Australia: Recent Real Estate Planning And Development Case Notes

Last Updated: 18 March 2009
Article by David Nicholls

Total Ice Pty Ltd v Maroochy Shire Council & Ors; S&L Developments Pty Ltd & Ors v Maroochy Shire Council & Ors; Bukmanis & Anor v Maroochy Shire Council [2008] QCA 295


On 5 May 2004 the Bukmanis', lodged with the Maroochy SC a development application for a Material Change of Use for a shopping centre and multi dwelling units. Their application included a request that the proposal be assessed against the provisions of the 31 May 2000 version of the Maroochy Plan 2000. The application was made within 2 years of the commencement of the 7 May 2002 amendments to the Maroochy Plan, but more than 2 years after the amendments were adopted by Council on 25 April 2002.

The Council issued an acknowledgment notice that contemplated that the application would be assessed under the superseded planning scheme. Ultimately the Bukmanis' appealed to the Court against what they contended was the deemed refusal of their Development Application (Superseded Planning Scheme) (DA(SPS)).

In May 2006, by way of originating application, Total Ice sought declarations that the application lodged by the Bukmanis' (and also a similar application lodged by the developers in the S & L Developments proceeding) were not DA(SPS)'s and were invalid. The developers and Council contended that if the DA(SPS)'s were out of time and invalid, the Council were nevertheless entitled to treat the purported DA(SPS)'s as ordinary development applications by virtue of Council's power to elect to assess a DA(SPS) under the planning scheme at the date of lodgement.

At first instance, the primary Judge in the Planning and Environment Court, concluded on the basis of the reasoning in the 2007 case of Lamb v Brisbane City Council, that as the purported DA(SPS)'s lodged were not made in accordance with the statutory requirements for a DA(SPS), the Council had or has no authority to accept or otherwise deal with them, thus Council's acknowledgment notices were void.

The question in these applications for leave to appeal was whether a "development application" in the form of a DA(SPS) which is not in truth a DA(SPS) because it was lodged outside the period specified in paragraph (b)(iii) of the definition of DA(SPS) contained in the Integrated Planning Act 1997 (IPA), may nevertheless be treated by a local government as an ordinary "development application".

Held per McMurdo P, Fraser JA and White J

The Court of Appeal held that the two year period for lodging a DA(SPS) expired when the amendments were adopted, therefore the purported DA(SPS) lodged by the Bukmanis' was lodged out of time. Council was considered to have adopted a mistaken view by issuing an acknowledgement notice that contemplated that the application would be assessed under the superseded planning scheme.

Delivering the lead judgment, Fraser JA noted that the critical question was whether, despite different legislative treatment, a document in the form of a DA(SPS) which is not a DA(SPS) because it is not lodged within the specified time may be treated by the Council (acting as the assessment manager) as an ordinary development application.

The submission of the developers and the Council was held to invite error because they did not take into account those provisions of the IPA that differentiate between a DA(SPS) and an ordinary development application. In rejecting Council's submissions, the Court observed that a DA(SPS) is materially different from an ordinary development application, for reasons which included the fact that a decision to assess a DA(SPS) under an existing planning scheme opens up the prospect of compensation. Further, Council's power in section 3.2.1(9) of the IPA to accept an application which is not properly made was held to have no potential application in these circumstances as it cannot allow acceptance of an application of a kind not contemplated by the IPA.

As no error of law in the construction of the IPA was demonstrated, the applications for leave to appeal were refused, with costs.

Practical point

A development application invoking a superseded planning scheme which is not in truth a DA(SPS) because it is lodged more than 2 years after the amendments to the planning scheme are adopted by the local Council, cannot in the alternative be treated as an ordinary development application.


Parmac Property Pty Ltd v Redland Shire Council & Anor [2008] QPEC 120


This case was essentially a "battle" between shopping centre operators in which the Applicant (Parmac) attempted to obtain the standing of a submitter who had made submission regarding a development application made by the second Respondent, Kosmos Health. Kosmos' current application was for a new use, a health care centre, in a proposed new building which formed part of an expansion to some existing shops near the corner of Donald Road and Collins Street, Redland. Parmac had largely constructed a larger shopping centre approximately 1km away and had failed to notice advertisements during the public notification stage.

Parmac contended that changes previously allowed in respect of the original development approval for the site (from 4 shops and 31 "at grade" carparks to 4 shops raised to accommodate 58 basement carparks) where the health care centre was now proposed, were not minor and Council's decision in this regard to treat them as minor was therefore invalid. It was submitted by Parmac that this invalidity infected Kosmos's present development application on the basis that it accepts the lawfulness of the earlier approval. Parmac argued that the earlier application which was made under section 3.5.24 of the Integrated Planning Act 1997 (IPA), ought to have been made under section 3.5.33 of the IPA or under both sections.

Held per Robin QC DCJ

His Honour Judge Robin QC observed that it was a vexed issue as to how sections 3.5.24 and 3.5.33 of the IPA are to be reconciled. In finding a means doing so, it was noted that the Court should not lose sight of its responsibility to advance IPA's purpose under s1.2.3 (1), that is, to ensure that decision-making processes are accountable, coordinated and efficient. On the basis that Kosmos sought a change to the outcome of the approval, His Honour was inclined to give priority to section 3.5.24 and regard the impact on conditions of the existing development approval as something incidental rather than controlling.

Ultimately the Court was persuaded that section 3.5.24 was not available to Kosmos Health on the basis that this section, which may lead to the approval (rather than the conditions of it) being changed, is controlled by the change being a minor change, the test of which depends upon Council's opinion regarding the likelihood of a submission being attracted by the change. In this regard, Judge Robin QC deemed that having regard to the likely public attitude towards the changes that Council's determination of the original application made under this section was so unreasonable that it should not be allowed to stand. It was noted that one could expect complaint to have been made in respect of the changes which essentially converted a single storey proposal into one that might be viewed as two storey, although the parking was to be in an excavated basement.

Despite declaring the earlier approval invalid and public notification of Kosmos Health's current development application to be defective, the Court extended the time for Parmac to make a submission in respect of the present application until 30 January 2009.

Practical point

The relevant difference between s3.5.24 and 3.5.33 lies in what the developer wants to achieve on the site and the conditions which are the restraints, limitations and burdens of various kinds which the local government or some concurrence agency may want to impose on the development. The underlying control being how interested members of the public might react.

An Applicant may be granted extended time to lodge a submission objecting to a current development application under consideration by the Council, consequent upon a declaration of invalidity of Council's earlier changing of a related existing development approval.


Mun Wha Education (Mason College Australia) Pty Ltd v Gold Coast City Council & Anor [2008] QPEC 63


This case considers who may be an applicant for a development application in circumstances where there has been a change of ownership of the subject land at a time when appeal rights arising out of a development application had not been exercised or otherwise determined.

In this application the Appellant (Mason College) was seeking an order for an extension of time within which to commence an appeal against the Gold Coast City Council's decision to refuse a development application lodged by Fedwood Pty Ltd for the redevelopment of part of the Parkwood International Golf Course.

The decision notice was received by the owner of the land on or about 24 August 2007. On 21 September 2007 Mun Wha filed a first Notice of Appeal. The land was sold to Mun Wha approximately 1 month before Council's refusal. Council considered this Notice of Appeal to be ineffective, so Mun Wha filed a second Notice of Appeal on 23 November 2007.

The central issue to this application was the effect, if any, of the October 2007 executed deed which assigned rights in the development application to Mun Wha, on Mun Wha's right to appeal and the standing, if any, of that appeal under the IPA.

Mun Wha referred to the following factors as being "sufficient grounds" for allowing an extension of time; its obvious interest in the proceedings and its meritorious arguments advanced in the notices of appeal.

Held per Griffin SC

His Honour Judge Griffin SC found the first notice of appeal to be invalid upon being satisfied that nothing in the relationship or dealing between the parties by the time of filing the first notice of appeal on 21 September 2007 created a constructive trust or any other legal relationship which made Mun Wha an applicant for the purpose of having standing to appeal as contemplated by Chapter 4 of the IPA.

Turning then to consider the second notice of appeal the issues became what "rights" were assigned by the deed executed on 23 October 2007 (after the 1st notice of appeal was lodged) and, if the assignment did include a right to appeal, were their "sufficient grounds" for the purposes of s4.1.55 of the IPA for an extension of time? It was held that the mere fact of ownership of the property did not establish Mun Wha as an appellant for the second notice of appeal. However, the Court considered the terms of the deed of assignment and found that it operated to confer all the benefits relating to the original development application, including the right of appeal, in favour of Mun Wha.

His Honour considered the Respondent's argument that as the appeal period expired September 2007, there was no "benefit" which could have been transferred by the October 2007 deed was misconceived. While the deed of assignment could not have had the effect of conferring a benefit to "appeal out of time", the deed did operate to confer all benefits relating to the development application which included the right to appeal.

In relation to whether there were "sufficient grounds" for the Court to exercise its discretion to extend time under s4.1.55 of the IPA, the Court was satisfied that the pursuit of the second appeal was to overcome an alleged deficiency in the first appeal process and while there was almost a 2 month delay before the second notice of appeal was filed, the Court accepted Mun Wha's explanation and suggestion that the delay was not deliberate. Mun Wha were considered to have clearly demonstrated their intention to appeal at an early stage and this, together with the limited prejudice to the other parties and the lack of finality to the development application process, adequately established sufficient grounds to extend time.

Had the first appeal been valid, it was noted that this would have weighed heavily against the balancing exercise to determine the existence of sufficient grounds for an extension of time to appeal.

Practical point

In circumstances where the appellant is not the original applicant for the development approval, mere ownership does not establish a right to appeal.

An executed deed of assignment may operate to transfer all the benefits of an original development application including the right to appeal, even though the appeal period may have expired.

© HopgoodGanim Lawyers

Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

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.

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David Nicholls
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