(Rackemann DCJ -17 July 2015)
Mantle v Sunshine Coast Regional Council  QPEC 30
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 was required
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, Lake Weyba.
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 force.
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 controls.
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 extension.
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 appeal:
- 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) decisive weight.
- 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.