“Councils and ratepayers should not face significant costs to defend the public interest” Barry Cotterell, President of Peregian Beach Community Association (PBCAI) said today.
“Noosa Council recently was forced to defend the Noosa Plan in the Planning and Environment Court at a cost approaching $1 million after it rejected an application by the Scanlon group as non-compliant on about 11 grounds” he said.
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“The Noosa Plan was arrived at after a significant community consultation process by Council and was then vetted and approved by the State Government” he said.
“The Plan is designed to represent the public interest with regard to land planning in the relevant locality” Mr Cotterell, a retired barrister said.
He said that in Clark v Cook Shire Council,69 Keane JA, with the agreement of the other members of the Queensland Supreme Court , said:
“The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.”
“Development applications cost Councils and communities a significant amount in time and legal fees. If the application complies with the Town Plan it is perceived to be in the public interest. If it is non-compliant it may not be appropriate for the cost to be imposed on the Council and the community” Mr Cotterell said.
“If the only benefit is to the developer, then the developer should bear the cost, which it will presumably be able to recover or, at very least, it will reduce the increase in the value of the property which results from the approval” Mr Cotterell said.
“Developers should not be encouraged to make applications which are non-compliant with the public interest and then go on to subject ratepayers through the Council to significant costs to defend the public interest” he said.
“The Sustainable Planning Act needs to be amended to provide that when a development application is assessed by the assessment manager to be non-compliant with the Town Plan on 3 or more grounds, in any subsequent appeal, the developer will be liable to pay the costs of the respondent Council and any other respondents, unless the Court finds that it’s approval will result in a significant benefit to the community” Mr Cotterell said.
“The Sustainable Planning Act also needs to be amended so that in development applications which are non-compliant with a Town Plan, the developer is required to clearly state any and all benefits to the community which will arise if the development is approved despite the non-compliance, and these benefits to the community need to be significant” Mr Cotterell said.
“The Sustainable Planning Act provides no limits on the number of applications a developer can make in relation to a property. It is even possible to have two competing development approvals over a property at the one time. This allows developers with deep pockets and the prospect of a large increase in the value of the property arising from a development application being approved, to continue to make applications until they wear down the Council’s resistance” Mr Cotterell said.
“Clearly development applications which are non-compliant and found not to be in the public interest should not result in Councils and the community bearing an inappropriate cost” Mr Cotterell said.