Factsheets ·

Community Rights to be Involved in Development Assessment

01 December, 2017

This factsheet provides an overview of the development assessment framework under the new Queensland planning framework found in the Planning Act 2016 (Qld)

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 27 November 2017

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Key Points

  • What is a development assessment and when is one needed?
  • What are the different categories of development and assessment?
  • What are exemption certificates?
  • When must a development application be publically notified?
  • How are submissions made on development applications?
  • Tips on making an effective submission
  • Appealing a development application decision

Contents

  1. Planning and development in Queensland
  2. Public notification of development applications
  3. Accessing the details of a development application
  4. Changes and lapsing of the application
  5. What happens when the decision has been made?
  6. Example Submission
  7. Useful contacts and further information

 

1. Planning and development in Queensland

The Planning Act 2016 (Qld) (PA) continues the system of development assessment and planning that was established under previous planning legislation. It replaces the now repealed Sustainable Planning Act 2009 (Qld) (SPA).

The development assessment system works to implement planning instruments and other policies and requirements by:

a)      categorising development;

b)      categorising types of assessment for particular development;

c)      stating the processes for making, receiving, assessing and deciding development applications; and

d)     establishing rights and responsibilities in relation to development approvals."[1]

The State Assessment and Referral Agency (SARA) - part of the Department of Infrastructure, Local Government and Planning (DILGP) - is given statutory recognition under the PA.[2]

1.1 Defining Development

The PA defines ‘development’ as any of the following:

a) carrying out:

(i) building work; or

(ii) plumbing or drainage work; or

(iii) operational work; or

b) reconfiguring a lot; or

c) making a material change of use of premises.[3]

These terms are further clarified in Schedule 2 of the PA.

1.2 Categories of Development

There are now three categories of development under the PA - prohibited, assessable or accepted development.[4]

Prohibited development: development for which a development application may not be made.

Assessable development: development for which a development approval is required.

Accepted development: development for which a development approval isn’t required.[5] (Accepted development is a combination of exempt and self-assessable categories under the SPA.)

If a type of development is not categorised in a categorising instrument, the development is taken to be an accepted development[6]

A categorising instrument states the type of assessment that must be carried out for assessable development.[7]

1.3  Categories of Assessment

There are two categories of assessment for assessable developments, namely:

a)      code assessment; and

b)      impact assessment.

A code assessment is an assessment that must be carried out only:

a)      against the assessment benchmarks (i.e. the matters that an assessment manager must assess the development against) in a categorising instrument for the development; and

b)      having regard to any matters prescribed by regulation.[8]

A code assessment is now described as a ‘bounded’ form of assessment. This means that developments must be assessed more strictly against the criteria set out in the relevant code or ‘assessment benchmark’ as they are now referred to.

There is also now a presumption of approval; the assessment manager must approve the development application as long as it complies with at least some of the relevant assessment benchmarks, or can be conditioned in such a way that it complies.

The assessment manager can only refuse the code assessable development application if the development cannot be conditioned to meet the assessment benchmarks.

An impact assessment is an assessment that:

a)      must be carried out –

i)                    against the assessment benchmarks in a categorising instrument for the development; and

ii)                  having regard to any matters prescribed by regulation; and

b)      may be carried out against, or having regard to, any other relevant matter other than a person’s personal circumstances, financial or otherwise, such as planning need. [9]

Essentially, an impact assessment must be assessed against the assessment benchmarks, and regard may be had to other relevant matters at the discretion of the decision maker.

It is not specified how much weight can be given to ‘any other relevant matter’ compared to the assessment benchmarks, including where there may be a conflict between the assessment benchmark and the ‘other relevant matter’.

1.4 What is a Categorising Instrument?

There are two types of categorising instruments in the PA:

a)      a regulation; or

b)      a local categorising instrument.[10]

A local categorising instrument can be:

a)      a planning scheme;

b)      a temporary local planning instrument;[11]

c)      a variation approval.[12]

A categorising instrument does any or all of the following:

a)      categorises development as prohibited, assessable or accepted development;

b)      specifies the categories of assessment required for different types of assessable development; and

c)      sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against.[13]

If inconsistencies arise between a regulation made under the PA and a local categorising instrument, the regulation will apply.

A local categorising instrument:

a)      may state development is a prohibited development only if a regulation allows it to do so;

b)      may not state that development is assessable development if a regulation states it is prohibited development; and

c)      may not, be inconsistent with the effect of a specified assessment benchmark, or a specified part of an assessment benchmark identified in a regulation.[14]

To the extent a local categorising instrument does either of these things, then it has no effect.[15]

1.5 Statement of Reasons

The PA provides a new requirement for decision makers assessing development applications to provide reasons for their decision.[16]

 This information will be published on the local or state government’s website. The decision notice will need to identify where the approval did not comply with the assessment benchmarks.

In the case of impact assessments, the decision notice must state a description of the matters relevant in any submissions and how the assessment manager dealt with these matters when reaching a decision.

The aim of these provisions is to provide more transparency about decision making than what existed under the SPA.

While reasons must always be supplied, the format of the reasons is not prescribed; the scope, style and format of the reasons for a particular decision may depend on the type, size and scale of the particular development.

1.6 Exemption certificates

An exemption certificate is a new concept in planning assessment introduced by the PA. A development approval is not required for assessable development if there is an exemption certificate for the development.[17]

An exemption certificate can be given either by the relevant local government or the chief executive administering the PA.

An exemption certificate can only be given in limited circumstances. One of these is when the effect of the development would be minor or inconsequential and all referral agencies (if there are any for the development) had agreed in writing to the exemption certificate being given.[18]

Section 46 (3)(b) of the Planning Act prescribes three circumstances where an exemption certificate may be given. At least one circumstance must apply, although more than one can apply.

Effects will be minor or inconsequential

Section 46(3)(b)(i) provides if the effects of the development would be minor or inconsequential, an exemption certificate may be granted. The effects of the development must be considered.

Particular circumstances that no longer apply

Section 46(3)(b)(ii) provides that if the development was categorised as assessable development only because of particular circumstances that no longer apply, an exemption certificate may be given. The word “only” is important in this provision. The question is whether or not the sole ground upon which the development was assessable in the first place no longer exists.

Categorisation as assessable in error

Under section 46(3)(b)(iii), if the development was categorised as assessable because of an error, then an exemption certificate may be granted. For example, where a development permit is required because of an error in the planning scheme (like a mapping error). This is to avoid delay while a more permanent measure is implemented, such a correcting the local planning scheme.

Effect of the exemption certificate

If an exemption certificate is granted, the development is still an assessable development, but development approval is no longer required.

The decision maker is required to publish a notice about the decision to grant an exemption certificate. The notice must state the reasons for giving the certificate.

An exemption certificate has effect for two years after the day it was given, unless a later date is specified.[19]

1.7 Types of Development Approvals

The PA continues to prescribe two key types of development approval:

a)      a preliminary approval; and

b)      a development permit.

A preliminary approval approves development, but does not authorise the development to be carried out. There is no requirement to get a preliminary approval for a development.

A preliminary approval can include a ‘variation approval’ to change the planning scheme.[20]

A development permit authorises assessable development to the extent stated, subject to its conditions and any preliminary approval relating to the development, including any conditions.

A development approval can be a combination of a preliminary approval and a development permit[21] The development permit will include

It is an offence under the PA to carry out assessable development, unless all necessary development permits are in effect for the activity.[22]

2. Public notification of development applications

2.1 Impact assessable development application

Development applications can be made by any person, and can include an application to change the planning scheme, known as a ‘variation request’.[23] However, an application cannot be made for a prohibited development.

Not all development applications need to be publicly notified.

Public notification is only required if:

a)      any part of the development application requires impact assessment; or

b)      the application includes a variation request to change the planning scheme.[24]  

Public notice of the development application must be given in the way stated in the Development Assessment Rules.[25]

The Development Assessment Rules provide rules guiding the development assessment process, including about how and when notification is to be carried out under section 53 of the PA, and when an application must be re-notified.[26]

For example, any notice of a development application must state that:

a)      a person may make a submission about the application to the assessment manager; and

b)      the stated period within which any such submission must be made.[27] 

2.2 Code assessable development applications

Code assessable development applications are not required to be publically notified, and therefore also do not give rise to any right to appeal a decision.

While there is no formal stage for providing your opinion on a code assessable development application, you may still write to the assessment manager and the proponent informally to express your opinions. You may also seek to meet with them to discuss your concerns. They are not required to consider your opinions, but they may do so.

While you are not able to appeal a code assessable application decision, you may have the right to seek a declaration from the Planning and Environment Court. You might seek a declaration if you are aware a code assessable application assessment process or a development activity has not been undertaken in accordance with the law.

The right to seek a declaration from the Court is available to any person and the Court has broad powers to make orders to rectify issues such as misinterpretation of the Act, for example, including whether the application should have been ‘impact assessable’ and not ‘code assessable’. You should always seek legal advice before going to Court to ensure you have good legal grounds.

2.3 Making a submission on an impact assessable development

Any person, other than the applicant or a referral agency, may make a submission about the application. [28]

For a submitter to have the right to appeal a decision on a development application, they must make a ‘properly made submission’.

The time period for making a submission is:

a)       for an application that includes a variation request (to change the planning scheme) – 30 business days; or

b)      for any other application – 15 business days.[29]

The notice period must not include any day between 20 December of a year and 5 January of the next year.[30]

If you think public notification has not been undertaken in accordance with the requirements, you may have the right to seek a declaration from the Planning and Environment Court. The Court may order that the application be renotified if it is clear the notification was inadequate and hindered the ability of the public to put in a submission.

The Court also has the power to excuse non-compliance with the notification requirements where it is of the opinion that no-one would have been prejudiced from making a submission during the public notification undertaken.

2.4 Properly made submissions and appeals

Submissions must be ‘properly made submissions’ to be considered, and to grant the submitters the right to appeal a decision on a development application to the Planning and Environment Court (P&E Court).

A submission is ‘properly made’ where it meets the following requirements:

        It is written;

        it is signed by each person who made the submission;

        it is received during the period fixed under the PA for making the submission;

        it states the name and residential or business address of all persons making the submission;

        it states the grounds, and the supporting facts and circumstances;

        it states one postal or electronic address for service; and

        it is made to the assessment manager.[31]

Submissions that are not properly made do not have to be considered. However, they may be accepted at the assessment manager’s discretion.

If a submission is not properly made, even if it has been accepted by the assessment manager, the submitter does not have the right to appeal.

2.5 Relevant Grounds for Submissions

When considering the grounds of a submission, it is important to rely on facts and circumstances that focus on planning issues – such as matters relating to:

  • whether the proposed development is consistent with the intent for the area expressed in the relevant planning instruments;
  • whether the built form of the proposed development is compatible with surrounding land uses and appropriately addresses the existing streetscape;
  • any potential traffic and car parking issues associated with the development; and
  • possible impacts from the proposed development on drainage and flooding in the surrounding area.

The Minister administering the PA may also include in the development assessment rules guidelines for how assessment managers should consider properly made submissions.[32]

2.6 Top tips for making a submission

If you’re planning on making a submission on a development application, keep the following in mind:

a)      A submission should be factually based and should demonstrate a clear understanding of the nature and extent of the development application.

b)      The submission must be based on town planning grounds, and not commercial or personal reasons, e.g. the mere threat of economic competition to a business is not a sufficient ground.

c)      Submitters who possess certain expertise should ensure they do not lose their objectivity when making a submission to ensure that the submission is given the full weight warranted.

d)     The number of submissions received is generally not as important to assessment managers as the quality of the submissions.

e)      It is advisable to seek to engage with the developer or local government to discuss your concerns, in addition to providing a submission. A developer may offer a submitter the opportunity to visit the development site to discuss concerns and alternative approaches that may overcome these concerns. If the submitter does not accept this offer, or fails to inspect the development application documents, their submission may be given less weight by the local government and the Court if they become aware of this.

2.7 Amending and withdrawing submissions

Any amendments must be notified to the assessment manager before the public notification period is over, i.e. by the date by which submissions must be received.

A submission can be withdrawn at any time before the application is decided.[33]

3. Accessing the details of a development application

3.1 Documents on the ‘public register’

For each development application, the assessment manager is required to keep the following documents available for inspection and purchase, under what’s known as the ‘public register’ for the PA:

a)      the application documents and supplementary material;

b)      any information request and responses;

c)      any properly made submissions; and

d)  any referral agency’s response.[34]

Many local governments now provide the information online, typically under a portal named ‘PD Online’ on the local government website.

Example PD Online Portals

Brisbane City Council

Goldcoast City Council

Sunshine Coast

You may need the application number or the address of the property to find the relevant application material. If in doubt, contact the relevant assessment manager to seek help.

While the application documents will vary depending on the type, size and scale of the development being considered, the following documents are likely to be the most helpful in understanding the project:

  • the statutory forms;
  • the overarching report describing the development,
  • the town planning and other consultants’ reports, and
  • Maps, drawings and photographs.

The consultants’ reports vary, but may include a town planning report, a traffic impact assessment, environmental impact assessment, water quality and hydrology assessments, landscaping report, and a need assessment.

3.2 Right to information

Some documents are not required to be made available to the public on the public register, however they may still be available under the Right to Information Act 2009 (Qld) (RTI Act). Contact the assessment manager first to request any documents you seek, as this will be most likely a quicker method of obtaining the information compared to the RTI Act.

4. Changes and lapsing of the application

4.1 Changes in the application

Where a proponent seeks to change an application, properly made submissions provided under the original application will remain effective even where public notice is repeated.[35]

4.2 Application lapses

If a development application lapses and, within a year, another development application is made that is significantly similar to the original application, any submissions for the original application will apply to the latter application. However, it can be difficult to determine whether the two applications are substantially similar, so it’s always wise to resubmit just in case.

5. What happens when the decision has been made?

5.1 Notice of the decision

The principal submitter will receive a decision notice notifying the assessment manager’s decision.[36] The principal submitter, for a properly made submission is:

a)      if the submission is by one person – the person; or

b)      the submitter that the submission identifies as the principal submitter, or

c)      if (b) does not apply, the submitter whose name first appears in the submission.

The decision notice should include reasons for the decision, and details of your right to appeal the decision to the Planning and Environment Court.

5.2 Appealing the decision

There is a specific time frame for filing a Notice of Appeal with the Planning and Environment Court, and steps you must take once you have filed the notice.

You should obtain legal advice, and/or advice from a planning expert prior to appealing a development approval decision. This will help ensure you have good legal grounds for taking the matter to Court, and help you formulate the grounds to be most effective before the Court.

5.3 Acting as a co-respondent in developer appeal

If the proponent appeals a decision, for example if the application was refused or they are seeking to amend the conditions, you will be notified of this. You have the right to nominate as a ‘co-respondent’ in the proponent’s appeal. The assessment manager will also be a respondent, defending the decision they made. If you have good legal and planning grounds, you should consider acting as a co-respondent. The assessment manager may settle the matter and change their decision and may not represent your concerns in Court.

5.4 Self-representing in Court

You do not need to have legal representation in Court, many people successfully ‘self-represent’ and the Planning and Environment Court is designed to be accessible to the general public. However, if you can afford legal representation it is obviously advisable.

EDO Qld has produced the Community Litigants Handbook, which provides step by step guidance to acting as a self-represented litigant in a planning appeal, along with example court documents. Contact our office if you would like a copy.

5.5 Alternative dispute resolution

Once the matter is before Court, the Court will often direct the parties to enter alternative dispute resolution (ADR), such as mediation with a Court appointed mediator.

This can be a valuable forum for discussing your concerns with the proponent and assessment manager and determining whether any negotiation is possible. For example, you might provide suggestions of how the conditions could be changed to overcome your concerns.

Many planning appeals are settled during ADR proceedings, meaning the matter never proceeds to hearing before the Court and a new negotiated approval is provided by the assessment manager on the terms agreed during ADR.

5.6 Costs risks in planning appeals

There is a general rule that each party pays their own costs in planning appeals, i.e. costs do not automatically get ordered against the losing party. However, the Court has the discretion to order costs against a party in certain instances, for example where the matter was brought to delay or obstruct, or where a party is forced to seek an adjournment due to the actions of another party, or where grounds are considered frivolous or vexatious.[37]

To reduce your risks of costs, obtain legal and expert planning advice prior to appealing or filing as a co-respondent in an appeal to determine whether you have sufficiently good grounds for challenging the decision.

Also, ensure you remain engaged with the Court process, communicate in a timely way with all parties and the Court, and meet all Court timeframes. If you cannot meet a Court timeframe, contact the other parties and the Court to inform them of this and the reason why with as much notice as possible.

6. Example Submission

 

[# Insert Your name, address, phone number]

[#Insert date]

[#Insert mailing address OR email]

e.g.

Greater Flagstone UDA,

PO Box 2202,

Brisbane, 4001

Email: greaterflagstone@ulda.qld.gov.au

Dear Sir/Madam [Alternatively, insert name of relevant Assessment Manager],

[#Insert Development Application No] [#Insert closing date]

My main issues are:

  • Community has never been consulted about the proposed North Maclean industry and business area (under Beaudesert Council or Logan Council)
  • High density urban living proposed
  • No koala surveys or detailed fauna studies have ever been conducted for the Greater Flagstone or Mt Lindsay North Beaudesert Area.
  • Existing planning does not protect major bioregional corridors, which is compounded by planning for more intense high density development and infrastructure
  • The State government has had 6 years to conduct detailed fauna surveys (quolls, koalas, GBS, frogs: wallum froglet, green thighed frogs). There has been only a brief desktop study of 19 sites assessed (DERM can’t confirm were all visited for on site assessment)
  • Future urban development based on no guarantee of future public transport (e.g. rail post 2031)

The changes that I propose are:

  • The removal of the North Maclean industry and business area (to be undeclared) – protect as core habitat area
  • High density urban development at Greenbank West and East to be removed (undeclared) from Proposed Development Scheme – protect as core habitat area
  • Need to change regional plan and local planning instruments to protect biodiversity values
  • Identification and protection of core habitat areas for protecting biodiversity, with ecological corridors to connect these core habitat areas to state bioregional corridors and local ecological corridors
  • Wider ecological corridors are needed
  • To provide core habitat areas and ecological corridors that are not degraded or impacted by future road corridors (new or to be upgraded) or infrastructure corridors

I request a chance to meet and talk with you about my issues

Yours faithfully,

[#Insert name AND signature]

 

CC [#Copy to Jackie Trad, Minister for Planning,  deputy.premier@ministerial.qld.gov.au;  Annastacia Palaszczuk, Premier thepremier@premiers.qld.gov.au; Steven Miles environment@ministerial.qld.gov.au and your Local Councillor, Local State MP]

 

 

7. Useful contacts and further information

Environmental Defenders Office (Qld) Inc.

Ph:       (07) 3211 4466

Post:    8/205 Montague Road, West End 4101

Email: edoqld@edoqld.org.au

Web:    www.edoqld.org.au

 

Environmental Defenders Office of Northern Queensland Inc

Ph:       (07) 4028 3739

Post:    PO Box 656N, North Cairns 4870

Email:  edonq@edonq.org.au

Web:    www.edonq.org.au

 

Queensland Government:

Department of Infrastructure, Local Government and Planning

Ph:       13 74 68

Email:  info@dilgp.qld.gov.au

Web:    www.dilgp.qld.gov.au/

 

Department of Environment and Heritage Protection

Ph:       13 74 68

Email:  info@ehp.qld.gov.au

Web:    www.ehp.qld.gov.au


8. References


[1] Planning Act 2016 (Qld) s 4(f).
[2] PA Schedule 2.
[3] Ibid.
[4] Planning Act 2019 (2016) s44 (1).
[5] Ibid s44 (2), (3) and (4).
[6] Ibid s 44 (5) and (6).
[7] Ibid s45 (2).
[8] Ibid s45 (3). An example of an assessment benchmark is a code, a standard, or an expression of the intent for a zone or precinct in a planning scheme.
[9] Ibid s45 (5).
[10] Ibid s43 (1).
[11] Temporary local planning instruments (TLPIs) set out planning and development assessment policies that protect all or part of the local government area from adverse impacts in urgent or emergent circumstances.
[12] A variation approval means that part of a preliminary approval for premises that varies the effect of any local planning instrument that is still in effect for the premises.
[13] Ibid s43 (1).
[14] Planning Act 2016 (Qld) s43 (4).
[15] Ibid s43 (5).
[16] Ibid s56 (7) for referral agencies; s 63 (5) for assessment managers.
[17] Ibid s46(1).
[18] Ibid s46 (3).
[19] Ibid s46 (6).
[20] Ibid s49 (1).
[21] Ibid. 
[22] Ibid s162 (1).
[23] Ibid s50 (1).
[24] Ibid s53 (1). See also footnote 14 for the meaning of a variation request.
[25] Ibid s53 (2).
[26] Ibid s68 (1) (a).
[27] Ibid  s53 (4). Section 53 (4)(b) specifies the relevant periods that apply for the making of a submission. Different periods apply.
[28] Ibid s53 (5).
[29] Ibid s53 (4). The Planning Regulation 2017 may also prescribed a period of more than 15 business days for certain types of development, however this power is not currently used.
[30] Ibid s53 (9). 
[31] Ibid Schedule 2.
[32] Ibid s 68 (1)(b).
[33] Clause 19.2 of the Draft Development Assessment Rules dated 17 March 2017.
[34] PA s 264.
[35] PA s 53.
[36] Ibid s 63 (1) (e), and s76 (2)(b)(i).
[37] Ibid s60(1).

Environmental Defenders Office Queensland (EDO Qld) gives a strong legal voice to the environment when needed most.

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