Planning and environment – application – Greater Flagstone Urban Development Area – continued effect of development approval granted under repealed IPA where land subsequently declared an Urban Development Area under Urban Land Development Authority Act 2007
Economic Development Act 2012, ss 45, 177, 190, 216,
195(4),
Sustainable Planning Act 2009, ss 243, 244, 245, 367,
379, 380, 456(1), 580(1), 801
Urban Land Development Authority Act 2007, s 14
Integrated Planning Act 1997, ss 3.5.15, 3.5.28
Facts: The Applicant commenced proceedings seeking a declaration, amongst other things, that the clearing of vegetation on the subject land at Flagstone between April 2012 and July 2012 was not required to comply with the conditions of a development approval granted on 19 February 2008 (2008 DA) under the Integrated Planning Act 1997 (IPA).
The 2008 DA was a development permit for operational works (vegetation removal) which authorised the selected clearing of vegetation on the subject land. Condition 2 imposed an obligation to ensure that all vegetation remaining after the approved selected clearing be maintained in a healthy condition at all times. Condition 3 prohibited the clearance of vegetation outside the approved area unless an exemption applies.
The Sustainable Planning Act 2009 (SPA) commenced operation on 18 December 2009 repealing IPA. The 2008 DA under IPA became a SPA approval as a consequence of section 801 of the SPA.
On 8 October 2010, a declaration was made under the Urban Land Development Authority Act 2007 (ULDA) which resulted in the subject land falling within the Greater Flagstone Urban Development Area. The ULDA provided that upon the making of a declaration, any SPA development approval continued in effect. Subsequently the ULDA was repealed by the Economic Development Act 2012 (EDA) with the SPA approvals continuing in effect under the EDA.
Clearing work permitted by the 2008 DA was completed to the Council's satisfaction.
The Applicant acquired the subject land in July 2011 and the Applicant undertook further clearing on the subject land between April and July 2012.
In August 2013 the Council issued a number of Complaints and Summons in the Magistrates Court against the Applicant and others alleging contravention of conditions of the 2008 DA as a result of the clearing operation undertaken between April and July 2012.
It was uncontested that the clearing of vegetation on freehold land, the subject of a declaration under the ULDA, was exempt development under SPA.
Decision: The Court held, in dismissing the application:
- Conditions 2 and 3 of the 2008 DA have a life beyond that of the duration of the clearing operation, the subject of the 2008 DA. Those conditions impose obligations beyond the life of any work the subject of the approval.
- The conditions attaching to the 2008 DA bind the land and the Applicant as its owner.
- The Court declined to make a declaration that the Applicant was not required to comply with the conditions of the 2008 DA.
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.
