Development approvals in Queensland do not last forever and determining the lapsing date of an approval is not always simple. An approval lapsing can have a significant impact on a development proposal or on the value of land.
But is a lapsed approval ‘dead’ or can it be revived? This article explores the process for reviving lapsed development approvals and the relevant considerations for seeking relief in the Queensland Planning and Environment Court (Court).
REVIVAL OF A LAPSED APPROVAL
The relevant period for a development approval can be extended if a request is made to the assessment manager before the development approval lapses. If the correct request under Sustainable Planning Act 2009 (Qld) (SPA) is not made prior to the lapsing of a development approval, the assessment manager (usually the Council) cannot extend the relevant period.
RELIEF FROM THE COURT
The Court has broad powers and can excuse non-compliance with the SPA. These powers extend to the revival of lapsed development approvals.
The revival of a lapsed development approval is not an automatic right and the power of the Court to revive a lapsed approval is discretionary having regard to the facts and circumstances of each matter.
Where the Court is asked to revive a development approval it may take into account the background and relevant circumstances of the matter to determine whether it is prepared to exercise its discretion. Whilst there are no fixed rules for the Court on such matters, case examples show that the Court may be interested in the following considerations (amongst others):
- the length of time between the development approval lapsing and the making of the application to the Court;
- any explanation for the lapsing of the development approval (e.g. honest mistake or reliance on advice);
- the extent to which the assessment manager was aware of the lapsing of the development approval or was complicit in the mistake about the lapsing of the approval;
- whether the assessment manager supports or opposes the revival of the approval;
- the extent to which resources (costs) have been committed to the development;
- the delays and additional expense which will be caused if a new development application had to be made;
- the extent to which works in reliance on the approval have been carried out;
- the extent to which related approvals have been obtained to pursue the development;=
- the consistency of the approval with the current laws and policies (including infrastructure contributions);
- whether the approval expressly contains conditions which makes it clear that lapsing was a material concern for the assessment manager;
- whether any submitters (or persons who are not a party to the Court proceeding) are likely to have an interest;
- the community’s current awareness of the development approval;
- the likelihood of a submitter exercising its rights on a further development application, if the right existed;
- the views of any concurrence agency; and
- whether it is in the public interest to require a new development application to be made.
Balancing these kinds of considerations, the Court will make a decision whether it is prepared to grant relief and revive the approval.
The lapsing of a development approval does not mean that a developer is out of options. Going to the Court and seeking the revival of a lapsed approval can often be quicker and more cost effective than making a new development application (especially for more significant developments). Developers should therefore assess their prospects of the Court reviving a lapsed approval before assuming that an approval is ‘dead’.
The author gives credit to co-author, solicitor Sarah McCabe.