Planning and environment – application – Greater
Flagstone Urban Development Area – continued effect of
development approval granted under repealed IPA where land
subsequently declared an Urban Development Area under Urban Land
Development Authority Act 2007
Economic Development Act 2012, ss 45, 177, 190, 216,
195(4), Sustainable Planning Act 2009, ss 243, 244, 245, 367,
379, 380, 456(1), 580(1), 801 Urban Land Development Authority Act 2007, s 14 Integrated Planning Act 1997, ss 3.5.15, 3.5.28
Facts: The Applicant commenced proceedings
seeking a declaration, amongst other things, that the clearing of
vegetation on the subject land at Flagstone between April 2012 and
July 2012 was not required to comply with the conditions of a
development approval granted on 19 February 2008 (2008
DA) under the Integrated Planning Act 1997
The 2008 DA was a development permit for operational works
(vegetation removal) which authorised the selected clearing of
vegetation on the subject land. Condition 2 imposed an obligation
to ensure that all vegetation remaining after the approved selected
clearing be maintained in a healthy condition at all times.
Condition 3 prohibited the clearance of vegetation outside the
approved area unless an exemption applies.
The Sustainable Planning Act 2009
(SPA) commenced operation on 18 December 2009
repealing IPA. The 2008 DA under IPA became a SPA approval as a
consequence of section 801 of the SPA.
On 8 October 2010, a declaration was made under the Urban
Land Development Authority Act 2007 (ULDA)
which resulted in the subject land falling within the Greater
Flagstone Urban Development Area. The ULDA provided that upon the
making of a declaration, any SPA development approval continued in
effect. Subsequently the ULDA was repealed by the Economic
Development Act 2012 (EDA) with the SPA
approvals continuing in effect under the EDA.
Clearing work permitted by the 2008 DA was completed to the
The Applicant acquired the subject land in July 2011 and the
Applicant undertook further clearing on the subject land between
April and July 2012.
In August 2013 the Council issued a number of Complaints and
Summons in the Magistrates Court against the Applicant and others
alleging contravention of conditions of the 2008 DA as a result of
the clearing operation undertaken between April and July 2012.
It was uncontested that the clearing of vegetation on freehold
land, the subject of a declaration under the ULDA, was exempt
development under SPA.
Decision: The Court held, in dismissing the
Conditions 2 and 3 of the 2008 DA have a life beyond that of
the duration of the clearing operation, the subject of the 2008 DA.
Those conditions impose obligations beyond the life of any work the
subject of the approval.
The conditions attaching to the 2008 DA bind the land and the
Applicant as its owner.
The Court declined to make a declaration that the Applicant was
not required to comply with the conditions of the 2008 DA.
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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”
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).