amongst other matters) that the development permit be revived and amended in accordance with the conditions agreed between the applicant and the respondent Council.

Key takeaway

If you find yourself in the unfortunate situation discovering that your development approval has lapsed, this does not mean that there are no options left. A balancing exercise should be undertaken to assess the costs associated with making a new development application against the prospects of success in seeking declarations and orders from the Planning and Environment Court to breathe life back into your development approval.

Authored by:
Stafford Hopewell, Partner
Sarah Day, Associate

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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