Australia: Deemed approvals of development applications are not without risk

Last Updated: 5 April 2018
Article by Ian Wright


The case of Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd & Another and; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 55 concerned three proceedings for declaratory relief in the Planning and Environment Court in respect of a development application made by Beerwah Land Pty Ltd to the Sunshine Coast Regional Council for reconfiguring a lot to create 16 lots, a new road and access easements on land situated at Geordy Close and Lloyd Street, Beerwah. Woodlands Enterprises Pty Ltd was also a party to the proceedings and was the operator of a nearby poultry farm which had concerns about reverse amenity impacts arising from the proposed development.

The development application was processed on the basis that it required code assessment. However, due to an error in calculating the length of the decision-making period, the Council did not decide the application within the decision-making period or extend the decision-making period for the development application. As a consequence, Beerwah Land gave a deemed approval notice which had the effect that the Council was taken to have decided to approve the development application. The Council exercised its powers under section 331 of the Sustainable Planning Act 2009 and gave a decision notice for the development application which imposed conditions which "in effect, denied approval for the majority of the lots sought and, in particular, those closest to the poultry farm" (at [7]).

The Court found that the conditions imposed on a deemed approval could not be used to effect a refusal of the development application. However, the Court determined that its broad power under section 440 of the Sustainable Planning Act 2009 to deal with matters of noncompliance was applicable where an assessment manager had failed to make a decision despite the application of the deemed approval provisions. The Court found that there was a planning and public/community interest in the development application being subject to merit assessment and that it was appropriate to exercise the discretion under section 440 and return the application to the decision stage.


The development application was, with the Council's agreement, made under the Caloundra City Plan 2004 as a development application (superseded planning scheme).

The Council and Woodlands submitted that there were a number of issues with the way the development application was made and processed as a code assessable application. The first being whether the development application made by Beerwah Land was the one which Council had agreed to assess under the Council's superseded planning scheme and the second being whether the development application required impact assessment.

Construing the application as a whole, the Court found that the application was the one which Council had agreed to assess under the Council's superseded planning scheme and that the development application was code assessable.


It was contended that the proposed development conflicted with certain provisions of the Council's superseded planning scheme and that on this basis it could not be approved consistently with the decision rules under section 326 the Sustainable Planning Act 2009 or that the Council had power to subject the deemed approval to conditions directed at the conflict.

The Court emphasised that the regime for deemed decisions did not provide for a decision based on an assessment of the development application. Instead the regime was such that the development application was deemed approved after the giving of a deemed approval notice due to the failure of the assessment manager to make a decision within the decision-making period.

From the point a deemed approval notice was given, the assessment manager's "only remaining role is to give a decision notice which either... approves the application or... approves the application subject to conditions" (at [26]). The Court found that the power to refuse a development application was lost where the deemed approval regime of the Sustainable Planning Act 2009 was enlivened and that "the conditions power cannot be used to effect a refusal, even one which would be consistent with the planning scheme provisions" (at [27]).

The decision notice given by the Council included a condition which expressly stated that 13 of the 16 lots were "not approved" (at [7]). The Court found that this was a partial refusal of the development application which was not within the Council's powers under section 331 of the Sustainable Planning Act 2009 in circumstances where a deemed approval notice had been given.


Section 440 of the Sustainable Planning Act 2009 gives the Court a broad discretion where a provision of the Act has not been complied with, or has not been fully complied with, to deal with that matter in the way the Court considers appropriate.

The Court found that there had been a failure to comply with section 318(1) of the Sustainable Planning Act 2009, in particular the requirement that the Council would decide the development application within the decision-making period.

Beerwah Land submitted that section 440 should not apply on the basis that:

  • the relief under that section was only available to an applicant and not an assessment manager; and
  • the failure to comply with section 318(1) was not a non-compliance for the purpose of section 440 but rather generated other rights.

The Court found no justification for these submissions in the language of the provision or in the statutory scheme otherwise. The non-compliance which gave rise to a deemed approval did not dictate a different application of section 440.

It was further submitted by Beerwah Land that the Court should not exercise its discretion under section 440 in circumstances where the statutory scheme provided for other consequences, namely a deemed approval. The Court relevantly stated (at [50]) as follows in respect of granting a remedy under section 440 where there is a deemed approval:

Certainly it should not be seen as a remedy to be applied whenever a deemed approval arises by reason of an assessment manager's honest mistake, but equally it should not be approached on the basis that the discretion should never be exercised in a way which interferes with a deemed approval. Nor do I consider that some disentitling conduct on the part of the holder of the deemed approval is required, before the exercise of the discretion under s 440 could be justified.

In determining whether to exercise its discretion, the Court noted the following:

  • the Council's non-compliance arose by accident;
  • Beerwah Land had not acted to its detriment in reliance on the deemed approval;
  • there was a significant planning and public/community interest in a merit assessment of the development application arising from concerns surrounding reverse amenity impacts arising from the proximity of the residential subdivision to the poultry farm.

On balance, the Court decided that the discretion under section 440 should be exercised to return the development application to the decision-making stage, meaning that the deemed approval would no longer be of effect.

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

Click to Login as an existing user or Register so you can print this article.

Ian Wright
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”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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