Queensland Planning and Environment Court provides guidance on when historical development approval conditions attach to land - Land Law & Agriculture

A key, but often overlooked, legal issue in Queensland's development assessment regime is the extent to which the conditions of a development approval will attach to and bind land – even when a later development approval is obtained for different development.

For example, if an approval for a large residential development requires an area of land to be preserved for conservation purposes, and, years later, the developer obtains a further development approval which allows the conservation area to be developed, can the developer develop the conservation area, or do the earlier conservation conditions linger on?

As explained below, although this issue is of fundamental importance, there is no clear answer.

On 16 September 2016, the Planning and Environment Court delivered judgment in the case of Steendyk v Brisbane City Council [2016] QPEC 47 (Steendyk).

While this case provides some much-needed guidance as to the relevant legal principles, it has not entirely resolved the issue.

THE LEGAL CONTEXT

Under Queensland's planning legislation, it is clear that a development approval attaches to land and binds occupiers, owners and successors in title.

However, the legislation does not clearly address whether, or to what extent, the conditions of an approval will regulate future development, such as where:

as in the example above, a developer obtains a later approval for different development that is inconsistent with the conditions of the earlier development approval; or
the planning regime itself changes, such that development that would breach the conditions of an earlier approval can be carried out "as of right" (ie without approval).

On one view (referred to below as the "broad" view), because a development approval attaches to land, its conditions remain binding even where development is later undertaken under a different approval (or "as of right"), unless and until the conditions of the earlier development approval are amended or (in some circumstances) the earlier approval is cancelled. The broad view is reflected in cases such as:

KCY Investments (No. 2) Pty Ltd v Redland City Council,¹ in which an earlier approval included a condition requiring certain land to be protected for environmental reasons. The Court upheld a condition imposed on a later approval that prohibited the developer from commencing the new development under that later approval until the conditions of the earlier approval had been amended; and
Peet Flagstone City Pty Ltd v Logan City Council,² in which the Court held that certain vegetation clearing, which was able to be carried out "as of right" due to a change in the planning regime, was unlawful because it breached a condition of an earlier approval that had required the vegetation to be preserved (as part of an approval to clear other vegetation).

However, the alternative view (referred to below as the "narrow " view) is that a development approval's conditions only regulate the specific development approved by that approval. The basis for this view is that because the purpose of an approval is to authorise development (subject to any conditions), the conditions only apply to the relevant authorised development.

An example of the narrow view is Liquorland (Aust) Pty Ltd v Gold Coast City Council,³ in which a hotel had originally been approved subject to a condition that, effectively, prohibited it from having more than 5 poker machines. The developer later obtained a further approval allowing 25 machines. This approval was upheld as valid, on the basis that it was for a "different" development, such that the original approval did not apply.

The question of which of these views is correct has significant practical implications.

If the broad view is correct, then, generally, the only means of freeing land from conditions of an earlier approval is by amending the earlier approval. This is because Queensland's planning legislation does not allow an approval to be cancelled unless development under that approval never commenced.
However, the legislation also restricts the types of amendments that can be made, by only allowing what are termed "permissible changes". For example, a change will not be a permissible change if it results in "substantially different development" or, where the application which led to the approval required public notification, if the change would be likely to provoke a submission objecting to the change.

This means that, in many cases, it will not be possible to either cancel the approval or amend its conditions via a permissible change. If neither cancellation nor amendment is available, then the outcome is that the conditions remain locked in place for perpetuity, potentially sterilising the development potential of land.
However, if the narrow view is correct, it means that a developer could potentially use a later approval to circumvent their obligations arising under earlier approval conditions. In the Peet Flagstone case, it was observed that conditions are the "community price" that a developer must pay for taking the benefit of a development approval. The second view could enable a developer to ultimately avoid paying that "community price".
For example, it is not unusual for community members to appeal controversial development approvals to the Court. Often, those appeals are resolved by the developer agreeing to accept certain conditions as a "trade-off" for being able to commence development without having to fight the appeal. The narrow view could allow the developer to take the benefit of this trade-off and then, some years later, obtain a further approval that undermines the agreed conditions.

STEENDYK V BRISBANE CITY COUNCIL: THE KEY FACTS

In 2002, a development approval was granted by the Court (in the context of an appeal by a neighbouring landowner who had objected to the development application) for various extensions to a dwelling house. That approval included conditions requiring privacy screens to be installed and maintained on all verandahs.

In 2010, a subsequent approval was granted by the local government for further works to the house. That 2010 approval did not affect the privacy screens required by the 2002 approval, and so the neighbouring landowner made no further objection.

However, in 2014, the owner of the house obtained an amendment to the 2010 approval (via the "permissible change" process) which approved part of a verandah being enclosed, with moveable louvres being installed, in place of privacy screens.

The neighbour objected to this, because, when the louvres were opened, they allowed residents of the house vision of parts of his property, including into bedrooms. Accordingly, the neighbour commenced proceedings challenging the Council's 2014 decision, including because of its inconsistency with the 2002 approval.

STEENDYK V BRISBANE CITY COUNCIL: THE COURT'S DECISION

The Court held that the 2014 change was valid, and could be lawfully relied upon, despite being inconsistent with the conditions of the 2002 approval.

In doing so, the Court endorsed the narrow view, stating that, when a development approval attaches to land, what in fact "attaches" is the right to carry out development under that approval, subject to its conditions. On that basis, the Court concluded that where a subsequent approval grants different development rights, those rights are not restricted by the earlier approval.

Given this, the Court held that the 2010 approval, as amended in 2014, related to a "different" development from that approved in 2002, such that the rights under the 2014 approval were not affected by the 2002 conditions.

Even though the 2002 conditions required the privacy screens to be both "constructed and maintained", the Court emphasised that the purpose of the planning legislation is to regulate development, rather than to "restrict or stifle development unduly and unreasonably". Given this, the Court considered that the obligation to maintain the screens only applied to the original development as approved in 2002, and was not an obligation to retain those screens indefinitely.

ANALYSIS AND IMPLICATIONS

The Court's decision in Steendyk appears to unequivocally endorse the narrow view. However, on closer analysis, there remains significant uncertainty as to which of the broad or narrow views is correct.

In the first instance, this is because the Peet Flagstone referenced above is a decision of the Court of Appeal, rather than the Planning and Environment Court, and so is more authoritative. This means that, in any future case, it will be necessary to reconcile the two decisions.

In Steendyk, the Court appears to have attempted to partly reconcile the decisions by stating that Peet Flagstone and similar cases:

"are authority for the proposition that a developer who takes the benefit of a development approval cannot avoid the concomitant burdens of that approval, in the form of conditions which continue to apply, once the approved development has been carried out. But of course [...] if the benefit is not relied on – because the rights conferred by the approval are abandoned – there is no concomitant burden".

However, the question remains as to when it can be said that the benefit of an approval is "not relied on". In Peet Flagstone, for example, the benefit had already been relied on some years earlier, when clearing was originally undertaken.

Similarly, in Steendyk, the 2002 approval had also been "relied on", in carrying out the original extensions. It appears that, for this reason, the Court ultimately decided that rather than the 2002 approval having been "abandoned" (despite using that term in the quote above), the 2002 approval had "simply finished the work it was required to do".

However, on this approach, it is unclear why, in Peet Flagstone, the Court of Appeal clearly did not consider that the earlier approval had "finished its work", despite clearing under that approval having finished some years earlier.

Given this, while the Steendyk decision provides much-needed guidance on the relevant principles, it ultimately does not resolve the underlying issue.

For both developers and assessing authorities, there remains significant uncertainty as to the ongoing effect of conditions.

In practical terms, the issue will be resolved somewhat by the new Planning Act 2016 (Qld), due to take effect in mid-2017, which will allow approvals to be changed in circumstances that would not currently meet the definition of a "permissible change". This means that, even if the legal issue remains unresolved, its potentially significant practical implications can be avoided.

In the meantime, or until the legal issue is otherwise resolved by the Court of Appeal, both developers and local governments should exercise caution in situations involving historical approvals.

Footnotes

¹ [2012] QPELR 436.

² [2015] QPELR 68

³ (2002) 121 LGERA 197.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.