Australia: Examining Residential Subdivisions

Last Updated: 27 March 2008

James Ireland, Senior Associate

Introduction

South East Queensland is the fastest growing region in Australia. An understanding of issues associated with the development of residential subdivisions is therefore not only of interest generally, but of critical importance to those involved in the development of residential subdivisions (if the forecast growth for the region is ultimately to be accommodated).

I have been asked to give an overview of the Court of Appeal’s decision in Charles and Howard Pty Ltd v Redland Shire Council [2007] QCA 200 and comment on some issues associated with the making of development applications for residential subdivisions.

While this paper briefly discusses the Court of Appeal’s decision in Charles and Howard Pty Ltd v Redland Shire Council [2007] QCA 200, a decision which concerned the development of a single residence on land overlooking Moreton Bay, the focus of the paper is on the general principles of planning law that arose in that case concerning the extent to which both Councils and the Planning and Environment Court (in its appellate jurisdiction) may rely on new and draft laws and policies. The paper will also make some observations with respect to the process of obtaining "re-zoning" and "subdivisional" approval for residential subdivisions and the ability for an applicant to challenge conditions placed on a development approval.1

CASE STUDY: Charles and Howard Pty Ltd v Redland Shire Council [2007] QCA 200



This case concerned the development of a single residence on land overlooking Moreton Bay.

It involved an application for leave to appeal from a decision of the Planning and Environment Court under section s4.1.56 of the Integrated Planning Act 1997 ("IPA"). The appeal concerned the validity of a condition attached to a preliminary approval requiring the proposed development to be moved to a different location on the site.

The Appellant owned land at 20 Albert Street, Victoria Point upon which he wished to build his family home. The land was 1.697 hectares in size and overlooked Moreton Bay.

At the time, the whole of the Appellant’s land was zoned Residential A under the Respondent’s Council’s 1998 planning scheme. While development approval was not usually required for the construction of a house in the Residential A zone, in this instance an operational works approval was required as the proposed building site (in the eastern corner of the site) needed fill to bring it to the minimum height level required by the Council’s planning instruments (that is, to above the one in a hundred year flood level). The inclusion of the land in the Residential A zone did not reflect the land’s ecological significance. Several higher order planning documents, however, did recognise the land’s significance. In particular, the land was included in a Special Protection Area in the Council’s Strategic Plan and was subject to a Development Control Plan designating the appellant’s preferred house site as Public Open Space and the Council’s preferred site Residential A (as discussed later this case was a case in which the Council agreed a house could be built, but said that it had to be built at the western end of the site rather on the eastern end (the applicant’s preferred location)).

On 7 November 2005, the applicant made a development application to the respondent Council, accordingly, for preliminary approval to place fill on the land on a site where the Applicant wished to build a home.

At the time the application was made, the Council was in the process of preparing a new planning scheme. That scheme came into force in March 2006 (that is, two months after the Council made its decision and five months before the Planning and Environment Court made its decision). Under that new scheme, all of the land, apart from the Council’s preferred site, was in the Open Space Zone (the Council’s preferred house site being in an area described in the zoning map as Urban Residential). Both housing sites were constrained by ‘overlays’ (express policies for particular areas) going to habitat protection and the Waterways, Wetlands and Moreton Bay buffer, however the Council’s preferred site was not subject to the flood prone, storm tide and drainage constraint land overlay.

On 21 November 2005, the Council requested further information. In particular, the request said:

"In accordance with the draft Redland Planning Scheme, demonstrate why the proposed dwelling cannot be located within the portion of the site proposed to be included in the Urban Residential Zone."

On 19 January 2006, the Council approved the application subject to various conditions, the one relevant to this appeal being the condition that:

"…approval has not been granted to the site the proposed development at the [applicant’s preferred] location…The proposal is to occur within the confines of the building envelope…".

The effect of this condition was that the house was to be built on the Council’s preferred house site within the portion of the land proposed to be included in the urban residential zone. The building envelope being at the western end of the land (in contrast with the Applicant’s preferred site at the eastern end of the land)- an area not subject to inundation by the Q100 flood level.

The applicant appealed from the Council’s conditional approval to the Planning and Environment Court under s4.1.27 of the IPA contending that the condition was not reasonable, did not satisfy the conditions test in s3.5.30 of the Act and ought to be amended to allow development at the location in the applicant’s development application.

In dismissing the Appeal, the Planning and Environment Court [2006] QPEC 095 concluded that the various town planning documents were against the applicant’s proposal and that the disputed condition imposed by the Council which allowed a house to be built on the land (albeit at a different location) was held to be reasonable and relevant in the sense discussed by Proctor v Brisbane City Council [1993] 81 LGERA 398 as it better reflected the aims of the relevant town planning provisions. In doing so, His Honour Judge Brabazon QC formed the view that the plain intention of the planning documents was that no such development should occur on the eastern end of the land and that the Council had chosen the better site from an ecological point of view.

Four grounds of appeal formed the basis of the Appeal to the Court of Appeal, namely:

  • that the court misconstrued the relevant planning instruments;
  • that the Court erroneously applied a ‘best sites’ test or ‘alternative sites’ test;
  • that the condition imposed was not reasonable because it was effectively a refusal of the application;
  • that the planning instruments were wrongly construed based on the evidence of potential impacts of climate change on predicted future sea levels.

With respect to the weight to be given to the various planning documents, the Court of Appeal said that in determining the appeal, the Planning and Environment Court was obliged to make its decision based on the 1998 planning scheme (the scheme in place at the time of the application) but was also entitled to give weight to any new laws and policies (such as the relevant portions of the 2006 planning scheme in force at the time of the appeal) the court considers appropriate under s4.1.52(2)(a). As there was no indication that the primary judge’s approach was inconsistent with this obligation, this first ground of appeal failed. There was no demonstrated legal error in the primary judge’s partial reliance on the 2006 planning scheme. Indeed, the Court of Appeal found it appropriate that attention be paid to the provisions of the now in force 2006 Planning Scheme for the area and the DEO’s contained therein.

The Court of Appeal noted with respect to the issue of whether the Court wrongly applied a ‘best sites’ test or ‘alternative sites’ test, that the relevant and only issue for judicial determination should be whether the proposed application was appropriate. It found that, in this instance, the answer to this question required a consideration in light of the relevant planning documents of whether there was a more appropriate location on the site for the residence to be built. It also noted that as this issue was not argued before the Planning and Environment Court there could be no criticism of the court’s comparative analysis between the relevant merits of the competing proposed locations on the one site in determining whether the condition imposed by the Council satisfied s.3.5.30(1) of the Act.

In response to the applicant’s contention that the Council’s approval with the disputed condition made the approval significantly different from that to which the development application related (and therefore effectively refused the application), the Court of Appeal held that the approval of the proposed development by confining its building envelope to a particular location was not an example of impermissibly imposing a condition with the effect of approving something quite different to that for which the application was made. The approval remained an approval to place fill on the subject land for the purpose of building a residence but it imposed a condition as to where on the subject land that fill was to be placed. Accordingly, this ground failed.

The Applicant’s submission that the judge erroneously took on the Council’s responsibility as planning authority in determining an issue under the planning scheme dealing with the impact of climate change on sea levels on the area proposed by the Council was also deemed not to amount to an error of law and also failed. In that regard, the Court of Appeal was satisfied that the primary judge rightly considered that these were matters relevant to the determination of the essential issue (ie. whether the disputed condition in the approval to place fill on the land was relevant and reasonable under s.3.5.30 of the Act).

While this decision only concerned the development of a single residence on land overlooking Moreton Bay, it raises two important issues of relevance to all proposals for residential subdivision, namely:

  • the extent to which both Councils and the Planning and Environment Court (in its appellate jurisdiction) may rely on new and draft laws and policies; and
  • the ability for an applicant to challenge conditions placed on a development approval.

Planning Schemes

Each Council is responsible for the preparation and administration of its own planning scheme for its particular local government area. It is that scheme to which an applicant must look when it wishes to determine the suitability of a site for a residential subdivision, or for that matter any other type of development2.

On 30 March 2008, IPA will have been in force for 10 years. Although not all Councils have yet adopted an IPA planning scheme, those that have been adopted have in many instances proven to be complex documents. As existing planning schemes are reviewed in accordance with the requirements of IPA, draft planning schemes prepared and new planning schemes introduced, it is important that those involved in the development of residential subdivisions understand the extent to which both Councils and the Planning and Environment Court (the primary jurisdiction of the Planning and Environment Court is its appellate jurisdiction involving appeals about development applications instituted by the applicant or a submitter) may rely on new and draft laws and policies.

The Court – Planning Schemes – Weight to new and draft laws or policies

Pursuant to s4.1.52 IPA, the Court must decide an appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate. The assessment of weight to be given to any new laws and policies is a matter for the Court.3 The question of course becomes how much weight should be appropriately given to new laws or policies.4

The Court in Baptist Union noted at [16]:

‘... the Court must first consider the merits of the application measured against the criteria set out in the Town Plan. Then, if the Court considers it appropriate to give weight to any new laws and policies, they must be taken into account as well. As Judge Quirk observed, and as counsel for the Baptist Union submitted, the Court's first task is to assess the merits of the application against the criteria of the Town Plan. He must not be taken to have said that the appeal must be decided solely according to the Town Plan. Rather, in that case and in this one, the question is how much weight should be appropriately given to the provisions of City Plan. It came into effect two months after the application was lodged, and ten weeks before it was refused. It has now been in effect for about twenty months.’

In essence, the Court must decide the appeal based on the laws and policies applying when the application was made, but has the discretion to consider and give weight to new laws or policies if appropriate. E.g. a new planning scheme should be given considerable weight in circumstances where it came into force only days after a development application was lodged, but that does not override the mandatory requirement to decide the appeal based on the planning scheme applying when the application was made.

In the Planning and Environment Court’s recent decision in Family Assets Pty Ltd v Gold Coast City Council [2008] QPEC 3 (delivered on 5 February 2008), His Honour Judge Rackemann had to determine the weight to be given to a new planning scheme that came into effect only three days after a development application was lodged. The Court noted at [22]:

‘… In this case, the application was made only some three days prior to commencement of the IPA planning scheme. That scheme has been in force now for some years. The transitional planning scheme is dated and will not guide future development in the area. The existing scheme should, in circumstances, be afforded substantial weight.’

The weight to be afforded draft laws and policies is more problematic. It is settled that s4.1.52 IPA does not prevent consideration of draft laws and policies.5 However, it is important that the Court avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form of a draft scheme that is under consideration.6 This is the principle in planning law know as the ‘Coty’ principle. This principle takes its name from the well known case of Coty (England) Pty Ltd v Sydney City Council7 and has been applied in Queensland. Moreover, Section 4.1.52 of the IPA has been interpreted to permit the application of the Coty principle8. The essence of the Coty principle is best described in the following extract from the decision in Coty:

"It is important in the public interest that whilst the respondent Council’s local scheme is under consideration this Court should in the exercise of its appellant jurisdiction avoid as far as possible giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important in the public interest that during that period the Court should in the exercise of the jurisdiction referred to arrive at its judgment as far as possible in consonance with Town Planning decision which have been embodied in the local scheme in the course of preparation.".

The Coty principle is closely aligned with another principle of planning law, namely that it is not the function of the Court to substitute planning strategies for those which a planning authority in a careful and proper manner has chosen to adopt9.

This is an important principle as the Court may not be armed with all the facts and circumstances that affect the direction of a planning scheme, and it would be generally inappropriate for the Court to curtail the formulation of new town laws or policies, which are formed at the end of a detailed collaborative process (a local authority has an opportunity, and indeed an obligation, to undertake wide community consultation and enquiry before formulating a planning scheme – a process notopen to the Court).10 It would be against the public interest for the Court ‘to give decisions cutting in on the scheme proposal at one isolated point or another while those proposals are also under consideration as a whole, or about to receive consideration as a whole, by the authorities appointed by the legislation to give them consideration as a whole.’11 In some circumstances, it is better that a development ‘await determination of whether the strategic plan is approved modified or rejected, rather than allow the plan to be pre-empted by an ad-hoc development.’12

In the Planning and Environment Court’s recent decision in Family Assets Pty Ltd v Gold Coast City Council [2008] QPEC 3 (delivered on 5 February 2008), His Honour Judge Rackemann in considering a development application for a neighbourhood sized shopping centre that was found to conflict with the current planning documents, noted at [27]:

‘In the circumstances it would seem appropriate to leave it to the Council, as the planning authority, to designate, through the planning scheme provisions, where that need should be met. Ordinarily, the Court should not usurp that role to, in effect, designate a particular site, not favoured by the current planning documents, or any draft amendments thereto, by prematurely giving a development approval for a supermarket-based shopping centre, many years in advance of the need maturing, subject to a condition of the kind suggested on behalf of Family Assets.’

At [41] the Court also noted:

‘…The Court has traditionally taken a self-limiting approach to invitations to use appeals on development applications as a vehicle for determining what the Council’s planning strategy for the area should be.’

Noting these principles, the weight to be given to draft laws or policies depends to a large extent on the maturity of the document and its stage along the statutory path to gazettal.13

Councils – Planning Schemes – Weight to new and draft laws or policies



Pursuant to s3.5.3, 3.5.4 and 3.5.5 IPA, the Council must decide an application based on the laws and policies in effect when the application was made.

Pursuant to s3.5.6 IPA, the Council may give the weight it is satisfied is appropriate to any new laws and policies that came into effect after the application was made but before the day the decision stage for the application started (or if the decision stage is stopped, before the day the decision notice is restarted).

With respect to the weight to be given to draft laws and policies there seems to reason why s.3.5.6 IPA would not be interpreted similarly to s4.1.52 IPA (in relation to the ability of the Planning and Environment Court to consider draft laws and policies) to allow consideration of draft laws and policies.

The weight to be given to draft laws or policies would again depend to a large extent on the maturity of the document and its stage along the statutory path to gazettal.14

Once a new planning scheme has come into force, applicants need to consider whether a development application (superseded planning scheme) should be lodged. A DA(SPS) is an application in which you ask the local government to assess the application under the superseded planning scheme made within two years after the date that the new planning scheme took effect. Upon receipt of such an application the Council must make a choice when giving an acknowledgment notice as to whether:

  • the application will be assessed under the superseded planning scheme; or
  • the application will be assessed under the existing planning scheme.

and must state which of those courses it chooses in the acknowledgment notice.

Pursuant to s3.5.5(4) of the IPA, if the local government chooses to assess the application against the superseded planning scheme the local government as assessment manager must:

"…. assess and decide the application as if –

(a) the application were an application to which the superseded planning scheme applied; and

(b) the existing planning scheme was not in force; and

(c) for Chapter 5, Part 1, the infrastructure provisions of the existing planning scheme applied; and

(d) for section 6.1.31, the existing planning scheme policy or planning scheme provision applied."

Subparagraphs (c) and (d) prevent the DA(SPS) process from being used to avoid additional infrastructure charges arising under the new planning scheme, but in all other respects the application must be assessed as if the new planning scheme did not exist. On that basis the provisions referred to above which allow weight to be given to the new planning scheme are inapplicable, as is the "Coty Principle".

Significantly, if the Council decides to issue an acknowledgment notice under which it decides to assess the application under the existing planning scheme then the provisions of the IPA relating to compensation are invoked. In that regard, section 5.4.2 of the IPA provides as follows:

"5.4.2 Compensation for reduced value of interest in land

An owner of an interest in land is entitled to be paid reasonable compensation by a local government if –

(a) a change reduces the value of the interest; and

(b) a development application (superseded planning scheme) for a development permit relating to the land has been made; and

(c) the application is assessed having regard to the planning scheme and planning scheme policies in effect when the application was made; and

(d) the assessment manager, or, on appeal, the court –

(i) refuses the application; or

(ii) approves the application in part or subject to conditions or both in part and subject to conditions."

It should be noted the right to compensation only arises in respect of a DA(SPS) for a development permit (and not simply a preliminary approval which cannot give rise to compensation).

‘Re-Zoning’ and Subdivisional Approval: How, How Much, How Long

Before lodging an application, it is important that an applicant give consideration to both the SEQ Regional Plan and the Vegetation Management Act which have a significant effect on property rights. In many instances, vast areas of South East Queensland have been placed off limits to development.

The regulatory provisions of the SEQ Regional Plan have the capacity to regulate land use and developments throughout the South East Queensland region and to prohibit aspects of development in specified locations. In certain instances the regulatory provisions deem the making of a material change of use for an urban activity (which includes residential subdivisions) impact assessable and prohibit certain subdivisions. Additionally, the Vegetation Management Act regulates the clearing of native vegetation. Where a site contains remnant vegetation, the Vegetation Management Act restricts the extent (if at all) to which remnant vegetation can be cleared. Where a development application is required to reconfigure a lot or make a material change of use (in circumstances where the site contains remnant vegetation), the application will likely be referred to the Department of Natural Resources and Water as a concurrence agency. As a concurrence agency, the Department has the power to order a refusal of the application if it is contrary to the Vegetation Management Act.

Assuming that the SEQ Regional Plan and the Vegetation Management Act do not prevent the making of an application, the types of approvals that will be required for a particular residential subdivision will depend on an examination of the provisions of the particular planning scheme concerned. I always recommend that an applicant first engage a reputable town planner to assist with the preparation of the requisite application. That town planner will be able to assist the applicant in determining the extent of specialist input that will be required for the particular application.

It is likely that a residential subdivision will involve the following types of development:

  • material change of use – is defined to encompass the start of a new use,
  • the reestablishment of an abandoned use or a material change in the intensity or scale of a use;
  • reconfiguration of a lot – is broadly defined in the IPA to include the traditional subdivision, lot amalgamation and realignment of boundaries; and
  • operational works – is broadly defined to include, amongst other things, excavation or filling and the clearing of particular vegetation.

Initially, an applicant will usually lodge applications for a material change of use and reconfiguration of a lot. It is only once those approvals are obtained and the suitability of the land for the development of a residential subdivision established that an applicant usually undertakes the further detail design associated with an application for operational works. Sufficient detail of course is required at the material change of use and reconfiguration of a lot stage to persuade the Council (or on appeal the Court) that the development is appropriate.

In a recent decision of Andrews & Hansen Pty Ltd v Gold Coast City Council [2008] QPEC 4 (delivered on 5 February 2008), His Honour Judge Wilson was asked to consider a development application to reconfigure 32.5 hectares of cleared land in the Gilston Valley, west of the Gold Coast, into 25 Park Residential allotments. The Council in that case opposed the development and raised objections to aspects of the proposed drainage design, the final alignment of fire trails, and details associated with boundaries of a proposed Community Title Scheme. In approving the application, the Court noted that such objections overlooked the fact that those matters were not usually called upon for resolution in the course of an application for reconfiguration and are more appropriately addressed during the later operational works application. The Court therefore recognised that while sufficient detail is required at the reconfiguration of a lot stage to persuade the Council (or on appeal the Court) that the development is appropriate, matters of detailed design can be deferred to a later stage.

Ultimately the time taken to obtain the initial material change of use and reconfiguration of a lot approvals will depend on whether the applications required for each of those components of development are self assessable, code assessable or impact assessable.

"Self assessable" means essentially that no development approval for material change of use (ie, planning approval) is required, but it is necessary to comply with the performance criteria in applicable codes. "Code Assessable’ means essentially that development approval is required, but the application is not subject to third party submission or appeal rights. "Impact assessable" means that the application is subject to third party submission and appeal rights.

The time taken to obtain the necessary approvals will be influenced by such things as:

  • the nature of the proposal;
  • the local authority concerned, relevant provisions of the Council’s planning documents and relevant state legislation;
  • if it is impact assessable, whether it is likely to generate substantial public interest; and
  • the competence of the consultants responsible for preparing the application and the quality of the material lodged in support of the application.

While it is almost impossible to predict with any certainty the time that will be taken to obtain an approval, for impact assessable applications it would be prudent that an applicant allow a period of 9-12 months, assuming that there is no appeal and that the applicant has the full cooperation of the local authority. Approval for a code assessable application could be obtained in under 6 months (or perhaps less) if an applicant had the full cooperation of the local authority and the application was properly prepared. In my experience, extra time spent up front in the preparation of a well considered and comprehensive application almost always translates into time savings during the assessment process.

If there is an appeal to the Planning and Environment Court (either by an applicant in relation to a refusal or about some of the condition placed on the development approval, or by a submitter), I usually recommend that an applicant conservatively allow about a period of 6 months for the hearing of an appeal (from instituting the appeal) and a further 2 to 6 months for receipt of a decision from the Planning and Environment Court15.

Once the suitability of the land for the development of a residential subdivision has been established (by the obtaining of an approval for material change of use (if required) and for reconfiguration of a lot), the subsequent operational works approval should be able to be obtained in under 6 months (or perhaps less).

The cost involved in the making of such development applications can be significant and will depend on the particular site circumstances and the extent of studies required to persuade the Council (or on appeal the Court) that the development is appropriate.

Challenging Conditions Placed on Development Approvals

Any condition which the Council (or a concurrence agency) seeks to impose must satisfy the general tests in Section 3.5.30 of the IPA, which are as follows:

"(1) A condition must-

(a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or

(b) be reasonably required in respect of the development or use of premises as a consequence of the development."

Any conditions imposed must be relevant to, but not an unreasonable imposition on, the development or be reasonably required in respect of the development. The reasonableness of a condition must be judged in the in the light of present facts and circumstances.

An applicant who is not satisfied that a particular condition does satisfy such a test has the following options:

Exercise its rights to negotiate with the Council after it has made its decision under sections 3.5.16 to 3.5.18 of the IPA. This procedure essentially delays the period for lodging an appeal so as to allow time to negotiate with the Council about the conditions. At the end of the process, the Council if it agrees with any of the representations made, issues a negotiated decision notice (this type of notice can be appealed in the same way as a decision notice). Challenge the conditions by way of an appeal to the Planning and Environment Court. With respect to an appeal concerning an infrastructure charges notice (attached to a development approval), however, the grounds of appeal are presently limited to challenging the methodology used to establish the charge in the notice or an error in the calculation of the charge.16 Bring proceedings in the Planning and Environment Court seeking a declaration that the condition/s are unlawful.

It is important to note that while conditions imposed by a concurrence agency are subject to the same general tests in Section 3.5.30 of the IPA (and can be appealed to the Planning and Environment Court), an applicant can not utilise the negotiation process under sections 3.5.16 to 3.5.18 of the IPA (as it can with the conditions imposed by the Council). For that reason, an applicant may wish to exercise its right to stop the decision making period to make representations to a concurrence agency about the conditions that the concurrence agency have recommended be imposed.17

Conclusion

Council’s planning documents have become increasingly complex and an applicant’s success will ultimately depend, in no small part, on the competence of the consultants responsible for preparing the application and the quality of the material lodged in support of the application. During the process it is important that an applicant not only give consideration to the laws and policies applying when the application is made but also to new and draft laws and policies that have come into force after the application was lodged. Significant weight will be given to new planning laws and policies coming into effect soon after a development application is made. The weight that will be given to draft laws and policies will ultimately depend to a large extent on the maturity of the document and its stage along the statutory path to gazettal.

Footnotes

1 In preparing this paper, the author has assumed that different attendees will have different knowledge and experiences in the area. The author has endeavoured to strike a balance between a generalised and specialised approach to the matters discussed.

2 The SEQ Regional Plan and the Vegetation Management Act also have a significant effect on property rights. In many instances, vast areas of South East Queensland have been placed off limits to development. The regulatory provisions of the SEQ Regional Plan have the capacity to regulate land use and developments throughout the South East Queensland region and to prohibit aspects of development in specified locations. In certain instances the regulatory provisions deem the making of a material change of use for an urban activity (which includes residential subdivisions) impact assessable and prohibit certain subdivisions. Additionally, the Vegetation Management Act regulates the clearing of native vegetation. Where a site contains remnant vegetation, the Vegetation Management Act restricts the extent (if at all) to which remnant vegetation can be cleared. Where a development application is required to reconfigure a lot or make a material change of use (in circumstances where the site contains remnant vegetation), the application will likely be referred to the Department of Natural Resources and Water as a concurrence agency. As a concurrence agency, the Department has the power to order a refusal of the application if it is contrary to the Vegetation Management Act. It is therefore important that an applicant gives consideration to both the SEQ Regional Plan and the Vegetation Management Act before making any application for development.

3 Yu Feng Pty Ltd v Brisbane City Council [2007] QCA 382; Andrews & Hansen Pty Ltd v Gold Coast City Council [2008] QPEC 4

4 Baptist Union of Queensland v Brisbane City Council [2003] QPELR 61, [13].

5 See for example: Chellash Pty Ltd v. Maroochy Shire Council (2000) QPELR 139, 144 (Dodds DCJ).

6 Coty (England) Pty Ltd v. Sydney City Council (1957) 2 LGRA 117.

7 [1957] 2 LGRA 117

8 See for example, Chellash Pty Ltd v Maroochy Shire Council [2000] QPELR 139

9 See for example, Elan Capital Corp Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209

10 See for example: Colonial Sugar Refining Co Ltd v Sydney City Council (1959) 4 LGRA 1.

11 Ibid.

12 Lewiac Pty Ltd v. Gold Coast City Council (1996) 2 Qd R 266, 271-272 (Thomas J).

13 See for example: Elfband Pty Ltd & Vanhoff Pty Ltd v Maroochy Shire Council [1995] QPLR 290, 297 where public submissions had been received and there had been a whole of Government response to the plan.

14 Elfband Pty Ltd & Vanhoff Pty Ltd v Maroochy Shire Council [1995] QPLR 290, 297

15 The Planning and Environment Court has proven to be a very efficient Court. Indeed the speed within which it is possible to have appeals heard is almost unheard of in other jurisdictions. In many instances, appeals can be heard within a few months, with decisions being handed down promptly, often within two months of the appeal being heard. The estimates provided above are conservative, based on the experiences of the author in relatively complex matters

16 Section 4.1.36 of the IPA

17 Section 3.5.9 of the IPA

© Hopgood Ganim

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    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 Mondaq.com’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.

    Disclaimer

    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.

    Registration

    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.

    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 unsubscribe@mondaq.com 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.

    Cookies

    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.

    Links

    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.

    Mail-A-Friend

    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.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    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 webmaster@mondaq.com.

    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 EditorialAdvisor@mondaq.com.

    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 enquiries@mondaq.com.

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

    By clicking Register you state you have read and agree to our Terms and Conditions