Planning and environment – appeal against refusal of
request to extend a development approval – where approval was
dated, but had recently been changed to achieve consistency with
current laws and policies – where changes in ownership of
properties in locality – weight to be given to likelihood of
further submission rights being exercised if a further application
Facts: This was an appeal against Council's
refusal of a request to extend the relevant period of a development
approval for a tourist accommodation facility at Tidswell Road,
The approved site plan showed 24 accommodation units scattered
across the eastern portion of the land, a reception building
incorporating a restaurant and spa, a manager's residence and
other ancillary facilities.
The development approval was granted on 16 August 2004 by order
of the court as a consequence of the resolution of two submitter
appeals. Its life had previously been extended by reason of an
order of the Court on 17 June 2010.
At the time of the request the Maroochy Plan 2000 was in
The request was refused by Council. The grounds for refusal
centred about compliance with the SEQ Koala Conservation State
Planning Regulatory Provisions, compliance with the codes in
Maroochy Plan 2000, the precinct intent in Maroochy Plan
2000, the existence of acid sulphate soils and the
community's current awareness of the proposal.
Negotiations between the parties resulted in the approval being
changed by order of the Court on 22 August 2014. The change saw the
replacement of one condition and the addition of others relating to
the grounds of refusal. The effect of the changes was to impose
further obligations to address contemporary standards and
During the course of the appeal, the Sunshine Coast Planning
Scheme 2014 had come into effect. The evidence addressed the
provisions of both schemes. A further development application had
also been made over the site in December 2012. The public scrutiny
material for that development application contained references to
the existing approval.
Council was satisfied that the approval, as changed, was
consistent with its current laws and policies and no longer opposed
The Court was required to consider the approval's
consistency with the current laws and policies, the community's
awareness of the development approval, whether a similar
development application would afford submission rights and the
likely extent of which those rights may be exercised.
Decision: The Court held, in allowing the
As changed the development approval addressed the issue of
consistency with current laws and policies.
The likelihood of public submission rights being exercised to
some extent, were the proposal to be the subject of a fresh
development application, could not be discounted.
It was accepted, however, that current community awareness of
the development approval, the potential availability of public
submission rights and the likelihood of their exercise may become
weightier considerations where there was also significant
inconsistency between the approval and the planning documents,
being the primary source of reasonable expectations.
Given the recent changes to the approval, there was an
inclination not to give the considerations in s 388(1), (b) or (c)
That was not to say that a developer could endlessly luxuriate
in an approval without acting upon it, on the assumption that it
would be extended subject only to the updating of conditions. The
present case for an extension was towards the margins of
acceptability. However, on balance it was appropriate to allow the
appeal and to grant the requested extension.
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