Australia: 35/12 Mahaside Pty Ltd v Sunshine Coast Regional Council & Anor [2012] QPEC 41

Planning and environment case updates

Download the judgement

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where applicant lodged an application for development approval under the Integrated Planning Act 1997 (Qld) – where part of the relevant land was classified as a "State resource prescribed under a regulation" – where the regulation required the appellant to provide resource entitlement evidence – where 3.2.1(5) of IPA required that such evidence be submitted with the application – where the applicant did not provide such evidence with its application and the respondent could not lawfully accept the application as being 'properly made' – where the Sustainable Planning Act 2009 (Qld) subsequently enacted and IPA repealed – where applicant unsuccessfully made application for excusal of non-compliance under s 820 of SPA and then subsequently purported to change the development application to remove that part of the land in respect of which there was non-compliance – whether the application was 'made' before the commencement of SPA so as to be within s 802 of SPA.

Facts: This was an application made by Mahaside Pty Ltd (Mahaside) for declarations in relation to a development application for a reconfiguration of a lot originally lodged with the Sunshine Coast Regional Council (Council) on 11 October 2004.

The Council refused the application on 11 April 2007.

Mahaside lodged an appeal against the Council's refusal on 10 May 2007.

During the appeal, the Council raised issues of non-compliance with s 3.2.1(5) of the Integrated Planning Act 1997 (Qld) (IPA) (as amended and in force from 4 October 2004) which would render the development application "not properly made" within the meaning of s 3.2.1(7).

One aspect of the development involved the construction of a road over unallocated State land to facilitate access to some of the lots in the proposed reconfiguration.

The unallocated State land was found to be a State resource as prescribed under item 12 of Schedule 10 of the Integrated Planning Regulation 1998 (Qld) and that the specifically prescribed evidence had not been provided to satisfy s 3.2.1(5) of the IPA.

Mahaside made an application to the Court seeking orders under s 818(2) of the SPA that the development application was a properly made application for the purposes of s 3.2.1 of the IPA and in the alternative, that the non-compliance rendering the development application invalid be excused under s 820 of the SPA.

That application was dismissed on 20 August 2010. Consequently, the appeal was also dismissed by consent on 29 April 2011.

On 20 May 2011 Mahaside gave notice to the Council of a change to the original development application purportedly made under s 3.2.9(1) of the IPA. The change involved the removal of the road connection through the unallocated State land and effectively removed the issue of providing evidence in relation to a State resource and purported to convert the application to a "properly made application".

On 24 October 2011 Mahaside made an application to the Court seeking declarations that:

  1. the development application was an application made under the repealed IPA but not decided before the commencement of the SPA for the purposes of s 802 of SPA;
  2. the amended application was a properly made application under the IPA; and
  3. the Council accept the application (as amended) as properly made and deal with and decide the application under the IPA as though the SPA had not commenced.

In support of its application, Applicant submitted that:

  1. the development application was made but not decided under the repealed IPA, before the commencement of the SPA and was therefore a development application within the contemplation of s 802(1) of the SPA;
  2. pursuant to s 802(1) of the SPA, in dealing with and deciding the development application, the repealed IPA continues to apply as if SPA had not commenced; and
  3. in order to have been "made" before the commencement of SPA, an application need not have been a properly made one under the IPA, provided that it has been lodged and was capable of being dealt with in some legally effective way (relying on the authority of Stockland v Maroochy Shire Council [2011] 1 Qd R 77).

The Respondent argued that the development application was not "made" before the commencement of the SPA within the meaning of s 802(1) and relied on the authority of Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council [2011] 1 Qd R 226.

The Applicant submitted that the Metricon decision should be distinguished on the basis that it concerned the construction of a different statutory instrument and did not concern the meaning of s 802(1) of the SPA.

The questions for the Court to decide were:

  1. whether the application had been "made" and if so, whether it was made before the commencement of the SPA; and
  2. where an application was made after the commencement of the SPA, whether the unchanged application was of a type that was within the meaning of s 802(1) of the SPA so that the provisions of the repealed IPA, including s 3.2.9, were continued in application to it.

Decision: The Court held that:

  1. having regard to s 3.2.1(10) of the IPA, the development application was not one that could ever have been accepted under s 3.2.1(9) of IPA. It was therefore one which prior to it being changed, in order to obviate the critical non-compliance, could not have resulted in a development approval being given
  2. the purported change to obviate the non-compliance was not made before the commencement of the SPA. At that stage the application may not have been lawfully accepted or decided and the prospect of subsequent change to the application did not in any way alter that circumstance
  3. the application remained, up to and including the commencement of the SPA and repeal of the IPA, in a state where it was not capable of being dealt with in some legally effective way
  4. the words "but not decided" in s 802(1) of the SPA and the provision in s 802(2) of the SPA continuing the application of the repealed IPA for the purpose of "dealing with and deciding" development applications to which the section applies, clearly implied that what was in contemplation was an "existing application" that was capable of being decided
  5. to be "made" and be such an application, a development application must, at the time of commencement of SPA, have been so capable of being decided. In this respect, the phrase "dealing with and deciding" was a composite and to be read in a conjunctive sense, rather than separately or disjunctively
  6. the development application was not capable of being dealt with and decided at the commencement of the SPA and therefore was not "made" under the repealed IPA.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.