Approval of an extension request for multiple unit residential development – consistent with current planning scheme and sufficient community awareness

Lake Maroona Pty Ltd v Gladstone Regional Council – What’s the case about?

The Planning and Environment Court of Queensland delivered a decision in the case of Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPEC 25 which involved an appeal by Lake Maroona against the Gladstone Regional Council’s refusal of a request for an extension of the relevant period of a development approval for a multiple unit residential development by a further 3 years.

The Court had regard to the following relevant matters prescribed under the Sustainable Planning Act 2009 in deciding the request:

• the consistency of the development approval with current laws and policies applying to the development;
• the community’s current awareness of the development;
• the likelihood of a submission made to the development if the request was refused.

It was in the Court’s discretion to have regard to the prescribed mattes. By reference to Cleveland Power Pty Ltd v Redland Shire Council [2013] QPELR 406 and Mantle v Sunshine Coast Regional Council [2015] QPELR 745, the Court observed that none of the prescribed matters must necessarily prevail and a failure to satisfy one of the prescribed matters must not mandate a refusal.

The Court found that the approved development had a “considerable degree of consistency with the current laws and policies, relevantly the 2015 planning scheme”.

Given that the original application was subject to public notification, and having regard to the location of the site and the works recently carried out on it, the Court accepted that it was “reasonable to infer a general level of community awareness of the approved development”.

If the request was refused and a new application was made, as the approved development would be impact assessable, there would be a right to make submissions. Since the previous public notification of the approved development was about 6 years ago, it was accepted by the Court that there was a possibility that someone might wish to make a submission if a new application was made.

However, given its findings on the consistency of the approval with the 2015 planning scheme, the Court was not persuaded that such a possibility would warrant a refusal of the extension request. The appeal was therefore allowed.

Snapshot of Court’s consideration and findings

Consistency of approval with current laws and policies

Consideration was given by the Court to the meaning of “consistency” in the context of deciding an extension request.

In the Court’s view, the approach was to “consider whether the approved development is compatible with, in the sense of being capable of existing in harmony with, current laws and policies.” The Court observed that development could still be compatible despite there being some variances with the planning scheme.

Submissions were made by Lake Maroon that “grounds” in the primary approval process would be relevant in considering the extent of “consistency”. However, this was not accepted by the Court. Once it was concluded that the approval was inconsistent with current laws and policies, the conclusion could not be altered by consideration of “grounds”.

Both parties adduced town planning evidence to assist the Court with its assessment of the approved development against the relevant provisions of the 2015 planning scheme.

The key points of difference between the town planning experts were related to the built form and density of the approved development and its impact on the low density residential character and amenity of the area, having regard to the relevant provisions of the 2015 planning scheme.

The Court accepted that the approved development was not the predominant form of housing contemplated for the low density residential zone. However, it did not mean it was “incompatible with, or inconsistent with, the relevant planning scheme provisions”, taking into account the low rise of the approved buildings and that the approved development would not adversely affect the low density residential character and amenity of the area.

Community awareness and likelihood of submissions

The original application was subject to public notification and there were no submissions made to the application.

The site was located on a busy road with high exposure and visibility to the surrounding areas and members of the public. Works had been carried out on the site including site clearing. Based on the evidence before the Court, it was reasonably satisfied that there was a general level of community awareness of the approved development.

Since the public notification of the original application took place almost 6 years ago, the Court could not discount the possibility that someone might wish to make a submission if a new application was made. However, given the considerable degree of consistency of the approval with the 2015 planning scheme, the Court was not persuaded that such a possibility would warrant a refusal of the extension request.

Points worth noting

Consistency of a development with current laws and policies applying to the development does not necessarily mean there can be no variance with a planning instrument such as a planning scheme.

What it means is that the approved development is compatible with, in the sense of being capable of existing in harmony with, the planning instrument.