Larrell Pty Ltd v Brisbane City Council

[2011] QPEC 113

[2011] QPEC 113

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 2400 of 2011

LARRELL PTY LTD	Applicant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 29/07/2011

JUDGMENT

CATCHWORDS

Sustainable Planning Act 2009 s 820
Integrated Planning Act 1997 s 3.5.21(2)(b)

Developer relieved from statutory lapsing of a development approval for reconfiguration - plan of subdivision not lodged with Council in time - flood and inclement weather delayed completion of works
HIS HONOUR: The court makes an order in terms of the initialled draft. It relieves the applicant from the statutory lapsing of a development approval for a reconfiguration under section 3.5.21 of the Integrated Planning Act 1997. That approval lapsed on the 6th of March 2011, owing to the applicant's failure to lodge the plan of subdivision with the Council. That step didn't occur until the 7th of June 2011.

The applicant, understandably, didn't want to take that step until the necessary works had been done on the ground to suitably accommodate the subdivision as a collection of usable residential allotments.  The land was, to an extent, inundated in the January floods of this year.  It's well known that unusually wet weather followed that event; that disrupted progress of the works.

The problem arises only in respect of stages 2 and 3 of a much larger overall development. Stage 1 has been completed and the plan of subdivision has been sealed. The applicant requires certain changes to be made in respect of stages 2 and 3, asserted to be permissible change for purposes of the Sustainable Planning Act 2009, and a matter to be dealt with by the Council. It has declined to do so on the basis of the statutory lapsing of the approval sought to be changed. However, it supports the present application.

The circumstances appear to be ones similar to those considered in Tremellen v. Southern Downs Regional Council [2010] QPEC 94 where the delay in analogous circumstances was 18 months, compared with only three months here. Judge Dorney QC was satisfied it was an appropriate case for relief from the strictures of section 3.5.21(2)(b) by reference to section 818(2) and 820 of the Sustainable Planning Act.

In an earlier matter on today's list, JTCO Pty Ltd v. Logan City Council, 2500 of 2011, a similarly understanding attitude was taken by the Council, and it's appropriate for that to occur here.

The order confirms that the Council has 30 business days from today to process the applicant's request: to wit, for permissible changes to development permit.  Order as per initialled draft.

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