Factsheets · Healthy Communities

Appealing and Enforcing Development Approvals and Seeking Declarations

10 September, 2014

This factsheet outlines the appeal, declaration and enforcement processes under the Sustainable Planning Act 2009 (Qld) (SPA).

This Factsheet is for general information purposes only, it is not legal advice. Important legal details have been omitted to provide a brief overview of this area of the law. If you require legal advice relating to your particular circumstances contact EDO or your solicitor. © EDO (Qld) current as at September 2014.

Key points

It provides information about each process, including:

  • An explanation of the process
  • Those entitled to pursue the process
  • The circumstances required to do so
  • Where proceedings are commenced and any time limits that may apply 
  • Preparation for proceedings and the information required
  • The costs  involved
  • The possible outcomes

For further information, see additional factsheets on planning and environmental matters on the EDO website.

Contents

  1. Appealing a development approval
  2. Seeking a court declaration
  3. Enforcing the SPA
  4. Obtaining information about development approvals
  5. Further information and references

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1.   APPEALING A DEVELOPMENT APPROVAL

Who can bring an appeal?

An appeal can be brought in the Queensland Planning and Environment Court (QPEC) against a council decision by either:

  • the applicant for the development (the “developer”); or
  • any person who has made a written submission on particular types of development application (the “submitter”). 

When can a submitter bring an appeal?

Not all developments require council consent and you cannot appeal against all types of development.  In order to bring an appeal, you must answer yes to all three questions below:

1)      Is The Development Application For ‘Impact Assessable’ Development?

The SPA or the relevant local planning instruments will dictate the category of a development. You can only appeal against ‘impact assessable’ developments.

2)      Did You Lodge A Valid Written Submission? 

You must have lodged a ‘properly made submission’[1] with the local council within the public notification period for the development application.

3)      Are You Within The Required Time Limit?

If you lodged a valid submission, you have 20 business days from the date you receive the council’s decision notice to start an appeal. An appeal is started by filing a notice of appeal in the QPEC.  If the developer is appealing a council decision, as a submitter you have 10 business days from the date you receive notice of the developer’s appeal to apply to the QPEC to be joined as a party (called a ‘co-respondent by election’).

What can a submitter appeal?

Any person who made a submission on an application for development can appeal against:

  • the decision to approve it, including any conditions or lack of conditions; and
  • the length of time the approval is valid.[2]

How do I prepare for an appeal?

EDO has published the “The Community Litigants Handbook – Using the Planning Law to Protect the Environment”. To assist with your preparation for starting or joining an appeal, it is strongly advised that you refer to this handbook as this factsheet is a brief outline only.   

See the Community Litigants Handbook – Using the Planning Law to Protect the Environment for information about:

  • when you can bring an appeal;
  • what you must consider before commencing or joining an appeal;
  • how to start an appeal;
  • how to prepare, file and serve court documents
  • the costs and risks of litigation;
  • the steps involved in an appeal;
  • the use of alternative dispute resolution (including mediation); and
  • how to prepare for and appear in court.

What are the costs involved?

In addition to your own costs of an appeal, the QPEC has the discretion to order that the costs of other parties be paid.[3]  These costs can include those of other parties’ lawyers and any experts involved.  The potential amount will vary from case to case, depending on factors like the complexity of a matter (e.g. number of parties, number of issues in dispute) and the relative merits of a party’s argument.

Therefore, to minimise the risk of a cost order being made against you, it is important that you only proceed if your case has a reasonable chance of success. You should seek legal advice about those prospects, as your case needs to be supported by the relevant planning scheme and substantiated by evidence. As each party has an obligation to proceed in an timely manner throughout the proceedings[4], it is also important to meet court-imposed timetables and due dates.  Please refer to Chapter 2 of the Community Litigants Handbook for more information about cost risks.

2.   SEEKING A COURT DECLARATION

What is a declaration?

A declaration is a statement by a court about the law or about the rights of a party.  Under the SPA, the QPEC can make declarations and associated orders on matters such as:

  • compliance with the SPA;
  • interpretation of the SPA, planning instruments or guidelines; or
  • the lawfulness of land use or development. [5]

For example, the QPEC may declare a development to be unlawful and then make an order stopping a person from continuing to carry on that development.

However, the QPEC’s power is discretionary; that means it is not required to make an order, even if an error or breach is found. [6] Possible considerations for the QPEC include:

  • a person’s interest in the subject-matter (i.e. is it a real interest which affects you directly and materially, or is it only an intellectual or emotional interest?);
  • if there has been any delay in starting proceedings;
  • if there is any practical utility in granting a declaration; or
  • if the breach of the law is purely technical and causes no negative effect on the environment or the amenity of an area.

Who can ask for a declaration?

Any person may bring proceedings in the QPEC for a declaration under the SPA.

What are the time limits for obtaining declarations?

There is no time limit for applying for a declaration; however, you should start proceedings as soon as possible after you become aware of the breach or error. A delay may be a ground for refusing an order, particularly when delay has negatively impacted any other party involved.

How are declaratory proceedings commenced?

Declaratory proceedings are commenced by filing an originating application with the QPEC Registrar and paying the relevant filing fee (refer to the SPA filing fee schedule). The application and any supporting evidence must be given to the persons who will be affected by the order(s) you seek. This will generally be the developer or the holder of a development approval, and/or the local council. Written notice of the proceedings must also be given to the Director General of the Department of State Development, Infrastructure and Planning.

What are the costs involved?

As with appeals, costs are at the discretion of the QPEC in proceedings for a declaration.  Please refer to Chapter 2 of the Community Litigants Handbook for more information about cost risks.

3.   ENFORCING THE SUSTAINABLE PLANNING ACT 2009

What is a development offence?

The SPA sets up certain development offences which include:[7]

  • not complying with applicable codes when carrying out self-assessable development;
  • carrying out development without a compliance permit;
  • failing to comply with a compliance permit, including any conditions;
  • carrying out assessable development without a development permit;
  • breaching a development approval, including any conditions;
  • carrying out prohibited development; and
  • using premises if the use is not a lawful use.

What are the consequences of committing an offence?

A person who commits an offence may be:

  • subject to enforcement action by the government (which have a range of enforcement options available, such as show cause or enforcement notices);
  • prosecuted by government or any person in the Magistrates Court; or
  • subject to enforcement action by a third party in the QPEC. 

What can you do if you think a development is in breach of the law?

If you think a development is in breach, you should report it to your local council and ask   to investigate and take action as necessary. Queensland Government departments also have a role in enforcing some aspects of particular development approvals, so you should contact the relevant department with your concerns.  For example, the Department of Environment and Heritage Protection may be responsible for enforcing environmental monitoring conditions of an approval.

If the offence continues and you cannot persuade the local council and/or relevant state government department to take any enforcement action, for most types of matters any person can bring a prosecution action in the Magistrates Court,[8] or start enforcement proceedings in the QPEC[9]

What are the possible outcomes?

As a member of the public choosing to start legal action in either the Magistrates Court or the QPEC, it will depend on what you want to achieve and the circumstances of the situation.  However, starting such legal action should only really be a course of last resort.

Prosecution of an offence in the Magistrates Court is usually undertaken by state or local governments; it penalises the offender for the unlawful conduct.  SPA also allows the court to make orders in place of, or in addition to, any penalty.[10]  Any orders might include a requirement to stop work, carry out rehabilitation and/or apply for development approval.

In most situations, the QPEC will be the best venue for public interest litigants as it can make both interim (temporary) and final (permanent) enforcement orders. These may require the offending party to:

  • stop any activity that is an offence;
  • not start any activity that will be an offence;
  • do anything necessary to stop committing an offence;
  • return anything to a condition as close as possible to the condition it was in immediately before the development offence was committed; or
  • do anything to comply with SPA.

How Are Enforcement Proceedings Commenced?   

Prosecution proceedings in the Magistrates Court are commenced by way of a complaint and summons under the Justices Act 1886 (Qld).  Any such action must be commenced within one year of the offence being committed, or within six months after the offence comes to the knowledge of the person making the complaint.[11]

Enforcement proceedings in the QPEC under SPA are commenced by filing an originating application with the QPEC Registrar and paying the relevant filing fee (see the SPA filing fee schedule). The application and any supporting evidence must be served on the persons against whom the subsequent order(s) will be sought. The time limits stated above are also likely to apply for starting proceedings.

It is strongly recommended that you do not commence legal proceedings without first getting advice from your lawyer or the EDO.

4.   PUBLIC ACCESS TO PLANNING AND DEVELOPMENT INFORMATION

Where can I obtain the information?

You can apply to your local council and the Department of State Development, Infrastructure and Planning to inspect and purchase documents[12] or have a planning and development certificate issued.[13]  Some councils also have online databases where development application documents can be accessed.

What kind of information can I obtain?

Documents to be ‘available for inspection and purchase’ include:

  • details of development applications;
  • current planning scheme and amendments; and
  • decision notices and the conditions of the relevant development approval.

The three types of planning and development certificates are:

  1. Limited Planning and Development Certificates (s.738 SPA)
  2. Standard Planning and Development Certificates (s.739 SPA):
  3. Full Planning and Development Certificates (s. 740 SPA).

Each certificate contains increasingly detailed information about the planning requirements that apply to the site.  Council determine costs for public access to these certificates and, depending on which certificate you request, the council must provide it within 5, 10 or 30 business days.

Local council planning schemes and policies are commonly available on council websites.

If you are not able to obtain the information you are seeking, you can consider an application to the council and/or state government department under the Right to Information Act 2009 (Qld) – see http://www.rti.qld.gov.au/.

5. %nbsp;Further Information and Relevant Contacts 

Environmental Defenders Office (Qld) Inc.

Ph:       (07) 3211 4466

Fax:     (07) 3211 4655

Email:  edoqld@edoqld.org.au

Web:    www.edoqld.org.au

Environmental Defenders Office of Northern Queensland Inc.

Ph:       (07) 4031 4766

Fax:     (07) 4041 4535

Email:  edonq@edo.org.au

Web:    www.edo.org.au/edonq

Planning and Environment Court Registry

Ph:       (07) 3247 5407

Fax:     (07) 3224 7611

Web:    www.courts.qld.gov.au

Department of State Development, Infrastructure and Planning

Ph:       (07) 3227 8548

Fax:     (07) 3224 4683

Email:  info@dsdip.qld.gov.au

Web:    http://www.dsdip.qld.gov.au/

Department of Environment and Heritage Protection

Ph:       13 74 68

Email:  info@ehp.qld.gov.au

Web:    http://www.ehp.qld.gov.au/

RELEVANT LEGISLATION

Sustainable Planning Act 2009 (Qld)

Sustainable Planning Regulation 2009 (Qld)

Planning and Environment Court Rules 2010 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)


[1]     See the definition in Schedule 3 Sustainable Planning Act 2009 (Qld).

[2]     Section 462(2) Sustainable Planning Act 2009 (Qld).

[3]        Section 457 Sustainable Planning Act 2009 (Qld)

[5]        Section 456 Sustainable Planning Act 2009 (Qld).

[6]        Bon Accord Pty Ltd v Brisbane City Council & Ors [2008] QPEC 119 at para 173.

[7]        Chapter 7, Part 3 Sustainable Planning Act 2009 (Qld).

[8]     Section 597 Sustainable Planning Act 2009 (Qld).

[9]     Section 601 Sustainable Planning Act 2009 (Qld).

[10]   Section 599 Sustainable Planning Act 2009 (Qld).

[11] Section 610 Sustainable Planning Act 2009 (Qld).

[12]    Sections 723 – 736 Sustainable Planning Act 2009 (Qld).

[13]    Sections 737 – 740 Sustainable Planning Act 2009 (Qld).