Australia: First extension application under the Planning Act

On 26 July 2019, his Honour Judge Williamson QC delivered judgment in Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34. This proceeding was the first occasion in which the Planning and Environment Court considered the provisions of the Planning Act 2016 (Qld) (Planning Act) relevant to an extension application for a development approval.

McCullough Robertson acted for the applicant, Room2Move.

Background

Room2Move had the benefit of a development permit to construct a non-resident workforce accommodation camp in Miles which is within the local government area of the Western Downs Regional Council. The original approval was granted in 2013 and, after a number of changes, was due to expire on 15 April 2018.

On 13 April 2018, Room2Move applied to Council for a 12 month extension of the approval to allow it to finish construction of the camp and commence the use. Due to the downturn in the mining industry, works relating to the camp had been started but not completed. Council refused the extension application and Room2Move appealed that decision to the Planning and Environment Court. The starting of the appeal meant that the approval did not lapse on 15 April 2018 and its currency period would be decided by the Court.

The Statutory Criteria for Deciding Extension Applications

Section 86 of the Planning Act permits a person to apply for an extension application, and section 87 provides the criteria by which an application ought to be decided. The criteria is wide, going so far as to allow an assessment manager to:

'...consider any matter that the assessment manager considers relevant, even if the matter was not relevant to assessing the development application.'

The legislation deliberately draws in matters that were irrelevant to the assessment of the original application, including, for example, the applicant's personal circumstances1 or financial situation.

This inclusion is unusual in the context of legislation that ordinarily excludes a proponent's personal circumstances.2 His Honour, reflecting on this difference, noted that:

'...evidence of an applicant's personal circumstances may be required to explain why development was not started before an approval lapses. I regard such evidence as relevant to the assessment of an extension application.' 3

Present Case

While town planning and social cohesion evidence was presented by Room2Move, Council's case against extending the approval, and the balance of the judgment, was focused on the issue of need. Council submitted that need lies at the heart of the appeal, and would be determinative.4

Council's need case could be summarised by four propositions set out by his Honour at paragraph 17:

  • the demand for non-resident workforce accommodation in Miles comes from major projects in the region, including energy and construction projects; at the time the appellant's development approval was granted in October 2013, the demand for non-resident workforce accommodation had peaked, coincident with the coal seam gas (CSG) Boom;
  • the CSG Boom has ended, and demand for non-resident workforce accommodation in Miles is low, and can be met by an existing comparable facility in Miles as well as a combination of existing short term accommodation facilities, rental housing, and accommodation on mining leases; and
  • the outlook for demand for non-resident workforce accommodation in Miles is expected to deteriorate rather than improve.

The first two points were uncontroversial. It was also uncontroversial that the CSG Boom had ended, and demand for non-resident workforce accommodation was lower than existed at the time of that boom.

The points of dispute between the two retained economists focused on whether the demand outlook for workers accommodation was positive or negative, and whether the existing accommodation in Miles was sufficient.

His Honour, without being critical of the economists, noted that a lot of the information they based their projections on was limited, speculative and removed from primary sources and, accordingly, was entitled to little weight.5

However, his Honour accepted that a surplus of accommodation is needed to provide for unexpected rapid spikes in demand and that a failure to provide for these spikes can have a detrimental social impact on a small town – a large 'boom and bust'. Judge Williamson QC also accepted that while it is uncertain, given the significant number of proposed or planned projects in the Miles region and the current supply of workers accommodation in Miles (of approximately 200 beds) was at capacity,

'a significant increase in demand for non-resident workforce accommodation could not be accommodated by the only existing facility in Miles.'6

Consequently, an increase in demand could not be accommodated 'even if it was assumed that only one of the major projects identified' was to proceed.7 Judge Williamson QC, therefore, concluded that there was a need for the proposed development.

In relation to town planning issues, his Honour considered that the proposed use was superficially inappropriate for the location, given the land was zoned medium impact industry. However, under Council's current planning scheme the proposed use was noted to be inappropriate in every zone. His Honour concluded that the proposed use did not cut across Council's planning strategy with respect to industrial development in Miles nor any proposed amendment to the zoning for the following reasons:

  • the approved development is to be an interim use only (conditioned for a limited time), and will not alienate the land for industrial purposes;in supply terms, the land represents a small fraction of the 50 year supply of industrial land in Miles, meaning its use for the approved development will not give rise to any land supply issues;
  • the approval requires the land to be developed in a way that will facilitate its use for industrial purposes in due course, by the construction of hard standing and infrastructure improvements (road, sewerage, water and telecommunications); and
  • the development approval, and surrounding approvals, were conditioned by Council to guard against reverse amenity impacts.8

Final Points

Judge Williamson QC concluded with his thoughts on the underlying rational for extension applications.

His Honour reiterated the established position that a development approval is not a right in perpetuity – it is subject to the legislative intention to 'use it or lose it'. Once an approval lapses, a fresh application is required where there remains an intention to proceed with the development – incurring considerable public and private expense.

The extension application mechanism is, in his Honour's interpretation, a:

'clear recognition by the legislature of circumstances where no town planning purpose is served by development repeating the statutory assessment and decision making process simply because the approval which authorises it has, or will lapse.'9

(emphasis added).

His Honour also made comments on the broad nature of the discretion under section 87(1) of the Planning Act in deciding extension applications by making the following observations:

'The power to 'decide' the extension application is subject to one requirement. Irrespective of which way the final exercise of the discretions falls, the assessment and decision making function must be performed in a way that advances the purpose of the PA. Save for this requirement, the power to decide an extension application is expressed in broad terms'10

(emphasis added).

The mechanism serves the purpose of avoiding the public and private expense of preparing, lodging, reviewing and deciding a new development application. This led his Honour to conclude that:

'This context informs the exercise of the discretion under s.87 of the PA. It invites the assessment manager (and this Court on appeal) to ask itself this question: is there a town planning imperative for the development, and its approval, to be the subject of a fresh assessment and decision under the PA?'11

(emphasis added).

Given the evidence presented and the circumstances of the proposed use, his Honour concluded there was no such planning imperative here and allowed the appeal, extending the development approval for a further 12 months from the date of judgment.

This case, being the first case involving an extension application appeal under the Planning Act, highlights the fact that broad criteria exists in deciding such an application and that the personal circumstances of an applicant can be taken into account (unlike typical development applications).

In addition, consistent with recent cases in the Planning and Environment Court12 the decision-making function for this type of application (as for impact assessable applications) must be performed in a way that advances the purposes of the Planning Act.

Footnotes

1 Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34, [101].

2 Planning Act 2016 (Qld) s 43(2) which states that an 'assessment benchmark' (which is relevant to deciding a development application) does not include a matter of a person's opinion or a person's circumstances, financial or otherwise.

3 Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34, [103].

4 Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34, [7].

5 Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34, [41].

6 Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34, [63].

7 Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34, [63].

8 Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34, [88].

9 Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34, [124].

10 Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34, [104].

11 Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34, [125].

12 See Ashan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16.

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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