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The prohibition on development approvals having inconsistent conditions is often misconstrued

There is no prohibition in the planning legislation on the existence of multiple development approvals over the one parcel of land. However, the operation of s.66(2) of the Planning Act 2016 can sometimes cause difficulties when the conditions of an existing development approval may, on the face of it, appear to be in conflict with the proposed conditions of another development application.

Relevantly, s.66(2) provides:

"(2) A development condition must not be inconsistent with a development condition

of an earlier development approval in effect for the development, unless—

[if !supportLists] (a) [endif]the same person imposes the conditions; and

[if !supportLists] (b) [endif]the applicant agrees in writing to the later condition applying; and

[if !supportLists] (c) [endif]if the applicant is not the owner of the premises when the later

development application is made—the owner agrees in writing to the

later condition applying."

These provisions are sometimes interpreted as meaning that the conditions of any future development approval over a parcel of land cannot be inconsistent with the conditions of any existing development approval. The obvious difficulty with such an interpretation is that future development approvals are potentially bound to the conditions imposed in an earlier and unrelated development approval.

This apparent conundrum was resolved in Liqourland (Aust) P/L v Gold Coast CC & Anor [2002] QCA 248 where the Queensland Court of Appeal considered s3.5.32(1)(a) of the (now repealed) Integrated Planning Act 1997, which provided:

"(1) A condition must not -

[if !supportLists] (a) [endif]be inconsistent with a condition of an earlier development approval still

in effect for the development;"

The legislative provision considered by the Court of Appeal in Liquorland is very similar to the provisions of s.66(2) of the Planning Act insofar as it used the words "in effect for the development". The following extracts from that judgment set out the relevant findings:

"4. The first point: the relevant application of s 3.5.32

[15] Section 3.5.32 provides that a condition in a development approval must not be inconsistent with a condition of an earlier development approval still in effect for the development. Two relevant questions therefore arise under this section. The first is whether the approval dated 5 March 2001 was an earlier development approval still in effect for the development the subject of the present application. And the second is, if it is such an approval, whether condition 1 contained in the conditions of approval of the Council in its decision of 21 September 2001 is inconsistent with conditions 1, 2 or 3 of that earlier approval.