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(Everson DCJ - 4 December 2014)
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Environment and planning – appeal – where the appellants appealed against the decision of the respondent to refuse a request to extend the relevant period of a development approval – where there has been a significant shift in how the land is treated in the planning scheme – whether the development approval is consistent with the current laws and policies applying to the development – whether the development approval should be extended for a future four years

Facts: This was an appeal against Council's decision to refuse a request to extend the relevant period of a development approval for multiple dwellings at Port Douglas.

The relevant period for the approval was four years. The appellant sought another four years. The land adjoined the rear of a commercial strip to the north, a mixed use development comprising residential tourist accommodation and retail development to the south and a two-dwelling multi-unit development to the east.

The original development application was assessed against the 1996 Superseded Douglas Shire Planning Scheme. Under that scheme, the land was located within the Residential B Zone and the Medium Density Tourism Accommodation Area of the Development Control Plan.

In 2006 a new planning scheme had come into force. Under the new scheme, the land was included in the Residential 1 Planning Area of the Port Douglas and Environs Locality. The development was "Holiday Accommodation" and was Impact Assessable (Inconsistent) under the new scheme.

In deciding the appeal, the court had regard particularly to:

  1. Section 3.2 of the scheme which stated that Impact Assessable (Inconsistent) development "indicates that the development is not considered to be consistent with the achieving of ecological sustainability or the DEO's for the Shire...";
  2. DEO 10 which spoke in terms of providing a range of housing options providing a high standard of living and a variety of different lifestyle opportunities and DEO 12 which referred to maintaining a sense of community;
  3. the Port Douglas and Environs Locality Code and the Residential 1 Planning Area Code.

The original development application was publically notified and one submission was received from the adjoining owner to the east.

Decision: The Court held, in dismissing the appeal:

  1. The approval was not consistent with the underlying planning strategy for the land under the 2006 Planning Scheme.
  2. If the appeal was dismissed and the proposed development assessed under the current planning controls, the submitter would exercise his right to make a submission.
  3. The fundamental shift in how the proposed development was viewed in the current scheme was such that other persons may also exercise rights to make a submission.