Are deemed approvals a toothless tiger?

Dec 7 2016

Publications

If a development application is code assessable, the Sustainable Planning Act 2009 (SPA) imposes stringent timeframes on Councils making decisions, and uses a rather indelicate tool to compel compliance – the deemed approval.  In short, if the Council fails to make a decision within the relevant timeframe, the development is deemed to have been approved and the Council is limited to imposing conditions on that approval.

New home construction framing a home. Markings on trusses are generic identifiers to help with proper positioning.

The provisions in this respect were examined recently by the Planning and Environment Court.1

In that case, a Council officer, due to a genuine error and miscalculation, failed to extend the decision period.  At 12 minutes after midnight the day after the decision period lapsed, the developer sent a deemed approval notice to the Council.  The Council’s decision purported to impose conditions that, in effect, refused part of the development.

The Planning and Environment Court held that the Council had lost the opportunity to refuse the application, and that the conditions power could not be used to effect a refusal, even where the refusal would be consistent with the planning scheme provisions.

BUT

The Court excused the Council’s failure to issue notice of the extension of the decision-making period and its failure to make the decision during that extended decision period under section 440 of SPA, which had traditionally been limited to excuse non-compliances of a developer or submitter.

In doing so, the Planning and Environment Court extended the protection of litigants from technical points that may deprive them of a right to a hearing2 to cover Councils that have made technical errors in the assessment of a development application.

While the intent of the ‘deemed approval’ provisions of SPA are clear and are intended to be a strong disincentive for Council delay, the Court’s reasoning for excusing the non-compliance is focussed on achieving a good planning outcome, by allowing the Council an opportunity to assess the merits of the development application and to avoid the ‘forced hand’ of a deemed approval due to a technical non-compliance.

This decision takes away some of the bite of the deemed approval provisions, and the Court did so consciously in light of the interests of proper planning and the public/community interest.3  It remains to be seen whether the decision has truly de-clawed the deemed approval provisions, or whether the case will stand solely on its facts.

Written by:
Michael Marshall | Partner | +61 7 3338 7525 | mmarshall@tglaw.com.au
Matt McDermott | Senior Associate | +61 7 3338 7943 | mmcdermott@tglaw.com.au

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(1) Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd & Another and; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 55.
(2) Boral Resources v Gold Coast City Council [2015] QPEC 13, [75].
(3) Paragraph [62].