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
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1996 Superseded Douglas Shire Planning Scheme.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
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
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...";
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;
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
Decision: The Court held, in dismissing the
The approval was not consistent with the underlying planning
strategy for the land under the 2006 Planning Scheme.
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.
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.
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Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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