PRACTICAL
RELIABLE
PROMPT
PRACTICAL
RELIABLE
PROMPT
IMPACT OF DRAFT PLANNING SCHEMES: THE COTY PRINCIPLE
1 October 2020 at 4:30:00 am
Changes to planning schemes can dramatically impact a project, so when does a draft planning scheme start to have effect?
THE COTY PRINCIPLE
In Queensland, the impact of draft planning schemes is determined by the principle in Coty (England) Pty Ltd v Sydney City Council.
Following this principle, draft planning schemes or amendments can be used to refuse an application that cuts across draft planning schemes or planning scheme amendments.
Drafting planning schemes cannot be used to obtain development approval.
THE RELEVANT WEIGHT
The weight to be given to the draft planning scheme will depend on how far advanced the proposed new scheme has advanced.
For example, in Ray Donaldson (Holdings) Pty Ltd v Mt Isa City Council, the authority had undertaken a revision of the existing scheme and had prepared a proposed new scheme which it sent to the Director of Local Government for preliminary consideration. It had not been exhibited to the public by the date of the appeal hearing.
The Court found that at this preliminary stage the proposed new scheme was a relevant matter to be considered, but did “not carry anything like the weight which it would carry if it had been considered by the public, objections to it lodged and considered and the scheme then sent to the Minister.”
PROBLEM WITH DRAFT PLANNING SCHEMES
It is also important that decision makers do not give too much weight to a draft planning scheme.
For example, in Nerinda Pty Ltd v Redland City Council, a plan had been publicly exhibited which replicated a nearby zoning pattern. However, there were deficiencies in the draft scheme regarding its ability to meet population growth.
The Court of Appeal held that the primary judge treated the draft planning scheme as essentially decisive. Given the deficiencies in the draft planning scheme, this was too much weight and the draft planning scheme held little significance due to the deficiencies.
If you require further information, please contact Frews Solicitors on (07) 3868 2244.
Frews Solicitors communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.