IN a tight property market, the lapsing provisions of the Integrated Planning Act 1997 (IPA) can create difficulties for developers in completing their developments
on time.

Recent amendments to the IPA have opened the door for the court to assist developers even though the approval may have lapsed.

This happened recently to a Brisbane developer whose development ended up before the Brisbane Planning and Environment Court. A disgruntled neighbour had complained to the court of various breaches of the approval conditions, particularly in relation to site coverage and height of the building.

In the course of examining the approval, it was discovered that it had lapsed, although two residences in the three-lot development had been completed and the third neared completion.

The Council in this case sought to have the developer make a fresh impact assessable development application to regularise the non-compliances and to obtain a fresh approval to render the existing works lawful.

This would have potentially opened up the development to a fresh round of submissions, created uncertainty and delay and significantly increased the cost of development.

Happily for the developer in this case, the court chose to apply its powers under section 4.1.5A of the IPA regarding matters where there has been substantial compliance and retrospectively extended the period of the approval.

The court has made it clear, however, that this will not just happen as a matter of course.

In this case, there were ameliorating factors - including the advanced stage of completion of the development and the fact that Council had delayed in enforcing compliance with the conditions - which would have been prejudicial to the developer if it was forced to make a new application.

The 2006 IPA amendments go a significant way towards addressing this problem, by providing more generous timeframes for the lapsing provisions.

For approvals for a Material Change of Use of premises or Reconfiguration of a Lot, approvals are 'rolled forward' and the currency period begins again when a subsequent related approval -
such as for operational or building works - takes effect within a relevant time period.

There are, of course, detailed provisions regarding time periods and the types of approvals to which the provisions relate. The facts of each development must be carefully considered and reviewed in monitoring this important issue.