Use it or lose it – our Glossy Black habitat wiped out at Sunshine Beach

EXPLAINER.  The developers of the large Blue Care nursing home and property development at sunrise Beach are applying for yet another extension to their controversial approval that destroys part of the endangered Glossy Black cockatoo habitat.  What does it mean? And do protesting residents have any chance of stopping it?  This explainer from retired barrister Barry Cotterell.

Why, after 11 years of inactivity has Blue Care suddenly moved to destroy the habitat of the endangered Glossy Black cockatoos?

They obtained the development approval in 2011 and did nothing. They obtained an extension of the currency periods in 2017 and again did nothing.

Before they unexpectedly received two Covid extensions they were facing the lapsing of the development approval on 19 December 2021.

A development approval is a limited right governed by two currency periods – the commencement date and the completion date. A failure to comply with either date results in the approval lapsing. 

An approval may be granted an extension but “there is no right, or conditional right, to an extension nor any presumption in favour of granting an extension. It is a matter of considering all relevant matters in the particular circumstances of each case”. 

After the flurry of activity to destroy the Glossy Black habitat, on 24 March Blue Care filed an extension application seeking a further two-year extension to the currency period of the approval.

Blue Care wants the favourable exercise of discretion by Council to displace the lapsing of the approval which would automatically occur by the Planning Act.

This has been described by the Planning and Environment Court as “use it or lose it”.

From 2011 to 2016, when the applicant applied for the first extension, it had simply “warehoused” the approval which it had not acted upon.

Blue Care cannot point to any physical work being undertaken on the site, despite the 2017 extension approval, and all of that has been since January 2022, by which date the approval would have lapsed without the Covid extensions. 

Even the planning work, according to their material, did not commence until July 2020, three years after the extension was approved on 9 May 2017 and Blue Care has provided no reason for this three-year delay.

There is no evidence to show that Blue Care will comply with the currency periods, sought in the application, if they are extended. 

The Council and the community is expected to take this on trust despite the lack of compliance with the currency periods, especially when those were previously extended.

There are many good reasons to require this development proposal to go through a fresh application process even though it will be Code Assessable.

Apart from this site itself, a lot has changed since 2011. The 2011 decision was made by the Sunshine Coast Regional Council (SCRC) which had a very different approach to development to that of the Noosa Council. 

It was assessed against the now replaced Noosa Plan 2006 established under the Integrated Planning Act 1997 (IPA) which has since been replaced by the  Sustainable Planning Act 2009 (SPA) and then by the Planning Act 2016 (PA). The Noosa Plan was replaced in 2020.

From this it can be seen that there have been several changes in policy, with changes in assessment benchmarks or applicable industry standards. The effects of these changes  would need to be assessed under a future development application.

Development is approved because there is assessed to be a need for it in relation to that site and it is required to be commenced and completed within the currency periods of the approval. 

There are good planning reasons for currency periods being complied with, including economic and social issues.

It is legitimate to question whether there is a community demand in Noosa Shire at this location for either the residential aged care facility on Lot 6 or another retirement village on Lot 9. 

Noosa Shire has a demand for reasonably priced accommodation to allow relatively low paid workers to live in the Shire near their work and this site could be argued to be very suitable for this purpose and may be able to preserve the Glossy Black habitat.

Where this development has been approved for such a long time with no development until January 2022, is the use of this site for residential aged care facility and retirement village financially viable and is that the cause for the excessive delay?

Blue Care have not acted to satisfy whatever need may have existed in 2007 when it first applied or in 2011 when the development was approved, to be commenced by 19 December 2017 and completed by 19 December 2019.

The approval was not acted upon for over a decade so why should another extension now be granted? 

I believe the application for an extension of the currency period should be refused in the interests of the community.


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