The case of Emzay Pty Ltd v Bundaberg Regional Council [2023] QPEC 20 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the refusal by the Bundaberg Regional Council (Council) of an application by the applicant (Appellant) to extend the existing 11-year currency period for a further five years for a development approval for reconfiguring a lot located on Goodwood Road in Bundaberg, Queensland (Land) into 28 rural lots (Proposed Development).

The development application for the Proposed Development was properly made in February 2009 and approved on 14 December 2012 (Approval) (at [2]). The currency period of the Approval was extended until 14 December 2020 upon application by the Appellant, and the Appellant applied for a further extension of the currency period which was refused by the Council (Council Decision).

The Court was not satisfied that the Appellant demonstrated a satisfactory explanation for the Appellant's delay in making the extension application and thus dismissed the application.

The Land has an area of 1,137 hectares. The Proposed Development comprises a range of lots from 5.93 hectares to 16.88 hectares, with an additional 886 hectare balance lot proposed to be dedicated to the State for conservation purposes (Balance Lot).

The Appellant applied under section 86 of the Planning Act 2016 (Qld) for and was granted a four-year extension to the currency period of the Approval, until 14 December 2020, which was automatically extended until 9 June 2021 as a consequence of the extension notices given by the Planning Minister because of COVID-19.

On 9 June 2021, the Appellant again applied for an extension to the currency period of the Approval which was refused by the Council.

Under section 47 of the Planning and Environment Court Act 2016 (Qld), the Court must in respect to the Council Decision either confirm it, change it, or set it aside and make a decision replacing it.

The issues considered by the Court relevantly included the following (at [17]):

• Whether there was a satisfactory explanation for the delay.

• Whether steps were taken to act on the Approval.

• The changes in the assessment regime and the zoning of the Land; and

• The need for the Proposed Development.

The Appellant submitted that illness of the Appellant's sole director, economic conditions, and extrinsic litigation proceedings were reasons for the delay (at [19]).

The Appellant and its related companies operate under one conglomerate trading name (at [22]). The Appellant gave evidence that since 2003, the conglomerate has started and either continued or completed 38 development projects (at [26]). Development managers were engaged to attend to the day-to-day operations of the projects, which included the engagement of a development manager for the Proposed Development during 2010 to 2020 (at [26]).

The Court did not accept the Appellant's evidence of a drop in sales at a conglomerate beachside residential development as being attributed to "…lack of purchaser interest in regional Queensland…" as related Supreme Court proceedings cited evidence that the drop in sales was due to the "…foul smelling, stagnant water on the development site" (see [23] to [24]). Further, the Court found limited relevance of the beachside development to the Proposed Development given the locational and lot size differences (at [24]).

Further evidence was given that from 2009 to the date of the Court's judgment the sole director of the Appellant was actively involved in "significant planning litigation" (at [27]). The Court found that this contradicted the evidence of illness being the reason for the delay.

Whilst the Court accepted that the illness of the Appellant's sole director "…would have adversely affected [the sole director's] ability to operate his business…", the engagement of a development manager to manage the Proposed Development and evidence of active involvement in litigation negated this as a reason for delay (at [25]).

The Appellant submitted that it had obtained a quote for civil engineering design works in 2016 and made enquiries about obtaining a development approval for operational work in 2019 (at [30]).

The Court found "… that no meaningful steps have been taken to progress the [Proposed Development]…" (at [33]). The Court also observed that the evidence presented did not demonstrate the Appellant's intention to act upon the Approval if granted the extension, and the need for the extension to be for five years.

The Court noted that the Approval was assessed as impact assessable, and if the application for the Proposed Development were to be made under the Bundaberg Regional Council Planning Scheme 2015 (version 6.0) (Planning Scheme), it would similarly be impact assessable and thus require public notification (at [37]).

The Court considered the opportunity for new submitters on the Proposed Development if an application for the Proposed Development were to be remade under the Planning Scheme. The Appellant submitted that although a change in ownership of properties in the surrounding area of the Land has occurred since the Approval was granted, those people would have been aware of the extant Approval before moving into the area.

The Court noted that "…the location of potential submitters is not limited to those in the vicinity of the Land" (at [39]). The Court was "…satisfied that the combination of the length of time which has elapsed since the [Approval] and that it remains impact assessable if made today (matters contributing to public awareness) are factors which weigh against approval of the extension" (at [40]).

Since the Approval was granted, the bushfire rating for the Land has increased from "medium to high" (at [41]). Although a condition of the Approval requires a bushfire management plan to be submitted to the Council, that condition related to a 2009 bushfire risk assessment which predates the increase in the rating (at [42]).

The Court noted that although the Appellant submitted that compliance with contemporary benchmarks for bushfire management could be achieved through applications for later stages of the Proposed Development, the Court was not satisfied that the condition could be construed in its current form to require compliance with the contemporary benchmarks, and that compliance with this condition could be evidenced by reference to the 2009 bushfire risk assessment (see [43] to [44]).

As a result of the elevated bushfire rating for the Land, the chance the outdated 2009 bushfire risk assessment could warrant compliance with the Approval, and the significant risks associated with bushfire, the Court considered this factor weighed heavily against the extension application.

The Court accepted that the dedication of the Balance Lot to the State for environmental benefit would be a positive conservation outcome, however no evidence was submitted that the State would accept such a dedication (see [50] to [51]). Without acceptance, the plans for the Balance Lot would not be sealed, and therefore would not be realised. Given the lack of evidence, the Court did not give this matter any weight (at [51]).

Since the introduction of the Planning Scheme in 2015, there has been a significant increase in land designated for rural residential development. The economic expert for the Appellant opined that whilst there is an increase in the area of land designated for rural residential development, this "…[does] not guarantee when and how an individual site is developed" (at [52]). The Appellant therefore submitted that there is a need for the Proposed Development as it is intended to be developed.

The Court preferred the evidence of the Council's economic expert that "…there is no economic or community need for the proposed development because there is a significant quantum of land designated for rural residential development in the local study area with a significant number of approved, vacant and development lots intended to meet future demand" (at [54]).

The Court was satisfied that the need for rural residential development is being met by the designation of land under the Planning Scheme. Therefore, need was not considered a factor to support the extension application.

The Court dismissed the appeal against the Council Decision.