Australia: Examining Residential Subdivisions

James Ireland, Senior Associate

Introduction

South East Queensland is the fastest growing region in Australia. An understanding of issues associated with the development of residential subdivisions is therefore not only of interest generally, but of critical importance to those involved in the development of residential subdivisions (if the forecast growth for the region is ultimately to be accommodated).

I have been asked to give an overview of the Court of Appeal’s decision in Charles and Howard Pty Ltd v Redland Shire Council [2007] QCA 200 and comment on some issues associated with the making of development applications for residential subdivisions.

While this paper briefly discusses the Court of Appeal’s decision in Charles and Howard Pty Ltd v Redland Shire Council [2007] QCA 200, a decision which concerned the development of a single residence on land overlooking Moreton Bay, the focus of the paper is on the general principles of planning law that arose in that case concerning the extent to which both Councils and the Planning and Environment Court (in its appellate jurisdiction) may rely on new and draft laws and policies. The paper will also make some observations with respect to the process of obtaining "re-zoning" and "subdivisional" approval for residential subdivisions and the ability for an applicant to challenge conditions placed on a development approval.¹

CASE STUDY: Charles and Howard Pty Ltd v Redland Shire Council [2007] QCA 200

This case concerned the development of a single residence on land overlooking Moreton Bay.

It involved an application for leave to appeal from a decision of the Planning and Environment Court under section s4.1.56 of the Integrated Planning Act 1997 ("IPA"). The appeal concerned the validity of a condition attached to a preliminary approval requiring the proposed development to be moved to a different location on the site.

The Appellant owned land at 20 Albert Street, Victoria Point upon which he wished to build his family home. The land was 1.697 hectares in size and overlooked Moreton Bay.

At the time, the whole of the Appellant’s land was zoned Residential A under the Respondent’s Council’s 1998 planning scheme. While development approval was not usually required for the construction of a house in the Residential A zone, in this instance an operational works approval was required as the proposed building site (in the eastern corner of the site) needed fill to bring it to the minimum height level required by the Council’s planning instruments (that is, to above the one in a hundred year flood level). The inclusion of the land in the Residential A zone did not reflect the land’s ecological significance. Several higher order planning documents, however, did recognise the land’s significance. In particular, the land was included in a Special Protection Area in the Council’s Strategic Plan and was subject to a Development Control Plan designating the appellant’s preferred house site as Public Open Space and the Council’s preferred site Residential A (as discussed later this case was a case in which the Council agreed a house could be built, but said that it had to be built at the western end of the site rather on the eastern end (the applicant’s preferred location)).

On 7 November 2005, the applicant made a development application to the respondent Council, accordingly, for preliminary approval to place fill on the land on a site where the Applicant wished to build a home.

At the time the application was made, the Council was in the process of preparing a new planning scheme. That scheme came into force in March 2006 (that is, two months after the Council made its decision and five months before the Planning and Environment Court made its decision). Under that new scheme, all of the land, apart from the Council’s preferred site, was in the Open Space Zone (the Council’s preferred house site being in an area described in the zoning map as Urban Residential). Both housing sites were constrained by ‘overlays’ (express policies for particular areas) going to habitat protection and the Waterways, Wetlands and Moreton Bay buffer, however the Council’s preferred site was not subject to the flood prone, storm tide and drainage constraint land overlay.

On 21 November 2005, the Council requested further information. In particular, the request said:

"In accordance with the draft Redland Planning Scheme, demonstrate why the proposed dwelling cannot be located within the portion of the site proposed to be included in the Urban Residential Zone."

On 19 January 2006, the Council approved the application subject to various conditions, the one relevant to this appeal being the condition that:

"…approval has not been granted to the site the proposed development at the [applicant’s preferred] location…The proposal is to occur within the confines of the building envelope…".

The effect of this condition was that the house was to be built on the Council’s preferred house site within the portion of the land proposed to be included in the urban residential zone. The building envelope being at the western end of the land (in contrast with the Applicant’s preferred site at the eastern end of the land)- an area not subject to inundation by the Q100 flood level.

The applicant appealed from the Council’s conditional approval to the Planning and Environment Court under s4.1.27 of the IPA contending that the condition was not reasonable, did not satisfy the conditions test in s3.5.30 of the Act and ought to be amended to allow development at the location in the applicant’s development application.

In dismissing the Appeal, the Planning and Environment Court [2006] QPEC 095 concluded that the various town planning documents were against the applicant’s proposal and that the disputed condition imposed by the Council which allowed a house to be built on the land (albeit at a different location) was held to be reasonable and relevant in the sense discussed by Proctor v Brisbane City Council [1993] 81 LGERA 398 as it better reflected the aims of the relevant town planning provisions. In doing so, His Honour Judge Brabazon QC formed the view that the plain intention of the planning documents was that no such development should occur on the eastern end of the land and that the Council had chosen the better site from an ecological point of view.

Four grounds of appeal formed the basis of the Appeal to the Court of Appeal, namely:

• that the court misconstrued the relevant planning instruments;

• that the Court erroneously applied a ‘best sites’ test or ‘alternative sites’ test;

• that the condition imposed was not reasonable because it was effectively a refusal of the application;

• that the planning instruments were wrongly construed based on the evidence of potential impacts of climate change on predicted future sea levels.

With respect to the weight to be given to the various planning documents, the Court of Appeal said that in determining the appeal, the Planning and Environment Court was obliged to make its decision based on the 1998 planning scheme (the scheme in place at the time of the application) but was also entitled to give weight to any new laws and policies (such as the relevant portions of the 2006 planning scheme in force at the time of the appeal) the court considers appropriate under s4.1.52(2)(a). As there was no indication that the primary judge’s approach was inconsistent with this obligation, this first ground of appeal failed. There was no demonstrated legal error in the primary judge’s partial reliance on the 2006 planning scheme. Indeed, the Court of Appeal found it appropriate that attention be paid to the provisions of the now in force 2006 Planning Scheme for the area and the DEO’s contained therein.

The Court of Appeal noted with respect to the issue of whether the Court wrongly applied a ‘best sites’ test or ‘alternative sites’ test, that the relevant and only issue for judicial determination should be whether the proposed application was appropriate. It found that, in this instance, the answer to this question required a consideration in light of the relevant planning documents of whether there was a more appropriate location on the site for the residence to be built. It also noted that as this issue was not argued before the Planning and Environment Court there could be no criticism of the court’s comparative analysis between the relevant merits of the competing proposed locations on the one site in determining whether the condition imposed by the Council satisfied s.3.5.30(1) of the Act.

In response to the applicant’s contention that the Council’s approval with the disputed condition made the approval significantly different from that to which the development application related (and therefore effectively refused the application), the Court of Appeal held that the approval of the proposed development by confining its building envelope to a particular location was not an example of impermissibly imposing a condition with the effect of approving something quite different to that for which the application was made. The approval remained an approval to place fill on the subject land for the purpose of building a residence but it imposed a condition as to where on the subject land that fill was to be placed. Accordingly, this ground failed.

The Applicant’s submission that the judge erroneously took on the Council’s responsibility as planning authority in determining an issue under the planning scheme dealing with the impact of climate change on sea levels on the area proposed by the Council was also deemed not to amount to an error of law and also failed. In that regard, the Court of Appeal was satisfied that the primary judge rightly considered that these were matters relevant to the determination of the essential issue (ie. whether the disputed condition in the approval to place fill on the land was relevant and reasonable under s.3.5.30 of the Act).

While this decision only concerned the development of a single residence on land overlooking Moreton Bay, it raises two important issues of relevance to all proposals for residential subdivision, namely:

• the extent to which both Councils and the Planning and Environment Court (in its appellate jurisdiction) may rely on new and draft laws and policies; and

• the ability for an applicant to challenge conditions placed on a development approval.

Planning Schemes

Each Council is responsible for the preparation and administration of its own planning scheme for its particular local government area. It is that scheme to which an applicant must look when it wishes to determine the suitability of a site for a residential subdivision, or for that matter any other type of development².

On 30 March 2008, IPA will have been in force for 10 years. Although not all Councils have yet adopted an IPA planning scheme, those that have been adopted have in many instances proven to be complex documents. As existing planning schemes are reviewed in accordance with the requirements of IPA, draft planning schemes prepared and new planning schemes introduced, it is important that those involved in the development of residential subdivisions understand the extent to which both Councils and the Planning and Environment Court (the primary jurisdiction of the Planning and Environment Court is its appellate jurisdiction involving appeals about development applications instituted by the applicant or a submitter) may rely on new and draft laws and policies.

The Court – Planning Schemes – Weight to new and draft laws or policies

Pursuant to s4.1.52 IPA, the Court must decide an appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate. The assessment of weight to be given to any new laws and policies is a matter for the Court.³ The question of course becomes how much weight should be appropriately given to new laws or policies.⁴

The Court in Baptist Union noted at [16]:

‘... the Court must first consider the merits of the application measured against the criteria set out in the Town Plan. Then, if the Court considers it appropriate to give weight to any new laws and policies, they must be taken into account as well. As Judge Quirk observed, and as counsel for the Baptist Union submitted, the Court's first task is to assess the merits of the application against the criteria of the Town Plan. He must not be taken to have said that the appeal must be decided solely according to the Town Plan. Rather, in that case and in this one, the question is how much weight should be appropriately given to the provisions of City Plan. It came into effect two months after the application was lodged, and ten weeks before it was refused. It has now been in effect for about twenty months.’

In essence, the Court must decide the appeal based on the laws and policies applying when the application was made, but has the discretion to consider and give weight to new laws or policies if appropriate. E.g. a new planning scheme should be given considerable weight in circumstances where it came into force only days after a development application was lodged, but that does not override the mandatory requirement to decide the appeal based on the planning scheme applying when the application was made.

In the Planning and Environment Court’s recent decision in Family Assets Pty Ltd v Gold Coast City Council [2008] QPEC 3 (delivered on 5 February 2008), His Honour Judge Rackemann had to determine the weight to be given to a new planning scheme that came into effect only three days after a development application was lodged. The Court noted at [22]:

‘… In this case, the application was made only some three days prior to commencement of the IPA planning scheme. That scheme has been in force now for some years. The transitional planning scheme is dated and will not guide future development in the area. The existing scheme should, in circumstances, be afforded substantial weight.’

The weight to be afforded draft laws and policies is more problematic. It is settled that s4.1.52 IPA does not prevent consideration of draft laws and policies.⁵ However, it is important that the Court avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form of a draft scheme that is under consideration.⁶ This is the principle in planning law know as the ‘Coty’ principle. This principle takes its name from the well known case of Coty (England) Pty Ltd v Sydney City Council⁷ and has been applied in Queensland. Moreover, Section 4.1.52 of the IPA has been interpreted to permit the application of the Coty principle⁸. The essence of the Coty principle is best described in the following extract from the decision in Coty:

"It is important in the public interest that whilst the respondent Council’s local scheme is under consideration this Court should in the exercise of its appellant jurisdiction avoid as far as possible giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important in the public interest that during that period the Court should in the exercise of the jurisdiction referred to arrive at its judgment as far as possible in consonance with Town Planning decision which have been embodied in the local scheme in the course of preparation.".

The Coty principle is closely aligned with another principle of planning law, namely that it is not the function of the Court to substitute planning strategies for those which a planning authority in a careful and proper manner has chosen to adopt⁹.

This is an important principle as the Court may not be armed with all the facts and circumstances that affect the direction of a planning scheme, and it would be generally inappropriate for the Court to curtail the formulation of new town laws or policies, which are formed at the end of a detailed collaborative process (a local authority has an opportunity, and indeed an obligation, to undertake wide community consultation and enquiry before formulating a planning scheme – a process notopen to the Court).¹⁰ It would be against the public interest for the Court ‘to give decisions cutting in on the scheme proposal at one isolated point or another while those proposals are also under consideration as a whole, or about to receive consideration as a whole, by the authorities appointed by the legislation to give them consideration as a whole.’¹¹ In some circumstances, it is better that a development ‘await determination of whether the strategic plan is approved modified or rejected, rather than allow the plan to be pre-empted by an ad-hoc development.’¹²

In the Planning and Environment Court’s recent decision in Family Assets Pty Ltd v Gold Coast City Council [2008] QPEC 3 (delivered on 5 February 2008), His Honour Judge Rackemann in considering a development application for a neighbourhood sized shopping centre that was found to conflict with the current planning documents, noted at [27]:

‘In the circumstances it would seem appropriate to leave it to the Council, as the planning authority, to designate, through the planning scheme provisions, where that need should be met. Ordinarily, the Court should not usurp that role to, in effect, designate a particular site, not favoured by the current planning documents, or any draft amendments thereto, by prematurely giving a development approval for a supermarket-based shopping centre, many years in advance of the need maturing, subject to a condition of the kind suggested on behalf of Family Assets.’

At [41] the Court also noted:

‘…The Court has traditionally taken a self-limiting approach to invitations to use appeals on development applications as a vehicle for determining what the Council’s planning strategy for the area should be.’

Noting these principles, the weight to be given to draft laws or policies depends to a large extent on the maturity of the document and its stage along the statutory path to gazettal.¹³

Councils – Planning Schemes – Weight to new and draft laws or policies

Pursuant to s3.5.3, 3.5.4 and 3.5.5 IPA, the Council must decide an application based on the laws and policies in effect when the application was made.

Pursuant to s3.5.6 IPA, the Council may give the weight it is satisfied is appropriate to any new laws and policies that came into effect after the application was made but before the day the decision stage for the application started (or if the decision stage is stopped, before the day the decision notice is restarted).

With respect to the weight to be given to draft laws and policies there seems to reason why s.3.5.6 IPA would not be interpreted similarly to s4.1.52 IPA (in relation to the ability of the Planning and Environment Court to consider draft laws and policies) to allow consideration of draft laws and policies.

The weight to be given to draft laws or policies would again depend to a large extent on the maturity of the document and its stage along the statutory path to gazettal.¹⁴

Once a new planning scheme has come into force, applicants need to consider whether a development application (superseded planning scheme) should be lodged. A DA(SPS) is an application in which you ask the local government to assess the application under the superseded planning scheme made within two years after the date that the new planning scheme took effect. Upon receipt of such an application the Council must make a choice when giving an acknowledgment notice as to whether:

• the application will be assessed under the superseded planning scheme; or
• the application will be assessed under the existing planning scheme.

and must state which of those courses it chooses in the acknowledgment notice.

Pursuant to s3.5.5(4) of the IPA, if the local government chooses to assess the application against the superseded planning scheme the local government as assessment manager must:

"…. assess and decide the application as if –

Subparagraphs (c) and (d) prevent the DA(SPS) process from being used to avoid additional infrastructure charges arising under the new planning scheme, but in all other respects the application must be assessed as if the new planning scheme did not exist. On that basis the provisions referred to above which allow weight to be given to the new planning scheme are inapplicable, as is the "Coty Principle".

Significantly, if the Council decides to issue an acknowledgment notice under which it decides to assess the application under the existing planning scheme then the provisions of the IPA relating to compensation are invoked. In that regard, section 5.4.2 of the IPA provides as follows:

"5.4.2 Compensation for reduced value of interest in land

An owner of an interest in land is entitled to be paid reasonable compensation by a local government if –

It should be noted the right to compensation only arises in respect of a DA(SPS) for a development permit (and not simply a preliminary approval which cannot give rise to compensation).

‘Re-Zoning’ and Subdivisional Approval: How, How Much, How Long

Before lodging an application, it is important that an applicant give consideration to both the SEQ Regional Plan and the Vegetation Management Act which have a significant effect on property rights. In many instances, vast areas of South East Queensland have been placed off limits to development.

The regulatory provisions of the SEQ Regional Plan have the capacity to regulate land use and developments throughout the South East Queensland region and to prohibit aspects of development in specified locations. In certain instances the regulatory provisions deem the making of a material change of use for an urban activity (which includes residential subdivisions) impact assessable and prohibit certain subdivisions. Additionally, the Vegetation Management Act regulates the clearing of native vegetation. Where a site contains remnant vegetation, the Vegetation Management Act restricts the extent (if at all) to which remnant vegetation can be cleared. Where a development application is required to reconfigure a lot or make a material change of use (in circumstances where the site contains remnant vegetation), the application will likely be referred to the Department of Natural Resources and Water as a concurrence agency. As a concurrence agency, the Department has the power to order a refusal of the application if it is contrary to the Vegetation Management Act.

Assuming that the SEQ Regional Plan and the Vegetation Management Act do not prevent the making of an application, the types of approvals that will be required for a particular residential subdivision will depend on an examination of the provisions of the particular planning scheme concerned. I always recommend that an applicant first engage a reputable town planner to assist with the preparation of the requisite application. That town planner will be able to assist the applicant in determining the extent of specialist input that will be required for the particular application.

It is likely that a residential subdivision will involve the following types of development:

• material change of use – is defined to encompass the start of a new use,
• the reestablishment of an abandoned use or a material change in the intensity or scale of a use;
• reconfiguration of a lot – is broadly defined in the IPA to include the traditional subdivision, lot amalgamation and realignment of boundaries; and
• operational works – is broadly defined to include, amongst other things, excavation or filling and the clearing of particular vegetation.

Initially, an applicant will usually lodge applications for a material change of use and reconfiguration of a lot. It is only once those approvals are obtained and the suitability of the land for the development of a residential subdivision established that an applicant usually undertakes the further detail design associated with an application for operational works. Sufficient detail of course is required at the material change of use and reconfiguration of a lot stage to persuade the Council (or on appeal the Court) that the development is appropriate.

In a recent decision of Andrews & Hansen Pty Ltd v Gold Coast City Council [2008] QPEC 4 (delivered on 5 February 2008), His Honour Judge Wilson was asked to consider a development application to reconfigure 32.5 hectares of cleared land in the Gilston Valley, west of the Gold Coast, into 25 Park Residential allotments. The Council in that case opposed the development and raised objections to aspects of the proposed drainage design, the final alignment of fire trails, and details associated with boundaries of a proposed Community Title Scheme. In approving the application, the Court noted that such objections overlooked the fact that those matters were not usually called upon for resolution in the course of an application for reconfiguration and are more appropriately addressed during the later operational works application. The Court therefore recognised that while sufficient detail is required at the reconfiguration of a lot stage to persuade the Council (or on appeal the Court) that the development is appropriate, matters of detailed design can be deferred to a later stage.

Ultimately the time taken to obtain the initial material change of use and reconfiguration of a lot approvals will depend on whether the applications required for each of those components of development are self assessable, code assessable or impact assessable.

"Self assessable" means essentially that no development approval for material change of use (ie, planning approval) is required, but it is necessary to comply with the performance criteria in applicable codes. "Code Assessable’ means essentially that development approval is required, but the application is not subject to third party submission or appeal rights. "Impact assessable" means that the application is subject to third party submission and appeal rights.

The time taken to obtain the necessary approvals will be influenced by such things as:

• the nature of the proposal;
• the local authority concerned, relevant provisions of the Council’s planning documents and relevant state legislation;
• if it is impact assessable, whether it is likely to generate substantial public interest; and
• the competence of the consultants responsible for preparing the application and the quality of the material lodged in support of the application.

While it is almost impossible to predict with any certainty the time that will be taken to obtain an approval, for impact assessable applications it would be prudent that an applicant allow a period of 9-12 months, assuming that there is no appeal and that the applicant has the full cooperation of the local authority. Approval for a code assessable application could be obtained in under 6 months (or perhaps less) if an applicant had the full cooperation of the local authority and the application was properly prepared. In my experience, extra time spent up front in the preparation of a well considered and comprehensive application almost always translates into time savings during the assessment process.

If there is an appeal to the Planning and Environment Court (either by an applicant in relation to a refusal or about some of the condition placed on the development approval, or by a submitter), I usually recommend that an applicant conservatively allow about a period of 6 months for the hearing of an appeal (from instituting the appeal) and a further 2 to 6 months for receipt of a decision from the Planning and Environment Court¹⁵.

Once the suitability of the land for the development of a residential subdivision has been established (by the obtaining of an approval for material change of use (if required) and for reconfiguration of a lot), the subsequent operational works approval should be able to be obtained in under 6 months (or perhaps less).

The cost involved in the making of such development applications can be significant and will depend on the particular site circumstances and the extent of studies required to persuade the Council (or on appeal the Court) that the development is appropriate.

Challenging Conditions Placed on Development Approvals

Any condition which the Council (or a concurrence agency) seeks to impose must satisfy the general tests in Section 3.5.30 of the IPA, which are as follows:

"(1) A condition must-

Any conditions imposed must be relevant to, but not an unreasonable imposition on, the development or be reasonably required in respect of the development. The reasonableness of a condition must be judged in the in the light of present facts and circumstances.

An applicant who is not satisfied that a particular condition does satisfy such a test has the following options:

Exercise its rights to negotiate with the Council after it has made its decision under sections 3.5.16 to 3.5.18 of the IPA. This procedure essentially delays the period for lodging an appeal so as to allow time to negotiate with the Council about the conditions. At the end of the process, the Council if it agrees with any of the representations made, issues a negotiated decision notice (this type of notice can be appealed in the same way as a decision notice). Challenge the conditions by way of an appeal to the Planning and Environment Court. With respect to an appeal concerning an infrastructure charges notice (attached to a development approval), however, the grounds of appeal are presently limited to challenging the methodology used to establish the charge in the notice or an error in the calculation of the charge.¹⁶ Bring proceedings in the Planning and Environment Court seeking a declaration that the condition/s are unlawful.

It is important to note that while conditions imposed by a concurrence agency are subject to the same general tests in Section 3.5.30 of the IPA (and can be appealed to the Planning and Environment Court), an applicant can not utilise the negotiation process under sections 3.5.16 to 3.5.18 of the IPA (as it can with the conditions imposed by the Council). For that reason, an applicant may wish to exercise its right to stop the decision making period to make representations to a concurrence agency about the conditions that the concurrence agency have recommended be imposed.¹⁷

Conclusion

Council’s planning documents have become increasingly complex and an applicant’s success will ultimately depend, in no small part, on the competence of the consultants responsible for preparing the application and the quality of the material lodged in support of the application. During the process it is important that an applicant not only give consideration to the laws and policies applying when the application is made but also to new and draft laws and policies that have come into force after the application was lodged. Significant weight will be given to new planning laws and policies coming into effect soon after a development application is made. The weight that will be given to draft laws and policies will ultimately depend to a large extent on the maturity of the document and its stage along the statutory path to gazettal.

Footnotes

^{1 In preparing this paper, the author has assumed that different attendees will have different knowledge and experiences in the area. The author has endeavoured to strike a balance between a generalised and specialised approach to the matters discussed.}

^{2 The SEQ Regional Plan and the Vegetation Management Act also have a significant effect on property rights. In many instances, vast areas of South East Queensland have been placed off limits to development. The regulatory provisions of the SEQ Regional Plan have the capacity to regulate land use and developments throughout the South East Queensland region and to prohibit aspects of development in specified locations. In certain instances the regulatory provisions deem the making of a material change of use for an urban activity (which includes residential subdivisions) impact assessable and prohibit certain subdivisions. Additionally, the Vegetation Management Act regulates the clearing of native vegetation. Where a site contains remnant vegetation, the Vegetation Management Act restricts the extent (if at all) to which remnant vegetation can be cleared. Where a development application is required to reconfigure a lot or make a material change of use (in circumstances where the site contains remnant vegetation), the application will likely be referred to the Department of Natural Resources and Water as a concurrence agency. As a concurrence agency, the Department has the power to order a refusal of the application if it is contrary to the Vegetation Management Act. It is therefore important that an applicant gives consideration to both the SEQ Regional Plan and the Vegetation Management Act before making any application for development.}

^{3 Yu Feng Pty Ltd v Brisbane City Council [2007] QCA 382; Andrews & Hansen Pty Ltd v Gold Coast City Council [2008] QPEC 4}

^{4 Baptist Union of Queensland v Brisbane City Council [2003] QPELR 61, [13].}

^{5 See for example: Chellash Pty Ltd v. Maroochy Shire Council (2000) QPELR 139, 144 (Dodds DCJ).}

^{6 Coty (England) Pty Ltd v. Sydney City Council (1957) 2 LGRA 117.}

^{7 [1957] 2 LGRA 117}

^{8 See for example, Chellash Pty Ltd v Maroochy Shire Council [2000] QPELR 139}

^{9 See for example, Elan Capital Corp Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209}

^{10 See for example: Colonial Sugar Refining Co Ltd v Sydney City Council (1959) 4 LGRA 1.}

^{11 Ibid.}

^{12 Lewiac Pty Ltd v. Gold Coast City Council (1996) 2 Qd R 266, 271-272 (Thomas J).}

^{13 See for example: Elfband Pty Ltd & Vanhoff Pty Ltd v Maroochy Shire Council [1995] QPLR 290, 297 where public submissions had been received and there had been a whole of Government response to the plan.}

^{14 Elfband Pty Ltd & Vanhoff Pty Ltd v Maroochy Shire Council [1995] QPLR 290, 297}

^{15 The Planning and Environment Court has proven to be a very efficient Court. Indeed the speed within which it is possible to have appeals heard is almost unheard of in other jurisdictions. In many instances, appeals can be heard within a few months, with decisions being handed down promptly, often within two months of the appeal being heard. The estimates provided above are conservative, based on the experiences of the author in relatively complex matters}

^{16 Section 4.1.36 of the IPA}

^{17 Section 3.5.9 of the IPA}

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