If you prepare applications for development in Springfield, Kawana or Mango Hill, you have probably come across a development control plan (DCP). Originally made under the Local Government (Planning and Environment) Act 1990, DCPs have continued in force through the various iterations of planning legislation in Queensland since 1997. Now, three DCPs continue in force under the Planning Act 2016 (Planning Act), being the Springfield Structure Plan, the Development Control Plan 1 Kawana Waters, and the Mango Hill Infrastructure Development Control Plan (Mango Hill DCP).
The recent Planning and Environment Court decision of JH Northlakes Pty Ltd v Moreton Bay Regional Council [2022] QPEC 18 provides some interesting comments for anybody preparing or assessing development applications in the Mango Hill DCP area. We have summarised some of the Court's key comments in this article.
Firstly, a brief background
The application was for a preliminary approval for a material change of use for a retirement facility and residential care facility, and included a variation request to vary the effect of a local planning instrument. The variation request sought to vary parts of the Mango Hill DCP.
Moreton Bay Regional Council asserted that an application lodged by JH Northlakes had a number of deficiencies. Two key concerns were that (see paragraph [2] of the judgment):
- the applicant had wrongly assumed that the application was to be processed, assessed and decided under the Planning Act; and
- a DCP is not a local planning instrument, and therefore a variation request could not seek to amend the Mango Hill DCP.
Council concluded that it could not receive the application, or at the very least, that the application was not properly made.
Applications in the DCP area are processed, assessed and decided under IPA
The Court raised a threshold difficulty for the applicant, being that it had assumed that the application was to be processed, assessed and decided in accordance with the Planning Act. The Court concluded that this assumption was 'not made out', and that applications for development in the DCP area are to be 'made and processed (assessed and decided) under the assessment system provided by [the Integrated Planning Act 1997]' (see [56]-[57]).
As a consequence, the Court concluded that the Council was correct in stating that it could not receive the application, because it could not receive and process an application for assessable development in the DCP area where the application was lodged under the Planning Act.
The Mango Hill DCP forms part of the planning scheme
'Variation request' is defined under the Planning Act to mean the part of an application for a preliminary approval for premises that seeks to 'vary the effect of any local planning instrument in effect for the premises'. Under the Planning Act, a local planning instrument is either a planning scheme, a temporary local planning instrument, or a planning scheme policy (see section 8(3) of the Planning Act).
An issue arose in this case about whether the Mango Hill DCP is a 'local planning instrument'. The Court concluded that the Mango Hill DCP forms part of the Moreton Bay Regional Council Planning Scheme, because through its adoption and application in the planning scheme, it effectively does the work of the planning scheme for the DCP area. As such, the Court concluded that the application could be characterised as one that included a request to vary the effect of a local planning instrument.
Future developments in this area
The Court's reasoning was in the context of considering a development application in the Mango Hill DCP area. Further detailed consideration would be required before the same conclusions can be reached for other DCP areas.
Nevertheless, the case is an important reminder of the difficulties that are associated with lodging, assessing and deciding applications in a DCP area, particularly where there has been a long history of treating applications in a certain way and where a change to the accepted processes may have unexpected consequences for previous approvals. Consultants need to be wary of the implications this judgment may have on the planning framework that applies to the preparation of a development application in a DCP area. It will usually be appropriate to seek a pre-lodgement meeting with the relevant assessment manager or obtain legal advice if you are unsure about the implications of this judgment on your development application.
