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Queensland
INTEGRATED PLANNING
BILL 1997
Queensland
INTEGRATED PLANNING BILL 1997
TABLE OF PROVISIONS
Section Page
CHAPTER 1--PRELIMINARY
PART 1--INTRODUCTION
1.1.1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1.1.2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
PART 2--PURPOSE AND ADVANCING THE PURPOSE
1.2.1 Purpose of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1.2.2 Advancing Act's purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1.2.3 What advancing this Act's purpose includes . . . . . . . . . . . . . . . . . . . . . . . . . 27
PART 3--INTERPRETATION
Division 1--Standard definitions
1.3.1 Definitions--the dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Division 2--Key definitions
1.3.2 Meaning of "development" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1.3.3 Meaning of "ecological sustainability" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
1.3.4 Meaning of "lawful use" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Division 3--Supporting definitions and explanations for key
definitions
1.3.5 Definitions for terms used in "development" . . . . . . . . . . . . . . . . . . . . . . . . 29
1.3.6 Explanation of terms used in "ecological sustainability" . . . . . . . . . . . . . . 32
Division 4--General matters of interpretation
1.3.7 Words in this Act prevail over words in planning instruments . . . . . . . . . . . 33
1.3.8 References in Act to applicants, assessment managers, agencies etc. . . . . 33
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Integrated Planning
PART 4--USES AND RIGHTS
Division 1--Uses and rights acquired after the commencement of
this Act continue
1.4.1 Lawful uses of premises protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
1.4.2 New planning instruments can not affect existing development permits . . 35
1.4.3 Implied and uncommenced right to use premises protected . . . . . . . . . . . . 35
1.4.4 Lawfully constructed buildings and works protected . . . . . . . . . . . . . . . . . . 36
1.4.5 Rights under a preliminary approval protected . . . . . . . . . . . . . . . . . . . . . . . 36
Division 2--Uses and rights acquired before the commencement of
this Act continue
1.4.6 Lawful uses of premises protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
1.4.7 Lawfully constructed buildings and works protected . . . . . . . . . . . . . . . . . . 37
PART 5--APPLICATION OF ACT
1.4.8 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
CHAPTER 2--PLANNING
PART 1--LOCAL PLANNING INSTRUMENTS
Division 1--General provisions about planning schemes
2.1.1 Meaning of "planning scheme" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.1.2 Area to which planning schemes apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Division 2--Key concepts for planning schemes
2.1.3 Key elements of planning schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.1.4 State, regional and local dimensions of planning scheme matters . . . . . . . 39
Division 3--Making, amending and consolidating planning schemes
2.1.5 Process for making or amending planning schemes . . . . . . . . . . . . . . . . . . . 40
2.1.6 Compliance with sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2.1.7 Effects of planning schemes and amendments . . . . . . . . . . . . . . . . . . . . . . . 40
2.1.8 Consolidating planning schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Division 4--Temporary local planning instruments
2.1.9 Meaning of "temporary local planning instrument" . . . . . . . . . . . . . . . . . . . 41
2.1.10 Extent of effect of temporary local planning instrument . . . . . . . . . . . . . . . 42
2.1.11 Area to which temporary local planning instrument applies . . . . . . . . . . . . 42
2.1.12 Process for making temporary local planning instruments . . . . . . . . . . . . . . 42
2.1.13 Compliance with sch 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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Integrated Planning
2.1.14 When temporary local planning instruments have effect . . . . . . . . . . . . . . . 43
2.1.15 Repealing temporary local planning instruments . . . . . . . . . . . . . . . . . . . . . 43
Division 5--Planning scheme policies
2.1.16 Meaning of "planning scheme policy" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
2.1.17 Area to which planning scheme policy applies . . . . . . . . . . . . . . . . . . . . . . . 45
2.1.18 Adopting planning scheme policies in planning schemes . . . . . . . . . . . . . . 45
2.1.19 Process for making or amending planning scheme policies . . . . . . . . . . . . . 45
2.1.20 Compliance with sch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
2.1.21 Effects of planning scheme policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
2.1.22 Repealing planning scheme policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Division 6--Local planning instruments generally
2.1.23 Local planning instruments have force of law . . . . . . . . . . . . . . . . . . . . . . . . 47
2.1.24 Infrastructure intentions in local planning instruments not binding . . . . . . . 48
PART 2--REVIEWING LOCAL PLANNING INSTRUMENTS
Division 1--Review of planning schemes by local government
2.2.1 Local government must review planning scheme every 6 years . . . . . . . . . 48
2.2.2 Courses of action local government may take . . . . . . . . . . . . . . . . . . . . . . . 48
2.2.3 Report to be prepared about review if decision is to take no action . . . . . . 49
2.2.4 Notice about report to be published . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
2.2.5 Local government must review benchmark development
sequence annually . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Division 2--Review by independent reviewer
2.2.6 Request for independent review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
2.2.7 Chief executive to inform local government, assess request and
set conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
2.2.8 Notice and acceptance of conditions for review . . . . . . . . . . . . . . . . . . . . . . 51
2.2.9 Reviews may be conducted together . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
2.2.10 Appointment of reviewer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
2.2.11 Person with conflict of interest not to be appointed reviewer . . . . . . . . . . . 52
2.2.12 Notice of review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
2.2.13 Conduct of review generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
2.2.14 State and local governments to provide assistance . . . . . . . . . . . . . . . . . . . 54
2.2.15 Directions about hearings by reviewers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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Integrated Planning
2.2.16 Conduct of hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
2.2.17 Report of reviewer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
2.2.18 Local government's actions after receiving reviewer's report . . . . . . . . . . . 56
2.2.19 Minister's actions after receiving reviewer's report . . . . . . . . . . . . . . . . . . . 57
2.2.20 Withdrawing request for review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
2.2.21 Paying reviewer and others and refunding any overpaid costs . . . . . . . . . . . 58
2.2.22 Reviewers not liable for performing functions under review . . . . . . . . . . . . 58
2.2.23 Reviews not to affect development applications . . . . . . . . . . . . . . . . . . . . . 59
PART 3--STATE POWERS
Division 1--Preliminary
2.3.1 Procedures before exercising powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Division 2--Exercising State powers
2.3.2 Power of Minister to direct local government to take action about
local planning instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
2.3.3 Power of Minister if local government fails to comply with direction . . . . 60
2.3.4 Process if Minister takes directed action . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
2.3.5 References in schedules to local government etc. . . . . . . . . . . . . . . . . . . . . 61
PART 4--STATE PLANNING POLICIES
2.4.1 Meaning of "State planning policy" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
2.4.2 Area to which State planning policies apply . . . . . . . . . . . . . . . . . . . . . . . . . 61
2.4.3 Process for making or amending State planning policies . . . . . . . . . . . . . . . 62
2.4.4 Compliance with sch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
2.4.5 Effects of State planning policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
2.4.6 Repealing State planning policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
PART 5--REGIONAL PLANNING ADVISORY COMMITTEES
Division 1--General provisions about regional planning advisory
committees
2.5.1 What are regions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Division 2--Regional planning advisory committees
2.5.2 Establishment of committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
2.5.3 Particulars about committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
2.5.4 Changing committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
2.5.5 Operation of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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Integrated Planning
2.5.6 Reports of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
PART 6--DESIGNATION OF LAND FOR COMMUNITY
INFRASTRUCTURE
Division 1--Preliminary
2.6.1 Who may designate land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
2.6.2 Matters to be considered when designating land . . . . . . . . . . . . . . . . . . . . . 66
2.6.3 Designator must consider major environmental effects . . . . . . . . . . . . . . . . 66
2.6.4 What designations may include . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
2.6.5 How IDAS applies to designated land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
2.6.6 How infrastructure charges apply to designated land . . . . . . . . . . . . . . . . . . 68
Division 2--Ministerial designation processes
2.6.7 Process for Minister to designate land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
2.6.8 Minister may proceed straight to designation in certain circumstances . . . 68
2.6.9 Compliance with schs 6 or 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
2.6.10 Effects of ministerial designations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
2.6.11 When local government must include designation in planning scheme . . . 70
Division 3--Local government designation process
2.6.12 Designation of land by local governments . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
2.6.13 Designating land the local government does not own . . . . . . . . . . . . . . . . . 70
Division 4--Other matters about designations
2.6.14 Duration of designations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
2.6.15 When designations do not cease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
2.6.16 Reconfirming designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
2.6.17 How designations must be shown in planning schemes . . . . . . . . . . . . . . . . 73
2.6.18 Repealing designations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
2.6.19 Request to acquire designated land under hardship . . . . . . . . . . . . . . . . . . . 74
2.6.20 If designator grants request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
2.6.21 Alternative action designator may take . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
2.6.22 If designator refuses request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
2.6.23 If the designator does not act under the notice . . . . . . . . . . . . . . . . . . . . . . . 75
2.6.24 How value of interest is decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
2.6.25 Ministers may delegate certain administrative powers about
designations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
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Integrated Planning
CHAPTER 3--INTEGRATED DEVELOPMENT ASSESSMENT
SYSTEM (IDAS)
PART 1--PRELIMINARY
3.1.1 What is IDAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
3.1.2 Development under this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
3.1.3 Code and impact assessment for assessable development . . . . . . . . . . . . . . 77
3.1.4 When is a development permit necessary . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
3.1.5 Approvals under this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
3.1.6 Preliminary approval may override local planning instrument . . . . . . . . . . 79
3.1.6 Assessment manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
3.1.8 Referral agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
3.1.9 Stages of IDAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
PART 2--APPLICATION STAGE
Division 1--Application process
3.2.1 Applying for development approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
3.2.2 Approved material change of use required for certain developments . . . . . 83
3.2.3 Acknowledgment notices generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
3.2.4 Circumstances when immediate decision notice may be given . . . . . . . . . 84
3.2.5 Acknowledgment notices for applications under superseded
planning schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
3.2.6 Acknowledgment notices if there are referral agencies or referral
coordination is required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Division 2--General matters about applications
3.2.7 Additional third party advice or comment . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
3.2.8 Public scrutiny of applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
3.2.9 Changing an application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
3.2.10 Notification stage does not apply to some changed applications . . . . . . . . 88
3.2.11 Withdrawing an application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
3.2.12 Applications lapse in certain circumstances . . . . . . . . . . . . . . . . . . . . . . . . . 88
3.2.13 Refunding fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
3.2.14 Service provider notice for reconfiguring a lot . . . . . . . . . . . . . . . . . . . . . . . 89
Division 3--End of application stage
3.2.15 When does application stage end . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
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Integrated Planning
PART 3--INFORMATION AND REFERRAL STAGE
Division 1--Preliminary
3.3.1 Purpose of information and referral stage . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
3.3.2 Referral agency responses before application is made . . . . . . . . . . . . . . . . . 90
Division 2--Information requests
3.3.3 Applicant gives material to referral agency . . . . . . . . . . . . . . . . . . . . . . . . . 91
3.3.4 Applicant advises assessment manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
3.3.5 Referral coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
3.3.6 Information requests to applicant (generally) . . . . . . . . . . . . . . . . . . . . . . . . 93
3.3.7 Information requests to applicant (referral coordination) . . . . . . . . . . . . . . . 93
3.3.8 Applicant responds to any information request . . . . . . . . . . . . . . . . . . . . . . . 94
3.3.9 Referral agency advises assessment manager of response . . . . . . . . . . . . . . 95
Division 3--Referral assistance
3.3.10 When referral assistance may be requested . . . . . . . . . . . . . . . . . . . . . . . . . 95
3.3.11 Chief executive acknowledges receipt of referral assistance request . . . . . 96
3.3.12 Chief executive may change information request . . . . . . . . . . . . . . . . . . . . . 96
3.3.13 Applicant may withdraw request for referral assistance . . . . . . . . . . . . . . . . 96
Division 4--Referral agency assessment
3.3.14 Referral agency assessment period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
3.3.15 Referral agency assesses application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
3.3.16 Referral agency's response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
3.3.17 How a concurrence agency may change its response . . . . . . . . . . . . . . . . . . 99
3.3.18 Concurrence agency's response powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
3.3.19 Advice agency's response powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Division 5--End of information and referral stage
3.3.20 When does information and referral stage end . . . . . . . . . . . . . . . . . . . . . . 101
PART 4--NOTIFICATION STAGE
Division 1--Preliminary
3.4.1 Purpose of notification stage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
3.4.2 When does notification stage apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
3.4.3 When can notification stage start . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
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Integrated Planning
Division 2--Public notification
3.4.4 Public notice of applications to be given . . . . . . . . . . . . . . . . . . . . . . . . . . 103
3.4.5 Notification period for applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
3.4.6 Requirements for certain notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
3.4.7 Notice of compliance to be given to assessment manager . . . . . . . . . . . . 105
3.4.8 Circumstances when applications may be assessed and decided
without certain requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
3.4.9 Making submissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Division 3--End of notification stage
3.4.10 When does notification stage end . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
PART 5--DECISION STAGE
Division 1--Preliminary
3.5.1 When does decision stage start . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
3.5.2 Assessment necessary even if concurrence agency refuses application . . 107
Division 2--Assessment process
3.5.3 References in div 2 to codes, planning instruments, laws or policies . . . . 107
3.5.4 Code assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
3.5.5 Impact assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
3.5.6 Assessment manager may give weight to later codes, planning
instruments, laws and policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Division 3--Decision
3.5.7 Decision making period (generally) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
3.5.8 Decision making period (changed circumstances) . . . . . . . . . . . . . . . . . . . 110
3.5.9 Applicant may stop decision making period to make representations . . . 111
3.5.10 Applicant may stop decision making period to request chief
executive's assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
3.5.11 Decision generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
3.5.12 Decision if concurrence agency requires refusal . . . . . . . . . . . . . . . . . . . . . 112
3.5.13 Decision if application requires code assessment . . . . . . . . . . . . . . . . . . . . 112
3.5.14 Decision if application requires impact assessment . . . . . . . . . . . . . . . . . . 113
3.5.15 Decision notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Division 4--Representations about conditions
3.5.16 Application of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
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3.5.17 Changing conditions during the applicant's appeal period . . . . . . . . . . . . . 115
3.5.18 Applicant may suspend applicant's appeal period . . . . . . . . . . . . . . . . . . . 116
Division 5--Approvals
3.5.19 When approval takes effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
3.5.20 When development may start . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
3.5.21 When approval lapses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
3.5.22 Request to extend currency period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
3.5.23 Deciding request to extend currency period . . . . . . . . . . . . . . . . . . . . . . . . 119
3.5.24 Request to change development approval (other than a change of
a condition) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
3.5.25 Deciding request to change development approval (other than a
change of a condition) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
3.5.26 Request to cancel development approval . . . . . . . . . . . . . . . . . . . . . . . . . . 122
3.5.27 Certain approvals to be recorded on planning scheme . . . . . . . . . . . . . . . . 122
3.5.28 Approval attaches to land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Division 6--Conditions
3.5.29 Application of div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
3.5.30 Conditions must be relevant or reasonable . . . . . . . . . . . . . . . . . . . . . . . . . 123
3.5.31 Conditions generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
3.5.32 Conditions that cannot be imposed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
3.5.33 Request to change or cancel conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
3.5.34 Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
3.5.35 Limitations on conditions lessening cost impacts for infrastructure . . . . . 126
3.5.36 Matters a condition lessening cost impacts for infrastructure must
deal with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
PART 6--MINISTERIAL IDAS POWERS
Division 1--Ministerial direction
3.6.1 When Ministerial direction may be given . . . . . . . . . . . . . . . . . . . . . . . . . . 130
3.6.2 Notice of direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
3.6.3 Effect of direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Division 2--Ministerial call in powers
3.6.4 Definition for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
3.6.5 When development application may be called in . . . . . . . . . . . . . . . . . . . 131
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3.6.6 Notice of call in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
3.6.7 Effect of call in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
3.6.8 Process if call in decision does not deal with all aspects of the
application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
PART 7--PLANS OF SUBDIVISION
3.7.1 Application of pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
3.7.2 Plan for reconfiguring under development permit . . . . . . . . . . . . . . . . . . . . 134
3.7.3 Plan submitted under condition of development permit . . . . . . . . . . . . . . . 135
3.7.4 Plan for reconfiguring that is not assessable development . . . . . . . . . . . . . 135
3.7.5 Endorsement of approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
3.7.6 When approved plan to be lodged for registration . . . . . . . . . . . . . . . . . . . 136
3.7.7 Local government approval subject to other Act . . . . . . . . . . . . . . . . . . . . 136
CHAPTER 4--APPEALS, OFFENCES AND ENFORCEMENT
PART 1--PLANNING AND ENVIRONMENT COURT
Division 1--Establishment and jurisdiction of court
4.1.1 Continuance of Planning and Environment Court . . . . . . . . . . . . . . . . . . . . 137
4.1.2 Jurisdiction of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
4.1.3 Jurisdiction in chambers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
Division 2--Powers of court
4.1.4 Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
4.1.5 Contempt and contravention of orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
4.1.6 Terms of orders etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
4.1.7 Taking and recording evidence etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Division 3--Constituting court
4.1.8 Constituting court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
4.1.9 Jurisdiction of judges not impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Division 4--Rules and directions
4.1.10 Rules of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
4.1.11 Directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Division 5--Parties to proceedings and court sittings
4.1.12 Where court may sit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
4.1.13 Appearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
4.1.14 Adjournments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
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4.1.15 What happens if judge dies or is incapacitated . . . . . . . . . . . . . . . . . . . . . 141
4.1.16 Stating case for Court of Appeal's opinion . . . . . . . . . . . . . . . . . . . . . . . . . 141
Division 6--Other court officials and registry
4.1.17 Registrars and other court officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
4.1.18 Registries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
4.1.19 Court records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
4.1.20 Judicial notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Division 7--Other court matters
4.1.21 Court may make declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
4.1.22 Court may make orders about declarations . . . . . . . . . . . . . . . . . . . . . . . . . 143
4.1.23 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
4.1.24 Privileges, protection and immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
4.1.25 Payment of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
4.1.26 Evidence of planning schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Division 8--Appeals to court relating to development applications
4.1.27 Appeals by applicants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
4.1.28 Appeals by submitters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
4.1.29 Appeals by advice agency submitters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
4.1.30 Appeals for matters arising after approval given (co-respondents) . . . . . . 147
Division 9--Appeals to court about other matters
4.1.31 Appeals for matters arising after approval given (no co-respondents) . . . 148
4.1.32 Appeals against enforcement notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
4.1.33 Stay of operation of enforcement notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
4.1.34 Appeals against decisions on compensation claims . . . . . . . . . . . . . . . . . . 149
4.1.35 Appeals against decisions on requests to acquire designated land
under hardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
4.1.36 Appeals against disqualification as a private certifier . . . . . . . . . . . . . . . . 150
4.1.37 Appeals from tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
4.1.38 Court may remit matter to tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Division 10--Making an appeal to court
4.1.39 How appeals to the court are started . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
4.1.40 Certain appellants must obtain information about submitters . . . . . . . . . . 151
4.1.41 Notice of appeal to other parties (div 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
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4.1.42 Notice of appeal to other parties (div 9) . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
4.1.43 Respondent and co-respondents for appeals under div 8 . . . . . . . . . . . . . . 153
4.1.44 Respondent and co-respondents for appeals under div 9 . . . . . . . . . . . . . . 153
4.1.45 How a person may elect to be co-respondent . . . . . . . . . . . . . . . . . . . . . . . 153
4.1.46 Minister entitled to be represented in an appeal involving a State
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
4.1.47 Lodging appeal stops certain actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Division 11--Alternative dispute resolution
4.1.48 ADR process applies to proceedings started under this part . . . . . . . . . . . 154
Division 12--Court process for appeals
4.1.49 Hearing procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
4.1.50 Who must prove case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
4.1.51 Court may hear appeals together . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
4.1.52 Appeal by way of hearing anew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
4.1.53 Court must not decide appeal unless notification stage complied with . . 157
4.1.54 Appeal decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
4.1.55 Court may allow longer period to take an action . . . . . . . . . . . . . . . . . . . . 158
Division 13--Appeals to Court of Appeal
4.1.56 Who may appeal to Court of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
4.1.57 When leave to appeal must be sought and appeal made . . . . . . . . . . . . . . 158
4.1.58 Power of Court of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
4.1.59 Lodging appeal stops certain actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
PART 2--BUILDING AND DEVELOPMENT TRIBUNALS
Division 1--Establishing, constituting and jurisdiction of tribunals
4.2.1 Establishing building and development tribunals . . . . . . . . . . . . . . . . . . . . 159
4.2.2 Consultation about multiple member tribunals . . . . . . . . . . . . . . . . . . . . . . 160
4.2.3 Same members to continue for duration of tribunal . . . . . . . . . . . . . . . . . . 160
4.2.4 Referee with conflict of interest not to be member of tribunal . . . . . . . . . 160
4.2.5 Referee not to act as member of tribunal in certain cases . . . . . . . . . . . . . 161
4.2.6 Remuneration of members of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
4.2.7 Jurisdiction of tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Division 2--Other tribunal officials
4.2.8 Appointment of registrar and other officers . . . . . . . . . . . . . . . . . . . . . . . . . 161
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Division 3--Appeals to tribunals relating to development
applications
4.2.9 Appeals by applicants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
4.2.10 Appeal by advice agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
4.2.11 Appeals for matters arising after approval given (co-respondents) . . . . . . 163
Division 4--Appeals to tribunal about other matters
4.2.12 Appeals for matters arising after approval given (no co-respondents) . . . 163
4.2.13 Appeals against enforcement notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
4.2.14 Stay of operation of enforcement notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Division 5--Making an appeal to tribunal
4.2.15 How appeals to tribunals are started . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
4.2.16 Fast track appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
4.2.17 Notice of appeal to other parties (div 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
4.2.18 Notice of appeal to other parties (div 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
4.2.19 Respondent and co-respondents for appeals under div 3 . . . . . . . . . . . . . . 166
4.2.20 Respondent and co-respondents for appeals under div 4 . . . . . . . . . . . . . . 167
4.2.21 How a person may elect to be co-respondent . . . . . . . . . . . . . . . . . . . . . . . 167
4.2.22 Registrar must ask assessment manager for material in certain
proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
4.2.23 Minister entitled to be represented in an appeal involving a State
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Division 6--Tribunal process for appeals
4.2.24 Establishing a tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
4.2.25 Procedures of tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
4.2.26 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
4.2.27 Tribunal may allow longer period to take an action . . . . . . . . . . . . . . . . . . 169
4.2.28 Appeal may be by hearing or written submission . . . . . . . . . . . . . . . . . . . . 169
4.2.29 Appeals by hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
4.2.30 Right to representation at tribunal appeal hearing . . . . . . . . . . . . . . . . . . . 169
4.2.31 Conduct of hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
4.2.32 Appeals by written submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
4.2.33 Matters the tribunal may consider in making a decision . . . . . . . . . . . . . . 170
4.2.34 Appeal decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
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4.2.35 When decision may be made without representation or submission . . . . . 171
Division 7--Referees
4.2.36 Appointment of referees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
4.2.37 Qualification of referees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
4.2.38 Term of referee's appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
4.2.39 Referee to make declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
PART 3--DEVELOPMENT OFFENCES, NOTICES AND
ORDERS
Division 1--Development offences
4.3.1 Carrying out assessable development without permit . . . . . . . . . . . . . . . . . 173
4.3.2 Self-assessable development must comply with codes . . . . . . . . . . . . . . . 173
4.3.3 Compliance with development approval . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
4.3.4 Compliance with identified codes about use of premises . . . . . . . . . . . . . 174
4.3.5 Carrying on unlawful use of premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
4.3.6 Development or use carried out in emergency . . . . . . . . . . . . . . . . . . . . . . 174
4.3.7 Giving a false or misleading notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Division 2--Show cause notices
4.3.8 Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
4.3.9 Giving show cause notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
4.3.10 General requirements of show cause notice . . . . . . . . . . . . . . . . . . . . . . . . 175
Division 3--Enforcement notices
4.3.11 Giving enforcement notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
4.3.12 Restriction affecting giving of enforcement notice . . . . . . . . . . . . . . . . . . . 176
4.3.13 Specific requirements of enforcement notice . . . . . . . . . . . . . . . . . . . . . . . 177
4.3.14 General requirements of enforcement notices . . . . . . . . . . . . . . . . . . . . . . . 177
4.3.15 Compliance with enforcement notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
4.3.16 Processing application required by enforcement notice . . . . . . . . . . . . . . . 178
4.3.17 Assessing authority may take action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Division 4--Offence proceedings in magistrates court
4.3.18 Proceedings for offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
4.3.19 Proceeding brought in a representative capacity . . . . . . . . . . . . . . . . . . . . 179
4.3.20 Magistrates court may make orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
4.3.21 Costs involved in bringing proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
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Division 5--Enforcement orders of court
4.3.22 Proceeding for orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
4.3.23 Proceeding brought in a representative capacity . . . . . . . . . . . . . . . . . . . . 182
4.3.24 Making interim enforcement order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
4.3.25 Making enforcement order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
4.3.26 Effect of orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
4.3.27 Court's powers about orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
4.3.28 Costs involved in bringing proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Division 6--Application of Acts
4.3.29 Application of other Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
PART 4--LEGAL PROCEEDINGS
Division 1--Proceedings
4.4.1 Proceedings for offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
4.4.2 Limitation on time for starting proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 185
4.4.3 Executive officers must ensure corporation complies with Act . . . . . . . . . 185
Division 2--Fines and costs
4.4.4 When fines payable to local government . . . . . . . . . . . . . . . . . . . . . . . . . . 186
4.4.5 Order for compensation or remedial action . . . . . . . . . . . . . . . . . . . . . . . . . 186
4.4.6 Recovery of costs of investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Division 3--Evidence
4.4.7 Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
4.4.8 Appointments and authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
4.4.9 Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
4.4.10 Matter coming to complainant's knowledge . . . . . . . . . . . . . . . . . . . . . . . . 188
4.4.11 Instruments, equipment and installations . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
4.4.12 Analyst's certificate or report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
4.4.13 Evidentiary aids generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
4.4.14 Responsibility for acts or omissions of representatives . . . . . . . . . . . . . . . 189
CHAPTER 5--MISCELLANEOUS
PART 1--INFRASTRUCTURE CHARGES
Division 1--Preliminary
5.1.1 Meaning of "development infrastructure item" . . . . . . . . . . . . . . . . . . . . . . 190
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Integrated Planning
5.1.2 Meaning of "desired standard of service" . . . . . . . . . . . . . . . . . . . . . . . . . . 191
5.1.3 Meaning of "life cycle cost" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
5.1.4 Meaning of "infrastructure charges plan" . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Division 2--Charging for development infrastructure items
5.1.5 Fixing infrastructure charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
5.1.6 Infrastructure charge must be based on plan and other matters . . . . . . . . . 193
5.1.7 Fixing a charge for an item not included in plan . . . . . . . . . . . . . . . . . . . . 193
5.1.8 Notice of charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
5.1.9 Actions required if charge is payable by applicant . . . . . . . . . . . . . . . . . . . 195
5.1.10 When charge is payable by applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
5.1.11 When development infrastructure item must be supplied . . . . . . . . . . . . . 197
5.1.12 Different times may be agreed on for paying the charge or
supplying the development infrastructure item . . . . . . . . . . . . . . . . . . . . . . 197
5.1.13 Charge may apply to items outside local government's area . . . . . . . . . . 198
Division 3--Miscellaneous
5.1.14 Infrastructure charges taken to be a rate . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
5.1.15 Alternatives to paying infrastructure charges . . . . . . . . . . . . . . . . . . . . . . . 198
5.1.16 Public notice of proposed sale of certain land held in trust by
local governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
5.1.17 Local government to consider all submission . . . . . . . . . . . . . . . . . . . . . . . 199
5.1.18 Sale extinguishes the trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
PART 2-- INFRASTRUCTURE AGREEMENTS
5.2.1 Meaning of "infrastructure agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
5.2.2 Agreements may be entered into about infrastructure . . . . . . . . . . . . . . . . 200
5.2.3 Matters certain infrastructure agreements must contain . . . . . . . . . . . . . . . 201
5.2.4 Copy of infrastructure agreements to be given to local government . . . . . 201
5.2.5 When infrastructure agreements bind successors in title . . . . . . . . . . . . . . 202
5.2.6 Exercise of discretion unaffected by infrastructure agreements . . . . . . . . . 202
PART 3--PRIVATE CERTIFICATION
5.3.1 Application of pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
5.3.2 Definition for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
5.3.3 What is a private certifier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
5.3.4 Application must not be inconsistent with earlier approval . . . . . . . . . . . . 203
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5.3.5 Private certifier may decide certain development applications
and inspect and certify certain works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
5.3.6 Local government may undertake private certification outside its area . . 204
5.3.7 Persons other than local governments may undertake private
certification anywhere . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
5.3.8 Private certifiers must act in the public interest . . . . . . . . . . . . . . . . . . . . . 205
5.3.9 Engaging private certifiers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
5.3.10 Private certifiers may not be engaged if there is a conflict of interest . . . 206
5.3.11 Discontinuing engagement of private certifiers . . . . . . . . . . . . . . . . . . . . . . 206
5.3.12 Engaging replacement private certifier for application . . . . . . . . . . . . . . . 206
5.3.13 Engaging replacement private certifier to inspect work . . . . . . . . . . . . . . . 206
5.3.14 Minister or an accrediting body may disqualify a private certifier . . . . . . 207
5.3.15 Effect of transfer of functions to local government or replacement
private certifier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
5.3.16 Liability insurance and performance bonds . . . . . . . . . . . . . . . . . . . . . . . . . 208
5.3.17 Documents to be kept by private certifiers . . . . . . . . . . . . . . . . . . . . . . . . . 208
PART 4--COMPENSATION
5.4.1 Definition for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
5.4.2 Compensation for reduced value of interest in land . . . . . . . . . . . . . . . . . . 209
5.4.3 Compensation for interest in land being changed to public purpose . . . . . 210
5.4.4 Limitations on compensation under ss 5.4.2 and 5.4.3 . . . . . . . . . . . . . . . . 210
5.4.5 Compensation for erronous planning and development certificates . . . . . 212
5.4.6 Time limits for claiming compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
5.4.7 Time limits for deciding and advising on claims . . . . . . . . . . . . . . . . . . . . 212
5.4.8 Deciding claims for compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
5.4.9 Calculating reasonable compensation involving changes . . . . . . . . . . . . . 213
5.4.10 When compensation is payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
5.4.11 Payment of compensation to be recorded on title . . . . . . . . . . . . . . . . . . . . 214
PART 5--POWER TO PURCHASE, TAKE OR ENTER LAND
FOR PLANNING PURPOSES
5.5.1 Local government may take or purchase land . . . . . . . . . . . . . . . . . . . . . . . 215
5.5.2 Assessment manager's power to enter land in certain circumstances . . . . 216
5.5.3 Compensation for loss or damage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
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PART 6--PUBLIC HOUSING
5.6.1 Application of pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
5.6.2 Definition for pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
5.6.3 How IDAS applies to development by commission . . . . . . . . . . . . . . . . . . 217
5.6.4 Commission must publicly notify certain proposed development . . . . . . . 217
5.6.5 Commission must advise local government about all development . . . . . 218
PART 7--PUBLIC ACCESS TO PLANNING AND
DEVELOPMENT INFORMATION
Division 1--Preliminary
5.7.1 Meaning of "available for inspection and purchase" . . . . . . . . . . . . . . . . . 219
Division 2--Documents available for inspection and purchase or
inspection only
5.7.2 Documents local government must keep available for inspection
and purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
5.7.3 Documents local government must keep available for inspection only . . 221
5.7.4 Documents assessment manager must keep available for
inspection and purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
5.7.5 Documents assessment manager must keep available for
inspection only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
5.7.6 Documents department must keep available for inspection and
purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
5.7.7 Documents department must keep available for inspection only . . . . . . . 224
Division 3--Planning and development certificates
5.7.8 Application for planning and development certificate . . . . . . . . . . . . . . . . 224
5.7.9 Limited planning and development certificates . . . . . . . . . . . . . . . . . . . . . 224
5.7.10 Standard planning and development certificates . . . . . . . . . . . . . . . . . . . . 225
5.7.11 Full planning and development certificates . . . . . . . . . . . . . . . . . . . . . . . . 225
5.7.12 Time within which planning and development certificate must be
given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
5.7.13 Effect of planning and development certificate . . . . . . . . . . . . . . . . . . . . . 227
PART 8--GENERAL
5.8.1 Approved forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
5.8.2 Regulation making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
5.8.3 Application of State Development and Public Works
Organization Act 1971, s 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
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5.8.4 Application of Judicial Review Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . 228
5.8.5 References to Planning and Environment Court etc. in other Acts . . . . . . 228
5.8.6 Evidence of planning instruments or notices of designation . . . . . . . . . . . 228
5.8.7 Planning instruments presumed to be within jurisdiction . . . . . . . . . . . . . . 229
CHAPTER 6--SAVINGS AND TRANSITIONALS, REPEALS AND
CONSEQUENTIAL AMENDMENTS
PART 1--SAVINGS AND TRANSITIONALS
Division 1--Preliminary
6.1.1 Definitions for pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Division 2--Planning schemes
6.1.2 Continuing effect of former planning schemes . . . . . . . . . . . . . . . . . . . . . . 231
6.1.3 What are transitional planning schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
6.1.4 Transitional planning schemes for local government areas . . . . . . . . . . . . 231
6.1.5 Applying transitional planning schemes to local government areas . . . . . 232
6.1.6 Amending transitional planning schemes . . . . . . . . . . . . . . . . . . . . . . . . . . 232
6.1.7 Amending transitional planning schemes for consistency with ch 3 . . . . . 232
6.1.8 Converting transitional planning schemes to IPA planning schemes . . . . 233
6.1.9 Preparation of planning schemes under repealed Act may continue . . . . . 233
6.1.10 Preparation of amendments to planning schemes under repealed
Act may continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
6.1.11 Transitional planning schemes lapse after 5 years . . . . . . . . . . . . . . . . . . . 235
Division 3--Interim development control provisions
6.1.12 Continuing effect of interim development control provisions . . . . . . . . . . 235
Division 4--Planning scheme policies
6.1.13 Continuing effect of local planning policies . . . . . . . . . . . . . . . . . . . . . . . . 236
6.1.14 What are transitional planning scheme policies . . . . . . . . . . . . . . . . . . . . . 236
6.1.15 Transitional planning scheme policies for local government areas . . . . . . 236
6.1.16 Amending transitional planning scheme policies . . . . . . . . . . . . . . . . . . . . 236
6.1.17 Amending transitional planning scheme policies for consistency
with ch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
6.1.18 Repealing transitional planning scheme policies . . . . . . . . . . . . . . . . . . . . 237
6.1.19 Planning scheme policies may support transitional planning schemes . . . 238
6.1.20 Planning scheme polices for infrastructure . . . . . . . . . . . . . . . . . . . . . . . . . 238
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Integrated Planning
6.1.21 IPA planning schemes cancel existing planning scheme policies . . . . . . 238
Division 5--State planning policies
6.1.22 Continuing effect of State planning policies . . . . . . . . . . . . . . . . . . . . . . . . 239
Division 6--Existing approvals and conditions
6.1.23 Continuing effect of approvals issued before commencement . . . . . . . . . . 239
6.1.24 Certain conditions attach to land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
Division 7--Applications in progress
6.1.25 Effect of commencement on certain applications in progress . . . . . . . . . . 241
6.1.26 Effect of commencement on other applications in progress . . . . . . . . . . . . 242
6.1.27 Applications for compensation continue . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Division 8--Applications made or development carried out after the
commencement of this division
6.1.28 IDAS must be used for processing applications . . . . . . . . . . . . . . . . . . . . . 242
6.1.29 Assessing applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
6.1.30 Deciding applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
6.1.31 Conditions about infrastructure for applications . . . . . . . . . . . . . . . . . . . . . 246
6.1.32 Conditions about infrastructure for applications under interim
development control provisions or subdivision of land by-laws . . . . . . . . . 247
6.1.33 Conditions about infrastructure for applications about
reconfiguring a lot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
6.1.34 Consequential amendment of transitional planning schemes . . . . . . . . . . 248
6.1.35 Self-assessable development under transitional planning schemes . . . . . . 248
Division 9--Planning and Environment Court
6.1.36 Appointments of judges continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
6.1.37 Court orders continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
6.1.38 Rules of court continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
6.1.39 Proceedings started under repealed Act continue . . . . . . . . . . . . . . . . . . . . 249
Division 10--Miscellaneous
6.1.40 Application of ch 1, pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
6.1.41 Application of ch 2, pt 2, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
6.1.42 Application of ch 2, pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
6.1.43 Application of ch 2, pt 6 for Transport Infrastructure Act 1994 . . . . . . . . . 250
6.1.44 Conditions may be changed or cancelled by assessment manager
or concurrence agency in certain circumstances . . . . . . . . . . . . . . . . . . . . 251
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6.1.45 Infrastructure agreements under repealed Act . . . . . . . . . . . . . . . . . . . . . . . 253
6.1.46 Local Government (Robina Central Planning Agreement) Act 1992 . . . . 253
6.1.47 Delegations continue until withdrawn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
6.1.48 Registers must be kept available for inspection and purchase . . . . . . . . . 253
6.1.49 Town planning certificates may be used as evidence . . . . . . . . . . . . . . . . 254
6.1.50 Right to compensation continued . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
6.1.51 Orders in council about Crown land under repealed Act . . . . . . . . . . . . . . 254
6.1.52 Transitional regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
PART 2--REPEALS
6.2.1 Act repealed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
PART 3--CONSEQUENTIAL AMENDMENTS
6.3.1 Acts amended--sch 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . 256
PROCESS FOR MAKING OR AMENDING PLANNING
SCHEMES
PART 1--PRELIMINARY CONSULTATION AND
PREPARATION STAGE
1 Resolution to prepare planning scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
2 Local government may shorten process for certain amendments . . . . . . . 256
3 Statement of proposals for preparing planning scheme . . . . . . . . . . . . . . . 257
4 Core matters for planning schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
5 Public notice of proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
6 Public access to statement of proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
7 Consideration of all submissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
8 Minimum requirements for consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
9 Resolution proposing planning scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
PART 2--CONSIDERATION OF STATE INTERESTS AND
CONSULTATION STAGE
10 Minister may allow process to be shortened for certain
amendments publicly consulted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
11 Ensuring proposed planning scheme does not adversely affect
State interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
12 Public notice and access of proposed planning scheme . . . . . . . . . . . . . . . 262
13 Public access to proposed planning scheme . . . . . . . . . . . . . . . . . . . . . . . . 263
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Integrated Planning
14 Consideration of all submissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
15 Minimum requirements for consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
16 Decision on proceeding with proposed planning scheme . . . . . . . . . . . . . . 264
17 Reporting to persons who made submissions about proposed
planning scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
18 Reconsidering proposed planning scheme for adverse effects on
State interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
PART 3--ADOPTION STAGE
19 Resolution about adopting proposed planning scheme . . . . . . . . . . . . . . . . 266
20 Public notice of adoption of, and access to, planning schemes . . . . . . . . 267
21 Copy of notice and planning scheme to chief executive . . . . . . . . . . . . . . 267
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . 268
PROCESS FOR MAKING TEMPORARY LOCAL PLANNING
INSTRUMENTS
PART 1--PROPOSAL STAGE
1 Resolution to prepare temporary local planning instrument . . . . . . . . . . . . 268
2 Minister's approval required to proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
PART 2--ADOPTION STAGE
3 Resolution about adopting proposed temporary local planning
instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
4 Public notice of adoption of, and access to, temporary local
planning instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
5 Copy of notice and temporary local planning instrument to chief
executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . 271
PROCESS FOR MAKING OR AMENDING PLANNING SCHEME
POLICIES
PART 1--PROPOSAL STAGE
1 Resolution proposing action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
PART 2--CONSULTATION STAGE
2 Public notice of proposed action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
3 Public access to relevant documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
4 Consideration of all submissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
23
Integrated Planning
PART 3--ADOPTION STAGE
5 Resolution about adopting proposed planning scheme policy or
amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
6 Reporting to persons who made submissions about proposed action . . . . . 273
7 Public notice of adoption of, and access to, planning scheme
policy or amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
8 Copy of notice and policy or amendment to chief executive . . . . . . . . . . 274
SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . 275
PROCESS FOR MAKING OR AMENDING STATE PLANNING
POLICIES
PART 1--PREPARATION STAGE
1 Minister may prepare proposed State planning policy or amendment . . . 275
PART 2--CONSULTATION STAGE
2 Public notice of proposed action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275
3 Public access to relevant documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
4 Consideration of all submissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
5 Consultation stage does not apply in certain circumstances . . . . . . . . . . . 276
PART 3--ADOPTION STAGE
6 Resolution about adopting proposed State planning policy or
amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
7 Reporting to persons who made submissions about proposed action . . . . . 277
8 Public notice of adoption of, and access to, State planning policy
or amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
9 Copies of State planning policies to local governments . . . . . . . . . . . . . . 278
SCHEDULE 5 . . . . . . . . . . . . . . . . . . . . . . . 279
COMMUNITY INFRASTRUCTURE
SCHEDULE 6 . . . . . . . . . . . . . . . . . . . . . . . 281
PROCESS FOR MINISTERIAL DESIGNATIONS
PART 1--CONSULTATION STAGE
1 Notice of proposed designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
2 Consideration of all submissions and other matters . . . . . . . . . . . . . . . . . . 282
PART 2--DESIGNATION STAGE
3 Deciding designation proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
4 Procedures after designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
24
Integrated Planning
5 Procedures if designation does not proceed . . . . . . . . . . . . . . . . . . . . . . . . . 283
SCHEDULE 7 . . . . . . . . . . . . . . . . . . . . . . . 285
PROCESS FOR MINISTERIAL DESIGNATION IF
CONSULTATION HAS PREVIOUSLY BEEN CARRIED OUT
1 Making designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
2 Procedures after designation by Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
SCHEDULE 8 . . . . . . . . . . . . . . . . . . . . . . . 287
ASSESSABLE, SELF-ASSESSABLE AND EXEMPT
DEVELOPMENT
SCHEDULE 9 . . . . . . . . . . . . . . . . . . . . . . . 295
CONSEQUENTIAL AMENDMENTS
LOCAL GOVERNMENT ACT 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
SCHEDULE 10 . . . . . . . . . . . . . . . . . . . . . . 296
DICTIONARY
A BILL
FOR
An Act for a framework to integrate planning and development
assessment so that development and its effects are managed in a
way that is ecologically sustainable, and for related purposes
s 1.1.1 26 s 1.2.1
Integrated Planning
The Parliament of Queensland enacts-- 1
HAPTER 1--PRELIMINARY 2
C
PART 1--INTRODUCTION 3
title 4
Short
1.1.1. This Act may be cited as the Integrated Planning Act 1997. 5
6
Commencement
1.1.2. This Act commences on a day to be fixed by proclamation. 7
PART 2--PURPOSE AND ADVANCING THE 8
PURPOSE 9
of Act 10
Purpose
1.2.1. The purpose of this Act is to seek to achieve ecological 11
sustainability1 by-- 12
(a) coordinating and integrating planning at the local, regional and 13
State levels; and 14
(b) managing the process by which development occurs; and 15
(c) managing the effects of development on the environment 16
(including managing the use of premises). 17
1 `Ecological sustainability' is defined in section 1.3.3 (Meaning of "ecological
sustainability")
s 1.2.2 27 s 1.2.3
Integrated Planning
Act's purpose 1
Advancing
1.2.2.(1) If, under this Act, a function or power is conferred on an entity, 2
the entity must-- 3
(a) unless paragraph (b) or (c) applies--perform the function or 4
exercise the power in a way that advances this Act's purpose; or 5
(b) if the entity is an assessment manager other than a local 6
government--in assessing and deciding a matter under this Act, 7
have regard to this Act's purpose; or 8
(c) if the entity is a referral agency other than a local government 9
(unless the local government is acting as a referral agency under 10
devolved or delegated powers)--in assessing and deciding a 11
matter under this Act, have regard to this Act's purpose. 12
(2) Subsection (1) does not apply to code assessment under this Act. 13
advancing this Act's purpose includes 14
What
1.2.3.(1) Advancing this Act's purpose includes-- 15
(a) ensuring decision-making processes-- 16
(i) are accountable, coordinated and efficient; and 17
(ii) take account of short and long-term environmental effects of 18
development at local, regional, State and wider levels; and 19
(b) ensuring the sustainable use of renewable natural resources and 20
the prudent use of non-renewable natural resources; and 21
(c) avoiding, if practicable, or otherwise lessening, adverse 22
environmental effects of development; and 23
(d) supplying infrastructure in a coordinated, efficient and orderly 24
way, including encouraging urban development in areas where 25
adequate infrastructure exists or can be provided efficiently; and 26
(e) applying standards of amenity, conservation, energy, health and 27
safety in the built environment that are cost effective and for the 28
public benefit; and 29
(f) providing opportunities for community involvement in decision 30
making. 31
s 1.3.1 28 s 1.3.2
Integrated Planning
(2) In subsection (1)(b)-- 1
"natural resources" includes biological, energy, extractive, land and water 2
resources that are important to economic development because of their 3
contribution to employment generation and wealth creation. 4
ART 3--INTERPRETATION 5
P
Division 1--Standard definitions 6
dictionary 7
Definitions--the
1.3.1. The dictionary in schedule 10 defines particular words used in this 8
Act.2 9
Division 2--Key definitions 10
of "development" 11
Meaning
1.3.2. "Development" is any of the following-- 12
(a) carrying out building work; 13
(b) carrying out plumbing or drainage work; 14
2 In some Acts, definitions are contained in a dictionary that appears as the last
schedule and forms part of the Act--Acts Interpretation Act 1954, section 14(4).
Words defined elsewhere in the Act are generally signposted by entries in the
dictionary. However, if a section has a definition applying only to the section, or
a part of the section, it is generally not signposted by an entry in the dictionary
and is generally set out in the last subsection of the section.
Signpost definitions in the dictionary alert the reader to the terms defined
elsewhere in the Act and tell the reader where the definitions can be found. For
example, the definition ` "acknowledgment notice" see section 3.2.3(1)', tells
the reader there is a definition of acknowledgment notice in the section.
s 1.3.3 29 s 1.3.5
Integrated Planning
(c) carrying out operational work; 1
(d) reconfiguring a lot; 2
(e) making a material change of use of premises. 3
of "ecological sustainability" 4
Meaning
1.3.3. "Ecological sustainability" is a balance that integrates-- 5
(a) protection of ecological processes and natural systems; and 6
(b) economic development; and 7
(c) maintenance of the cultural, economic, physical and social 8
wellbeing of people and communities. 9
of "lawful use" 10
Meaning
1.3.4. A use of premises is a "lawful use" of the premises if-- 11
(a) the use is a natural and ordinary consequence of making a 12
material change of use of the premises; and 13
(b) the making of the material change of use was in accordance with 14
this Act. 15
Division 3--Supporting definitions and explanations for key definitions 16
for terms used in "development" 17
Definitions
1.3.5. In this Act-- 18
"building work" means-- 19
(a) building, repairing, altering, underpinning (whether by vertical or 20
lateral support), moving or demolishing a building; or 21
(b) excavating or filling-- 22
(i) for, or incidental to, the activities mentioned in paragraph (a); 23
or 24
(ii) that may adversely affect the stability of a building, whether 25
on the land on which the building is situated or on adjoining 26
s 1.3.5 30 s 1.3.5
Integrated Planning
land; or 1
(c) supporting (whether vertically or laterally) land for activities 2
mentioned in paragraph (a). 3
"drainage work" means installing, repairing, altering or removing-- 4
(a) a sanitary drain used, or intended to be used, to carry sewage 5
from sanitary plumbing to a sewer, or on-site sewerage system; 6
or 7
(b) a property sewer; or 8
(c) an on-site sewerage system, including a common effluent drain, 9
located on premises; or 10
(d) a stormwater installation on premises. 11
"lot" means-- 12
(a) a lot under the Land Title Act 1994;3 or 13
(b) a separate, distinct parcel of land for which an interest is recorded 14
in a register under the Land Act 1994; or 15
(c) common property for a community titles scheme under the Body 16
Corporate and Community Management Act 1997; or 17
(d) a lot or common property to which the Building Units and Group 18
Titles Act 1980 continues to apply;4 or 19
(e) a community or precinct thoroughfare under the Mixed Use 20
3 Land Title Act 1994, schedule 2--
"lot" means a separate, distinct parcel of land created on--
(a) the registration of a plan of subdivision; or
(b) the recording of particulars of an instrument;
and includes a lot under the Building Units and Group Titles Act 1980.
4 The Building Units and Group Titles Act 1980 may continue to apply to the
following Acts--
(a) the Integrated Resort Development Act 1987;
(b) the Mixed Use Development Act 1993;
(c) the Registration of Plans (H.S.P. (Nominees) Pty. Limited) Enabling Act
1980;
(d) the Registration of Plans (Stage 2) (H.S.P. (Nominees) Pty. Limited)
Enabling Act 1984;
(e) the Sanctuary Cove Resort Act 1985.
s 1.3.5 31 s 1.3.5
Integrated Planning
Development Act 1993; or 1
(f) a primary or secondary thoroughfare under the Integrated Resort 2
Development Act 1987 or the Sanctuary Cove Resort Act 1985. 3
"material change of use", of premises, means-- 4
(a) the start of a new use of the premises; or 5
(b) the re-establishment on the premises of a use that has been 6
abandoned; or 7
(c) a material change in the character, intensity or scale of the use of 8
the premises. 9
"operational work" means-- 10
(a) extracting gravel, rock, sand or soil from the place where it occurs 11
naturally; or 12
(b) planting trees or managing, felling and removing standing timber 13
for an ongoing forestry business (whether in a native forest or a 14
plantation); or 15
(c) excavating or filling that materially affects premises or their use; 16
or 17
(d) placing an advertising device on premises; or 18
(e) undertaking work (other than destroying or removing vegetation) 19
in, on, over or under premises that materially affects premises or 20
their use; 21
but does not include building, drainage or plumbing work. 22
"plumbing work" means installing, repairing, altering or removing any 23
system, or components of a system, for-- 24
(a) supplying water within premises from the point of connection to 25
a property service; or 26
(b) conveying sewage from premises to a sanitary drain; or 27
(c) a fire service within premises. 28
"reconfiguring a lot" means-- 29
(a) creating lots by subdividing another lot; or 30
(b) amalgamating 2 or more lots; or 31
s 1.3.6 32 s 1.3.6
Integrated Planning
(c) rearranging the boundaries of a lot by registering a plan of 1
subdivision; or 2
(d) dividing land into parts by agreement (other than a lease for a 3
term, including renewal options, not exceeding 10 years) 4
rendering different parts of a lot immediately available for 5
separate disposition or separate occupation; or 6
(e) creating an easement giving access to a lot from a constructed 7
road. 8
of terms used in "ecological sustainability" 9
Explanation
1.3.6. For section 1.3.3-- 10
(a) ecological processes and natural systems are protected if-- 11
(i) the life supporting capacities of air, ecosystems, soil and 12
water are conserved, enhanced or restored for present and 13
future generations; and 14
(ii) biological diversity is protected; and 15
(b) economic development occurs if there are diverse, efficient, 16
resilient and strong economies (including local, regional and State 17
economies) enabling communities to meet their present needs 18
while not compromising the ability of future generations to meet 19
their needs; and 20
(c) the cultural, economic, physical and social wellbeing of people 21
and communities is maintained if-- 22
(i) well-serviced communities with affordable, efficient, safe 23
and sustainable development are created and maintained; and 24
(ii) areas and places of special aesthetic, architectural, cultural, 25
historic, scientific, social or spiritual significance are 26
conserved or enhanced; and 27
(iii) integrated networks of pleasant and safe public areas for 28
aesthetic enjoyment and cultural, recreational or social 29
interaction are provided. 30
s 1.3.7 33 s 1.3.8
Integrated Planning
Division 4--General matters of interpretation 1
in this Act prevail over words in planning instruments 2
Words
1.3.7. If a word in a planning instrument has a meaning that is 3
inconsistent with the meaning of the same word in this Act, the meaning of 4
the word in this Act prevails to the extent of the inconsistency. 5
in Act to applicants, assessment managers, agencies etc. 6
References
1.3.8. In a provision of this Act about a development application, a 7
reference to-- 8
(a) the applicant is a reference to the person who made the 9
application; and 10
(b) development, or the development, is a reference to development 11
the subject of the application; and 12
(c) the assessment manager is a reference to the assessment manager 13
for the application; and 14
(d) a referral agency, concurrence agency or advice agency is a 15
reference to a referral agency, concurrence agency or advice 16
agency for the application; and 17
(e) the local government is a reference to the local government for the 18
local government area where the development is proposed; and 19
(f) an information request is a reference to an information request for 20
assessing the application; and 21
(g) the acknowledgment notice is a reference to the acknowledgment 22
notice for the application; and 23
(h) a referral agency response is a reference to a referral agency 24
response for the application; and 25
(i) the development approval is a reference to the development 26
approval for the application; and 27
(j) the land is a reference to the land that is the subject of the 28
application; and 29
(k) the planning scheme is a reference to the planning scheme for the 30
s 1.4.1 34 s 1.4.1
Integrated Planning
locality where the development is to take place; and 1
(l) a submitter is a reference to a submitter for the application; and 2
(m) the decision notice, is a reference to the decision notice for the 3
application. 4
ART 4--USES AND RIGHTS 5
P
Division 1--Uses and rights acquired after the commencement of this 6
Act continue 7
uses of premises protected 8
Lawful
1.4.1.(1) If immediately before the commencement of a planning 9
instrument or an amendment of a planning instrument the use of premises 10
was a lawful use of the premises and there has been no material change of 11
the use since the commencement of the instrument or the amendment, 12
neither the instrument nor the amendment can-- 13
(a) stop the use from continuing; or 14
(b) further regulate the use; or 15
(c) require the use to be changed. 16
(2) If there has been a material change of the use of premises since the 17
commencement of a planning instrument or an amendment of a planning 18
instrument, any lawful use of the premises immediately before the 19
commencement is taken to be a lawful use of the premises after the 20
commencement-- 21
(a) for as long as the use continues; but 22
(b) only to the extent the lawful use of the premises immediately 23
before the commencement continues. 24
(3) Subsection (2) applies whether or not the material change of use was 25
authorised under a development permit. 26
s 1.4.2 35 s 1.4.3
Integrated Planning
planning instruments can not affect existing development 1
New
permits 2
1.4.2.(1) This section applies if-- 3
(a) a development permit that has not lapsed exists for premises; and 4
(b) after the permit is issued, a new planning instrument or an 5
amendment of a planning instrument commences. 6
(2) Neither the planning instrument nor the amendment can stop or 7
further regulate the development. 8
and uncommenced right to use premises protected 9
Implied
1.4.3.(1) This section applies if-- 10
(a) a person has been granted a development permit and when the 11
person has completed the development in accordance with the 12
permit the person has the right to use the premises, the subject of 13
the permit, for a particular purpose (because the change to the 14
intended use of the premises was not a material change of use that 15
also would have required a development permit); and 16
(b) the right existed, but the intended use had not started, immediately 17
before the commencement of a new planning instrument or an 18
amendment of a planning instrument declaring the change to the 19
intended use of the premises to be a material change of use 20
requiring a development permit. 21
(2) Neither the planning instrument nor the amendment can stop the use 22
from starting if-- 23
(a) the permitted development is completed within the time stated 24
in-- 25
(i) the permit for completion of the development; or 26
(ii) this Act for completion of the development; and 27
(b) the use of the premises starts within 5 years after the completion. 28
s 1.4.4 36 s 1.4.6
Integrated Planning
constructed buildings and works protected 1
Lawfully
1.4.4. If a building or works have been lawfully constructed or effected 2
on or after the commencement of this section, neither a planning instrument 3
nor an amendment of a planning instrument can require the building or 4
works to be altered or removed. 5
under a preliminary approval protected 6
Rights
1.4.5. Neither a planning instrument nor an amendment of a planning 7
instrument can affect a preliminary approval-- 8
(a) before the approval lapses;5 or 9
(b) for an aspect of development that starts within the time stated in 10
the approval for the aspect to start--before the end of the period 11
stated in the approval for the completion of the aspect. 12
Division 2--Uses and rights acquired before the commencement of this 13
Act continue 14
uses of premises protected 15
Lawful
1.4.6. If immediately before the commencement of this section the use of 16
premises was a lawful use under the repealed Act and there has been no 17
material change of the use since the commencement-- 18
(a) the use is taken to be a lawful use under this Act; and 19
(b) neither a planning instrument nor an amendment of a planning 20
instrument can-- 21
(i) stop the use from continuing; or 22
(ii) further regulate the use; or 23
(iii) require the use to be changed. 24
(2) If there has been a material change of the use of premises since the 25
commencement of this section, any lawful use of the premises immediately 26
before the commencement is taken to be a lawful use of the premises after 27
5 Section 3.5.21 (When approvals lapse) specifies when approvals lapse.
s 1.4.7 37 s 1.4.8
Integrated Planning
the commencement-- 1
(a) for as long as the use continues; but 2
(b) only to the extent the lawful use of the premises immediately 3
before the commencement continues. 4
(3) Subsection (2) applies whether or not the material change of use was 5
authorised under a development permit. 6
constructed buildings and works protected 7
Lawfully
1.4.7. If a building or works were lawfully constructed before the 8
commencement of this section, neither a planning instrument nor an 9
amendment of a planning instrument can require the building or works to 10
be altered or removed. 11
PART 5--APPLICATION OF ACT 12
binds all persons 13
Act
1.4.8.(1) This Act binds all persons, including the State, and, as far as the 14
legislative power of the Parliament permits, the Commonwealth and the 15
other States. 16
(2) Nothing in this Act makes the State liable to be prosecuted for an 17
offence. 18
s 2.1.1 38 s 2.1.3
Integrated Planning
HAPTER 2--PLANNING 1
C
PART 1--LOCAL PLANNING INSTRUMENTS 2
1--General provisions about planning schemes 3
Division
of "planning scheme" 4
Meaning
2.1.1. A "planning scheme" is an instrument made by a local 5
government under division 3.6 6
to which planning schemes apply 7
Area
2.1.2. A local government's planning scheme applies to the whole of the 8
local government's area (the "planning scheme area"). 9
2--Key concepts for planning schemes 10
Division
elements of planning schemes 11
Key
2.1.3.(1) A local government and the Minister must be satisfied that the 12
local government's planning scheme-- 13
(a) coordinates and integrates the matters (including the core matters) 14
dealt with by the planning scheme, including any State and 15
regional dimensions7 of the matters; and 16
(b) identifies the desired environmental 8 outcomes for the planning 17
scheme area; and 18
(c) includes measures that facilitate the desired environmental 19
outcomes to be achieved; and 20
6 The Minister also may make a planning scheme if the local government fails to
comply with a direction under section 2.3.2.
7 State and regional dimensions of matters are explained in section 2.1.4.
8 For this Act, "environment" is defined in schedule 10 (Dictionary).
s 2.1.4 39 s 2.1.4
Integrated Planning
(d) includes performance indicators to assess the achievement of the 1
desired environmental outcomes; and 2
(e) if the local government is prescribed under a regulation--includes 3
a benchmark development sequence.9 4
(2) Measures facilitating the desired environmental outcomes to be 5
achieved include the identification of relevant-- 6
(a) self-assessable development; and 7
(b) assessable development requiring code or impact assessment. 8
(3) To remove any doubt, it is declared that-- 9
(a) a planning scheme may identify desired environmental outcomes 10
for particular localities within the planning scheme area; and 11
(b) a local government may include a benchmark development 12
sequence in its planning scheme even if the local government is 13
not prescribed under a regulation. 14
regional and local dimensions of planning scheme matters 15
State,
2.1.4.(1) A matter (including a core matter) in a planning scheme may 16
have local, regional or State dimensions. 17
(2) A local dimension of a planning scheme matter is a dimension that is 18
within the jurisdiction of local government but is not a regional or State 19
dimension. 20
(3) A regional dimension of a planning scheme matter is a dimension-- 21
(a) about which a regional planning advisory committee report 22
makes a recommendation; or 23
(b) that can best be dealt with by the cooperation of 2 or more local 24
governments. 25
(4) A State dimension of a planning scheme matter (including a matter 26
reflected in a State planning policy) is a dimension of a State interest. 27
9 Other legislation also requires local governments to note certain matters on
planning schemes, for example, the Mineral Resources Act 1989, section 319
requires a local government to note on its planning scheme the existence of
certain mining tenures.
s 2.1.5 40 s 2.1.7
Integrated Planning
Division 3--Making, amending and consolidating planning schemes 1
for making or amending planning schemes 2
Process
2.1.5.(1) The process stated in schedule 1 must be followed for making 3
or amending a planning scheme. 4
(2) The process involves 3 stages-- 5
· preliminary consultation and preparation stage10 6
· consideration of State interests and consultation stage11 7
· adoption stage.12 8
with sch 1 9
Compliance
2.1.6. Despite section 2.1.5, if a planning scheme is made or amended in 10
substantial compliance with the process stated in schedule 1, the planning 11
scheme or amendment is valid so long as any noncompliance has not-- 12
(a) adversely affected the awareness of the public of the existence and 13
nature of the proposed scheme; or 14
(b) restricted the opportunity of the public under schedule 1 to make 15
properly made submissions; or 16
(c) restricted the opportunity of the Minister to exercise the 17
Minister's powers under schedule 1, sections 10, 11 and 18. 18
of planning schemes and amendments 19
Effects
2.1.7.(1) A planning scheme made under this division for a planning 20
scheme area-- 21
(a) becomes the planning scheme for the area; and 22
(b) replaces any existing planning scheme applying to the area; and 23
10 See schedule 1, part 1.
11 See schedule 1, part 2.
12 See schedule 1, part 3.
s 2.1.8 41 s 2.1.9
Integrated Planning
(c) has effect on and from-- 1
(i) the day the adoption of the planning scheme is notified in the 2
gazette; or 3
(ii) if a later day for the commencement of the planning scheme 4
is stated in the planning scheme--the later day. 5
(2) If a planning scheme is amended under this division, the amendment 6
has effect on and from-- 7
(a) the day the adoption of the amendment is notified in the gazette; 8
or 9
(b) if a later day for the commencement of the amendment is stated 10
in the amendment--the later day. 11
planning schemes 12
Consolidating
2.1.8.(1) A local government may prepare a consolidated planning 13
scheme. 14
(2) Schedule 1 does not apply to the preparation of the consolidated 15
planning scheme. 16
(3) The consolidated planning scheme is, in the absence of evidence to 17
the contrary, taken to be the local government's planning scheme as at the 18
day the consolidation is, by resolution, adopted by the local government. 19
Division 4--Temporary local planning instruments 20
of "temporary local planning instrument" 21
Meaning
2.1.9. A "temporary local planning instrument" is an instrument 22
made by a local government under this division.13 23
13 The Minister also may make a temporary local planning instrument if the local
government fails to comply with a direction under section 2.3.2.
s 2.1.10 42 s 2.1.12
Integrated Planning
of effect of temporary local planning instrument 1
Extent
2.1.10.(1) A temporary local planning instrument may suspend or 2
otherwise affect the operation of a planning scheme for not more than 3
1 year, or a lesser period stated in the temporary local planning instrument, 4
but can not amend a planning scheme. 5
(2) However, a temporary local planning instrument may be made only 6
if the Minister is satisfied-- 7
(a) there is a significant risk of serious environmental harm, within 8
the meaning of the Environmental Protection Act 1994, 9
section 17,14 or serious adverse cultural, economic or social 10
conditions occurring in the planning scheme area; and 11
(b) the delay involved in using the process under schedule 1 to 12
amend the planning scheme would increase the risk. 13
to which temporary local planning instrument applies 14
Area
2.1.11. A temporary local planning instrument may apply to all or only 15
part of a planning scheme area. 16
for making temporary local planning instruments 17
Process
2.1.12.(1) The process stated in schedule 2 must be followed for making 18
a temporary local planning instrument. 19
(2) The process involves 2 stages-- 20
14 Environmental Protection Act 1994, section 17--
"Serious environmental harm" is environmental harm (other than
environmental nuisance)--
(a) that causes actual or potential harm to environmental values that is
irreversible, of a high impact or widespread; or
(b) that causes actual or potential harm to environmental values of an
area of high conservation value or special significance; or
(c) that causes actual or potential loss or damage to property of an
amount of, or amounts totalling, more than the threshold amount; or
(d) that results in costs of more than the threshold amount being incurred
in taking appropriate action to--
(i) prevent or minimise the harm; and
(ii) rehabilitate or restore the environment to its condition before
the harm.
s 2.1.13 43 s 2.1.15
Integrated Planning
· proposal stage15 1
· adoption stage.16 2
with sch 2 3
Compliance
2.1.13. If a temporary local planning instrument is made in substantial 4
compliance with the process stated in schedule 2, the instrument is valid. 5
temporary local planning instruments have effect 6
When
2.1.14. A temporary local planning instrument made under this division 7
has effect-- 8
(a) on and from-- 9
(i) the day the adoption of the instrument is notified in the 10
gazette; or 11
(ii) if a later day for the commencement of the instrument is 12
stated in the instrument--the later day; and 13
(b) until the instrument expires or is repealed. 14
temporary local planning instruments 15
Repealing
2.1.15.(1) A temporary local planning instrument may be repealed by-- 16
(a) a resolution of a local government; or 17
(b) the adoption of a planning scheme or an amendment of a 18
planning scheme that specifically repeals the instrument. 19
(2) However, a local government must have the Minister's written 20
approval to make a resolution under subsection (1)(a) if the temporary local 21
planning instrument-- 22
(a) was made by the local government under the direction of the 23
Minister under section 2.3.2(1)(c); or 24
(b) was made by the Minister under section 2.3.3 after a failure of the 25
15 See schedule 2, part 1.
16 See schedule 2, part 2.
s 2.1.16 44 s 2.1.16
Integrated Planning
local government to comply with a direction of the Minister under 1
section 2.3.2(1)(c). 2
(3) The local government must publish, in a newspaper circulating 3
generally in the local government's area and in the gazette, a notice stating 4
the following-- 5
(a) the name of the local government; 6
(b) the name of the temporary local planning instrument being 7
repealed; 8
(c) the day the resolution was made; 9
(d) the purpose and general effect of the resolution. 10
(4) On the day the notice is published in the gazette (or as soon as 11
practicable after the day), the local government must give the chief executive 12
a copy of the notice. 13
(5) The repeal takes effect-- 14
(a) if the resolution is made under subsection (1)(a)--on the day the 15
resolution is notified in the gazette; or 16
(b) if the resolution is made under subsection (1)(b)--on the day the 17
resolution adopting the planning scheme is notified in the gazette. 18
5--Planning scheme policies 19
Division
of "planning scheme policy" 20
Meaning
2.1.16.(1) A "planning scheme policy" is an instrument that supports 21
the local dimension of a planning scheme and is made by a local 22
government under this division.17 23
(2) To the extent that a planning scheme policy is inconsistent with a 24
planning scheme, the planning scheme prevails. 25
17 The Minister also may make a planning scheme policy if the local government
fails to comply with a direction under section 2.3.2.
s 2.1.17 45 s 2.1.20
Integrated Planning
to which planning scheme policy applies 1
Area
2.1.17. A planning scheme policy may apply to all or only part of a 2
planning scheme area. 3
planning scheme policies in planning schemes 4
Adopting
2.1.18. The only document made by a local government that the local 5
government's planning scheme may, under the Statutory Instruments Act 6
1992, section 23, apply, adopt or incorporate, is a planning scheme policy. 7
for making or amending planning scheme policies 8
Process
2.1.19.(1) The process stated in schedule 3 must be followed for making 9
or amending a planning scheme policy. 10
(2) The process involves 3 stages-- 11
· proposal stage18 12
· consultation stage19 13
· adoption stage.20 14
with sch 3 15
Compliance
2.1.20. Despite section 2.1.19, if a planning scheme policy is made or 16
amended in substantial compliance with the process stated in schedule 3, the 17
planning scheme policy or amendment is valid so long as any 18
noncompliance has not-- 19
(a) adversely affected the awareness of the public of the existence and 20
nature of the proposed planning scheme policy or amendment; or 21
(b) restricted the opportunity of the public under schedule 3 to make 22
properly made submissions on the proposed policy or 23
amendment. 24
18 See schedule 3, part 1.
19 See schedule 3, part 2.
20 See schedule 3, part 3.
s 2.1.21 46 s 2.1.22
Integrated Planning
of planning scheme policies 1
Effects
2.1.21.(1) A planning scheme policy made under this division for a 2
planning scheme area-- 3
(a) becomes a policy for the area; and 4
(b) if the policy states that it replaces an existing policy--replaces the 5
existing policy; and 6
(c) has effect on and from-- 7
(i) the day the adoption of the policy is first notified in a 8
newspaper circulating generally in the local government's 9
area; or 10
(ii) if a later day for the commencement of the policy is stated in 11
the policy--the later day. 12
(2) If a planning scheme policy is amended under this division, the 13
amendment has effect on and from-- 14
(a) the day the adoption of the amendment is first notified in a 15
newspaper circulating generally in the local government's area; or 16
(b) if a later day for the commencement of the amendment is stated 17
in the amendment--the later day. 18
planning scheme policies 19
Repealing
2.1.22.(1) A local government, by resolution, may repeal a planning 20
scheme policy (other than a planning scheme policy that is replaced by 21
another planning scheme policy). 22
(2) If a local government makes a resolution under subsection (1), the 23
local government must give the Minister a copy of the resolution. 24
(3) The local government must publish, in a newspaper circulating 25
generally in the local government's area, a notice stating the following-- 26
(a) the name of the local government; 27
(b) the name of the planning scheme policy being repealed; 28
(c) the day the resolution was made. 29
(4) On the day the notice is published (or as soon as practicable after the 30
s 2.1.23 47 s 2.1.23
Integrated Planning
notice is published), the local government must give the chief executive a 1
copy of the notice. 2
(5) The repeal takes effect on the day the notice is first published in the 3
newspaper. 4
(6) Also, if a new planning scheme (other than an amendment of a 5
planning scheme) is made for a planning scheme area, all existing planning 6
scheme policies for the area are repealed on the day the adoption of the new 7
planning scheme is notified in the gazette. 8
Division 6--Local planning instruments generally 9
planning instruments have force of law 10
Local
2.1.23.(1) A local planning instrument is a statutory instrument under the 11
Statutory Instruments Act 1992 and has the force of law. 12
(2) A local planning instrument may not prohibit development on, or the 13
use of, premises. 14
(3) A planning scheme or a temporary local planning instrument can 15
regulate a use of premises, but only-- 16
(a) by applying to the use a code identified in the planning scheme or 17
temporary local planning instrument; and 18
(b) if-- 19
(i) the use is a natural and ordinary consequence of making a 20
material change of use of the premises happening after the 21
code took effect; and 22
(ii) the making of the material change of use is assessable or 23
self-assessable development. 24
(4) A planning scheme policy can not regulate development on, or the 25
use of, premises. 26
(5) Subsections (2) to (4) apply despite subsection (1). 27
s 2.1.24 48 s 2.2.2
Integrated Planning
intentions in local planning instruments not binding 1
Infrastructure
2.1.24. If a local planning instrument indicates the intention of a local 2
government or the State to provide infrastructure, it does not create an 3
obligation on the local government or the State to provide the infrastructure. 4
ART 2--REVIEWING LOCAL PLANNING 5
P
INSTRUMENTS 6
1--Review of planning schemes by local government 7
Division
government must review planning scheme every 6 years 8
Local
2.2.1.(1) Each local government must complete a review of its planning 9
scheme-- 10
(a) within 6 years after the planning scheme was originally adopted; 11
or 12
(b) if a review of the planning scheme has been previously 13
completed--within 6 years after the completion of the last review. 14
(2) The review must include an assessment of the achievement of the 15
desired environmental outcomes stated in the planning scheme having 16
regard to the performance indicators stated in the scheme. 17
of action local government may take 18
Courses
2.2.2.(1) After reviewing its planning scheme, the local government 19
must, by resolution-- 20
(a) propose to prepare a new scheme; or 21
(b) propose to amend the scheme; or 22
(c) if the local government is satisfied that the scheme is suitable to 23
continue without amendment--decide to take no further action. 24
(2) A resolution by the local government under schedule 1 not to proceed 25
s 2.2.3 49 s 2.2.5
Integrated Planning
with or adopt a proposed planning scheme is taken to be a decision under 1
subsection (1)(c). 2
to be prepared about review if decision is to take no action 3
Report
2.2.3. If a local government decides to take no further action under 4
section 2.2.2(1)(c), the local government must-- 5
(a) prepare a report stating the reasons why the local government 6
decided to take no further action; and 7
(b) give a copy of the report to the chief executive. 8
about report to be published 9
Notice
2.2.4.(1) After preparing the report mentioned in section 2.2.3, the local 10
government must publish, in a newspaper circulating generally in the local 11
government's area, a notice stating the following-- 12
(a) the name of the local government; 13
(b) that the local government has prepared a report stating the reasons 14
why the local government decided to take no further action under 15
section 2.2.2(1)(c); 16
(c) that the report is available for inspection and purchase; 17
(d) a contact telephone number for information about the report; 18
(e) the period (the "inspection period"), being not less than 19
40 business days, during which the report is available for 20
inspection and purchase. 21
(2) For all of the inspection period the local government must display a 22
copy of the notice in a conspicuous place in the local government's public 23
office. 24
government must review benchmark development sequence 25
Local
annually 26
2.2.5.(1) If a local government's planning scheme includes a benchmark 27
development sequence, the local government must review the sequence 28
each year in consultation with the State agencies that participated in the 29
s 2.2.6 50 s 2.2.7
Integrated Planning
preparation of the sequence. 1
(2) Before the local government consults with the State agencies, the 2
local government must assess the factors affecting the sequence since the 3
last review and advise the agencies of any proposed amendments to the 4
sequence. 5
Division 2--Review by independent reviewer 6
for independent review 7
Request
2.2.6.(1) A person may make a written request to the chief executive 8
seeking an independent review of part of a local government's planning 9
scheme or all or part of a local government's planning scheme policy. 10
(2) The request must be-- 11
(a) in the approved form; and 12
(b) accompanied by the fee prescribed under a regulation. 13
executive to inform local government, assess request and set 14
Chief
conditions 15
2.2.7.(1) The chief executive must give a copy of the request to the local 16
government. 17
(2) If the chief executive is satisfied, after consultation with the person 18
requesting the review and the local government, that the matters referred to 19
in the request are unlikely to be resolved to the satisfaction of the person 20
requesting the review, subsection (3) applies. 21
(3) The chief executive must consider the request to see if sufficient 22
information has been given to allow conditions to be set for conducting the 23
review. 24
(4) If the chief executive is satisfied that sufficient information has been 25
given to allow the chief executive to set conditions for conducting the 26
review, the chief executive must set the conditions, including the 27
following-- 28
(a) whether the review is to be conducted by hearing and written 29
s 2.2.8 51 s 2.2.8
Integrated Planning
submissions or written submissions only; 1
(b) the scope of the matters to be considered by the review; 2
(c) any other local government and any State entity the chief 3
executive is satisfied may be affected by the review and is to be 4
notified about the review; 5
(d) the maximum cost of conducting the review, based on the 6
assessment fees prescribed under a regulation; 7
(e) the apportionment of the maximum cost of conducting the review 8
between-- 9
(i) the person conducting the review; and 10
(ii) the local government and any other local government the 11
chief executive is satisfied may be affected by the review; 12
and 13
(iii) the State entities to be notified about the review. 14
(5) If the chief executive is satisfied that insufficient information has been 15
given to allow the chief executive to set conditions for conducting the 16
review, the chief executive must ask the person making the request for the 17
information that would allow the conditions to be set. 18
and acceptance of conditions for review 19
Notice
2.2.8.(1) After setting the conditions for conducting the review, the chief 20
executive must give the person requesting the review a copy of the 21
conditions. 22
(2) If the person wishes to proceed with the review on the conditions set 23
by the chief executive, the person must, within 20 business days after being 24
given the copy of the conditions (the "acceptance period"), give the chief 25
executive written notice accepting the conditions. 26
(3) If the person requesting the review does not want to proceed with the 27
review on the conditions set by the chief executive, the person may make 28
representations about the conditions to the chief executive. 29
(4) The representations must be made before the end of the acceptance 30
period. 31
(5) After considering any representations made under subsection (3), the 32
s 2.2.9 52 s 2.2.11
Integrated Planning
chief executive must decide whether to change the conditions. 1
(6) The chief executive must give the person requesting the review 2
written notice of the chief executive's decision under subsection (5). 3
(7) Subsection (2) applies again to a person given a notice under 4
subsection (6), but subsections (3) to (6) do not. 5
(8) The chief executive may, before the end of the acceptance period, 6
extend the period. 7
(9) If the person requesting the review does not give the chief executive 8
written notice accepting the conditions within the acceptance period, the 9
review lapses. 10
may be conducted together 11
Reviews
2.2.9. If 2 or more persons request reviews, the chief executive may, 12
with the agreement of the persons who requested the reviews, appoint a 13
reviewer to conduct a single review. 14
of reviewer 15
Appointment
2.2.10.(1) After the person requesting the review gives the chief 16
executive written notice accepting the conditions and pays the maximum 17
cost of conducting the review set by the conditions for conducting the 18
review, the chief executive must appoint a reviewer to carry out the review. 19
(2) The reviewer must be an appropriately qualified person. 20
(3) In subsection (2)-- 21
"appropriately qualified" includes having the qualifications, experience or 22
standing necessary to carry out the review. 23
with conflict of interest not to be appointed reviewer 24
Person
2.2.11.(1) This section applies if-- 25
(a) the chief executive proposes to appoint a person as a reviewer and 26
advises the person of the proposed appointment; and 27
(b) the person has a direct or indirect personal interest in a matter to 28
be considered by the review; and 29
s 2.2.12 53 s 2.2.12
Integrated Planning
(c) the interest could conflict with the proper performance of the 1
person's duties in relation to the consideration of the matter. 2
(2) The person must advise the chief executive of the interest, and the 3
chief executive must not appoint the person as a reviewer. 4
of review 5
Notice
2.2.12.(1) After appointing a reviewer, the chief executive must-- 6
(a) publish in a newspaper circulating generally in the local 7
government's area a notice about the review; and 8
(b) give the reviewer a copy of the conditions accepted for the review 9
and a copy of the notice published in the newspaper; and 10
(c) give the person requesting the review the name of the reviewer 11
and a copy of the notice published in the newspaper; and 12
(d) give the local government, any other local government the chief 13
executive is satisfied may be affected by the review and the State 14
entities to be notified about the review-- 15
(i) the name of the reviewer; and 16
(ii) the conditions accepted for the review; and 17
(iii) a copy of the notice published in the newspaper. 18
(2) The notice about the review must state the following-- 19
(a) the name of the reviewer; 20
(b) the scope of the matters to be considered by the review; 21
(c) whether the review is to be conducted by hearing and written 22
submissions or written submissions only; 23
(d) if the review is to be conducted by hearing and written 24
submissions--that any person wishing to appear at the hearing 25
must, within 20 business days after the notice first being 26
published (the "consultation period")-- 27
(i) register their interest in appearing at the hearing by giving 28
written notice to the chief executive, or if the chief executive 29
decides that the reviewer is to receive the written notice, the 30
reviewer; and 31
s 2.2.13 54 s 2.2.15
Integrated Planning
(ii) give a written statement about the matters the person wishes 1
to raise at the hearing, including the outcomes the person 2
desires the review to achieve; 3
(e) if the review is to be conducted by written submissions 4
only--that written submissions about any aspect of the matter the 5
subject of the review may be given by any person during the 6
consultation period to the chief executive, or if the chief executive 7
decides that the reviewer is to receive the written submissions, the 8
reviewer. 9
of review generally 10
Conduct
2.2.13. The reviewer-- 11
(a) must carry out the review promptly and efficiently; and 12
(b) must consider all submissions made during the consultation 13
period and any hearing; and 14
(c) may be informed on any matter-- 15
(i) in any way the reviewer considers appropriate; and 16
(ii) without notice to any person who has made a submission; 17
and 18
(d) must comply with the conditions accepted by the person who 19
requested the review. 20
and local governments to provide assistance 21
State
2.2.14. Any State entity and any local government that was notified about 22
the review must provide the reviewer with all reasonable assistance required 23
by the reviewer to carry out the review. 24
about hearings by reviewers 25
Directions
2.2.15.(1) Subject to any conditions about the hearing accepted by the 26
person requesting the review, the reviewer may give directions about-- 27
(a) the times and places of hearings; and 28
(b) matters preliminary to hearings; and 29
s 2.2.16 55 s 2.2.16
Integrated Planning
(c) the conduct of hearings. 1
(2) The reviewer may refuse to hear a person who fails to comply with a 2
reasonable direction of the reviewer. 3
of hearings 4
Conduct
2.2.16.(1) In conducting the hearing, the reviewer-- 5
(a) need not proceed in a formal way; and 6
(b) must give the person requesting the review and the local 7
government reasonable opportunity to be heard; and 8
(c) must, having regard to the time available for conducting the 9
review, give a reasonable opportunity to be heard to-- 10
(i) any person who, during the consultation period, registered 11
an interest in being heard; and 12
(ii) the other local governments and the State entities notified 13
about the review; and 14
(d) is not bound by the rules of evidence; and 15
(e) may prohibit or regulate questioning in the hearing; and 16
(f) may hear 2 or more submissions together if the submissions 17
concern the same or a related matter. 18
(2) If, because of the time available for conducting the review, a person 19
mentioned in subsection (1)(c)(i) or an entity mentioned in 20
subsection (1)(c)(ii) does not have an opportunity to be heard, or fully 21
heard, the person or entity may make a written submission about the matter 22
to the reviewer. 23
(3) The reviewer may report on the review without hearing a person if 24
the person is not present or represented at the time and place appointed for 25
hearing the person. 26
(4) A person appearing at a hearing may be represented by another 27
person if the other person is not a lawyer. 28
s 2.2.17 56 s 2.2.18
Integrated Planning
of reviewer 1
Report
2.2.17.(1) At the end of the review the reviewer must prepare a report 2
(the "reviewer's report") about the review and give the reviewer's report 3
to the chief executive. 4
(2) The reviewer's report must include a recommendation that the part of 5
the planning scheme, or the planning scheme policy, or the part of the 6
planning scheme policy, the subject of the review be amended or repealed 7
or remain unchanged. 8
(3) If the recommendation is for the amendment of the part of the 9
planning scheme, or the planning scheme policy, or the part of the planning 10
scheme policy, the subject of the review, the reviewer's report must also 11
identify the amendment that should be effected. 12
(4) After receiving the reviewer's report, the chief executive must give-- 13
(a) a copy of the report to-- 14
(i) the person who requested the review; and 15
(ii) each person who, during the consultation period, registered 16
an interest in being heard or made a submission; and 17
(iii) the local government, and any other local government and 18
any State entity notified about the review; and 19
(b) a statement of the actual cost of the review to the person who 20
requested the review; 21
(c) to the local government the names and addresses of each person 22
mentioned in paragraph (a)(i) or (ii), and each other local 23
government, and each State entity mentioned in paragraph (a)(iii). 24
government's actions after receiving reviewer's report 25
Local
2.2.18.(1) The local government must, having regard to the 26
recommendation mentioned in section 2.2.17(2), decide to-- 27
(a) amend the local government's planning scheme, or 28
(b) amend a planning scheme policy; or 29
(c) make a new planning scheme policy; or 30
(d) repeal a planning scheme policy; or 31
s 2.2.19 57 s 2.2.20
Integrated Planning
(e) do nothing. 1
(2) The local government must give a copy of its decision and the 2
reasons for its decision to-- 3
(a) the Minister; and 4
(b) each person or entity the chief executive gave a copy of the 5
reviewer's report. 6
(3) If the local government decides to take action under subsection (1)(a), 7
the local government must immediately start the process for amending a 8
planning scheme. 9
(4) However, for applying schedule 1, the amendment is taken to be an 10
amendment for which schedule 1, section 2(a) applies. 11
(5) If the local government decides to take action under subsection (1)(b) 12
or (c), the local government must immediately start the process for 13
amending or making a planning scheme policy. 14
(6) If the local government decides to take action under subsection (1)(d), 15
the local government must immediately start the process for repealing a 16
planning scheme policy. 17
actions after receiving reviewer's report 18
Minister's
2.2.19.(1) The Minister must consider the reviewer's report, the local 19
government's decision and the reasons for the decision and decide to-- 20
(a) take action under part 3; or 21
(b) do nothing. 22
(2) The Minister must give a copy of the Minister's decision and the 23
reasons for the Minister's decision to-- 24
(a) the local government; and 25
(b) each other local government and each State entity to which the 26
chief executive gave a copy of the reviewer's report. 27
request for review 28
Withdrawing
2.2.20.(1) The person who requested the review may, by written notice 29
s 2.2.21 58 s 2.2.22
Integrated Planning
to the chief executive, withdraw the request at any time up to the completion 1
of the reviewer's report. 2
(2) If the request is withdrawn, the person-- 3
(a) is liable for the costs of conducting the review up to the time the 4
request is withdrawn; but 5
(b) is not liable for any costs under paragraph (a) exceeding the 6
maximum cost of conducting the review set by the conditions for 7
conducting the review. 8
reviewer and others and refunding any overpaid costs 9
Paying
2.2.21.(1) After receiving the reviewer's report, the chief executive must 10
pay the amount received from the person requesting the review to the 11
reviewer, the local government and each other local government and each 12
State entity to which the chief executive gave a copy of the reviewer's 13
report. 14
(2) The amount paid under subsection (1) must be paid in the 15
proportions the chief executive considers appropriate having regard to the 16
apportionments of the maximum cost of conducting the review set by the 17
conditions for conducting the review and the work actually undertaken by 18
the entities to which the amount is to be paid. 19
(3) If the actual cost of conducting the review is less than the amount 20
paid to the chief executive by the person requesting the review, the chief 21
executive must pay the difference to the person requesting the review. 22
(4) To remove any doubt, it is declared that if the cost of conducting the 23
review is more than the maximum cost of conducting the review set by the 24
conditions for conducting the review, the person requesting the review is 25
not liable for any additional costs. 26
not liable for performing functions under review 27
Reviewers
2.2.22. The reviewer is not liable to pay an amount for an action brought 28
against the reviewer arising from any hearing conducted, publication made 29
or anything done or in good faith purportedly done in the performance of 30
the reviewer's functions. 31
s 2.2.23 59 s 2.3.1
Integrated Planning
not to affect development applications 1
Reviews
2.2.23. The following are not relevant considerations in the assessment 2
of a development application-- 3
(a) that a review is about to start or has started; 4
(b) if a review has been completed--the recommendations made 5
under the review. 6
ART 3--STATE POWERS 7
P
1--Preliminary 8
Division
before exercising powers 9
Procedures
2.3.1.(1) Before a power is exercised under this part, the Minister must 10
give written notice of the proposed exercise of the power to the local 11
government to be affected by the exercise of the power. 12
(2) However, notice need not be given if the power is proposed to be 13
exercised at the local government's request. 14
(3) The notice must state-- 15
(a) the reasons for the proposed exercise of the power; and 16
(b) a time within which the local government may make submissions 17
to the Minister about the proposed exercise of the power. 18
(4) The Minister must consider any submissions made under 19
subsection (3) and advise the local government that the Minister has 20
decided-- 21
(a) not to exercise the power; or 22
(b) to exercise the power. 23
(5) If the Minister decides to exercise the power, the Minister must 24
advise the local government the reasons for deciding to exercise the power. 25
s 2.3.2 60 s 2.3.4
Integrated Planning
2--Exercising State powers 1
Division
of Minister to direct local government to take action about local 2
Power
planning instrument 3
2.3.2.(1) If the Minister is satisfied that it is necessary to give a direction 4
to protect or give effect to a State interest, the Minister may direct a local 5
government to-- 6
(a) review its planning scheme; or 7
(b) make a planning scheme or amend its planning scheme; or 8
(c) make or repeal a temporary local planning instrument; or 9
(d) make, amend or repeal a planning scheme policy. 10
(2) The direction may be as general or specific as the Minister considers 11
appropriate and must state the reasonable time by which the local 12
government must comply with the direction. 13
(3) The Minister may direct a local government to prepare a consolidated 14
planning scheme. 15
of Minister if local government fails to comply with direction 16
Power
2.3.3.(1) If the local government does not comply with the Minister's 17
direction within the reasonable time stated in the direction, the Minister may 18
act for the local government to take the action the Minister directed the local 19
government to take. 20
(2) Anything done by the Minister under subsection (1) is taken to have 21
been done by the local government and has the same effect as it would have 22
had if the local government had done it. 23
(3) An expense reasonably incurred by the Minister in taking an action 24
under subsection (1) may be recovered from the local government as a debt 25
owing to the State. 26
if Minister takes directed action 27
Process
2.3.4. The process for the Minister to take the action the Minister directed 28
the local government to take is the same as the process for the local 29
s 2.3.5 61 s 2.4.2
Integrated Planning
government to take the action except that-- 1
(a) for making or amending a planning scheme, schedule 1, 2
sections 10 and 18 do not apply; and 3
(b) for a temporary local planning instrument, schedule 2, section 2 4
does not apply. 5
in schedules to local government etc. 6
References
2.3.5. If the Minister takes the action the Minister directed the local 7
government to take, a reference in part 1 or 2 or schedule 1, 2 or 3 to-- 8
(a) the local government's public office is a reference to the 9
department's State office; and 10
(b) a decision taken by resolution of the local government is a 11
reference to a decision of the Minister; and 12
(c) a local government's chief executive officer is a reference to the 13
chief executive of the department. 14
ART 4--STATE PLANNING POLICIES 15
P
of "State planning policy" 16
Meaning
2.4.1.(1) A "State planning policy" is an instrument, made by the 17
Minister under this part, about matters of State interest. 18
(2) A local planning instrument is a statutory instrument under the 19
Statutory Instruments Act 1992 and has the force of law. 20
to which State planning policies apply 21
Area
2.4.2. A State planning policy has effect throughout the State unless the 22
policy states otherwise. 23
s 2.4.3 62 s 2.4.5
Integrated Planning
for making or amending State planning policies 1
Process
2.4.3.(1) The process stated in schedule 4 must be followed in making or 2
amending a State planning policy. 3
(2) The process involves the following 3 stages-- 4
· preparation stage21 5
· consultation stage22 6
· adoption stage.23 7
with sch 4 8
Compliance
2.4.4. Despite section 2.4.3, if a State planning policy is made or 9
amended in substantial compliance with the process stated in schedule 4, the 10
policy or amendment is valid so long as any noncompliance has not-- 11
(a) adversely affected the awareness of the public of the existence and 12
nature of the proposed policy or amendment; or 13
(b) restricted the opportunity of the public under schedule 4 to make 14
submissions on the proposed policy or amendment. 15
of State planning policies 16
Effects
2.4.5.(1) A State planning policy made under this part-- 17
(a) if the policy states that it replaces an existing policy--replaces the 18
existing policy; and 19
(b) has effect on and from-- 20
(i) the day the adoption of the policy is notified in the gazette; or 21
(ii) if a later day for the commencement of the policy is stated in 22
the policy--the later day. 23
(2) If a State planning policy is amended under this part, the amendment 24
has effect on and from-- 25
21 See schedule 4, part 1.
22 See schedule 4, part 2.
23 See schedule 4, part 3.
s 2.4.6 63 s 2.5.1
Integrated Planning
(a) the day the adoption of the amendment is notified in the gazette; 1
or 2
(b) if a later day for the commencement of the amendment is stated 3
in the amendment--the later day. 4
State planning policies 5
Repealing
2.4.6.(1) The Minister may repeal a State planning policy by publishing a 6
notice in-- 7
(a) a newspaper circulating generally in the State; and 8
(b) the gazette. 9
(2) The notice must state the following-- 10
(a) the name of the State planning policy being repealed; 11
(b) if the policy applies only to a particular area of the State--the 12
name of the area or other information necessary to adequately 13
describe the area; 14
(c) that the policy is repealed. 15
(3) The repeal takes effect on and from the day the notice is published in 16
the gazette. 17
(4) The Minister must give each local government a copy of the notice. 18
PART 5--REGIONAL PLANNING ADVISORY 19
COMMITTEES 20
Division 1--General provisions about regional planning advisory 21
committees 22
are regions 23
What
2.5.1. In this Act-- 24
(a) there are no fixed geographical areas of the State constituting 25
s 2.5.2 64 s 2.5.2
Integrated Planning
regions;24 and 1
(b) a region may include the combined area of all or parts of 2 or 2
more local government areas and an area not included in a local 3
government area. 4
2--Regional planning advisory committees 5
Division
of committees 6
Establishment
2.5.2.(1) The Minister may establish as many regional planning advisory 7
committees as the Minister considers appropriate. 8
(2) A regional planning advisory committee may be established by-- 9
(a) creating a new group of persons; or 10
(b) recognising an existing group of persons. 11
(3) Before establishing a regional planning advisory committee, the 12
Minister must-- 13
(a) prepare draft terms of reference for the proposed committee; and 14
(b) identify the proposed region and local governments likely to be 15
affected by the advice of the proposed committee; and 16
(c) consult with the local governments and interest groups the 17
Minister considers appropriate about-- 18
(i) the draft terms of reference (including the term of the 19
committee); and 20
(ii) the membership of the proposed committee; and 21
(iii) the extent of their, the Commonwealth's and the State's, 22
proposed participation in, and support for, the proposed 23
committee. 24
24 Regions will vary according to the issues to be dealt with.
s 2.5.3 65 s 2.5.6
Integrated Planning
about committee 1
Particulars
2.5.3.(1) In establishing a regional planning advisory committee, the 2
Minister must state-- 3
(a) the committee's name; and 4
(b) the membership of the committee; and 5
(c) the area covered by the region for which the committee is 6
established; and 7
(d) the committee's terms of reference. 8
(2) The membership of the regional planning advisory committee-- 9
(a) may be identified in general or specific terms; and 10
(b) without limiting the scope of possible membership, must include 11
representatives of appropriate local governments. 12
(3) However, a local government may elect not to be represented on a 13
regional planning advisory committee. 14
committee 15
Changing
2.5.4. After consulting the committee and any other entities the Minister 16
considers appropriate, the Minister may change any aspect of the 17
committee, including, for example, its name, region, terms of reference and 18
membership. 19
of committee 20
Operation
2.5.5. A regional planning advisory committee may gather information 21
and opinions in the way it considers appropriate, but should operate in an 22
open and participatory way. 23
of committee 24
Reports
2.5.6. A regional planning advisory committee must report its findings 25
under its terms of reference to the Minister and the local governments of its 26
region. 27
s 2.6.1 66 s 2.6.3
Integrated Planning
ART 6--DESIGNATION OF LAND FOR 1
P
COMMUNITY INFRASTRUCTURE 2
1--Preliminary 3
Division
may designate land 4
Who
2.6.1.(1) A Minister (a "designator") may, under this part, designate 5
land for community infrastructure already existing on the land or that the 6
State or another entity intends to supply on the land.25 7
(2) A local government (also a "designator") may, under this part, 8
designate land for community infrastructure already existing on the land or 9
that the local government or another entity intends to supply on the land. 10
to be considered when designating land 11
Matters
2.6.2. Land may be designated for community infrastructure only if the 12
designator is satisfied the community infrastructure will-- 13
(a) facilitate the implementation of legislation and policies about 14
environmental protection or ecological sustainability; or 15
(b) facilitate the efficient allocation of resources; or 16
(c) satisfy statutory requirements or budgetary commitments of the 17
State or local government for the supply of community 18
infrastructure; or 19
(d) satisfy the community's expectations for the efficient and timely 20
supply of the infrastructure. 21
must consider major environmental effects 22
Designator
2.6.3.(1) This section applies if-- 23
(a) an entity proposes community infrastructure; and 24
25 In this part, "Minister" includes any Minister of the Crown. See "Minister" in
schedule 10 (Dictionary).
s 2.6.4 67 s 2.6.4
Integrated Planning
(b) the entity is not a public sector entity; and 1
(c) the designator is satisfied that the infrastructure, or the 2
construction of the infrastructure, is likely to have major 3
environmental effects, within the meaning of the State 4
Development and Public Works Organization Act 1971.26 5
(2) The designator must consider the proposal in the same way a 6
department of the government or a local body would have to consider the 7
proposal if the proposal were an application mentioned in the State 8
Development and Public Works Organization Act 1971, section 29(2).27 9
designations may include 10
What
2.6.4. A designation may include-- 11
(a) requirements about works or the use of the land for the 12
community infrastructure such as the height, shape, bulk or 13
location of the works on the land, vehicular access to the land, 14
vehicular and pedestrian circulation on the land, hours of 15
operation of the use, landscaping on the land and ancillary uses of 16
the land; and 17
(b) other requirements designed to lessen the impacts of the works or 18
the use of the land for community infrastructure, such as 19
procedures for environmental management. 20
26 The State Development and Public Works Organization Act 1971 does not define
"major environmental effects", but defines "environmental effects" as follows--
"environmental effects" means the beneficial as well as the detrimental effects
of any development on the physical, biological, or social systems within
which such development occurs.
27 State Development and Public Works Organization Act 1971, section 29
(Supervision of environment)
s 2.6.5 68 s 2.6.8
Integrated Planning
IDAS applies to designated land 1
How
2.6.5. Development under a designation is, to the extent the development 2
is self-assessable development or assessable development under a planning 3
scheme, exempt development.28 4
infrastructure charges apply to designated land 5
How
2.6.6. If a public sector entity, that is a department or part of a 6
department, proposes or starts development under a designation, the entity 7
is not required to pay any infrastructure charge under chapter 5, part 1 8
(Infrastructure charges) for the development. 9
2--Ministerial designation processes 10
Division
for Minister to designate land 11
Process
2.6.7.(1) The process stated in schedule 6 must be followed by a 12
Minister to designate land unless the land is designated under section 2.6.8. 13
(2) The process involves 2 stages-- 14
· consultation stage29 15
· designation stage.30 16
may proceed straight to designation in certain circumstances 17
Minister
2.6.8. A Minister may designate land using the process stated in 18
schedule 7 if the Minister is satisfied that-- 19
(a) either-- 20
(i) the environmental effects of the community infrastructure or 21
the construction of the infrastructure have been assessed 22
under the State Development and Public Works 23
28 Schedule 8 is relevant for deciding whether development on designated land is
assessable, self-assessable or exempt development.
29 See schedule 6, part 1.
30 See schedule 6, part 2.
s 2.6.9 69 s 2.6.10
Integrated Planning
Organization Act 1971, section 2931 or as if the proposal 1
were an application mentioned in that section and considered 2
under section 2.6.3 of this Act; or 3
(ii) the impacts of the infrastructure or the construction of the 4
infrastructure have been assessed under chapter 3; and 5
(b) public consultation has already been carried out about the 6
infrastructure under paragraph (a). 7
with schs 6 or 7 8
Compliance
2.6.9.(1) Despite section 2.6.7, if a Minister makes a designation in 9
substantial compliance with the process stated in schedule 6, the designation 10
is valid so long as any noncompliance has not-- 11
(a) adversely affected the awareness of the public of the existence and 12
nature of the proposed designation; or 13
(b) restricted the opportunity of the public under schedule 6 to make 14
submissions. 15
(2) Despite section 2.6.8, if the Minister makes a designation in 16
substantial compliance with the process stated in schedule 7, the designation 17
is valid. 18
of ministerial designations 19
Effects
2.6.10. A designation made under this division-- 20
(a) if the designation states that it replaces an existing 21
designation--replaces the existing designation; and 22
(b) has effect on and from-- 23
(i) the day the designation is notified in the gazette; or 24
(ii) if a later day for the commencement of the designation is 25
stated in the notice--the later day. 26
31 State Development and Public Works Organization Act 1971, section 29
(Supervision of environment)
s 2.6.11 70 s 2.6.13
Integrated Planning
local government must include designation in planning scheme 1
When
2.6.11. If a local government receives a notice from a Minister stating 2
that the Minister has made a designation in or near its planning scheme area, 3
the local government must note the designation on-- 4
(a) its planning scheme (if any); and 5
(b) any new planning scheme it makes before the designation ceases 6
to have effect. 7
3--Local government designation process 8
Division
of land by local governments 9
Designation
2.6.12.(1) A local government may only designate land by including the 10
designation as a substantive provision of its planning scheme. 11
(2) Subsection (1) applies whether or not the local government owns the 12
land. 13
land the local government does not own 14
Designating
2.6.13.(1) This section applies if the local government proposes to 15
designate land it does not own. 16
(2) Before the start of the consultation period for making or amending a 17
planning scheme intended to include the designation, the local government 18
must give written notice of the proposed designation to the owner of the 19
land. 20
(3) The notice must state the following-- 21
(a) the description of the land proposed to be designated, including a 22
plan of the land; 23
(b) the type of community infrastructure for which the designation is 24
proposed; 25
(c) the reasons for the designation; 26
(d) that written submissions about any aspect of the proposed 27
designation may be given to the local government during the 28
consultation period. 29
s 2.6.14 71 s 2.6.15
Integrated Planning
Division 4--Other matters about designations 1
of designations 2
Duration
2.6.14.(1) A designation ceases to have effect-- 3
(a) if the designation is made by a Minister--6 years after notice of 4
the designation was published in the gazette (the "designation 5
cessation day"); or 6
(b) if the designation is made by a local government--6 years after 7
the planning scheme or amendment that incorporated the 8
designation took effect (also the "designation cessation day"). 9
(2) If after designating land but before the designation cessation day, a 10
local government makes a new planning scheme and includes an existing 11
designation as a substantive provision of the new planning scheme-- 12
(a) the existing designation continues to have effect until its 13
designation cessation day under subsection (1); and 14
(b) section 2.6.13 does not apply to remaking the designation in the 15
new planning scheme. 16
designations do not cease 17
When
2.6.15.(1) A designation does not cease to have effect on the designation 18
cessation day if-- 19
(a) on the designation cessation day, an entity other than the State or 20
the local government owns the designated land and construction 21
of community infrastructure started before the designation 22
cessation day; or 23
(b) on the designation cessation day, the State or the local 24
government owns the designated land; or 25
(c) before the designation cessation day, the State or the local 26
government gave a notice of intention to resume the designated 27
land under the Acquisition of Land Act 1967, section 7;32 or 28
32 Acquisition of Land Act 1967, section 7 (Notice of intention to take land)
s 2.6.16 72 s 2.6.16
Integrated Planning
(d) before the designation cessation day, the State or the local 1
government signed an agreement to take under the Acquisition of 2
Land Act 1967 or to otherwise buy the designated land; or 3
(e) for a designation made by the Minister--before the designation 4
cessation day, the Minister gave the local government written 5
notice reconfirming the designation. 6
(2) However, if the State or a local government discontinues proceedings 7
to resume designated land, whether before or after the designation cessation 8
day, the designation ceases to have effect the day the proceedings are 9
discontinued. 10
(3) To remove any doubt, it is declared that a designation of land or any 11
notice given to an owner about a designation of land does not constitute a 12
notice of intention to resume under of the Acquisition of Land Act 1967, 13
section 7. 14
designation 15
Reconfirming
2.6.16.(1) If the Minister gives a local government a written notice under 16
section 2.6.15(1)(e) reconfirming a designation-- 17
(a) the local government must display the notice in a conspicuous 18
place in the local government's public office; and 19
(b) the Minister must-- 20
(i) give the owner of the land a copy of the notice; and 21
(ii) publish the notice in the gazette; and 22
(c) the designation has effect for another 6 years after the notice is 23
published in the gazette. 24
(2) When a local government receives a notice from the Minister 25
reconfirming a designation in or near its planning scheme area, the local 26
government must again note the designation on-- 27
(a) its planning scheme (if any); and 28
(b) any new planning scheme it makes before the designation ceases 29
to have effect. 30
(3) A reconfirmation of a designation is taken to be a designation to 31
which section 2.6.14 and 2.6.15 apply. 32
s 2.6.17 73 s 2.6.18
Integrated Planning
designations must be shown in planning schemes 1
How
2.6.17.(1) If a local government designates land, or notes a designation 2
of land by the Minister on its planning scheme, the designation or note 3
must-- 4
(a) identify the land; and 5
(b) state the type of community infrastructure for which the land was 6
designated; and 7
(c) state the day the designation was made; and 8
(d) refer to any matters included as part of the designation under 9
section 2.6.4; and 10
(e) be shown in the planning scheme in a way that other provisions 11
in the planning scheme applying to the land remain effective even 12
if the designation is repealed or ceases to have effect. 13
(2) To remove any doubt, it is declared that-- 14
(a) a designation is part of a planning scheme; and 15
(b) designation is not the only way community infrastructure may be 16
identified in a planning scheme; and 17
(c) the provisions of a planning scheme (other than the provision that 18
designates land) applying to designated land remain effective even 19
if the designation is repealed or ceases to have effect. 20
designations 21
Repealing
2.6.18.(1) A Minister may repeal a designation made by the Minister by 22
publishing a notice of repeal of the designation. 23
(2) A local government may repeal a designation made by the local 24
government by publishing a notice of repeal of the designation. 25
(3) The notice must be published in the gazette and in a newspaper 26
circulating generally in the area where the designated land is situated. 27
(4) The notice must state the following-- 28
(a) that the designation has been repealed; 29
(b) the description of the land to which the designation applied; 30
s 2.6.19 74 s 2.6.19
Integrated Planning
(c) the purpose of the community infrastructure for which the land 1
was designated; 2
(d) the reasons for the Minister's decision. 3
(5) If the repeal is made by the Minister, the Minister must give a copy 4
of the notice to-- 5
(a) each local government to which a notice about the making of the 6
designation was given; and 7
(b) if the land is owned by an entity other than the State or the local 8
government--the owner. 9
(6) If the repeal is made by the local government and the land is owned 10
by an entity other than the local government, the local government must 11
give a copy of the notice to the owner. 12
(7) The designation ceases to have effect on the day the notice is 13
published in the gazette. 14
(8) If a local government repeals a designation or receives a notice from 15
the Minister advising that the Minister has repealed a designation, the local 16
government must note the repeal on its planning scheme. 17
to acquire designated land under hardship 18
Request
2.6.19.(1) An owner of an interest in designated land may ask the 19
designator to buy the interest. 20
(2) The designator must, within 40 business days after the request is 21
received decide to-- 22
(a) grant the request; or 23
(b) take other action under section 2.6.21; or 24
(c) refuse the request. 25
(3) In making a decision under subsection (2), the designator must 26
consider whether the owner-- 27
(a) must sell the interest without delay for personal reasons, 28
including to avoid loss of income; or 29
(b) has a genuine intent to develop the interest, but development 30
approval has been, or is likely to be, refused because of the 31
s 2.6.20 75 s 2.6.23
Integrated Planning
designation; or 1
(c) has been unable to sell the interest at a fair market value 2
(disregarding the designation). 3
designator grants request 4
If
2.6.20. If the designator decides to grant the request, the designator must, 5
within 5 business days after deciding the request, give the owner a notice 6
stating that the designator proposes to buy the interest. 7
action designator may take 8
Alternative
2.6.21. If the designator decides not to buy the interest, the designator 9
may, instead of taking action under section 2.6.22 and within 5 business 10
days after deciding the request, give the owner a notice stating that the 11
designator proposes to-- 12
(a) exchange the interest for property held by the designator; or 13
(b) repeal the designation or remove the designation from the interest; 14
or 15
(c) investigate the removal of the designation from the interest. 16
designator refuses request 17
If
2.6.22. If the designator decides to refuse the request, the designator 18
must, within 5 business days after deciding the request, give the owner a 19
notice advising that-- 20
(a) the request has been refused; and 21
(b) the owner may appeal against the decision. 22
the designator does not act under the notice 23
If
2.6.23.(1) This section applies if the designator gave a notice under 24
section 2.6.20 or 2.6.21 and, within 25 business days after giving the notice, 25
the designator has not-- 26
(a) signed a written agreement with the owner to buy the interest; or 27
s 2.6.24 76 s 3.1.1
Integrated Planning
(b) signed a written agreement with the owner to exchange the 1
interest; or 2
(c) repealed the designation or removed the designation from the 3
interest. 4
(2) The designator must, within 5 business days after the end of the 5
period mentioned in subsection (1), give the owner a notice of intention to 6
resume the interest under the Acquisition of Land Act 1967, section 7. 7
value of interest is decided 8
How
2.6.24. If an interest in designated land is taken under the Acquisition of 9
Land Act 1967, the effect of the designation must be disregarded in deciding 10
the value of the interest taken. 11
may delegate certain administrative powers about 12
Ministers
designations 13
2.6.25. A Minister may delegate all or part of the Minister's powers 14
under sections 2.6.20 and 2.6.22, schedule 6, sections 1, 4 and 5 and 15
schedule 7, section 2 to the chief executive or a senior executive of any 16
department for which the Minister has responsibility. 17
CHAPTER 3--INTEGRATED DEVELOPMENT 18
ASSESSMENT SYSTEM (IDAS) 19
PART 1--PRELIMINARY 20
hat is IDAS 21
W
3.1.1. "IDAS" is the system detailed in this chapter for integrating State 22
s 3.1.2 77 s 3.1.3
Integrated Planning
and local government assessment and approval processes for 1
development.33 2
under this Act 3
Development
3.1.2.(1) Under this Act, all development is exempt development unless 4
it is assessable development or self-assessable development.34 5
(2) A planning scheme can not change-- 6
(a) assessable development shown in schedule 8, part 1 to exempt 7
development or self-assessable development; or 8
(b) self-assessable development shown in schedule 8, part 2, 9
division 1 to exempt development; or 10
(c) self-assessable development shown in schedule 8, part 2, 11
division 2 to exempt development or assessable development; or 12
(d) exempt development shown in schedule 8, part 3, to assessable or 13
self-assessable development. 14
(3) If a planning scheme purports to make a change mentioned in 15
subsection (2), the planning scheme, to the extent it purports to make the 16
change, is of no effect. 17
and impact assessment for assessable development 18
Code
3.1.3.(1) A regulation, a planning scheme or a temporary local planning 19
instrument may require impact or code assessment, or both impact and 20
code assessment, for assessable development. 21
(2) However-- 22
(a) if a regulation mentioned in subsection (1) requires code 23
assessment for development, a planning scheme or temporary 24
local planning instrument can not require impact assessment 25
instead of code assessment for the aspect of development the 26
33 This chapter sets out a number of ways the operation of IDAS can be adjusted to
meet particular circumstances.
34 "Assessable development", "self-assessable development" and "exempt
development" are defined in schedule 10 (Dictionary).
s 3.1.4 78 s 3.1.5
Integrated Planning
code is about; and 1
(b) to the extent the planning scheme or temporary local planning 2
instrument is inconsistent with a regulation mentioned in 3
subsection (1), the planning scheme or temporary local planning 4
instrument is of no effect. 5
(3) Subsection (2) applies whether a regulation mentioned in 6
subsection (1) was made before or after the commencement of the planning 7
scheme or temporary local planning instrument. 8
(4) A regulation may also identify a code as a code that can not be 9
changed under a local planning instrument. 10
(5) To the extent the local planning instrument purports to change the 11
code the local planning instrument is of no effect. 12
is a development permit necessary 13
When
3.1.4.(1) A development permit is necessary for assessable 14
development.35 15
(2) A development permit is not necessary for self-assessable 16
development or exempt development. 17
(3) However-- 18
(a) self-assessable development must comply with codes applying to 19
the development;36 and 20
(b) exempt development need not comply with codes or planning 21
instruments. 22
under this Act 23
Approvals
3.1.5.(1) A "preliminary approval" approves assessable development 24
(but does not authorise assessable development to occur)-- 25
35 It is an offence to carry out assessable development without a development
permit. See section 4.3.1 (Carrying out assessable development without permit).
36 It is an offence to carry out self-assessable development in contravention of
applicable technical assessment codes. See section 4.3.2 (Self-assessable
development must comply with codes).
s 3.1.6 79 s 3.1.6
Integrated Planning
(a) to the extent stated in the approval; and 1
(b) subject to the conditions in the approval. 2
(2) However, there is no requirement to get a preliminary approval for 3
development.37 4
(3) A "development permit" authorises assessable development to 5
occur-- 6
(a) to the extent stated in the permit; and 7
(b) subject to-- 8
(i) the conditions in the permit; and 9
(ii) any preliminary approval relating to the development the 10
permit authorises, including any conditions in the 11
preliminary approval. 12
approval may override local planning instrument 13
Preliminary
3.1.6.(1) This section applies only to an application for a material change 14
of use requiring impact assessment. 15
(2) In addition to approving assessable development, a preliminary 16
approval may also do either or both of the following-- 17
(a) state that any development that may take place on the land, the 18
subject of the approval, may be either assessable (requiring code 19
or impact assessment), self-assessable or exempt development or 20
any combination of assessable, self-assessable or exempt 21
development; 22
(b) identify any codes applying to development on the land. 23
(3) To the extent that a preliminary approval doing either or both of the 24
things mentioned in subsection (2) is contrary to a local planning 25
instrument, the approval prevails. 26
(4) However, subsection (2) no longer applies to development mentioned 27
in subsection (2)(a) when the first of the following happens-- 28
(a) the development approved by the preliminary approval and 29
37 Preliminary approvals assist in the staging of approvals.
s 3.1.6 80 s 3.1.6
Integrated Planning
authorised by a later development permit is completed; 1
(b) the time limit for completing the development ends. 2
(5) A preliminary approval can not change-- 3
(a) assessable development shown in schedule 8, part 1 to exempt 4
development or self-assessable development; or 5
(b) self-assessable development shown in schedule 8, part 2, 6
division 1 to exempt development; or 7
(c) self-assessable development shown in schedule 8, part 2, 8
division 2 to exempt development or assessable development; or 9
(d) exempt development shown in schedule 8, part 3, to assessable or 10
self-assessable development. 11
(6) If a preliminary approval purports to make a change mentioned in 12
subsection (5), the preliminary approval, to the extent it purports to make 13
the change, is of no effect. 14
manager 15
Assessment
3.1.6.(1) The "assessment manager", for an application, is-- 16
(a) if the development is wholly within a local government's 17
area--the local government, unless a different entity is prescribed 18
under a regulation; or 19
(b) if paragraph (a) does not apply-- 20
(i) the entity prescribed under a regulation;38or 21
(ii) if no entity has been prescribed--the entity decided by the 22
Minister. 23
(2) The assessment manager administers the application. 24
38 Although a private certifier is not an assessment manager, the certifier can
undertake certain functions of an assessment manager (see chapter 5, part 2).
s 3.1.8 81 s 3.1.9
Integrated Planning
agencies 1
Referral
3.1.8. If an application is referred to a referral agency under part 3, the 2
referral agency has, for assessing and deciding the application, the 3
jurisdiction prescribed under a regulation. 4
tages of IDAS 5
S
3.1.9.(1) IDAS involves the following possible stages-- 6
· application stage39 7
· information and referral stage40 8
· notification stage41 9
· decision stage.42 10
(2) Not all stages, or all parts of a stage, apply to all applications.43 11
39 See part 2.
40 See part 3.
41 See part 4.
42 See part 5.
43 An application for development approval for a domestic dwelling requiring code
assessment only against the Standard Building Law, Standard Sewerage Law
and Standard Water Supply Law will normally involve 2 stages of IDAS
only--the application and decision stages. By contrast, an application for
development approval for a factory requiring code assessment and a referral for
workplace health and safety purposes involves 3 stages--the application, referral
and decision stages.
s 3.2.1 82 s 3.2.1
Integrated Planning
ART 2--APPLICATION STAGE 1
P
1--Application process 2
Division
for development approval 3
Applying
3.2.1.(1) Each application must be made to the assessment manager.44 4
(2) Each application must be made in the approved form. 5
(3) The approved form-- 6
(a) must contain a mandatory requirements part including a 7
requirement for-- 8
(i) an accurate description of the land, the subject of the 9
application; and 10
(ii) the written consent of the owner of the land to the making of 11
the application; and 12
(iii) the written consent of all copyright holders to reproduce and 13
sell at cost of reproduction all material forming part of the 14
application for any purpose under this Act; and 15
(b) may contain a supporting information part. 16
(4) Each application must be accompanied by-- 17
(a) if the assessment manager is a local government--the fee set by 18
resolution of the local government; or 19
(b) if the application is to be assessed and decided by a private 20
certifier--the agreed certification fee; or 21
(c) if paragraphs (a) and (b) do not apply--the fee prescribed under a 22
regulation. 23
(5) If an application is a transitional development application, the 24
application must also identify the superseded planning scheme under which 25
assessment is sought or development is proposed. 26
44 A single application may be made for both a preliminary approval and a
development permit.
s 3.2.2 83 s 3.2.3
Integrated Planning
(6) An application complying with subsections (1), (2), (3)(a), (4) and 1
(5) is a "properly made application". 2
(7) The assessment manager may refuse to receive an application that is 3
not a properly made application. 4
(8) If the assessment manager accepts an application that is not a 5
properly made application, the application is taken to be a properly made 6
application. 7
(9) Subsection (8) does not apply to an application unless the application 8
contains the written consent of the owner of any land to which the 9
application applies. 10
material change of use required for certain developments 11
Approved
3.2.2. This section applies if-- 12
(a) development applied for could not be used unless a development 13
permit exists for a material change of use of premises for which 14
the development is proposed; and 15
(b) there is no development permit for the change of use; and 16
(c) approval for the material change of use has not been applied for in 17
the application or a separate application. 18
(2) The application is taken also to be for the change of use. 19
notices generally 20
Acknowledgment
3.2.3.(1) The assessment manager for an application must give the 21
applicant a notice (the "acknowledgment notice") within-- 22
(a) if the application is other than a transitional development 23
application--10 business days after receiving the properly made 24
application (the "acknowledgment period"); or 25
(b) if the application is a transitional development 26
application--30 business days after receiving the properly made 27
application (also the "acknowledgment period"). 28
(2) The acknowledgment notice must state the following-- 29
(a) which of the following aspects of development the application 30
s 3.2.4 84 s 3.2.4
Integrated Planning
seeks a development approval for-- 1
(i) carrying out building work; 2
(ii) carrying out plumbing or drainage work; 3
(iii) carrying out operational work; 4
(iv) reconfiguring a lot; 5
(v) making a material change of use of premises; 6
(b) the names of all referral agencies for the application; 7
(c) whether an aspect of the development applied for requires code 8
assessment, and if so, the names of all codes that appear to the 9
assessment manager to apply for the development; 10
(d) whether an aspect of the development applied for requires impact 11
assessment, and if so, the public notification requirements; 12
(e) if the assessment manager does not intend to make an 13
information request--that the assessment manager does not 14
intend to make an information request; 15
(f) whether the application requires referral coordination. 16
when immediate decision notice may be given 17
Circumstances
3.2.4.(1) This section applies if for an application-- 18
(a) the development only requires code assessment; and 19
(b) there are no referral agencies, or all referral agencies have stated in 20
writing that they do not require the application to be referred to 21
them under the information and referral stage. 22
(2) The assessment manager may, before the end of the acknowledgment 23
period-- 24
(a) assess the application against the matters in part 5, divisions 1 to 25
3 applying to code assessment; and 26
(b) give the applicant a decision notice instead of an acknowledgment 27
notice. 28
s 3.2.5 85 s 3.2.6
Integrated Planning
notices for applications under superseded planning 1
Acknowledgment
schemes 2
3.2.5.(1) If an application is a transitional development application in 3
which the applicant advises that the applicant proposes to carry out 4
development under a superseded planning scheme, the acknowledgment 5
notice must state-- 6
(a) that the applicant may proceed as proposed as if the development 7
were to be carried out under the superseded planning scheme; or 8
(b) that a development permit is required for the application. 9
(2) If a notice is given under subsection (1)(a), section 3.2.3(2) does not 10
apply. 11
(3) If an application is a transitional development application in which the 12
applicant asks the assessment manager to assess the application under the 13
superseded planning scheme, the acknowledgment notice must state-- 14
(a) that the application will be assessed under the superseded 15
planning scheme or; 16
(b) that the application will be assessed under the existing planning 17
scheme. 18
(4) If the applicant is given a notice under subsection (1)(a), the applicant 19
may start the development for which the application was made as if the 20
development were started under the superseded planning scheme. 21
(5) However, the applicant must start the development under 22
subsection (4) within-- 23
(a) if the development is a material change in use--4 years after the 24
applicant is given the notice under subsection (1)(a); or 25
(b) if paragraph (a) does not apply--2 years after the applicant is 26
given the notice under subsection (1)(a). 27
notices if there are referral agencies or referral 28
Acknowledgment
coordination is required 29
3.2.6.(1) If there are referral agencies for an application, the 30
acknowledgment notice must also state-- 31
(a) the address of each referral agency; and 32
s 3.2.7 86 s 3.2.8
Integrated Planning
(b) for each referral agency--whether the referral agency is a 1
concurrence agency or an advice agency. 2
(2) If an application requires referral coordination, the acknowledgment 3
notice must state that the applicant is required to give the chief executive-- 4
(a) a copy of the application; and 5
(b) a copy of the acknowledgment notice; and 6
(c) the fee prescribed under a regulation.45 7
Division 2--General matters about applications 8
third party advice or comment 9
Additional
3.2.7.(1) The assessment manager or a concurrence agency for an 10
application may ask any person for advice or comment about the application 11
at any stage. 12
(2) However asking for and receiving advice or comment must not 13
extend any stage. 14
(3) There is no particular way advice or comment may be asked for and 15
received and the request may be by publicly notifying the application. 16
(4) To remove any doubt, it is declared that public notification under 17
subsection (3) is not notification under part 4, division 2. 18
scrutiny of applications 19
Public
3.2.8.(1) The assessment manager must keep each application and any 20
supporting material available for inspection and purchase from the time the 21
assessment manager gives the acknowledgment notice to the applicant 22
until-- 23
(a) the application is withdrawn or lapses; or 24
(b) if paragraph (a) does not apply--the end of the last period during 25
which an appeal may be made against a decision on the 26
application. 27
45 See section 3.3.3 (Applicant gives material to referral agency).
s 3.2.9 87 s 3.2.9
Integrated Planning
(2) Subsection (1) does not apply to supporting material to the extent the 1
assessment manager is satisfied the material contains-- 2
(a) sensitive security information; or 3
(b) other information not reasonably necessary for a third party to 4
access for the purpose of evaluating or considering the effects of 5
the development. 6
(3) In this section-- 7
"supporting material" means-- 8
(a) the acknowledgment notice; and 9
(b) any material about the application that is in the assessment 10
manager's possession when a request to inspect and purchase is 11
made and has been given to the assessment manager at any time 12
before a decision is made on the application. 13
an application 14
Changing
3.2.9.(1) Before an application is decided, the applicant may change the 15
application by giving the assessment manager written notice of the change. 16
(2) When the assessment manager receives notice of the change, the 17
assessment manager must advise any referral agencies for the original 18
application and the changed application of the receipt of the notice and its 19
effect under subsection (3). 20
(3) The IDAS process stops on the day the notice of the change is 21
received by the assessment manager and starts again-- 22
(a) from the start of the acknowledgment period, if 1 or more of the 23
following apply-- 24
(i) the acknowledgment notice for the original application has 25
not been given; or 26
(ii) there are referral agencies for the original application, the 27
changed application or both the original application and the 28
changed application; or 29
(iii) the original application involved only code assessment but 30
the changed application involves impact assessment; or 31
s 3.2.10 88 s 3.2.12
Integrated Planning
(b) if paragraph (a)(i), (ii) or (iii) does not apply--from the start of 1
the information request period. 2
(4) However, the IDAS process does not stop if-- 3
(a) the change merely corrects a mistake about-- 4
(i) the name or address of the applicant or owner; or 5
(ii) the address or other property details of the land to which the 6
application applies; and 7
(b) the assessment manager is satisfied the change would not 8
adversely affect the ability of a person to assess the changed 9
application. 10
(5) To remove any doubt, it is declared that this section does not apply if 11
an applicant changes an application in response to an information request. 12
stage does not apply to some changed applications 13
Notification
3.2.10. The notification stage does not apply to a changed application if-- 14
(a) the original application involved impact assessment; and 15
(b) the notification stage for the original application had been 16
completed when the IDAS process stopped; and 17
(c) the assessment manager is satisfied the changed application, if the 18
notification stage were to apply, would not be likely to attract a 19
submission objecting to the development. 20
an application 21
Withdrawing
3.2.11.(1) An application may be withdrawn by the applicant, by written 22
notice given to the assessment manager, at any time before the application is 23
decided. 24
(2) If the applicant withdraws the application, the assessment manager 25
must give all referral agencies written notice of the withdrawal. 26
lapse in certain circumstances 27
Applications
3.2.12.(1) An application lapses if-- 28
s 3.2.13 89 s 3.2.14
Integrated Planning
(a) the next action to be taken for the application under the IDAS 1
process is to be taken by the applicant; and 2
(b) the period mentioned in subsection (2) has elapsed since the 3
applicant became entitled to take the action; and 4
(c) the applicant has not taken the action. 5
(2) For subsection (1), the period mentioned is-- 6
(a) if the next action is complying with section 3.3.346--3 months; or 7
(b) if the next action is complying with section 3.3.847--12 months; 8
or 9
(c) if the next action is complying with section 3.4.448--10 business 10
days. 11
(3) The period mentioned in subsection (2)(b) may be extended if the 12
entity making the information request agrees with the applicant to extend the 13
period. 14
fees 15
Refunding
3.2.13. An assessment manager or a concurrence agency may, but need 16
not, refund all or part of the fee paid to it to assess an application. 17
provider notice for reconfiguring a lot 18
Service
3.2.14.(1) If an application is for works associated with reconfiguring a 19
lot, the applicant must publish a notice, in the approved form at least once in 20
a newspaper circulating generally in the local area, advising service 21
providers of the proposed works. 22
(2) The assessment manager must not decide the application until the 23
assessment manager receives a copy of the notice from the applicant. 24
46 Section 3.3.3 (Applicant gives material to referral agency)
47 Section 3.3.8 (Applicant responds to any information request)
48 Section 3.4.4 (Public notice of applications to be given)
s 3.2.15 90 s 3.3.2
Integrated Planning
Division 3--End of application stage 1
does application stage end 2
When
3.2.15. The application stage for a properly made application ends-- 3
(a) if an acknowledgment notice is given within 10 business days 4
after the application is received by the assessment manager--the 5
day the acknowledgment notice is given; or 6
(b) if the assessment manager gives the applicant a development 7
approval instead of an acknowledgment notice--the day the 8
decision notice is given; or 9
(c) if paragraphs (a) and (b) do not apply--10 business days after the 10
application is received by the assessment manager. 11
PART 3--INFORMATION AND REFERRAL STAGE 12
1--Preliminary 13
Division
of information and referral stage 14
Purpose
3.3.1. The information and referral stage for an application-- 15
(a) gives the assessment manager, and any concurrence agencies, the 16
opportunity to ask the applicant for further information needed to 17
assess the application; and 18
(b) gives concurrence agencies the opportunity to exercise their 19
concurrence powers; and 20
(c) gives the assessment manager the opportunity to receive advice 21
about the application from referral agencies. 22
agency responses before application is made 23
Referral
3.3.2.(1) Nothing in this Act stops a referral agency from giving a 24
referral agency response on a matter within its jurisdiction about a 25
s 3.3.3 91 s 3.3.3
Integrated Planning
development before an application for the development is made to the 1
assessment manager. 2
(2) However-- 3
(a) a referral agency is not obliged to give a referral agency response 4
mentioned in subsection (1) before the application is made; and 5
(b) if the development is development requiring referral coordination, 6
a statement in the referral agency response that the agency does 7
not require a referral under section 3.3.3(3)(b)(i) is of no effect. 8
2--Information requests 9
Division
gives material to referral agency 10
Applicant
3.3.3.(1) The applicant must give each referral agency mentioned in the 11
acknowledgment notice-- 12
(a) a copy of the application (unless the referral agency already has a 13
copy of the application); and 14
(b) a copy of the acknowledgment notice (unless the referral agency 15
was the entity that gave the notice); and 16
(c) if the referral agency is a concurrence agency--the agency's 17
application fee prescribed under a regulation or, if the functions of 18
the concurrence agency in relation to the application have been 19
devolved or delegated to a local government, the fee that is, by 20
resolution, adopted by the local government. 21
(2) The things mentioned in subsection (1)(a), (b) and (c) must be given 22
to all referral agencies at about the same time. 23
(3) However, the applicant need not give a referral agency the things 24
mentioned in subsection (1)(a), (b) and (c), if-- 25
(a) the applicant gave the assessment manager a copy of the referral 26
agency's response mentioned in section 3.3.2(1) with the 27
application; and 28
(b) the referral agency's response states that-- 29
(i) the agency does not require a referral under this section; or 30
s 3.3.4 92 s 3.3.5
Integrated Planning
(ii) the agency does not require a referral under this section if 1
any conditions (including a time limit within which the 2
application must be made) stated in the response are 3
satisfied; and 4
(c) the statement is not stopped from having effect under 5
section 3.3.2(2)(b), and any conditions mentioned in 6
paragraph (b)(ii) are satisfied. 7
(4) The assessment manager may, on behalf of the applicant and with the 8
applicant's agreement, comply with subsection (1) for a fee, not more than 9
the assessment manager's reasonable costs of complying with 10
subsection (1). 11
advises assessment manager 12
Applicant
3.3.4. After complying with section 3.3.3, the applicant must give the 13
assessment manager written notice of-- 14
(a) the day the applicant gave each referral agency the things 15
mentioned in section 3.3.3.(1)(a), (b) and (c); and 16
(b) if the application requires referral coordination--the day the 17
applicant complied with section 3.3.5(2). 18
coordination 19
Referral
3.3.5.(1) If the application involves 3 or more concurrence agencies, the 20
information requests require coordination ("referral coordination") by the 21
chief executive. 22
(2) If the application requires referral coordination, the applicant must 23
give the chief executive-- 24
(a) a copy of the application; and 25
(b) a copy of the acknowledgment notice; and 26
(c) the fee prescribed under a regulation; and 27
(d) written notice of the day the applicant complied with 28
section 3.3.3(1) for each referral agency. 29
s 3.3.6 93 s 3.3.7
Integrated Planning
requests to applicant (generally) 1
Information
3.3.6.(1) This section does not apply if the application requires referral 2
coordination. 3
(2) The assessment manager and each concurrence agency may ask the 4
applicant, by written request (an "information request"), to give further 5
information needed to assess the application. 6
(3) A concurrence agency may only ask for information about a matter 7
that is within its jurisdiction. 8
(4) A request must be made-- 9
(a) if made by the assessment manager--within 10 business days 10
after giving the acknowledgment notice (the "information 11
request period"); and 12
(b) if made by a concurrence agency--within 10 business days after 13
the agency's referral day (also the "information request 14
period"). 15
(5) The assessment manager or a concurrence agency may, by written 16
notice given to the applicant and without the applicant's agreement, extend 17
the information request period by not more than 10 business days. 18
(6) Only 1 notice may be given under subsection (5) and it must be given 19
before the information request period ends. 20
(7) The information request period may be further extended if the 21
applicant, at any time, gives written agreement to the extension. 22
(8) If the information request period is extended for a concurrence 23
agency, the concurrence agency must advise the assessment manager of the 24
extension. 25
requests to applicant (referral coordination) 26
Information
3.3.7.(1) This section applies if the application requires referral 27
coordination. 28
(2) The chief executive may, by written request (also an "information 29
request") and after consulting the assessment manager and each referral 30
agency, ask the applicant to give further information needed to assess the 31
application. 32
s 3.3.8 94 s 3.3.8
Integrated Planning
(3) The information request must be made within 20 business days after 1
the chief executive receives the notice mentioned in section 3.3.5(2)(d). 2
(4) The chief executive may, by written notice given to the applicant and 3
without the applicant's agreement, extend the information request period by 4
not more than 10 business days. 5
(5) Only 1 notice may be given under subsection (4) and it must be given 6
before the information request period ends. 7
(6) The information request period may be further extended if the 8
applicant, at any time, gives written agreement to the extension. 9
(7) If the chief executive extends the information request period, the chief 10
executive must advise the assessment manager and each concurrence 11
agency of the extension. 12
(8) If the chief executive does not give the applicant an information 13
request under this section, the chief executive must advise the applicant, the 14
assessment manager and each referral agency that an information request 15
will not be made under this section. 16
responds to any information request 17
Applicant
3.3.8.(1) If the applicant receives an information request from the 18
assessment manager or a concurrence agency (the "requesting 19
authority"), the applicant must respond by giving the requesting 20
authority-- 21
(a) all of the information requested; or 22
(b) part of the information requested together with a notice asking the 23
requesting authority to proceed with the assessment of the 24
application; or 25
(c) a notice-- 26
(i) stating that the applicant does not intend to supply any of the 27
information requested; and 28
(ii) asking the requesting authority to proceed with the 29
assessment of the application. 30
(2) If the requesting authority is a concurrence agency, the applicant must 31
also give a copy of the applicant's response to the assessment manager. 32
s 3.3.9 95 s 3.3.10
Integrated Planning
(3) If the applicant receives an information request from the chief 1
executive carrying out referral coordination, the applicant must give the 2
assessment manager and each referral agency (but not the chief executive) a 3
written response to the information request supplying-- 4
(a) all of the information requested; or 5
(b) part of the information requested together with a notice asking the 6
assessment manager and each referral agency to proceed with the 7
assessment of the application; or 8
(c) a notice-- 9
(i) stating that the applicant does not intend to supply any of the 10
information requested; and 11
(ii) asking the assessment manager and each referral agency to 12
proceed with the assessment of the application. 13
agency advises assessment manager of response 14
Referral
3.3.9. Each referral agency must, after receiving the applicant's response, 15
advise the assessment manager of the day of the applicant's response under 16
section 3.3.8. 17
3--Referral assistance 18
Division
referral assistance may be requested 19
When
3.3.10.(1) The applicant may make a written request to the chief 20
executive for assistance ("referral assistance") for an information request 21
to which the applicant has not responded. 22
(2) The chief executive may give referral assistance if the chief executive 23
is satisfied that-- 24
(a) the information request, being a concurrence agency's 25
information request or an information request under referral 26
coordination, is unreasonable or is inappropriate in the context of 27
the application; or 28
(b) the request is in conflict with another information request. 29
s 3.3.11 96 s 3.3.14
Integrated Planning
executive acknowledges receipt of referral assistance request 1
Chief
3.3.11.(1) After receiving a referral assistance request, the chief executive 2
must give a notice acknowledging receipt of the request to-- 3
(a) the applicant; and 4
(b) if the request involves the assessment manager--the assessment 5
manager; and 6
(c) if the request involves a concurrence agency--the concurrence 7
agency. 8
(2) The notice must state the day on which the request was received. 9
executive may change information request 10
Chief
3.3.12.(1) If the chief executive decides to give referral assistance, the 11
chief executive may change the information request. 12
(2) However, the chief executive may change an information request 13
made by a local government only if the local government agrees to the 14
change. 15
(3) The chief executive must give a copy of the changed information 16
request to the applicant and any entity whose information request has been 17
changed. 18
may withdraw request for referral assistance 19
Applicant
3.3.13. The applicant may, by written notice to the chief executive at any 20
time, withdraw the request for referral assistance. 21
Division 4--Referral agency assessment 22
agency assessment period 23
Referral
3.3.14.(1) The period a referral agency has to assess the application 24
(the "referral agency's assessment period") is-- 25
(a) the number of business days, starting on the day immediately 26
after the agency's referral day and being less than 30 business 27
s 3.3.14 97 s 3.3.14
Integrated Planning
days, prescribed under a regulation; or 1
(b) if there is no regulation under paragraph (a)--30 business days, 2
starting on the day after the agency's referral day. 3
(2) A referral agency's assessment period includes the information 4
request period. 5
(3) A concurrence agency may, by written notice given to the applicant 6
and without the applicant's agreement, extend its referral agency's 7
assessment period by not more than-- 8
(a) if a regulation under subsection (1)(a) has prescribed the referral 9
agency's assessment period--the number of business days, being 10
less than 20 business days, prescribed under a regulation; or 11
(b) if paragraph (a) does not apply--20 business days. 12
(4) A notice under subsection (3) may be given only before the referral 13
agency's assessment period ends. 14
(5) The referral agency's assessment period may be further extended, 15
including for the purpose of providing further information to the referral 16
agency, if the applicant, at any time, gives written agreement to the 17
extension. 18
(6) If the referral agency's assessment period is extended for a 19
concurrence agency, the agency must advise the assessment manager of the 20
extension. 21
(7) If referral coordination is not required, the referral agency's 22
assessment period does not include-- 23
(a) any extension for giving an information request; or 24
(b) any period in which the agency is waiting for a response to an 25
information request. 26
(8) If referral coordination is required, the referral agency's assessment 27
period does not include-- 28
(a) if the chief executive gave an information request--the time 29
between the agency's referral day and the day the applicant 30
responds under section 3.3.8(3); or 31
(b) if the chief executive does not give an information request--the 32
time between the agency's referral day and the day the chief 33
s 3.3.15 98 s 3.3.16
Integrated Planning
executive gives notice that an information request will not be 1
made. 2
agency assesses application 3
Referral
3.3.15.(1) Each referral agency must, within the limits of its jurisdiction, 4
assess the application-- 5
(a) against the laws that are administered by, and the policies that are 6
reasonably identifiable as policies applied by, the referral agency; 7
and 8
(b) having regard to-- 9
(i) any planning scheme in force, when the application was 10
made, for the planning scheme area; and 11
(ii) any State planning policies not identified in the planning 12
scheme as being appropriately reflected in the planning 13
scheme;49 and 14
(iii) if the land to which the application relates is designated 15
land--its designation. 16
(2) Despite subsection (1) a referral agency-- 17
(a) may give the weight it considers appropriate to any relevant laws, 18
planning schemes and policies coming into effect after the 19
application was made, but before the agency's referral day; but 20
(b) must disregard any planning scheme for the planning scheme 21
area if the referral agency's jurisdiction is limited to considering 22
the effect of the Standard Building Law, Standard Sewerage Law 23
and Standard Water Supply Law on building, plumbing or 24
drainage work. 25
agency's response 26
Referral
3.3.16.(1) If a concurrence agency wants the assessment manager to 27
include concurrence agency conditions in the development approval, or to 28
49 See schedule 1, section 18(6) (Reconsidering proposed planning scheme for
adverse effects on State interests).
s 3.3.17 99 s 3.3.18
Integrated Planning
refuse the application, the concurrence agency must give its response to the 1
assessment manager, and give a copy of its response to the applicant, 2
during the referral agency's assessment period. 3
(2) If an advice agency wants the assessment manager to consider its 4
advice or recommendations when assessing the application, the advice 5
agency must give its response to the assessment manager, and give a copy 6
of its response to the applicant, during the referral agency's assessment 7
period. 8
(3) If a referral agency does not give a response under subsection (1), the 9
assessment manager may decide the application as if the agency had 10
assessed the application and had no concurrence agency requirements. 11
a concurrence agency may change its response 12
How
3.3.17.(1) Despite section 3.3.16(1), a concurrence agency may, after the 13
end of the assessment period but before the application is decided, give a 14
response or amend its response. 15
(2) Subsection (1) applies only if the applicant has given written 16
agreement to the content of the response or the amended response. 17
(3) If a concurrence agency gives or amends a response under 18
subsection (1), the concurrence agency must give-- 19
(a) to the assessment manager--the response or the amended 20
response and a copy of the agreement under subsection (2); and 21
(b) to the applicant--a copy of the response or the amended 22
response. 23
agency's response powers 24
Concurrence
3.3.18.(1) A concurrence agency's response may, within the limits of its 25
jurisdiction, tell the assessment manager 1 or more of the following-- 26
(a) the conditions that must attach to any development approval; 27
(b) that any approval must be for part only of the development; 28
(c) that any approval must be a preliminary approval only. 29
(2) Alternatively, a concurrence agency's response must, within the 30
s 3.3.19 100 s 3.3.19
Integrated Planning
limits of its jurisdiction, tell the assessment manager-- 1
(a) it has no concurrence agency requirements; or 2
(b) to refuse the application. 3
(3) A concurrence agency's response may also offer advice to the 4
assessment manager about the application. 5
(4) A concurrence agency may only tell the assessment manager to 6
refuse the application if the concurrence agency is satisfied that-- 7
(a) the development does not comply with the relevant laws and 8
policies administered by the concurrence agency; and 9
(b) compliance with the laws and policies cannot be achieved by 10
imposing conditions. 11
(5) However, to the extent a concurrence agency's jurisdiction is about 12
assessing the effects of development on designated land-- 13
(a) subsection (4) does not apply; and 14
(b) the concurrence agency may only tell the assessment manager to 15
refuse the application if the concurrence agency is satisfied the 16
development would compromise the intent of the designation and 17
the intent of the designation could not be achieved by imposing 18
conditions on the development approval. 19
(6) Subsection (2)(b) does not apply to the extent a concurrence agency's 20
jurisdiction is about the assessment of the cost impacts of supplying 21
infrastructure to development. 22
(7) If a concurrence agency's response requires an application to be 23
refused or requires a development approval to include conditions, the 24
response must include reasons for the refusal or inclusion. 25
agency's response powers 26
Advice
3.3.19.(1) An advice agency's response may, within the limits of its 27
jurisdiction-- 28
(a) recommend the conditions that should attach to approval of the 29
application; or 30
(b) recommend the application be refused. 31
s 3.3.20 101 s 3.3.20
Integrated Planning
(2) An advice agency's response may also offer advice to the assessment 1
manager about the application or state that it has no advice to offer. 2
5--End of information and referral stage 3
Division
does information and referral stage end 4
When
3.3.20.(1) If there are no referral agencies for the application, the 5
information and referral stage ends when-- 6
(a) the assessment manager states in the acknowledgment notice that 7
it does not intend to make an information request; or 8
(b) if a request has been made--the applicant has finished responding 9
to the request; or 10
(c) if neither paragraph (a) nor paragraph (b) applies--the 11
assessment manager's information request period has ended. 12
(2) If there are referral agencies for the application, the information and 13
referral stage ends when-- 14
(a) the assessment manager has received the notice from the 15
applicant under 3.3.4;50 and 16
(b) an action under subsection (1)(a) or (b) has happened or the 17
assessment manager's information request period has ended; and 18
(c) all referral agency responses have been received by the 19
assessment manager or, if all the responses have not been 20
received, all referral agency assessment periods have ended. 21
50 Section 3.3.4 (Applicant advises assessment manager)
s 3.4.1 102 s 3.4.3
Integrated Planning
ART 4--NOTIFICATION STAGE 1
P
1--Preliminary 2
Division
of notification stage 3
Purpose
3.4.1. The notification stage gives a person-- 4
(a) the opportunity to make submissions, including objections, that 5
must be taken into account before an application is decided; and 6
(b) the opportunity to secure the right to appeal to the court about the 7
assessment manager's decision. 8
does notification stage apply 9
When
3.4.2.(1) The notification stage applies only if an application requires 10
impact assessment. 11
(2) If the application requires impact assessment, the notification stage 12
still applies even if a concurrence agency advises the assessment manager it 13
requires the application to be refused. 14
can notification stage start 15
When
3.4.3.(1) If there are no concurrence agencies and the assessment 16
manager has stated in the acknowledgment notice that the assessment 17
manager does not intend to make an information request, the applicant may 18
start the notification stage as soon as the acknowledgment notice is given. 19
(2) If no information requests have been made during the last 20
information request period, the applicant may start the notification period as 21
soon as the last information request period ends. 22
(3) If an information request has been made during the information 23
request period, the applicant may start the notification period as soon as the 24
applicant gives-- 25
(a) all information request responses to all information requests 26
made; and 27
(b) copies of the responses to the assessment manager. 28
s 3.4.4 103 s 3.4.4
Integrated Planning
Division 2--Public notification 1
notice of applications to be given 2
Public
3.4.4.(1) The applicant (or with the applicant's written agreement, the 3
assessment manager) must-- 4
(a) publish a notice at least once in a newspaper circulating generally 5
in the local government's area; and 6
(b) place a notice on the land in the way prescribed under a 7
regulation; and 8
(c) give a notice to the owners of all land adjoining the land. 9
(2) The notices must be in the approved form. 10
(3) If the assessment manager carries out notification on behalf of the 11
applicant, the assessment manager may require the applicant to pay a fee, of 12
not more than the assessment manager's reasonable costs for carrying out 13
the notification. 14
(4) In this section-- 15
"owner", for land adjoining the land the subject of the application, means-- 16
(a) if the adjoining land is subject to the Integrated Resort 17
Development Act 1987 or the Sanctuary Cove Resort Act 18
1985--the primary thoroughfare body corporate; or 19
(b) if the adjoining land is subject to the Mixed Use Development Act 20
1987--the community body corporate; or 21
(c) subject to paragraphs (a) and (b), if the adjoining land is subject to 22
the Building Units and Group Titles Act 1980--the body 23
corporate; or 24
(d) if the adjoining land is, under the Body Corporate and 25
Community Management Act 1997 scheme land for a community 26
titles scheme-- 27
(i) the body corporate for the scheme; or 28
(ii) if the adjoining land is scheme land for more than 1 29
community titles scheme--the body corporate for the 30
community titles scheme that is a principal scheme; or 31
s 3.4.5 104 s 3.4.6
Integrated Planning
(e) if there is a time sharing scheme on the adjoining land and the 1
name and address of a person has been notified under the Local 2
Government Act 1993, section 71551--the person; or 3
(f) if the adjoining land is land being bought from the State for an 4
estate in fee simple under the Land Act 1994--the buyer; or 5
(g) if the adjoining land is land granted in trust or reserved and set 6
apart and placed under the control of trustees under the Land Act 7
1994--the trustees of the land; or 8
(h) if paragraphs (a) to (g) do not apply--the person for the time 9
being entitled to receive the rent for the land or would be entitled 10
to receive the rent for it if it were let to a tenant at a rent. 11
period for applications 12
Notification
3.4.5. The "notification period" for the application-- 13
(a) must be not less than-- 14
(i) if there is no referral coordination for the 15
application--15 business days starting on the day after the 16
last action under section 3.4.4(1) is carried out; or 17
(ii) if there is referral coordination for the 18
application--20 business days starting on the day after the 19
last action under section 3.4.4(1) is carried out; and 20
(b) must not include any business days between 20 December and 21
5 January (in the following year). 22
for certain notices 23
Requirements
3.4.6.(1) The notice placed on the land must remain on the land for all of 24
the notification period. 25
(2) Each notice given to the owner of adjoining land must be given at 26
about the same time as the notice is published in the newspaper and placed 27
on the land. 28
51 Local Government Act 1993, section 715 (Notice of time share scheme to local
government)
s 3.4.7 105 s 3.4.9
Integrated Planning
(3) All actions mentioned in subsection (2) must be completed within 1
5 business days after the first of the actions is carried out. 2
(4) A regulation may prescribe different notification requirements for an 3
application for development on land located-- 4
(a) outside any local government area; or 5
(b) within a local government area but in a location where compliance 6
with section 3.4.4(1) would be unduly onerous or would not give 7
effective public notice. 8
of compliance to be given to assessment manager 9
Notice
3.4.7. If the applicant carries out notification, the applicant must, after the 10
notification period has ended, give the assessment manager written notice 11
that the applicant has complied with the requirements of this division.52 12
when applications may be assessed and decided 13
Circumstances
without certain requirements 14
3.4.8. Despite section 3.4.7, the assessment manager may assess and 15
decide an application even if some of the requirements of this division have 16
not been complied with, if the assessment manager is satisfied that any 17
noncompliance has not-- 18
(a) adversely affected the awareness of the public of the existence and 19
nature of the application; or 20
(b) restricted the opportunity of the public to make properly made 21
submissions. 22
aking submissions 23
M
3.4.9.(1) During the notification period, any person other than a 24
concurrence agency may make a submission to the assessment manager 25
about the application. 26
(2) The assessment manager must accept a submission if the submission 27
52 It is an offence to give the assessment manager a notice under this section that
is false or misleading (see section 4.3.7).
s 3.4.10 106 s 3.5.1
Integrated Planning
is a properly made submission. 1
(3) However, the assessment manager may accept a submission even if 2
the submission is not a properly made submission. 3
(4) If the assessment manager has accepted a submission, the person 4
who made the submission may-- 5
(a) during the notification period, amend the submission; or 6
(b) at any time before a decision about the application is made, 7
withdraw the submission. 8
Division 3--End of notification stage 9
does notification stage end 10
When
3.4.10. The notification stage ends-- 11
(a) if notification is carried out by the applicant--when the 12
assessment manager receives written notice under section 3.4.7; 13
or 14
(b) if notification is carried out by the assessment manager on behalf 15
of the applicant--when the notification period ends. 16
PART 5--DECISION STAGE 17
1--Preliminary 18
Division
does decision stage start 19
When
3.5.1.(1) The decision stage for an application (other than an application 20
assessed under section 3.2.4) 53 starts the day after all other stages applying 21
to the application have ended. 22
53 Section 3.2.4 (Circumstances when immediate decision notice may be given)
s 3.5.2 107 s 3.5.4
Integrated Planning
(2) However, the assessment manager may start assessing the 1
application before the start of the decision stage. 2
necessary even if concurrence agency refuses application 3
Assessment
3.5.2. This part applies even if a concurrence agency advises the 4
assessment manager the concurrence agency requires the application to be 5
refused. 6
2--Assessment process 7
Division
in div 2 to codes, planning instruments, laws or policies 8
References
3.5.3. In this division, a reference to a code, planning instrument, law or 9
policy is a reference to a code, planning instrument, law or policy in effect 10
when the application was made. 11
assessment 12
Code
3.5.4.(1) This section applies to any part of the application requiring code 13
assessment. 14
(2) The assessment manager must assess the part of the application only 15
against-- 16
(a) the common material; and 17
(b) applicable codes (other than codes, or parts of codes, a 18
concurrence agency is required to assess the application against). 19
(3) If the assessment manager is not a local government, the laws that are 20
administered by, and the policies that are reasonably identifiable as policies 21
applied by, the assessment manager and that are relevant to the application, 22
are taken to be applicable codes. 23
(4) If the application is a transitional development application and the 24
applicant has been given a notice under section 3.2.5(1)(a), the assessment 25
manager must assess and decide the application as if-- 26
(a) the application were an application to which the superseded 27
s 3.5.5 108 s 3.5.5
Integrated Planning
planning scheme applied; and 1
(b) the current planning scheme was not in force. 2
assessment 3
Impact
3.5.5.(1) This section applies to any part of the application requiring 4
impact assessment. 5
(2) If the application is for development in a planning scheme area, the 6
assessment manager must carry out the impact assessment having regard to 7
the following-- 8
(a) the common material; 9
(b) the planning scheme and any other relevant local planning 10
instruments; 11
(c) any State planning policies not identified in the planning scheme 12
as being appropriately reflected in the planning scheme;54 13
(d) any development approval for, and any lawful use of, premises 14
the subject of the application or adjacent premises; 15
(e) if the assessment manager is not a local government--the laws 16
that are administered by, and the policies that are reasonably 17
identifiable as policies applied by, the assessment manager and 18
that are relevant to the application; 19
(f) the matters prescribed under a regulation (to the extent they apply 20
to a particular proposal). 21
(3) If the application is for development outside a planning scheme area, 22
the assessment manager must carry out the impact assessment having 23
regard to the following-- 24
(a) the common material; 25
(b) if the development could materially affect a planning scheme 26
area--the planning scheme and any other relevant local planning 27
instruments; 28
54 See schedule 1, section 18(6) (Reconsidering proposed planning scheme for
adverse effects on State interests).
s 3.5.6 109 s 3.5.7
Integrated Planning
(c) any relevant State planning policies; 1
(d) any development approval for, and any lawful use of, premises 2
the subject of the application or adjacent premises; 3
(e) if the assessment manager is not a local government--the laws 4
and policies the assessment manager has responsibility for 5
administering; 6
(f) the matters prescribed under a regulation (to the extent they apply 7
to a particular proposal). 8
(4) If the application is a transitional development application and the 9
applicant has been given a notice under section 3.2.5(1)(a), 10
subsection (2)(b) does not apply and the assessment manager must assess 11
and decide the application as if-- 12
(a) the application were an application to which the superseded 13
planning scheme applied; and 14
(b) the current planning scheme was not in force. 15
manager may give weight to later codes, planning 16
Assessment
instruments, laws and policies 17
3.5.6.(1) This section does not apply if the application is a transitional 18
development application. 19
(2) In assessing the application, the assessment manager may give the 20
weight it is satisfied is appropriate to a code, planning instrument, law or 21
policy that came into effect after the application was made, but-- 22
(a) before the day the decision stage for the application started; or 23
(b) if the decision stage is stopped--before the day the decision stage 24
is restarted. 25
Division 3--Decision 26
making period (generally) 27
Decision
3.5.7.(1) The assessment manager must decide the application within 28
20 business days after the day the decision stage starts (the "decision 29
s 3.5.8 110 s 3.5.8
Integrated Planning
making period"). 1
(2) The assessment manager may, by written notice given to the 2
applicant and without the applicant's agreement, extend the decision making 3
period by not more than 20 business days. 4
(3) Only 1 notice may be given under subsection (2) and it must be given 5
before the decision making period ends. 6
(4) However, the decision making period may be further extended, 7
including for the purpose of providing further information to the 8
assessment manager, if the applicant, at any time, gives written agreement 9
to the extension. 10
(5) If there is a concurrence agency for the application, the decision must 11
not be made before 10 business days after the day the information and 12
referral stage ends, unless the applicant gives the assessment manager 13
written notice that it does not intend to take action under section 3.5.9 or 14
3.5.10. 15
making period (changed circumstances) 16
Decision
3.5.8. Despite section 3.5.7, the decision making period starts again from 17
its beginning-- 18
(a) if the applicant agrees to a concurrence agency giving the 19
assessment manager a concurrence agency response or an 20
amended concurrence agency response 55 after the end of the 21
referral agency's assessment period--the day after the response 22
or amended response is received by the assessment manager; or 23
(b) if the decision making period is stopped under section 3.5.9 or 24
3.5.10--the day after the assessment manager receives further 25
written notice withdrawing the notice stopping the decision 26
making period. 27
55 Under section 3.3.17, a concurrence agency may, with the agreement of the
applicant, amend its response.
s 3.5.9 111 s 3.5.10
Integrated Planning
may stop decision making period to make representations 1
Applicant
3.5.9.(1) If the applicant wishes to make representations to a referral 2
agency about the agency's response, the applicant may, by written notice 3
given to the assessment manager, for not more than 3 months, stop the 4
decision making period at any time before the decision is made. 5
(2) If a notice is given, the decision making period stops the day the 6
assessment manager receives the notice. 7
(3) The applicant may withdraw the notice at any time. 8
may stop decision making period to request chief 9
Applicant
executive's assistance 10
3.5.10.(1) The applicant may, at any time before the application is 11
decided-- 12
(a) by written notice (the "request") given to the chief executive, ask 13
the chief executive to resolve conflict between 2 or more 14
concurrence agency responses containing conditions the applicant 15
is satisfied are inconsistent; and 16
(b) by written notice given to the assessment manager, for not more 17
than 3 months, stop the decision making period. 18
(2) The request must identify the conditions in the concurrence agency 19
responses the applicant is satisfied are inconsistent. 20
(3) After receiving the request, the chief executive must give a notice 21
acknowledging receipt of the request to the applicant and each affected 22
concurrence agency. 23
(4) In responding to the request, the chief executive may exercise all the 24
powers of the concurrence agencies necessary to reissue 1 or more 25
concurrence agency responses to address any inconsistency. 26
(5) If the chief executive reissues a concurrence agency response, the 27
chief executive must give the response to the applicant and give a copy of 28
the response to-- 29
(a) the affected concurrence agency; and 30
(b) the assessment manager. 31
s 3.5.11 112 s 3.5.13
Integrated Planning
(6) The applicant may withdraw the notice given under subsection (1)(b) 1
at any time. 2
generally 3
Decision
3.5.11.(1) In deciding the application, the assessment manager must-- 4
(a) approve all or part of the application and include in the approval 5
any concurrence agency conditions; or 6
(b) approve all or part of the application subject to conditions decided 7
by the assessment manager and include in the approval any 8
concurrence agency conditions; or 9
(c) refuse the application. 10
(2) However, the decision must be based on the assessments made under 11
division 2. 12
(3) To remove any doubt, it is declared that-- 13
(a) a development approval includes the conditions imposed by the 14
assessment manager and any concurrence agency; and 15
(b) the assessment manager may give a preliminary approval even 16
though the applicant applied for a development permit. 17
if concurrence agency requires refusal 18
Decision
3.5.12. If a concurrence agency requires the application to be refused, the 19
assessment manager must refuse it. 20
if application requires code assessment 21
Decision
3.5.13.(1) This section applies to any part of the application requiring 22
code assessment. 23
(2) The assessment manager's decision must not conflict with an 24
applicable code unless there are sufficient grounds to justify the decision, 25
having regard to the purpose of the code. 26
(3) The assessment manager may refuse the application only if the 27
assessment manager is satisfied-- 28
s 3.5.14 113 s 3.5.15
Integrated Planning
(a) the development does not comply with the applicable code; and 1
(b) compliance with the code cannot be achieved by imposing 2
conditions. 3
if application requires impact assessment 4
Decision
3.5.14.(1) This section applies to any part of the application requiring 5
impact assessment. 6
(2) If the application is for development in a planning scheme area, the 7
assessment manager's decision must not-- 8
(a) compromise the achievement of the desired environmental 9
outcomes for the planning scheme area; or 10
(b) conflict with the planning scheme, unless there are sufficient 11
planning grounds to justify the decision. 12
(3) If the application is for development outside a planning scheme area, 13
the assessment manager's decision must not compromise the achievement 14
of the desired environmental outcomes for any planning scheme area that 15
would be materially affected by the development if the development were 16
approved. 17
notice 18
Decision
3.5.15.(1) The assessment manager must give written notice of the 19
decision (the "decision notice") to-- 20
(a) the applicant; and 21
(b) each referral agency; and 22
(c) if the assessment manager is not the local government and the 23
development is in a local government area--the local 24
government. 25
(2) The decision notice must be given within 5 business days after the 26
day the decision is made and must state the following-- 27
(a) the day the decision was made; 28
(b) the name and address of each referral agency; 29
s 3.5.15 114 s 3.5.15
Integrated Planning
(c) whether the application is approved, approved subject to 1
conditions or refused; 2
(d) if the application is approved subject to conditions-- 3
(i) the conditions; and 4
(ii) whether each condition is a concurrence agency or 5
assessment manager condition, and if a concurrence agency 6
condition, the name of the concurrence agency; 7
(e) if the application is refused-- 8
(i) whether the assessment manager was directed to refuse the 9
application and, if so, the name of the concurrence agency 10
directing refusal and whether the refusal is solely because of 11
the concurrence agency's direction; and 12
(ii) the reasons for refusal; 13
(f) if the application is approved--whether the approval is a 14
preliminary approval, a development permit or a combined 15
preliminary approval and development permit; 16
(g) any other development permits necessary to allow the 17
development to be carried out; 18
(h) the rights of appeal for the applicant and any submitters. 19
(3) The assessment manager must give a copy of the decision notice to 20
each principal submitter within 5 business days after the day-- 21
(a) the applicant gives the assessment manager a written notice 22
stating that the applicant does not intend to make representations 23
to the assessment manager about the conditions of the 24
development approval that were decided by the assessment 25
manager; or 26
(b) the applicant appeals; or 27
(c) the applicant's appeal period ends. 28
(4) A copy of the relevant appeal provisions must also be given with 29
each decision notice or copy of decision notice. 30
s 3.5.16 115 s 3.5.17
Integrated Planning
4--Representations about conditions 1
Division
of div 4 2
Application
3.5.16. This division applies only during the applicant's appeal period. 3
conditions during the applicant's appeal period 4
Changing
3.5.17.(1) This section applies if the applicant makes representations to 5
the assessment manager about the conditions of the development approval 6
that were decided by the assessment manager. 7
(2) If the assessment manager agrees with the representations, the 8
assessment manager must give a new decision notice (the "negotiated 9
decision notice") to-- 10
(a) the applicant; and 11
(b) each principal submitter; and 12
(c) each referral agency; and 13
(d) if the assessment manager is not the local government and the 14
development is in a local government area--the local 15
government. 16
(3) Only 1 negotiated decision notice may be given. 17
(4) The negotiated decision notice-- 18
(a) must be given within 5 business days after the day the 19
assessment manager agrees with the representations; and 20
(b) must be in the same form as the decision notice previously given; 21
and 22
(c) must state the nature of the changes; and 23
(d) replaces the decision notice previously given. 24
(5) If the assessment manager does not agree with the representations, 25
the assessment manager must, within 5 business days after the day the 26
assessment manager decides not to agree with the representations, give a 27
written notice to the applicant stating that the conditions have not been 28
changed. 29
s 3.5.18 116 s 3.5.19
Integrated Planning
may suspend applicant's appeal period 1
Applicant
3.5.18.(1) If the applicant needs more time to make the written 2
representations, the applicant may, by written notice given to the assessment 3
manager, suspend the applicant's appeal period. 4
(2) The applicant may act under subsection (1) only once. 5
(3) If the written representations are not made within 20 business days 6
after the day written notice was given to the assessment manager, the 7
balance of the applicant's appeal period restarts. 8
(4) If the written representations are made within 20 business days after 9
the day written notice was given to the assessment manager, the balance of 10
the applicant's appeal period restarts-- 11
(a) if the applicant gives the assessment manager a notice 12
withdrawing the notice under subsection (1)--the day after the 13
assessment manager receives a further notice from the applicant 14
withdrawing the earlier notice; or 15
(b) if the assessment manager gives the applicant a negotiated 16
decision notice--the day after the applicant receives the notice; or 17
(c) if the assessment manager gives the applicant a notice stating that 18
the conditions have not been changed--the day after the applicant 19
receives the notice. 20
(5) Before the assessment manager agrees to a change under this section, 21
the assessment manager must reconsider the matters considered when the 22
original decision was made, to the extent the matters are relevant. 23
5--Approvals 24
Division
approval takes effect 25
When
3.5.19. If the application is approved, or approved subject to conditions, 26
the decision notice, or if a negotiated decision notice is given, the negotiated 27
decision notice, is taken to be the development approval and has effect-- 28
(a) if there is no submitter and the applicant does not appeal the 29
decision--from the time the decision notice is given (or if a 30
negotiated decision notice is given, from the time the negotiated 31
s 3.5.20 117 s 3.5.21
Integrated Planning
decision notice is given); or 1
(b) if there is a submitter and the applicant does not appeal the 2
decision--when the submitter's appeal period ends; or 3
(c) if an appeal is made--subject to the decision of the court, when 4
the decision of the court is made. 5
development may start 6
When
3.5.20. The development may start before the applicant's appeal period 7
ends if there are no submitters or any submitter's appeal period has ended. 8
approval lapses 9
When
3.5.21.(1) The development approval for the application lapses at the end 10
of the currency period for the approval unless-- 11
(a) for development that is a material change of use--the change of 12
use happens before the end of the currency period; or 13
(b) for development other than a material change of 14
use--development under the approval substantially starts before 15
the end of the currency period. 16
(2) To the extent the approval is for development that is a material change 17
of use, the "currency period" is, if the application was not a transitional 18
development application-- 19
(a) the 4 years starting the day the approval takes effect; or 20
(b) if the approval states or implies a time for the approval to 21
lapse--the period from the day the approval takes effect until the 22
stated or implied time. 23
(3) To the extent the approval is for development other than a material 24
change of use, the "currency period" is, if the application was not a 25
transitional development application-- 26
(a) the 2 years starting the day the approval takes effect; or 27
(b) if the approval states or implies a time for the approval to 28
lapse--the period from the day the approval takes effect until the 29
stated or implied time. 30
s 3.5.22 118 s 3.5.22
Integrated Planning
(4) To the extent the approval is for development that is a material change 1
of use, the "currency period" is, if the application was a transitional 2
development application, the longest of the following-- 3
(a) the 4 years starting the day the approval takes effect; 4
(b) if the approval states or implies a time for the approval to 5
lapse--the period from the day the approval takes effect until the 6
stated or implied time. 7
(c) the 5 years starting the day the planning scheme or planning 8
scheme policy, creating the superseded planning scheme, was 9
adopted or the amendment, creating the superseded planning 10
scheme, was adopted. 11
(5) To the extent the approval is for development other than a material 12
change of use, the "currency period" is, if the application was a 13
transitional development application, the longest of the following-- 14
(a) the 2 years starting the day the approval takes effect; 15
(b) if the approval states or implies a time for the approval to 16
lapse--the period from the day the approval takes effect until the 17
stated or implied time. 18
(c) the 5 years starting the day the planning scheme or planning 19
scheme policy, creating the superseded planning scheme, was 20
adopted or the amendment, creating the superseded planning 21
scheme, was adopted. 22
(6) If a monetary security has been given in relation to the approval, the 23
security must be released if the approval lapses. 24
to extend currency period 25
Request
3.5.22.(1) If, before the development approval lapses, a person wants to 26
extend a currency period, the person must, by written notice-- 27
(a) advise each entity that was a concurrence agency that the person is 28
asking for an extension of the currency period; and 29
(b) ask the assessment manager to extend the currency period. 30
(2) The notices must be given at about the same time, and the notice to 31
the assessment manager must include a copy of each notice given under 32
s 3.5.23 119 s 3.5.23
Integrated Planning
subsection (1)(a). 1
(3) If the person asking for the extension is not the owner of the land, the 2
subject of the application, the request must contain the owner's consent. 3
(4) If the assessment manager has a form for the request, the request 4
must be in the form and be accompanied by-- 5
(a) the fee for the request-- 6
(i) if the assessment manager is a local government--set by a 7
resolution of the local government; or 8
(ii) if subparagraph (i) does not apply--prescribed under a 9
regulation; and 10
(b) a copy of the advice given to any concurrence agency for the 11
application. 12
request to extend currency period 13
Deciding
3.5.23.(1) If there was no concurrence agency, the assessment manager 14
must approve or refuse the extension within 30 business days after 15
receiving the request. 16
(2) If there was a concurrence agency, the assessment manager-- 17
(a) must not approve or refuse the extension until at least 20 business 18
days after receiving the request; but 19
(b) must approve or refuse the extension within 30 business days 20
after receiving the request. 21
(3) The assessment manager and the person making the request may 22
agree to extend the period within which the assessment manager must 23
decide the request. 24
(4) A concurrence agency given a notice under section 3.5.22(1)(a) may 25
give the assessment manager a written notice advising-- 26
(a) it has no objection to the extension being approved; or 27
(b) it objects to the extension being approved and give reasons for the 28
objection. 29
(5) If the assessment manager does not receive a written notice within 30
20 business days after the day the request was received by the assessment 31
s 3.5.24 120 s 3.5.24
Integrated Planning
manager, the assessment manager must decide the request as if the 1
concurrence agency had no objection to the request. 2
(6) Despite subsection (5), if the development approval was subject to a 3
concurrence agency condition about the currency period, the assessment 4
manager must not approve the request unless the concurrence agency 5
advises it has no objection to the extension being approved. 6
(7) If the assessment manager receives a written notice from a 7
concurrence agency within 20 business days after the day the request was 8
received by the assessment manager, the assessment manager must have 9
regard to the notice when deciding the request. 10
(8) The assessment manager may make a decision under this section 11
even if the development approval was granted by the court. 12
(9) Despite section 3.5.21, the development approval does not lapse until 13
the assessment manager decides the request. 14
(10) After deciding the request, the assessment manager must give 15
written notice of the decision to the person asking for the extension and any 16
concurrence agency that gave the assessment manager a notice under 17
subsection (4). 18
to change development approval (other than a change of a 19
Request
condition) 20
3.5.24.(1) If a person wants a minor change to be made to a development 21
approval, the person must, by written notice-- 22
(a) advise each entity that was a concurrence agency that the person is 23
asking for the change; and 24
(b) ask the assessment manager to make the change. 25
(2) The notices must be given at about the same time, and the notice to 26
the assessment manager must include a copy of each notice given under 27
subsection (1)(a). 28
(3) If the person asking for the change is not the owner of the land, the 29
subject of the application, the request must contain the owner's consent. 30
(4) If the assessment manager has a form for the request, the request 31
must be in the form and be accompanied by-- 32
s 3.5.25 121 s 3.5.25
Integrated Planning
(a) the fee for the request-- 1
(i) if the assessment manager is a local government--set by a 2
resolution of the local government; or 3
(ii) if subparagraph (i) does not apply--prescribed under a 4
regulation; and 5
(b) a copy of the advice given to any concurrence agency for the 6
application. 7
(5) This section does not apply if the change is a change of a condition of 8
the development approval. 9
request to change development approval (other than a 10
Deciding
change of a condition) 11
3.5.25.(1) If there was no concurrence agency, the assessment manager 12
must approve or refuse the change within 30 business days after receiving 13
the request. 14
(2) If there was a concurrence agency, the assessment manager-- 15
(a) must not approve or refuse the change until the first of the 16
following happens-- 17
(i) a written notice has been received under subsection (4) from 18
each concurrence agency; 19
(ii) the period of 20 business days after receiving the request 20
ends; but 21
(b) must approve or refuse the change within 30 business days after 22
receiving the request. 23
(3) The assessment manager and the person making the request may 24
agree to extend the period within which the assessment manager must 25
decide the request. 26
(4) A concurrence agency given a notice under section 3.5.24(1)(a) must 27
give the assessment manager a written notice advising-- 28
(a) it has no objection to the change being made; or 29
(b) it objects to the change being made and give reasons for the 30
objection. 31
s 3.5.26 122 s 3.5.27
Integrated Planning
(5) If the assessment manager does not receive a written notice within 1
20 business days after the day the request was received by the assessment 2
manager, the assessment manager must decide the request as if the 3
concurrence agency had no objection to the request. 4
(6) If the assessment manager receives a written notice from a 5
concurrence agency within 20 business days after the day the request was 6
received by the assessment manager, the assessment manager must have 7
regard to the notice when deciding the request. 8
(7) The assessment manager may make a decision under this section 9
even if the development approval was granted by the court. 10
(8) After deciding the request, the assessment manager must give written 11
notice of the decision to the person asking for the change and any 12
concurrence agency that gave the assessment manager a notice under 13
subsection (4). 14
to cancel development approval 15
Request
3.5.26.(1) The owner of the land, the subject of the application, or 16
another person, with the owner's consent, may, by written notice ask the 17
assessment manager to cancel the development approval. 18
(2) The request must be accompanied by the fee for the request-- 19
(a) if the assessment manager is a local government--set by a 20
resolution of the local government; or 21
(b) if paragraph (a) does not apply--prescribed under a regulation. 22
(3) After receiving the notice and the fee, the assessment manager must 23
cancel the approval and give notice of the cancellation to the person who 24
applied for the cancellation and to each concurrence agency. 25
(4) If a monetary security has been given in relation to the approval, the 26
security must be released if the approval is cancelled. 27
approvals to be recorded on planning scheme 28
Certain
3.5.27.(1) If the development approval was given by a local government 29
as assessment manager and the local government is satisfied the approval is 30
inconsistent with the planning scheme, the local government must note the 31
s 3.5.28 123 s 3.5.30
Integrated Planning
approval on its planning scheme. 1
(2) To remove any doubt, it is declared that-- 2
(a) the note on the planning scheme is not an amendment of the 3
planning scheme; and 4
(b) a contravention of subsection (1) does not affect the validity of the 5
approval given. 6
attaches to land 7
Approval
3.5.28.(1) The development approval attaches to the land, the subject of 8
the application, and binds the owner, the owners successors in title and any 9
occupier of the land. 10
(2) To remove any doubt, it is declared that subsection (1) applies even if 11
later development (including reconfiguring a lot) is approved for the land 12
(or the land as reconfigured). 13
6--Conditions 14
Division
of div 6 15
Application
3.5.29. This division applies to each condition in a development approval 16
whether the condition is a condition-- 17
(a) a concurrence agency directs an assessment manager to impose; 18
or 19
(b) decided by an assessment manager; or 20
(c) attached to the approval under the direction of the Minister. 21
must be relevant or reasonable 22
Conditions
3.5.30.(1) A condition must-- 23
(a) be relevant to, but not an unreasonable imposition on, the 24
development; or 25
(b) be reasonably required in respect of the development. 26
s 3.5.31 124 s 3.5.32
Integrated Planning
(2) Subsection (1) applies despite the laws that are administered by, and 1
the policies that are reasonably identifiable as policies applied by, an 2
assessment manager or concurrence agency. 3
generally 4
Conditions
3.5.31.(1) A condition may-- 5
(a) place a limit on how long a lawful use may continue or works 6
may remain in place; or 7
(b) state a development may not start until other development 8
permits, for development on the same premises, have been given 9
or other development on the same premises (including 10
development not covered by the development application) has 11
been substantially started or completed; or 12
(c) require development, or an aspect of development, to be 13
completed within a particular time and require the payment of 14
security under an agreement under section 3.5.3456 to support the 15
condition. 16
(2) If a condition requires assessable development, or an aspect of 17
assessable development, to be completed within a particular time and the 18
assessable development or aspect is not completed within the time, the 19
approval, to the extent it relates to the assessable development or aspect not 20
completed, lapses. 21
that cannot be imposed 22
Conditions
3.5.32.(1) A condition must not-- 23
(a) be inconsistent with a condition of an earlier development 24
approval still in effect for the development; or 25
(b) require a monetary payment for the capital, operating and 26
maintenance costs of, or works to be carried out for, community 27
infrastructure; or 28
(c) state that works required to be carried out for a development must 29
56 Section 3.5.34 (Agreements)
s 3.5.33 125 s 3.5.33
Integrated Planning
be undertaken by an entity other than the applicant; or 1
(d) require an access restriction strip. 2
(2) Nothing in this section stops a condition being imposed if the 3
condition requires-- 4
(a) a monetary payment, or works to be carried out, to protect or 5
maintain the safety and efficiency of State owned transport 6
infrastructure; or 7
(b) a monetary payment for lessening the cost impacts of supplying 8
infrastructure under section 3.5.35. 9
(3) In subsection (2)-- 10
"State owned transport infrastructure" means transport infrastructure 11
under the Transport Infrastructure Act 1994 that is owned by the 12
State.57 13
to change or cancel conditions 14
Request
3.5.33.(1) This section applies if-- 15
(a) a person wants to change or cancel a condition; and 16
(b) no assessable development would arise from the change or 17
cancellation; and 18
(c) there were no submitters for the application. 19
(2) The person may, by written notice to the entity that decided the 20
condition or required the condition to be imposed on or attached to the 21
approval, ask the entity to change or cancel the condition. 22
(3) If the person is not the owner of the land to which the approval 23
attaches, the request must contain the owner's consent. 24
(4) If the entity has a form for the request, the request must be in the 25
form and be accompanied by the fee for the request-- 26
(a) if the entity is a local government--set by a resolution of the local 27
57 Under the Transport Infrastructure Act 1994, schedule 3--
"transport infrastructure" includes road, rail, port and miscellaneous transport
infrastructure.
s 3.5.34 126 s 3.5.35
Integrated Planning
government; or 1
(b) if paragraph (a) does not apply--prescribed under a regulation. 2
(5) The entity must decide the request within 20 business days after 3
receiving the request. 4
(6) The entity and the person may agree to extend the period within 5
which the entity must decide the request. 6
(7) The entity must decide the request having regard to the matters the 7
entity would have regard to if the request was a development application. 8
(8) The entity must give the person written notice of its decision. 9
(9) If the entity is a concurrence agency, the entity must give the 10
assessment manager written notice of any change or cancellation. 11
(10) The changed condition or cancellation takes effect from the day the 12
notice is given to the person. 13
14
Agreements
3.5.34. The applicant may enter into an agreement with an entity, 15
including, for example, an assessment manager or a concurrence agency, to 16
establish the obligations, or secure the performance, of a party to the 17
agreement about a condition. 18
on conditions lessening cost impacts for infrastructure 19
Limitations
3.5.35.(1) A condition requiring a monetary payment for lessening the 20
cost impacts for infrastructure may be imposed only-- 21
(a) for development that is-- 22
(i) inconsistent with the planning scheme; or 23
(ii) consistent with the planning scheme, but is urban 24
development (including rural residential development) not in 25
an area identified to accommodate the next 5 years (or other 26
period approved by the Minister) of development in a 27
benchmark development sequence; and 28
(b) to lessen the cost impacts for-- 29
s 3.5.35 127 s 3.5.35
Integrated Planning
(i) State schools infrastructure; or 1
(ii) public transport infrastructure; or 2
(iii) State-controlled roads infrastructure; or 3
(iv) police or emergency services infrastructure; or 4
(v) a development infrastructure item; and 5
(c) having regard to any guidelines approved by the chief executive 6
about the method of calculating cost impacts. 7
(2) The condition complies with section 3.5.30, to the extent-- 8
(a) the condition is for lessening the cost impacts for a development 9
infrastructure item identified in an infrastructure charges plan; and 10
(b) the item is necessary, but not yet available, to service the land. 11
(3) Subsection (2) applies even if a development infrastructure item 12
mentioned in subsection (1)(b)(v) is also intended to service other land. 13
(4) However, instead of imposing the condition, the applicant and an 14
entity may enter into a written agreement to make infrastructure mentioned 15
in subsection (1)(b) available to service the land. 16
(5) For infrastructure mentioned in subsection (1)(b)(i) to (iv)-- 17
"cost impacts" means-- 18
(a) the difference between-- 19
(i) the present value of capital, operating and maintenance costs 20
made necessary by the development; and 21
(ii) the present value of capital, operating and maintenance costs, 22
if the approval had not been given; and 23
(b) the reasonable administrative costs for calculating the difference 24
under paragraph (a). 25
(6) For a development infrastructure item (the "item")-- 26
"cost impacts" means-- 27
(a) the difference between-- 28
(i) the present value of capital costs made necessary by the 29
development; and 30
s 3.5.36 128 s 3.5.36
Integrated Planning
(ii) the present value of capital costs, if the approval had not 1
been given; and 2
(b) additional interest charges, other financing costs and operating 3
and maintenance costs, made necessary by the development, for 4
all development infrastructure items (other than the item) and 5
payable by the entity to which the monetary payment must be 6
paid; and 7
(c) the cost, or the anticipated cost, of amending the infrastructure 8
charges plan because of the development; and 9
(d) reasonable administrative costs for calculating the difference 10
under paragraph (a) and the charges and costs mentioned in 11
paragraphs (b) and (c). 12
a condition lessening cost impacts for infrastructure must 13
Matters
deal with 14
3.5.36.(1) A condition permitted under section 3.5.35 must-- 15
(a) identify the amount of the monetary payment; and 16
(b) state the entity to which the monetary payment must be paid. 17
(2) An amount identified under subsection (1)(a) must not be more 18
than-- 19
(a) to the extent the amount relates to the capital cost of 20
infrastructure--the full capital cost; and 21
(b) to the extent the amount relates to the operating and maintenance 22
costs of infrastructure--the additional operating and maintenance 23
costs for 15 years. 24
(3) If a development approval is subject to a condition mentioned in 25
subsection (1), the approval must also-- 26
(a) for infrastructure under section 3.5.35(1)(b)(i) to (iv) that is a 27
service--state the day by which the service is to be substantially 28
started, having regard to the basis on which the cost impact was 29
calculated; and 30
(b) for infrastructure under section 3.5.35(1)(b)(i) to (iv) that is other 31
than a service--state the day by which construction of the 32
s 3.5.36 129 s 3.5.36
Integrated Planning
infrastructure is to be substantially started, having regard to the 1
basis on which the cost impact was calculated; and 2
(c) for a development infrastructure item necessary, but not yet 3
available, to service the land--state the day by which the item is 4
to be available to service the land, having regard to the basis on 5
which the cost impact was calculated; and 6
(d) for a development infrastructure item not mentioned in 7
paragraph (c)--state the day by which construction of the item is 8
to be substantially started, having regard to the basis on which the 9
cost impact was calculated. 10
(4) The monetary payment must be paid-- 11
(a) for infrastructure mentioned in subsection (3)(a), (b) or (d)--at 12
least 60 business days before the day stated under the subsection; 13
or 14
(b) for infrastructure mentioned in subsection (3)(c)--the day the 15
development starts. 16
(5) Despite subsection (4), the applicant and the entity requiring the 17
monetary payment may agree in writing to another time or for the payment 18
to be made by instalments. 19
(6) The entity to which the monetary payment has been paid must repay 20
the payment to the owner of the land-- 21
(a) for a payment made for infrastructure mentioned in 22
subsection (3)(a)--if the service has not substantially started on 23
the day stated under subsection (3)(a); or 24
(b) for a payment made for infrastructure mentioned in 25
subsection (3)(b) or (d)--if the construction of the infrastructure 26
has not substantially started on the day stated under the 27
subsection; or 28
(c) if the development approval lapses or is cancelled. 29
(7) For infrastructure mentioned in subsection (3)(c), if the applicant 30
complies with subsection (4)(b), the entity to which payment was made 31
must substantially start the infrastructure by the day stated in 32
subsection (3)(c) unless the applicant and the entity agree in writing to a 33
different day. 34
s 3.6.1 130 s 3.6.3
Integrated Planning
PART 6--MINISTERIAL IDAS POWERS 1
1--Ministerial direction 2
Division
Ministerial direction may be given 3
When
3.6.1. The Minister may give a direction under this division about an 4
application only if-- 5
(a) the assessment manager has not decided the application; and 6
(b) the development involves a State interest; and 7
(c) the matter the subject of the direction is not within the jurisdiction 8
of a concurrence agency for the application. 9
of direction 10
Notice
3.6.2.(1) The Minister may direct the assessment manager, by written 11
notice, to taken 1 or more of the following actions or to refuse the 12
application-- 13
(a) to attach to the development approval the conditions stated in the 14
notice; or 15
(b) to approve part only of the development; or 16
(c) to give a preliminary approval only. 17
(2) The notice must state-- 18
(a) the nature of the State interest giving rise to the direction; and 19
(b) the reasons for the Minister's direction. 20
(3) The Minister must give a copy of the notice to the applicant. 21
of direction 22
Effect
3.6.3.(1) If the Minister gives a direction, the assessment manager, in 23
deciding the application, must-- 24
(a) if the Minister requires conditions to be attached to the 25
approval--include the conditions in the approval; or 26
s 3.6.4 131 s 3.6.6
Integrated Planning
(b) if the Minister requires the application to be refused--refuse the 1
application. 2
(2) For an appeal under sections 4.1.27 to 4.1.29, the Minister's direction 3
is taken to be a concurrence agency's response and the chief executive is 4
taken to be a co-respondent. 5
Division 2--Ministerial call in powers 6
for div 2 7
Definition
3.6.4. In this division-- 8
"Minister" includes the Minister administering the State Development and 9
Public Works Organization Act 1971. 10
development application may be called in 11
When
3.6.5. The Minister may, under this division, call in an application only 12
if-- 13
(a) the development involves a State interest; and 14
(b) the application is called in within 10 business days after the end of 15
both the applicant's appeal period and the submitter's appeal 16
period for the decision on the application. 17
of call in 18
Notice
3.6.6.(1) The Minister may, by written notice given to the assessment 19
manager, call in the application and-- 20
(a) if the application has not been decided by the assessment 21
manager--assess and decide the application in the place of the 22
assessment manager; or 23
(b) if the application has been decided by the assessment 24
manager--reassess and re-decide the application in the place of 25
the assessment manager. 26
(2) The notice must state-- 27
s 3.6.7 132 s 3.6.7
Integrated Planning
(a) the point in the IDAS process from which the process must 1
restart; and 2
(b) the reasons for calling in the application. 3
(3) The Minister must give a copy of the notice to-- 4
(a) the applicant; and 5
(b) any concurrence agency; and 6
(c) any submitter. 7
of call in 8
Effect
3.6.7.(1) If the Minister calls in an application-- 9
(a) the Minister is the assessment manager from the time the 10
application is called in until the Minister gives the decision notice; 11
and 12
(b) if the application is called in before the assessment manager 13
makes a decision on the application--the Minister must continue 14
the IDAS process from the point at which the application is called 15
in; and 16
(c) if the application is called in after the assessment manager makes 17
a decision on the application--the IDAS process starts again 18
from a point in the IDAS process the Minister decides, but before 19
the start of the decision stage; and 20
(d) until the Minister gives the decision notice a concurrence agency 21
is taken to be an advice agency; and 22
(e) the Minister's decision on the application is taken to be the 23
original assessment manager's decision but a person may not 24
appeal against the Minister's decision; and 25
(f) if an appeal was made before the application was called in--the 26
appeal is of no further effect. 27
(2) The entity that was the assessment manager before the application 28
was called in (the "original assessment manager") must give the Minister 29
all reasonable assistance the Minister requires to assess and decide the 30
application, including giving the Minister-- 31
s 3.6.8 133 s 3.7.1
Integrated Planning
(a) all material about the application the assessment manager had 1
before the application was called in; and 2
(b) any material received by the assessment manager after the 3
application is called in. 4
(3) When the Minister gives the decision notice to the applicant and each 5
submitter and referral agency, the Minister also must give a copy of the 6
notice to the original assessment manager. 7
if call in decision does not deal with all aspects of the 8
Process
application 9
3.6.8.(1) If the Minister's decision notice does not decide all aspects of 10
the application, the Minister must, by written notice, refer the aspects not 11
decided back to the assessment manager. 12
(2) If the Minister gives a notice under subsection (1), the notice must 13
state the point in the IDAS process from which the process must restart for 14
the aspects of the application not decided by the Minister. 15
PART 7--PLANS OF SUBDIVISION 16
of pt 7 17
Application
3.7.1. This part applies to a plan (however called) for the reconfiguration 18
of a lot if, under another Act, the plan requires the approval (in whatever 19
form) of a local government before it can be registered or otherwise 20
recorded under that Act. 21
22
Examples of plans to which this part applies--
23
1. A plan of subdivision that, under the Land Title Act 1994, section 50(g),58
24
requires the approval of a local government.
25
2. A building units plan or group titles plan that, under the Building Units and
58 Land Title Act 1994, section 50 (Requirements for registration of plan of
subdivision)
s 3.7.2 134 s 3.7.2
Integrated Planning
1
Group Titles Act 1980, section 9(7),59 must be endorsed with, or be accompanied by,
2
a certificate of a local government.
for reconfiguring under development permit 3
Plan
3.7.2.(1) If the reconfiguration proposed to be effected by the plan is 4
authorised by a development permit, the plan must be given to the local 5
government for its approval-- 6
(a) if the reconfiguration requires operational works--within 2 years 7
after the development permit for the operational works takes 8
effect; or 9
(b) if the reconfiguration does not require operational works--within 10
2 years after the development permit for the reconfiguration takes 11
effect. 12
(2) The local government may, during the period mentioned in 13
subsection (1), extend the period. 14
(3) The local government must approve the plan, if-- 15
(a) the conditions of the development permit authorising the 16
reconfiguration have been complied with; and 17
(b) if subsection (1)(a) applies--the conditions of the development 18
permit mentioned in subsection (1)(a) have been complied with; 19
and 20
(c) there are no outstanding rates or charges levied by the local 21
government or expenses that are a charge over the land under any 22
Act; and 23
(d) the plan is prepared in accordance with all development permit 24
conditions about the plan. 25
(4) Alternatively, the local government must approve the plan, if-- 26
(a) satisfactory security is given to the local government to ensure 27
compliance with the requirements of subsection (3)(a) to (c); and 28
(b) the plan is prepared in accordance with all development permit 29
conditions about the plan. 30
59 Building Units and Group Titles Act 1980, section 9 (Registration of plan)
s 3.7.3 135 s 3.7.4
Integrated Planning
(5) If the applicant has not complied with the requirements of 1
subsection (3) or (4), the local government must, within 10 business days 2
after receiving the plan, give the applicant written notice stating the actions 3
to be taken to allow the plan to be approved. 4
submitted under condition of development permit 5
Plan
3.7.3.(1) This section applies if the plan is required to be submitted to the 6
local government under a condition of a development permit. 7
(2) The plan must be given to the local government-- 8
(a) within the time stated in the condition; or 9
(b) if a time has not been stated in the condition--within 2 years after 10
the decision notice containing the condition was given. 11
(3) The local government must approve the plan, if-- 12
(a) the conditions of the development permit have been complied 13
with; and 14
(b) there are no outstanding rates or charges levied by the local 15
government or expenses that are a charge over the land under any 16
Act; and 17
(c) the plan is prepared in accordance with the development permit. 18
(4) Alternatively, the local government must approve the plan, if-- 19
(a) satisfactory security is given to the local government to ensure 20
compliance with the requirements of subsection (3)(a) and (b); 21
and 22
(b) the plan is prepared in accordance with the development permit. 23
(5) If the applicant has not complied with the requirements of 24
subsection (3) or (4), the local government must, within 10 business days 25
after receiving the plan, give the applicant written notice stating the actions 26
to be taken to allow the plan to be approved. 27
for reconfiguring that is not assessable development 28
Plan
3.7.4.(1) If the reconfiguration proposed to be effected by the plan is not 29
assessable development, the plan may be given to the local government for 30
s 3.7.5 136 s 3.7.7
Integrated Planning
its approval at any time. 1
(2) The plan must be consistent with any development permit and 2
applicable code. 3
(3) If the applicant has not complied with the requirements of 4
subsection (2), the local government must, within 10 business days after 5
receiving the plan, give the applicant written notice stating the actions to be 6
taken to allow the plan to be approved. 7
of approval 8
Endorsement
3.7.5.(1) The local government's approval must be given for the plan 9
within 20 business days after the applicant complies with section 3.7.2(3) 10
or (4), section 3.7.3(3) or (4) or section 3.7.4(2) and the local government 11
receives the plan. 12
(2) The applicant may agree to an extension of the period mentioned in 13
subsection (1). 14
approved plan to be lodged for registration 15
When
3.7.6. The approved plan must be lodged for registration with the 16
relevant registering authority within 6 months after the approval was given. 17
government approval subject to other Act 18
Local
3.7.7. A requirement under this part for the local government to approve 19
the plan has effect subject to any requirements of the Act under which the 20
plan is to be registered or otherwise recorded. 21
s 4.1.1 137 s 4.1.2
Integrated Planning
HAPTER 4--APPEALS, OFFENCES AND 1
C
ENFORCEMENT 2
PART 1--PLANNING AND ENVIRONMENT COURT 3
1--Establishment and jurisdiction of court 4
Division
of Planning and Environment Court 5
Continuance
4.1.1.(1) The Planning and Environment Court, as formerly established, 6
is continued in existence. 7
(2) The court is a court of record. 8
(3) The court has a seal that must be judicially noticed. 9
of court 10
Jurisdiction
4.1.2.(1) The court has the jurisdiction given to it under any Act, 11
including the jurisdiction to hear and decide every appeal made under this 12
Act for the review of a decision of a tribunal.60 13
(2) Subject to section 4.2.7,61 the jurisdiction given to the court under this 14
Act is exclusive. 15
(3) Subject to division 13,62 every decision of the court is final and 16
conclusive and is not to be impeached for any informality or want of form 17
or be appealed against, reviewed, quashed or in any way called in question 18
in any court. 19
(4) If a proceeding comes before the court under another Act, 20
subsection (3) applies subject to the other Act. 21
60 See jurisdiction of tribunals in part 2, division 1.
61 Section 4.2.7 (Jurisdiction of tribunals)
62 Division 13 (Appeals to Court of Appeal)
s 4.1.3 138 s 4.1.5
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in chambers 1
Jurisdiction
4.1.3. Every proceeding must be heard and decided, and the decision 2
given, in open court unless the rules of court about exercising the court's 3
jurisdiction in chambers state that the court may sit in chambers and 4
exercise the jurisdiction given by the rules for a matter. 5
Division 2--Powers of court 6
ubpoenas 7
S
4.1.4.(1) The court may summon a person as a witness and may-- 8
(a) require the person to produce in evidence documents in the 9
person's possession or power; and 10
(b) examine the person; and 11
(c) punish the person for not attending under the summons or for 12
refusing to give evidence or for neglecting or refusing to produce 13
the documents. 14
(2) Despite subsection (1), a person is not required to give evidence that 15
may tend to incriminate the person. 16
(3) For subsection (1), a judge of the court has the same powers as a 17
District Court judge. 18
and contravention of orders 19
Contempt
4.1.5.(1) A judge of the court has the same power to punish a person for 20
contempt of the court as the judge has to punish a person for contempt of a 21
District Court. 22
(2) The District Courts Act 1967, section 129,63 applies in relation to the 23
court in the same way as it applies in relation to a District Court. 24
(3) If a person, at any time, contravenes an order of the court, the person 25
is also taken to be in contempt of the court. 26
(4) If a person is taken to be in contempt of the court under 27
63 District Courts Act 1967, section 129 (Contempt of court)
s 4.1.6 139 s 4.1.9
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subsection (3), the District Courts Act 1967, section 129(4) applies in 1
relation to the contravention as if the person were an offender, and as if the 2
expression "12 months" were "2 years" and the expression "84 penalty 3
units" were "3 000 penalty units". 4
of orders etc. 5
Terms
4.1.6. The court may make an order, give leave or do anything else it is 6
authorised to do on the terms the court considers appropriate. 7
and recording evidence etc. 8
Taking
4.1.7. The court must take evidence on oath, affirmation, affidavit or 9
declaration and must record the evidence. 10
3--Constituting court 11
Division
court 12
Constituting
4.1.8.(1) The Governor in Council must, from time to time by gazette 13
notice, notify the names of District Court judges who are to be the judges 14
who constitute the court. 15
(2) The Governor in Council may notify the name of District Court 16
judges to constitute the court for a specified period only. 17
(3) A District Court judge who constitutes the court may do so even if 18
another District Court judge is constituting the court at the same time. 19
of judges not impaired 20
Jurisdiction
4.1.9. The jurisdiction of a District Court judge named to constitute the 21
court is not limited exclusively to the court. 22
s 4.1.10 140 s 4.1.12
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Division 4--Rules and directions 1
of court 2
Rules
4.1.10.(1) The Governor in Council, with the concurrence of 2 or more 3
Supreme Court judges of whom the Chief Justice is to be 1, may make 4
rules about anything-- 5
(a) required or permitted to be prescribed by the rules; or 6
(b) necessary or convenient to be prescribed for the purposes of the 7
court. 8
(2) Without limiting subsection (1), the rules may provide for the 9
procedures of the court, including matters that may be dealt with in 10
chambers or by a court official. 11
(3) The procedures of the court are governed by the rules. 12
(4) The rules are subordinate legislation. 13
14
Directions
4.1.11.(1) To the extent a matter about court procedure is not provided 15
for by the rules, the matter may be dealt with by directions under this 16
section. 17
(2) The Chief Judge of District Courts may issue directions of general 18
application about the procedure of the court. 19
(3) A judge may issue directions about a particular case before the court 20
when constituted by the judge. 21
5--Parties to proceedings and court sittings 22
Division
court may sit 23
Where
4.1.12. The court may sit at any place. 24
s 4.1.13 141 s 4.1.16
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1
Appearance
4.1.13. A party to a proceeding may appear personally or by lawyer or 2
agent. 3
djournments 4
A
4.1.14. The court may-- 5
(a) adjourn proceedings from time to time and from place to place; 6
and 7
(b) adjourn proceedings to a time, or a time and place, to be fixed. 8
happens if judge dies or is incapacitated 9
What
4.1.15.(1) This section applies if, after starting to hear a proceeding, the 10
judge hearing the proceeding dies or becomes incapable of continuing with 11
the proceeding. 12
(2) Another judge may-- 13
(a) after consulting with the parties-- 14
(i) adjourn the proceeding to allow the incapacitated judge to 15
continue dealing when able; or 16
(ii) order the proceeding be reheard; or 17
(b) with the consent of the parties, make an order the judge considers 18
appropriate about deciding the proceeding, or about completing 19
the hearing of, and deciding the proceeding. 20
(3) An order mentioned in subsection (2)(b) is taken to be a decision of 21
the court. 22
case for Court of Appeal's opinion 23
Stating
4.1.16.(1) This section applies if a question of law arises during a 24
proceeding and the judge considers it desirable that the question be decided 25
by the Court of Appeal. 26
(2) The judge may state the question in the form of a special case for the 27
opinion of the Court of Appeal. 28
s 4.1.17 142 s 4.1.19
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(3) The special case may be stated only during the proceeding mentioned 1
in subsection (1). 2
(4) Until the Court of Appeal has decided the special case, the court must 3
not make a decision to which the question is relevant. 4
(5) When the Court of Appeal has decided the special case, the court 5
must not proceed in a way, or make a decision, that is inconsistent with the 6
Court of Appeal's decision on the special case. 7
6--Other court officials and registry 8
Division
and other court officials 9
Registrars
4.1.17. The registrars, deputy registrars and other court officials of 10
District Courts are the registrars, deputy registrars and other court officials 11
of the court. 12
13
Registries
4.1.18.(1) Each District Court registry is the registry of the court. 14
(2) The registry of the court at Brisbane is the principal registry of the 15
court. 16
(3) Subject to the registrar of the Brisbane District Court, the principal 17
registry is under the control of the senior deputy registrar. 18
(4) The senior deputy registrar may give directions to the registrars, 19
deputy registrars and other officers employed in the registries of the court. 20
records 21
Court
4.1.19.(1) The registrar must keep minutes of the proceedings and 22
records of the decisions of the court and perform the other duties the court 23
directs. 24
(2) The records of the court held at a place must be kept in the custody of 25
the registrar, deputy registrar or other court official at the place. 26
s 4.1.20 143 s 4.1.22
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notice 1
Judicial
4.1.20. All courts and persons acting judicially must take judicial notice 2
of the appointment and signature of every person holding office under this 3
part. 4
7--Other court matters 5
Division
may make declarations 6
Court
4.1.21.(1) Any person may bring proceedings in the court for a 7
declaration about-- 8
(a) a matter done, or to be done, under this Act; and 9
(b) the construction of this Act and planning instruments under this 10
Act; and 11
(c) the lawfulness of land use or development; and 12
(d) an infrastructure charge; and 13
(e) a failure by an assessment manager to give an acknowledgment 14
notice. 15
(2) The proceeding may be brought on behalf of a person. 16
(3) If the proceeding is brought on behalf of a person, the person must 17
consent or if the person is an unincorporated body, its committee or other 18
controlling or governing body must consent. 19
(4) A person on whose behalf a proceeding is brought may contribute to, 20
or pay, the legal costs incurred by the person bringing the proceeding. 21
(5) The court has jurisdiction to hear and decide a proceeding for a 22
declaration about a matter mentioned in subsection (1). 23
may make orders about declarations 24
Court
4.1.22.(1) The court may also make an order about a declaration made 25
under section 4.1.21. 26
(2) However, if the order amends or cancels a development approval, the 27
court may only make the order if the court is satisfied the approval was 28
s 4.1.23 144 s 4.1.23
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obtained by fraud by the applicant. 1
(3) If the owner of the land to which the approval relates is not the 2
applicant and has not been involved in the fraud, the court must also make 3
an order about compensation for any loss the court is satisfied the owner 4
has suffered. 5
osts 6
C
4.1.23.(1) Each party to a proceeding in the court must bear the party's 7
own costs for the proceeding. 8
(2) However, the court may order costs for the proceeding (including 9
allowances to witnesses attending for giving evidence at the proceeding) as 10
it considers appropriate in the following circumstances-- 11
(a) the court considers the proceeding was instituted merely to delay 12
or obstruct; 13
(b) the court considers the proceeding (or part of the proceeding) to 14
have been frivolous or vexatious; 15
(c) a party has not been given reasonable notice of intention to apply 16
for an adjournment of the proceeding; 17
(d) a party has incurred costs because the party is required to apply 18
for an adjournment because of the conduct of another party; 19
(e) a party has incurred costs because another party has defaulted in 20
procedural requirements; 21
(f) without limiting paragraph (d), a party has incurred costs because 22
another party has introduced (or sought to introduce) new 23
material; 24
(g) the court considers an assessment manager, a referral agency or a 25
local government should have taken an active part in a proceeding 26
and it did not do so; 27
(h) an applicant, submitter, referral agency, assessment manager or 28
local government does not properly discharge its responsibilities 29
in the proceedings. 30
(3) An order made under subsection (2) may be made an order of the 31
District Court and enforced in the District Court. 32
s 4.1.24 145 s 4.1.24
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(4) If a person brings an appeal under section 4.1.35 and the appeal is not 1
withdrawn, the court must award costs against the relevant Minister or local 2
government-- 3
(a) if the appeal is upheld; and 4
(b) if the appeal is against a deemed refusal--even if the appeal is not 5
upheld. 6
(5) If a person brings a proceeding in the court for a declaration and order 7
requiring a designator to give, under section 2.6.19,64 a notice of intention to 8
resume an interest in land under the Acquisition of Land Act 1967 and the 9
court makes the order, the court must award costs against the designator. 10
(6) If a person brings a proceeding in the court for a declaration and order 11
requiring an assessment manager to give, under section 3.2.3,65 an 12
acknowledgment notice and the court makes the order, the court must 13
award costs against the assessment manager. 14
(7) If the court allows an assessment manager to withdraw from an 15
appeal, the court must not award costs against the assessment manager. 16
(8) The court may, if it considers it appropriate, order the costs to be 17
decided by the appropriate costs taxing officer of the Supreme Court, under 18
the scale of costs prescribed by law for proceedings in the District Court. 19
(9) If the court makes an order under subsection (8), the taxing officer 20
may decide the appropriate scale to be used in taxing the costs. 21
protection and immunity 22
Privileges,
4.1.24. A person who is one of the following has the same privileges, 23
protection or immunity as the person would have if the proceeding were in 24
the District Court-- 25
(a) the judge presiding over the proceeding; 26
(b) a legal practitioner or agent appearing in the proceeding; 27
(c) a witness attending in the proceeding. 28
64 Section 2.6.19 (Request to acquire designated land under hardship)
65 Section 3.2.3 (Acknowledgment notices generally)
s 4.1.25 146 s 4.1.27
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of witnesses 1
Payment
4.1.25. Every witness summoned is entitled to be paid reasonable 2
expenses by the party requiring the attendance of the witness. 3
of planning schemes 4
Evidence
4.1.26.(1) If a chief executive officer of a local government is satisfied a 5
document is a true copy of a planning scheme, or a part of the planning 6
scheme, in force for the local government at a time stated in the document, 7
the chief executive officer may so certify the document. 8
(2) In a proceeding, a document certified under subsection (1) is 9
admissible in evidence as if it were the original scheme or part. 10
Division 8--Appeals to court relating to development applications 11
by applicants 12
Appeals
4.1.27.(1) An applicant for a development application may appeal to the 13
court against any of the following-- 14
(a) the refusal, or the refusal in part, of a development application; 15
(b) a matter stated in a development approval, including any 16
condition applying to the development, and the identification of a 17
code under section 3.1.6;66 18
(c) the decision to give a preliminary approval when a development 19
permit was applied for; 20
(d) the length of a currency period; 21
(e) a deemed refusal. 22
(2) An appeal under subsection (1)(a) to (d) must be started within 23
20 business days (the "applicant's appeal period") after the day the 24
decision notice or negotiated decision notice is given to the applicant. 25
(3) An appeal under subsection (1)(e) may be started at any time after the 26
last day a decision on the matter should have been made. 27
66 Section 3.1.6 (Preliminary approval may override local planning instrument)
s 4.1.28 147 s 4.1.30
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by submitters 1
Appeals
4.1.28.(1) A submitter for a development application may appeal to the 2
court about-- 3
(a) the giving of a development approval, including any conditions 4
(or lack of conditions) or other provisions of the approval; or 5
(b) the length of a currency period for the approval. 6
(2) The appeal must be started within 20 business days (the 7
"submitter's appeal period") after the day the decision notice or 8
negotiated decision notice is given to the submitter. 9
(3) If a person withdraws a submission before the application is decided, 10
the person may not appeal the decision. 11
(4) If an application involves both impact assessment and code 12
assessment, appeal rights for submitters are available only for the part of the 13
application involving impact assessment. 14
by advice agency submitters 15
Appeals
4.1.29.(1) An advice agency may, within the limits of its jurisdiction, 16
appeal to the court about the giving of a development approval for a 17
development application if-- 18
(a) the development application involves impact assessment; and 19
(b) the advice agency told the applicant and the assessment manager 20
to treat its response to the application as a submission for an 21
appeal. 22
(2) The appeal must be started within 20 business days after the day the 23
decision notice or negotiated decision notice is given to the advice agency as 24
a submitter. 25
for matters arising after approval given (co-respondents) 26
Appeals
4.1.30.(1) For a development approval given for a development 27
application, a person to whom any of the following notices have been given 28
may appeal to the court against the decision in the notice-- 29
(a) a notice giving a decision on a request for an extension of the 30
s 4.1.31 148 s 4.1.32
Integrated Planning
currency period for an approval; 1
(b) a notice giving a decision on a request to make a minor change to 2
an approval. 3
(2) The appeal must be started within 20 business days after the day the 4
notice of the decision is given to the person. 5
(3) Subsection (1)(a) does not apply if the approval resulted from a 6
transitional development application that was assessed as if it were an 7
application made under a superseded planning scheme. 8
9--Appeals to court about other matters 9
Division
for matters arising after approval given (no co-respondents) 10
Appeals
4.1.31.(1) A person to whom any of the following notices have been 11
given may appeal to the court against the decision in the notice-- 12
(a) a notice giving a decision on a request to change or cancel a 13
condition of a development approval; 14
(b) a notice under section 6.1.44 67 giving a decision to change or 15
cancel a condition of a development approval. 16
(2) The appeal must be started within 20 business days after the day the 17
notice of the decision is given to the person. 18
against enforcement notices 19
Appeals
4.1.32.(1) A person who is given an enforcement notice may appeal to 20
the court against the giving of the notice. 21
(2) The appeal must be started within 20 business days after the day 22
notice is given to the person. 23
67 Section 6.1.44 (Conditions may be changed or cancelled by assessment manager
or concurrence agency in certain circumstances)
s 4.1.33 149 s 4.1.35
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of operation of enforcement notice 1
Stay
4.1.33.(1) The lodging of a notice of appeal about an enforcement notice 2
stays the operation of the enforcement notice until-- 3
(a) the court, on the application of the entity issuing the notice, 4
decides otherwise; or 5
(b) the appeal is withdrawn; or 6
(c) the appeal is dismissed. 7
(2) However, subsection (1) does not apply if the enforcement notice is 8
about-- 9
(a) a work, if the enforcement notice states the entity believes the 10
work is a danger to persons or a risk to public health; or 11
(b) the demolition of a work. 12
against decisions on compensation claims 13
Appeals
4.1.34.(1) A person who is dissatisfied with a decision under 14
section 5.4.868 or 5.5.3 69 for the payment of compensation may appeal to 15
the court against-- 16
(a) the decision; or 17
(b) a deemed refusal of the claim. 18
(2) An appeal under subsection (1)(a) must be started within 20 business 19
days after the day notice of the decision is given to the person. 20
(3) An appeal under subsection (1)(b) may be started at any time after the 21
last day a decision on the matter should have been made. 22
against decisions on requests to acquire designated land 23
Appeals
under hardship 24
4.1.35.(1) A person who is dissatisfied with a designator's decision to 25
68 Section 5.4.8 (Deciding claims for compensation)
69 Section 5.5.3 (Compensation for loss or damage)
s 4.1.36 150 s 4.1.38
Integrated Planning
refuse a request made by the person under section 2.6.19,70 may appeal to 1
the court against-- 2
(a) the decision; or 3
(b) a deemed refusal of the request. 4
(2) An appeal under subsection (1)(a) must be started within 20 business 5
days after the day notice of the decision is given to the person. 6
(3) An appeal under subsection (1)(b) may be started at any time after the 7
last day a decision on the matter should have been made. 8
against disqualification as a private certifier 9
Appeals
4.1.36.(1) A person who is disqualified as a private certifier may appeal 10
to the court against the person's disqualification. 11
(2) The appeal must be started within 20 business days after the day 12
notice of the disqualification is given to the private certifier. 13
from tribunals 14
Appeals
4.1.37.(1) A party to a proceeding decided by a tribunal may appeal to 15
the court against the tribunal's decision, but only on the ground-- 16
(a) of error or mistake in law on the part of the tribunal; or 17
(b) that the tribunal had no jurisdiction to make the decision or 18
exceeded its jurisdiction in making the decision. 19
(2) An appeal against a tribunal's decision must be started within 20
20 business days after the day notice of the tribunal's decision is given to 21
the party. 22
may remit matter to tribunal 23
Court
4.1.38. If an appeal includes a matter within the jurisdiction of a tribunal 24
and the court is satisfied the matter should be dealt with by a tribunal, the 25
court must remit the matter to the tribunal for decision. 26
70 Section 2.6.19 (Request to acquire designated land under hardship)
s 4.1.39 151 s 4.1.41
Integrated Planning
Division 10--Making an appeal to court 1
appeals to the court are started 2
How
4.1.39.(1) An appeal is started by lodging written notice of appeal with 3
the registrar of the court. 4
(2) The notice of appeal must state the grounds of the appeal. 5
(3) The person starting the appeal must also comply with the rules of the 6
court applying to the appeal. 7
(4) However, the court may hear and decide an appeal even if the person 8
has not complied with subsection (3). 9
appellants must obtain information about submitters 10
Certain
4.1.40.(1) If the applicant or a submitter for a development application 11
appeals about the part of the application involving impact assessment, the 12
appellant must ask the assessment manager to give the appellant the name 13
and address of each principal submitter who made a properly made 14
submission about the application and has not withdrawn the submission. 15
(2) The assessment manager must give the information requested under 16
subsection (1) as soon as practicable. 17
of appeal to other parties (div 8) 18
Notice
4.1.41.(1) An appellant under division 8 must, within 10 business days 19
after the day the appeal is started (or if information is requested under 20
section 4.1.40, within 10 business days after the day the appellant is given 21
the information) give written notice of the appeal to-- 22
(a) if the appellant is an applicant--the assessment manager, any 23
concurrence agency, any principal submitter whose submission 24
has not been withdrawn and any advice agency treated as a 25
submitter whose submission has not been withdrawn; or 26
(b) if the appellant is a submitter or an advice agency whose response 27
to the development application is treated as a submission for an 28
appeal--the assessment manager, the applicant and any 29
concurrence agency; or 30
s 4.1.42 152 s 4.1.42
Integrated Planning
(c) if the appellant is a person to whom a notice mentioned in 1
section 4.1.30 has been given--the assessment manager and any 2
entity that was a concurrence agency for the development 3
application. 4
(2) The notice must state-- 5
(a) the grounds of the appeal; and 6
(b) if the person given the notice is not the respondent or a 7
co-respondent under section 4.1.43--that the person, within 8
10 business days after the day the notice is given, may elect to 9
become a co-respondent to the appeal. 10
of appeal to other parties (div 9) 11
Notice
4.1.42.(1) An appellant under division 9 must, within 10 business days 12
after the day the appeal is started give written notice of the appeal to-- 13
(a) if the appellant is a person to whom a notice mentioned in 14
section 4.1.3171 has been given--the entity that gave the notice; or 15
(b) if the appellant is a person to whom an enforcement notice is 16
given--the entity that gave the notice and if the entity is not the 17
local government, the local government; or 18
(c) if the appellant is a person dissatisfied with a decision about 19
compensation--the local government that decided the claim; or 20
(d) if the appellant is a person dissatisfied with a decision about 21
acquiring designated land--the designator; or 22
(e) if the appellant is a person who is disqualified as a private 23
certifier--the entity disqualifying the person and if the entity 24
disqualifying the person is not the accrediting body, the 25
accrediting body; or 26
(f) if the appellant is a party to a proceeding decided by a 27
tribunal--the other party to the proceeding. 28
(2) The notice must state the grounds of the appeal. 29
71 Section 4.1.31 (Appeals for matters arising after approval given (no
co-respondents))
s 4.1.43 153 s 4.1.45
Integrated Planning
and co-respondents for appeals under div 8 1
Respondent
4.1.43.(1) This section applies to appeals under division 872 for a 2
development application. 3
(2) The assessment manager is the respondent for the appeal. 4
(3) If the appeal is started by a submitter, the applicant is a co-respondent 5
for the appeal. 6
(4) If the appeal is about a concurrence agency response, the concurrence 7
agency is a co-respondent for the appeal. 8
(5) If the appeal is only about a concurrence agency response, the 9
assessment manager may apply to the court to withdraw from the appeal. 10
(6) The respondent and any co-respondents for an appeal are entitled to 11
be heard in the appeal as a party to the appeal. 12
(7) A person to whom a notice of appeal is required to be given under 13
section 4.1.41 and who is not the respondent or a co-respondent for the 14
appeal may elect to be a co-respondent. 15
and co-respondents for appeals under div 9 16
Respondent
4.1.44.(1) This section applies if an entity is required under 17
section 4.1.42 to be given a notice of an appeal.73 18
(2) The entity given written notice is the respondent for the appeal. 19
(3) However, if under a provision of the section more than 1 entity is 20
required to be given notice, only the first entity mentioned in the provision 21
is the respondent. 22
(4) The second entity mentioned in the provision may elect to be a 23
co-respondent. 24
a person may elect to be co-respondent 25
How
4.1.45.(1) An entity elects to be a co-respondent by lodging in the court, 26
within 10 business days after the day the notice of the appeal is given to the 27
72 Division 8 (Appeals to court relating to development applications)
73 Division 9 (Appeals to court about other matters)
s 4.1.46 154 s 4.1.48
Integrated Planning
entity, a notice of election under the rules of court. 1
(2) If a principal submitter is entitled to elect to become a co-respondent, 2
any other submitter for the submission may also elect to become a 3
co-respondent to the appeal. 4
entitled to be represented in an appeal involving a State 5
Minister
interest 6
4.1.46. If the Minister is satisfied that an appeal involves a State interest, 7
the Minister is entitled to be represented in the appeal. 8
appeal stops certain actions 9
Lodging
4.1.47.(1) If an appeal (other than an appeal under section 4.1.30) is 10
started under division 8, the development must not be started until the 11
appeal is decided or withdrawn. 12
(2) Despite subsection (1), if the court is satisfied the outcome of the 13
appeal would not be affected if the development or part of the development 14
is started before the appeal is decided, the court may allow the development 15
or part of the development to start before the appeal is decided. 16
11--Alternative dispute resolution 17
Division
process applies to proceedings started under this part 18
ADR
4.1.48.(1) The District Courts Act 1967, part 774 and the District Court 19
Rules 1968, part 3975 (together, the "ADR provisions"), apply to 20
proceedings started under this part. 21
(2) However, to the extent there is any inconsistency between the cost 22
provisions of the ADR provisions and the cost provisions of this Act, the 23
cost provisions of the ADR provisions prevail. 24
(3) In applying the ADR provisions to a proceeding under this part-- 25
74 District Courts Act 1967, part 7 (ADR process)
75 District Court Rules 1968, part 39 (Alternative dispute resolution process)
s 4.1.49 155 s 4.1.50
Integrated Planning
(a) a reference to the court or the District Court is taken to be a 1
reference to the Planning and Environment Court; and 2
(b) a reference to a District Court judge is taken to be a reference to a 3
judge constituting the Planning and Environment Court; and 4
(c) definitions and other interpretative provisions of the District 5
Courts Act 1967 and the District Court Rules 1968 relevant to the 6
ADR provisions apply. 7
Division 12--Court process for appeals 8
procedures 9
Hearing
4.1.49. The procedure for hearing an appeal is to be in accordance with-- 10
(a) the rules of court; or 11
(b) if the rules make no provision or insufficient 12
provision--directions of the judge constituting the court. 13
must prove case 14
Who
4.1.50.(1) In an appeal by the applicant for a development application, it 15
is for the appellant to establish that the appeal should be upheld. 16
(2) In an appeal by a submitter for a development application, it is for the 17
applicant to establish that the appeal should be dismissed. 18
(3) In an appeal by an advice agency for a development application that 19
told the applicant and the assessment manager to treat its response to the 20
application as a submission for an appeal, it is for the applicant to establish 21
that the appeal should be dismissed. 22
(4) In an appeal by a person who appeals under section 4.1.30 or 23
4.1.31,76 it is for the appellant to establish that the appeal should be upheld. 24
(5) In an appeal by a person who is given an enforcement notice, it is for 25
the entity that gave the notice to establish that the appeal should be 26
76 Section 4.1.30 (Appeals for matters arising after approval given
(co-respondents)) or 4.1.31 (Appeals for matters arising after approval given (no
co-respondents))
s 4.1.51 156 s 4.1.52
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dismissed. 1
(6) In an appeal by a person who is dissatisfied with a decision about 2
compensation, it is for the local government that decided the claim to 3
establish that the appeal should be dismissed. 4
(7) In an appeal by a person who is dissatisfied with a decision about 5
acquiring designated land, it is for the designator to establish that the appeal 6
should be dismissed. 7
(8) In an appeal by a person who is disqualified as a private certifier, it is 8
for the entity disqualifying the person to establish that the appeal should be 9
dismissed. 10
(9) In an appeal by a party to a proceeding decided by a tribunal, it is for 11
the appellant to establish that the appeal should be upheld. 12
may hear appeals together 13
Court
4.1.51. The court may hear 2 or more appeals together. 14
by way of hearing anew 15
Appeal
4.1.52.(1) An appeal is by way of hearing anew. 16
(2) However, if the appellant is the applicant or a submitter for a 17
development application, the court-- 18
(a) must decide the appeal based on the laws and policies applying 19
when the application was made, but may give weight to any new 20
laws and policies the court considers appropriate; and 21
(b) must not consider a change to the application on which the 22
decision being appealed was made unless the change is only a 23
minor change. 24
(3) To remove any doubt, it is declared that if the appellant is the 25
applicant or a submitter for a development application-- 26
(a) the court is not prevented from considering and making a 27
decision about a ground of appeal (based on a concurrence 28
agency's response) merely because this Act required the 29
assessment manager to refuse the application or approve the 30
application subject to conditions; and 31
s 4.1.53 157 s 4.1.54
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(b) in an appeal against a decision about a transitional development 1
application that was assessed as if it were an application made 2
under a superseded planning scheme, the court also must-- 3
(i) consider the appeal as if the application were made under the 4
superseded planning scheme; and 5
(ii) disregard the planning scheme applying when the application 6
was made. 7
must not decide appeal unless notification stage complied with 8
Court
4.1.53.(1) The court must not decide an appeal about a development 9
application the notification stage applied to unless the court is satisfied the 10
applicant complied with the requirements of the notification stage. 11
(2) However, the court may decide the appeal even if some IDAS 12
requirements have not been complied with, if the court is satisfied the 13
noncompliance has not-- 14
(a) adversely affected the awareness of the public of the existence and 15
nature of the application; or 16
(b) restricted the opportunity of the public to exercise the rights 17
conferred by the requirements. 18
decision 19
Appeal
4.1.54.(1) In deciding an appeal the court may make the orders and 20
directions it considers appropriate. 21
(2) Without limiting subsection (1), the court may-- 22
(a) confirm the decision appealed against; or 23
(b) change the decision appealed against; or 24
(c) set aside the decision appealed against and make a decision 25
replacing the decision set aside. 26
(3) If the court acts under subsection (2)(b) or (c), the court's decision is 27
taken, for this Act (other than this decision) to be the decision of the entity 28
making the appealed decision. 29
(4) If the appeal is an appeal against the decision of a tribunal, the court 30
s 4.1.55 158 s 4.1.58
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may return the matter to the tribunal with a direction that the tribunal make 1
its decision according to law. 2
may allow longer period to take an action 3
Court
4.1.55. In this part, if an action must be taken within a specified time, the 4
court may allow a longer time to take the action if the court is satisfied there 5
are sufficient grounds for the extension. 6
Division 13--Appeals to Court of Appeal 7
may appeal to Court of Appeal 8
Who
4.1.56.(1) A party to a proceeding may, under the rules of court, appeal a 9
decision of the court on the ground-- 10
(a) of error or mistake in law on the part of the court; or 11
(b) that the court had no jurisdiction to make the decision; or 12
(c) that the court exceeded its jurisdiction in making the decision. 13
(2) However, the party may appeal only with the leave of the Court of 14
Appeal or a judge of Appeal. 15
leave to appeal must be sought and appeal made 16
When
4.1.57.(1) A party intending to seek leave of the Court of Appeal to 17
appeal against a decision of the court must, within 30 business days after 18
the court's decision is given to the party, apply to the Court of Appeal for 19
leave to appeal against the decision. 20
(2) If the Court of Appeal grants the leave, the notice of appeal against 21
the decision must be served and filed within 30 business days after the 22
Court of Appeal grants leave to appeal. 23
of Court of Appeal 24
Power
4.1.58. The Court of Appeal may do 1 or more of the following-- 25
(a) return the matter to the court or judge for decision in accordance 26
s 4.1.59 159 s 4.2.1
Integrated Planning
with the Court of Appeal's decision; 1
(b) affirm, amend, or revoke and substitute another order or decision 2
for, the court's or judge's order or decision; 3
(c) make an order the Court of Appeal considers appropriate. 4
appeal stops certain actions 5
Lodging
4.1.59.(1) If a decision on an appeal under division 8 (other than an 6
appeal under section 4.1.30) is appealed under this division, the 7
development must not be started until the appeal under this division is 8
decided or withdrawn. 9
(2) Despite subsection (1), if the Court of Appeal is satisfied the outcome 10
of the appeal before it would not be affected if the development or part of 11
the development is started before the appeal before it is decided, the Court 12
of Appeal may allow the development or part of the development to start 13
before the appeal before it is decided. 14
ART 2--BUILDING AND DEVELOPMENT 15
P
TRIBUNALS 16
1--Establishing, constituting and jurisdiction of tribunals 17
Division
building and development tribunals 18
Establishing
4.2.1.(1) The chief executive may at any time establish a building and 19
development tribunal. 20
(2) A tribunal may be established by the appointment of not more than 21
5 referees77 as the members constituting the tribunal. 22
(3) In establishing a tribunal, the chief executive must have regard to the 23
matter with which the tribunal must deal. 24
77 Referees are appointed under division 7.
s 4.2.2 160 s 4.2.4
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about multiple member tribunals 1
Consultation
4.2.2. If a tribunal is to be constituted by more than 1 member, the chief 2
executive must-- 3
(a) consult with a representative of the Local Government 4
Association of Queensland about the appointment of at least 1 of 5
the referees as a member; and 6
(b) in the writing appointing the members, appoint 1 member as 7
chairperson of the tribunal. 8
members to continue for duration of tribunal 9
Same
4.2.3.(1) A tribunal must continue to be constituted by the same 10
members. 11
(2) If a tribunal cannot complete a decision on a matter, the chief 12
executive may establish another tribunal to hear the matter again from the 13
beginning. 14
with conflict of interest not to be member of tribunal 15
Referee
4.2.4.(1) This section applies to a referee if the chief executive advises the 16
referee that the chief executive proposes to appoint the referee as a member 17
of a tribunal, and either or both of the following apply-- 18
(a) the tribunal is to hear a matter about premises-- 19
(i) the referee owns; or 20
(ii) in relation to which the referee is, or is to be, an architect, 21
builder, engineer, planner or private certifier; or 22
(iii) situated or to be situated in the area of a local government of 23
which the referee is an officer, employee or councillor; 24
(b) the referee has a direct or indirect personal interest in a matter to 25
be considered by the tribunal, and the interest could conflict with 26
the proper performance of the referee's duties in relation to the 27
tribunal's consideration of the matter. 28
(2) The referee must advise the chief executive that this section applies to 29
s 4.2.5 161 s 4.2.8
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the referee, and the chief executive must not appoint the referee to the 1
tribunal. 2
not to act as member of tribunal in certain cases 3
Referee
4.2.5. If a member of a tribunal is aware, or becomes aware, that the 4
member should not have been appointed to the tribunal, the member must 5
not act as a member of the tribunal. 6
of members of tribunal 7
Remuneration
4.2.6.(1) A member of a tribunal must be paid the remuneration the 8
Governor in Council decides. 9
(2) A member who is a public service officer must not be paid 10
remuneration if the officer acts as a member during the officer's ordinary 11
hours of duty as an officer but is entitled to be paid expenses necessarily 12
incurred by the officer in so acting. 13
of tribunals 14
Jurisdiction
4.2.7.(1) A tribunal has jurisdiction to decide any matter that under this 15
or another Act may be appealed to it. 16
(2) An appeal to a tribunal may only relate to-- 17
(a) the Standard Building Law; or 18
(b) a matter prescribed under a regulation. 19
2--Other tribunal officials 20
Division
of registrar and other officers 21
Appointment
4.2.8.(1) The chief executive may at any time by gazette notice appoint a 22
registrar of building and development tribunals, and other officers the chief 23
executive considers appropriate to help tribunals to perform their functions. 24
(2) A public service officer may be appointed under subsection (1) or 25
may be assigned by the chief executive to perform duties to help tribunals, 26
s 4.2.9 162 s 4.2.10
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and may hold the appointment or perform the duties concurrently with any 1
other appointment the officer holds in the public service. 2
3--Appeals to tribunals relating to development applications 3
Division
by applicants 4
Appeals
4.2.9.(1) An applicant for a development application may appeal to a 5
tribunal against any of the following-- 6
(a) the refusal, or the refusal in part, of a development application; 7
(b) a matter stated in a development approval, including any 8
condition applying to the development, but not including the 9
identification of a code under section 3.1.6;78 10
(c) the decision to give a preliminary approval when a development 11
permit was applied for; 12
(d) the length of a currency period; 13
(e) a deemed refusal. 14
(2) An appeal under subsection (1)(a) to (d) must be started within 15
20 business days (the "applicant's appeal period") after the day the 16
decision notice or negotiated decision notice is given to the applicant. 17
(3) An appeal under subsection (1)(e) may be started at any time after the 18
last day a decision on the matter should have been made. 19
by advice agency 20
Appeal
4.2.10.(1) An advice agency may, within the limits of its jurisdiction, 21
appeal to a tribunal about the giving of a development approval if the 22
development application involves code assessment, and the advice agency is 23
the Queensland Fire and Rescue Authority. 24
(2) The appeal must be started within 10 business days after the day the 25
decision notice or negotiated decision notice is given to the Queensland Fire 26
and Rescue Authority as an advice agency. 27
78 Section 3.1.6 (Preliminary approval may override local planning instrument)
s 4.2.11 163 s 4.2.13
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for matters arising after approval given (co-respondents) 1
Appeals
4.2.11.(1) For a development approval given for a development 2
application, a person to whom any of the following notices have been given 3
may appeal to a tribunal against the decision in the notice-- 4
(a) a notice giving a decision on a request for an extension of the 5
currency period for the approval; 6
(b) a notice giving a decision on a request to make a minor change to 7
the approval. 8
(2) The appeal must be started within 20 business days after the day the 9
notice of the decision is given to the person. 10
(3) Subsection (1)(a) does not apply if the approval resulted from a 11
transitional development application that was assessed as if it were an 12
application made under a superseded planning scheme. 13
4--Appeals to tribunal about other matters 14
Division
for matters arising after approval given (no co-respondents) 15
Appeals
4.2.12.(1) A person to whom any of the following notices have been 16
given may appeal to a tribunal against the decision in the notice-- 17
(a) a notice giving a decision on a request to change or cancel a 18
condition of the development approval; 19
(b) a notice under section 6.1.44 79 giving a decision to change or 20
cancel a condition of the development approval. 21
(2) The appeal must be started within 20 business days after the day the 22
notice of the decision is given to the person. 23
against enforcement notices 24
Appeals
4.2.13.(1) A person who is given an enforcement notice may appeal to a 25
tribunal against the giving of the notice. 26
79 Section 6.1.44 (Conditions may be changed or cancelled by assessment manager
or concurrence agency in certain circumstances)
s 4.2.14 164 s 4.2.16
Integrated Planning
(2) The appeal must be started within 20 business days after the day the 1
notice is given to the person. 2
of operation of enforcement notice 3
Stay
4.2.14.(1) The lodging of a notice of appeal about an enforcement notice 4
stays the operation of the enforcement notice until-- 5
(a) the tribunal, on the application of the entity issuing the notice, 6
decides otherwise; or 7
(b) the appeal is withdrawn; or 8
(c) the appeal is dismissed. 9
(2) However, subsection (1) does not apply if the enforcement notice is 10
about-- 11
(a) a work, if the enforcement notice states the entity believes the 12
work is a danger to persons or a risk to public health; or 13
(b) the demolition of a work. 14
Division 5--Making an appeal to tribunal 15
appeals to tribunals are started 16
How
4.2.15.(1) A person starts an appeal by lodging written notice of appeal, 17
in the approved form, with the registrar of the tribunal. 18
(2) The notice of appeal must state the grounds of the appeal and be 19
accompanied by the fee prescribed under a regulation. 20
track appeals 21
Fast
4.2.16.(1) A person who is entitled to start an appeal under this part, 22
may, by written request, ask the chief executive to appoint a tribunal to start 23
hearing the appeal within 2 business days after starting the appeal. 24
(2) A request made under subsection (1) must be accompanied by the fee 25
prescribed under a regulation. 26
(3) The chief executive may grant or refuse the request. 27
s 4.2.17 165 s 4.2.17
Integrated Planning
(4) The chief executive may grant the request only if all the parties to the 1
appeal, including any person who could elect to become a co-respondent, 2
have agreed in writing to the request. 3
(5) If the chief executive grants the request, the chief executive may as a 4
condition of granting the request, require the person making the request to 5
pay-- 6
(a) the reasonable costs of the respondent and any co-respondents for 7
the appeal after the request is granted; and 8
(b) an additional tribunal fee prescribed under a regulation. 9
(6) If the request is granted, any notice of appeal to be given and any 10
election to be a co-respondent to the appeal under this part must be given or 11
made before any hearing for the appeal starts. 12
of appeal to other parties (div 3) 13
Notice
4.2.17.(1) For an appeal under division 3,80 the registrar must, within 14
10 business days after the day the appeal is started, give written notice of the 15
appeal to-- 16
(a) if the appellant is an applicant--the assessment manager, any 17
concurrence agency for an aspect of the application the subject of 18
the appeal, and, if the Queensland Fire and Rescue Authority is an 19
advice agency for the application, the authority; or 20
(b) if the appellant is a person to whom a notice mentioned in 21
section 4.2.1181 has been given--the assessment manager and 22
any entity that was a concurrence agency for an aspect of the 23
application the subject of the appeal. 24
(2) The notice must state-- 25
(a) the grounds of the appeal; and 26
(b) if the person given the notice is not the respondent or a 27
80 Division 3 (Appeals to tribunals relating to development applications)
81 Section 4.2.11 (Appeals for matters arising after approval given
(co-respondents))
s 4.2.18 166 s 4.2.19
Integrated Planning
co-respondent under section 4.2.1982--that the person, within 1
10 business days after the day the notice is given, may elect to 2
become a co-respondent to the appeal. 3
of appeal to other parties (div 4) 4
Notice
4.2.18.(1) For an appeal under division 4, the registrar must, within 5
10 business days after the day the appeal is started, give written notice of the 6
appeal to-- 7
(a) if the appellant is a person to whom a notice mentioned in 8
section 4.2.1283 has been given--the entity that gave the notice; or 9
(b) if the appellant is a person to whom an enforcement notice is 10
given--the entity that gave the notice, and, if the entity is not the 11
local government, the local government. 12
(2) The notice must state the grounds of the appeal. 13
and co-respondents for appeals under div 3 14
Respondent
4.2.19.(1) This section applies to appeals under division 3 for a 15
development application. 16
(2) The assessment manager is the respondent for the appeal. 17
(3) If the appeal is about a concurrence agency response, the concurrence 18
agency is a co-respondent for the appeal. 19
(4) If the appeal is only about a concurrence agency response, the 20
assessment manager may apply to the tribunal to withdraw from the appeal. 21
(5) The respondent and any co-respondents for an appeal are each entitled 22
to be heard in the appeal as a party to the appeal. 23
(6) A person to whom a notice of appeal is required to be given under 24
section 4.2.17 and who is not the respondent or a co-respondent for the 25
appeal under subsections (1) to (3) may elect to be a co-respondent. 26
82 Section 4.2.19 (Respondent and co-respondents for appeals under div 3)
83 Section 4.2.12 (Appeals for matters arising after approval given (no
co-respondents))
s 4.2.20 167 s 4.2.22
Integrated Planning
and co-respondents for appeals under div 4 1
Respondent
4.2.20.(1) This section applies if an entity is required under 2
section 4.2.18 to be given a notice of an appeal. 3
(2) The entity given written notice is the respondent for the appeal. 4
(3) However, if under section 4.2.18(1)(b) more than 1 entity is required 5
to be given notice-- 6
(a) the first entity mentioned in the provision is the respondent; but 7
(b) the second entity mentioned in the provision may elect to be a 8
co-respondent. 9
a person may elect to be co-respondent 10
How
4.2.21. An entity elects to be a co-respondent by lodging in the tribunal, 11
within 10 business days after the day the notice of the appeal is given to the 12
entity, a notice of election in the approved form. 13
must ask assessment manager for material in certain 14
Registrar
proceedings 15
4.2.22.(1) If an appeal is about a deemed refusal, the registrar must ask 16
the assessment manager to give the registrar-- 17
(a) all material (including plans and specifications) about the aspect 18
of the application being appealed; and 19
(b) a statement of the reasons the assessment manager had not 20
decided the application during the decision making period or 21
extended decision making period; and 22
(c) any other information the registrar requires. 23
(2) The assessment manager must give the material mentioned in 24
subsection (1) within 10 business days after the day the registrar asks for 25
the material. 26
s 4.2.23 168 s 4.2.26
Integrated Planning
entitled to be represented in an appeal involving a State 1
Minister
interest 2
4.2.23. If the Minister is satisfied that an appeal involves a State interest, 3
the Minister is entitled to be represented in the appeal. 4
Division 6--Tribunal process for appeals 5
a tribunal 6
Establishing
4.2.24.(1) When the registrar receives a notice of appeal, the registrar 7
must give a copy of the notice to the chief executive. 8
(2) On receiving a copy of a notice of appeal from the registrar, the chief 9
executive must, by the written appointment of a referee or referees, establish 10
a tribunal to decide the appeal. 11
(3) The registrar must give each party to the appeal written notice that a 12
tribunal has been established. 13
of tribunals 14
Procedures
4.2.25.(1) A tribunal must-- 15
(a) conduct its business in the way prescribed under a regulation or, 16
in so far as the way is not prescribed, as it considers appropriate; 17
and 18
(b) make its decisions in a timely way. 19
(2) A tribunal may-- 20
(a) sit at the times and places it decides; and 21
(b) hear 2 or more appeals together. 22
osts 23
C
4.2.26. Each party to an appeal must bear the party's own costs for the 24
appeal. 25
s 4.2.27 169 s 4.2.31
Integrated Planning
may allow longer period to take an action 1
Tribunal
4.2.27. In this part, if an action must be taken within a specified time, the 2
tribunal may allow a longer time to take the action if the tribunal is satisfied 3
there are sufficient grounds for the extension. 4
may be by hearing or written submission 5
Appeal
4.2.28. The chairperson of the tribunal must decide whether the tribunal 6
will-- 7
(a) conduct a hearing for the appeal; or 8
(b) if all the parties to the appeal agree--decide the appeal on the 9
basis of written submissions. 10
by hearing 11
Appeals
4.2.29. If the appeal is to be by way of a hearing, the chairperson must-- 12
(a) fix a time and place for the hearing; and 13
(b) give all the parties to the appeal written notice of the time and 14
place of the hearing. 15
to representation at tribunal appeal hearing 16
Right
4.2.30.(1) A party to an appeal may appear in person or be represented 17
by an agent. 18
(2) A person must not be represented at an appeal by an agent who is a 19
lawyer. 20
of hearings 21
Conduct
4.2.31.(1) In conducting the hearing, the tribunal-- 22
(a) need not proceed in a formal way; and 23
(b) is not bound by the rules of evidence; and 24
(c) may inform itself in the way it considers appropriate; and 25
(d) may seek the views of any person; and 26
s 4.2.32 170 s 4.2.33
Integrated Planning
(e) must give all persons appearing before it reasonable opportunity 1
to be heard; and 2
(f) may prohibit or regulate questioning in the hearing. 3
(2) The tribunal may hear the appeal without hearing a person if the 4
person is not present or represented at the time and place appointed for 5
hearing the person. 6
(3) If, because of the time available for conducting the appeal, a person 7
does not have an opportunity to be heard, or fully heard, the person may 8
make a written submission about the matter to the tribunal. 9
by written submission 10
Appeals
4.2.32.(1) If the tribunal is to decide the appeal on the basis of written 11
submissions, the chairperson must-- 12
(a) decide a reasonable time within which the tribunal may accept the 13
written submissions; and 14
(b) give the parties written notice that the appeal is to be decided on 15
the basis of written submissions. 16
(2) The notice must ask for written submissions about the appellant's 17
grounds of appeal to be given to the chairperson within the time decided 18
under subsection (1). 19
the tribunal may consider in making a decision 20
Matters
4.2.33. If the appeal is about a development application (including about 21
a development approval given for a development application) the tribunal 22
must decide the appeal based on-- 23
(a) the same material the assessment manager or referral agency was 24
required to have regard to when deciding the application; and 25
(b) the laws and policies applying when the application was made, 26
but may give such weight to any new laws and policies the 27
tribunal considers appropriate. 28
s 4.2.34 171 s 4.2.35
Integrated Planning
decision 1
Appeal
4.2.34.(1) In deciding an appeal the tribunal may make the orders and 2
directions it considers appropriate. 3
(2) Without limiting subsection (1), the tribunal may-- 4
(a) confirm the decision appealed against; or 5
(b) change the decision appealed against; or 6
(c) set aside the decision appealed against and make a decision 7
replacing the decision set aside; or 8
(d) for a deemed refusal-- 9
(i) order the assessment manager to decide the application by a 10
stated time; and 11
(ii) if the assessment manager does not comply with the order 12
under subparagraph (i)--decide the application. 13
(3) If the tribunal acts under subsection (2)(b), (c) or (d)(ii), the tribunal's 14
decision is taken, for this Act (other than this decision) to be the decision of 15
the assessment manager. 16
(4) The chairperson of the tribunal must give all parties to the appeal, 17
written notice of the tribunal's decision.84 18
decision may be made without representation or submission 19
When
4.2.35. The tribunal may decide the appeal without the representations or 20
submissions of a person who has been given a notice under 21
section 4.2.29(b) or section 4.2.32(1) if-- 22
(a) for a hearing without written submissions--the person does not 23
appear at the hearing; or 24
(b) for a hearing on the basis of written submissions--the person's 25
submissions are not received within the time stated in the notice 26
given under section 4.2.32(1). 27
84 Any person receiving a notice may appeal the decision. See section 4.1.37
(Appeals from tribunals).
s 4.2.36 172 s 4.2.39
Integrated Planning
7--Referees 1
Division
of referees 2
Appointment
4.2.36.(1) The Minister, by gazette notice, may appoint the number of 3
persons the Minister considers appropriate to be referees under this Act. 4
(2) A public service officer may be appointed as a referee. 5
(3) An officer appointed under subsection (2) holds the appointment 6
concurrently with any other appointment the officer holds in the public 7
service. 8
of referees 9
Qualification
4.2.37.(1) A referee may be appointed as a member of a tribunal to hear 10
and decide a matter only if the referee has the qualifications, experience or 11
qualifications and experience prescribed for the matter under a regulation. 12
of referee's appointment 13
Term
4.2.38.(1) A person may be appointed a referee for the term, not be 14
longer than 3 years, the Minister considers appropriate. 15
(2) The term of appointment must be stated in the notice of appointment. 16
(3) A referee may be re-appointed. 17
(4) A referee may at any time resign the referee's appointment by writing 18
under the referee's hand given to the Minister. 19
(5) The Minister may cancel a referee's appointment at any time. 20
to make declaration 21
Referee
4.2.39.(1) A person appointed as a referee must-- 22
(a) sign a declaration in the approved form; and 23
(b) give the declaration to the chief executive as soon as the 24
declaration is signed. 25
s 4.3.1 173 s 4.3.3
Integrated Planning
(2) The person must not sit as a member of a tribunal until the 1
declaration has been given to the chief executive. 2
ART 3--DEVELOPMENT OFFENCES, NOTICES 3
P
AND ORDERS 4
1--Development offences 5
Division
out assessable development without permit 6
Carrying
4.3.1.(1) A person must not start assessable development without a 7
development permit for the development. 8
Maximum penalty--1 665 penalty units. 9
(2) Subsection (1) applies subject to section 4.3.6. 10
(3) Despite subsection (1), if the assessable development is the 11
demolition of a building identified in a planning scheme as a building of 12
heritage significance the maximum penalty is 17 000 penalty units. 13
development must comply with codes 14
Self-assessable
4.3.2. A person must comply with applicable codes when carrying out 15
self-assessable development. 16
Maximum penalty--165 penalty units. 17
with development approval 18
Compliance
4.3.3.(1) A person must not contravene a development approval, 19
including any condition in the approval. 20
Maximum penalty--1 665 penalty units. 21
(2) Subsection (1) applies subject to section 4.3.6. 22
s 4.3.4 174 s 4.3.7
Integrated Planning
with identified codes about use of premises 1
Compliance
4.3.4.(1) A person must not contravene a code identified, in a way 2
provided for in this Act, as a code applying to the use of premises. 3
Maximum penalty--1 665 penalty units. 4
(2) Subsection (1) applies subject to section 4.3.6. 5
on unlawful use of premises 6
Carrying
4.3.5. A person must not use premises if the use is not a lawful use. 7
Maximum penalty--1 665 penalty units. 8
(2) Subsection (1) applies subject to section 4.3.6. 9
or use carried out in emergency 10
Development
4.3.6.(1) Sections 4.3.1, 4.3.3, 4.3.4 and 4.3.5 do not apply to a person 11
if-- 12
(a) the person starts development or a use because of an emergency 13
endangering-- 14
(i) the life or health of a person; or 15
(ii) the structural safety of a building; and 16
(b) the person gives written notice of the development or use to the 17
local government as soon as practicable after starting the 18
development or use. 19
(2) However, subsection (1) does not apply if the person is required by 20
an enforcement notice or order to stop carrying out the development or use. 21
a false or misleading notice 22
Giving
4.3.7.(1) A person must not give an assessment manager a notice under 23
section 3.3.485 or 3.4.786 that is false or misleading. 24
85 Section 3.3.4 (Applicant advises assessment manager)
86 Section 3.4.7 (Notice of compliance to be given to assessment manager)
s 4.3.8 175 s 4.3.10
Integrated Planning
Maximum penalty--1 665 penalty units. 1
(2) A person must not give the chief executive a notice under 2
section 3.3.587 that is false or misleading. 3
Maximum penalty--1 665 penalty units. 4
2--Show cause notices 5
Division
of div 2 6
Application
4.3.8. This division applies if an assessing authority proposes to give a 7
person an enforcement notice other than an enforcement notice about--88 8
(a) work the authority reasonably believes is a danger to persons or a 9
risk to public health; or 10
(b) work the authority reasonably believes is of a minor nature; or 11
(c) the demolition of a work. 12
show cause notice 13
Giving
4.3.9. Before giving an enforcement notice, the assessing authority must 14
give the person a notice (a "show cause notice") inviting the person to 15
show cause why the enforcement notice should not be given. 16
requirements of show cause notice 17
General
4.3.10.(1) A show cause notice must-- 18
(a) be in writing; and 19
(b) outline the facts and circumstances forming the basis for the 20
assessing authority's belief that an enforcement notice should be 21
given to the person; and 22
(c) state that representations may be made about the show cause 23
87 Section 3.3.5 (Referral coordination)
88 Under section 5.3.5, a private certifier also has restricted rights under divisions 2
and 3.
s 4.3.11 176 s 4.3.12
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notice; and 1
(d) state how the representations may be made; and 2
(e) state where the representations may be made or sent; and 3
(f) state-- 4
(i) a day and time for making the representations; or 5
(ii) a period within which the representations must be made. 6
(2) The day or period stated in the notice must be, or must end, at least 7
20 business days after the notice is given. 8
3--Enforcement notices 9
Division
enforcement notice 10
Giving
4.3.11.(1) If an assessing authority reasonably believes a person has 11
committed, or is committing, a development offence, the authority may 12
give a notice (an "enforcement notice") to the person requiring the person 13
to do either or both of the following--89 14
(a) to refrain from committing the offence; or 15
(b) to remedy the commission of the offence in the way stated in the 16
notice. 17
(2) If the assessing authority giving the notice reasonably believes the 18
person has committed, or is committing, the development offence in a local 19
government area and the assessing authority is not the local government, the 20
assessing authority must also give the local government a copy of the 21
notice. 22
affecting giving of enforcement notice 23
Restriction
4.3.12. Subject to section 4.3.8, the assessing authority may give the 24
enforcement notice only if, after considering all representations made by the 25
89 A person who receives an enforcement notice may appeal against the notice
under section 4.1.32 (Appeals against enforcement notices).
s 4.3.13 177 s 4.3.14
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person about the show cause notice within the time stated in the notice, the 1
authority still believes it is appropriate to give the enforcement notice. 2
requirements of enforcement notice 3
Specific
4.3.13.(1) Without limiting specific requirements an enforcement notice 4
may impose, a notice may require a person to do any of the following-- 5
(a) to stop carrying out a development; 6
(b) to stop a stated use of a premises; 7
(c) to demolish or remove a work; 8
(d) to restore, as far as practicable, premises to the condition the 9
premises were in immediately before a development was started; 10
(e) to do, or not to do, another act to ensure a development complies 11
with a development approval or a code; 12
(f) to apply for a development permit; 13
(g) if the assessing authority reasonably believes a work is 14
dangerous-- 15
(i) to repair or rectify the work; or 16
(ii) to secure the work (whether by a system of supports or in 17
another way); or 18
(iii) to fence off the work to protect persons. 19
(2) However, a person may be required to demolish or remove a work 20
only if the assessing authority reasonably believes it is not possible and 21
practical to take steps-- 22
(a) to make the work comply with a development approval or a code; 23
or 24
(b) if the work is dangerous--to remove the danger. 25
requirements of enforcement notices 26
General
4.3.14.(1) An enforcement notice must-- 27
(a) be in writing; and 28
s 4.3.15 178 s 4.3.16
Integrated Planning
(b) describe the nature of the alleged offence; and 1
(c) inform the person to whom the notice is given of the person's 2
right to appeal against the giving of the notice. 3
(2) If an enforcement notice requires a person to do an act involving the 4
carrying out of work, it also must give details of the work involved. 5
(3) If an enforcement notice requires a person to refrain from doing an 6
act, it also must state either-- 7
(a) a period for which the requirement applies; or 8
(b) that the requirement applies until further notice. 9
(4) If an enforcement notice requires a person to do an act, it also must 10
state a period within which the act is required to be done. 11
(5) If an enforcement notice requires a person to do more than 1 act, it 12
may state different periods within which the acts are required to be done. 13
with enforcement notice 14
Compliance
4.3.15. A person who is given an enforcement notice must comply with 15
the notice. 16
Maximum penalty--1 665 penalty units. 17
application required by enforcement notice 18
Processing
4.3.16. If a person applies for a development permit as required by an 19
enforcement notice, the person-- 20
(a) must not discontinue the application, unless the person has a 21
reasonable excuse; and 22
(b) must take all necessary and reasonable steps to enable the 23
application to be decided as quickly as possible, unless the person 24
discontinues the application with a reasonable excuse. 25
Maximum penalty--1 665 penalty units. 26
s 4.3.17 179 s 4.3.19
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authority may take action 1
Assessing
4.3.17.(1) If a person to whom an enforcement notice is given 2
contravenes the notice by not doing something, the assessing authority (if it 3
is not a local government) may do the thing.90 4
(2) Any reasonable costs or expenses incurred by an assessing authority 5
in doing anything under subsection (1), may be recovered by the authority 6
as a debt owing to it by the person to whom the notice was given. 7
Division 4--Offence proceedings in magistrates court 8
for offences 9
Proceedings
4.3.18.(1) A person may bring a proceeding in a magistrates court on a 10
complaint to prosecute another person for a development offence. 11
(2) The person may bring the proceeding whether or not any right of the 12
person has been, or may be, infringed by, or because of, the commission of 13
the offence. 14
(3) However, for an offence under section 4.3.1, 91 4.3.2 92 or 4.3.393 15
about the Standard Building Law, proceedings may only be brought by an 16
assessing authority. 17
brought in a representative capacity 18
Proceeding
4.3.19.(1) A proceeding under section 4.3.18 may be brought by the 19
person on their own behalf or in a representative capacity. 20
(2) However, if the proceeding is brought in a representative 21
capacity, 1 of the following consents must be obtained-- 22
(a) if the proceeding is brought on behalf of a body of persons or a 23
90 If the assessing authority is a local government it has similar powers under the
Local Government Act 1993, section 661 and has powers to recover its costs
under sections 662 and 663.
91 Section 4.3.1 (Carrying out assessable development without permit)
92 Section 4.3.2 (Compliance with development approval)
93 Section 4.3.3 (Compliance with identified codes about use of premises)
s 4.3.20 180 s 4.3.20
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corporation--the members of the governing body; or 1
(b) if the proceeding is brought on behalf of an individual--the 2
individual. 3
court may make orders 4
Magistrates
4.3.20.(1) After hearing the complaint, the magistrates court may make 5
an order on the defendant it considers appropriate. 6
(2) The order may be made in addition to, or in substitution for, any 7
penalty the court may otherwise impose. 8
(3) The order may require the defendant-- 9
(a) to stop development or carrying on a use; or 10
(b) to demolish or remove a work; or 11
(c) to restore, as far as practicable, premises to the condition the 12
premises were in immediately before development or use of the 13
premises started; or 14
(d) to do, or not to do, another act to ensure development or use of 15
the premises complies with a development approval or a code; or 16
(e) for development that has started--to apply for a development 17
permit; or 18
(h) if the court believes a work is dangerous-- 19
(i) to repair or rectify the work; or 20
(ii) to secure the work. 21
(4) The order must state the time, or period, within which the order must 22
be complied with. 23
(5) A person who contravenes the order commits an offence against this 24
Act. 25
Maximum penalty--1 665 penalty units or imprisonment for 12 months. 26
(6) If the order states that contravention of the order is a public nuisance, 27
an assessing authority (other than a local government) may undertake any 28
s 4.3.21 181 s 4.3.22
Integrated Planning
work necessary to remove the nuisance.94 1
(7) If an assessing authority carries out works under subsection (6), it 2
may recover the reasonable cost of the works as a debt owing to the 3
assessing authority from the person to whom the order was given. 4
involved in bringing proceeding 5
Costs
4.3.21. If the proceeding is brought in a representative capacity, the 6
person on whose behalf the proceeding is brought may contribute to, or 7
pay, the legal costs and expenses incurred by the person bringing the 8
proceeding. 9
5--Enforcement orders of court 10
Division
for orders 11
Proceeding
4.3.22.(1) A person may bring a proceeding in the court-- 12
(a) for an order to remedy or restrain the commission of a 13
development offence (an "enforcement order"); or 14
(b) if the person has brought a proceeding under paragraph (a) and 15
the court has not decided the proceeding--for an order under 16
section 4.3.24 (an "interim enforcement order"); or 17
(c) to cancel or change an enforcement order or interim enforcement 18
order. 19
(2) However, if the offence under subsection (1)(a) is an offence under 20
section 4.3.1, 4.3.2 or 4.3.3 about the Standard Building Law, the 21
proceeding may be brought only by the assessing authority having 22
enforcement jurisdiction for the matter. 23
(3) The person may bring a proceeding under subsection (1)(a) whether 24
or not any right of the person has been, or may be, infringed by, or because 25
of, the commission of the offence. 26
94 If the assessing authority is a local government it has similar powers under the
Local Government Act 1993, section 661 and has powers to recover its costs
under sections 662 and 663.
s 4.3.23 182 s 4.3.26
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brought in a representative capacity 1
Proceeding
4.3.23.(1) A proceeding under section 4.3.22 may be brought by the 2
person on their own behalf or in a representative capacity. 3
(2) However, if the proceeding is brought in a representative capacity, 4
1 of the following consents must be obtained-- 5
(a) if the proceeding is brought on behalf of a body of persons or a 6
corporation--the members of the governing body; or 7
(b) if the proceeding is brought on behalf of an individual--the 8
individual. 9
interim enforcement order 10
Making
4.3.24.(1) The court may make an interim enforcement order pending a 11
decision of the proceeding if the court is satisfied it would be appropriate to 12
make the order. 13
(2) The court may make the order subject to conditions, including a 14
condition requiring the applicant for the order to give an undertaking to pay 15
costs resulting from damage suffered by the respondent if the proceeding is 16
unsuccessful. 17
enforcement order 18
Making
4.3.25.(1) The court may make an enforcement order if the court is 19
satisfied the offence-- 20
(a) has been committed; or 21
(b) will be committed unless restrained. 22
(2) If the court is satisfied the offence has been committed, the court may 23
make an enforcement order whether or not there has been a prosecution for 24
the offence under division 4. 25
of orders 26
Effect
4.3.26.(1) An enforcement order or an interim enforcement order may 27
direct the respondent-- 28
(a) to stop an activity that constitutes, or will constitute, a 29
s 4.3.27 183 s 4.3.27
Integrated Planning
development offence; or 1
(b) not to start an activity that will constitute a development offence; 2
or 3
(c) to do anything required to stop committing a development 4
offence; or 5
(d) to do anything about a development or use to comply with this 6
Act. 7
(2) Without limiting the court's powers, the court may make an order 8
requiring the repairing, demolition or removal of a building. 9
(3) An enforcement order or an interim enforcement order-- 10
(a) may be in terms the court considers appropriate to secure 11
compliance with this Act; and 12
(b) must state the time by which the order is to be complied with. 13
powers about orders 14
Court's
4.3.27.(1) The court's power to make an enforcement order or interim 15
enforcement order to stop, or not to start, an activity may be exercised 16
whether or not-- 17
(a) it appears to the court the person against whom the order is made 18
intends to engage, or to continue to engage, in the activity; or 19
(b) the person has previously engaged in an activity of the kind; or 20
(c) there is danger of substantial damage to property or injury to 21
another person if the person engages, or continues to engage, in 22
the activity. 23
(2) The court's power to make an enforcement order or interim 24
enforcement order to do anything may be exercised whether or not-- 25
(a) it appears to the court the person against whom the order is made 26
intends to fail, or to continue to fail, to do the thing; or 27
(b) the person has previously failed to do a thing of the kind; or 28
(c) there is danger of substantial damage to property or injury to 29
another person if the person fails, or continues to fail, to do the 30
thing. 31
s 4.3.28 184 s 4.3.29
Integrated Planning
(3) The court may cancel or change an enforcement order or interim 1
enforcement order. 2
(4) The court's power under this section is in addition to its other 3
powers. 4
involved in bringing proceeding 5
Costs
4.3.28. If the proceeding is brought in a representative capacity, the 6
person on whose behalf the proceeding is brought may contribute to, or 7
pay, the legal costs and expenses incurred by the person bringing the 8
proceeding. 9
Division 6--Application of Acts 10
of other Acts 11
Application
4.3.29.(1) This section applies if another Act-- 12
(a) specifies monetary penalties for offences about development 13
greater or less than the penalties specified in this part; or 14
(b) provides that an activity specified in this part as a development 15
offence is not an offence; or 16
(c) contains provisions about the carrying out of development in an 17
emergency; or 18
(d) includes requirements about enforcement notices that are different 19
to the requirements of this part; or 20
(e) includes provisions about the issuing of other notices having the 21
same effect as enforcement notices; or 22
(f) includes requirements about proceedings for the prosecution for 23
development offences or other offences that are different from the 24
requirements of this part; or 25
(g) includes requirements about proceedings for enforcement orders 26
that are different from the requirements of this part. 27
(2) The provisions of the other Act prevail over the provisions of this 28
part to the extent of any inconsistency. 29
s 4.4.1 185 s 4.4.3
Integrated Planning
PART 4--LEGAL PROCEEDINGS 1
Division 1--Proceedings 2
for offences 3
Proceedings
4.4.1. A proceeding for an offence against this Act may be instituted in a 4
summary way under the Justices Act 1886. 5
on time for starting proceedings 6
Limitation
4.4.2. A proceeding for an offence against this Act must start-- 7
(a) within 1 year after the commission of the offence; or 8
(b) within 6 months after the offence comes to the complainant's 9
knowledge. 10
officers must ensure corporation complies with Act 11
Executive
4.4.3.(1) The executive officers of a corporation must ensure the 12
corporation complies with this Act. 13
(2) If a corporation commits an offence against a provision of this Act, 14
each of the corporation's executive officers also commits an offence, 15
namely, the offence of failing to ensure the corporation complies with the 16
provision. 17
Maximum penalty for subsection (2)--the penalty for the contravention of 18
the provision by an individual. 19
(3) Evidence that the corporation has been convicted of an offence 20
against a provision of this Act is evidence that each of the executive officers 21
committed the offence of failing to ensure the corporation complies with the 22
provision. 23
(4) However, it is a defence for an executive officer to prove-- 24
(a) if the officer was in a position to influence the conduct of the 25
corporation in relation to the offence--the officer exercised 26
reasonable diligence to ensure the corporation complied with the 27
provision; or 28
s 4.4.4 186 s 4.4.5
Integrated Planning
(b) the officer was not in a position to influence the conduct of the 1
corporation in relation to the offence. 2
Division 2--Fines and costs 3
fines payable to local government 4
When
4.4.4.(1) This section applies if-- 5
(a) the assessing authority by which the administration and 6
enforcement of a matter is carried out is a local government; and 7
(b) a proceeding for an offence about the matter is taken by the local 8
government; and 9
(c) a court imposes a fine for the offence. 10
(2) The fine must be paid to the local government. 11
for compensation or remedial action 12
Order
4.4.5.(1) This section applies if-- 13
(a) a person is convicted of a development offence; and 14
(b) the court convicting the person finds that, because of the 15
commission of the offence, another person-- 16
(i) has suffered loss of income; or 17
(ii) has suffered a reduction in the value of, or damage to, 18
property; or 19
(iii) has incurred costs or expenses in replacing or repairing 20
property or in preventing or minimising, or attempting to 21
prevent or minimise, a loss, reduction or damage mentioned 22
in subparagraph (i) or (ii). 23
(2) The court may order the person to do either or both of the 24
following-- 25
(a) pay to the other person an amount of compensation the court 26
considers appropriate for the loss, reduction or damage suffered 27
or costs or expenses incurred; or 28
s 4.4.6 187 s 4.4.8
Integrated Planning
(b) take stated remedial action the court considers appropriate. 1
(3) An order under subsection (2) is in addition to the imposition of a 2
penalty and any other order under this Act. 3
(4) This section does not limit the court's powers under the Penalties 4
and Sentences Act 1992 or another law. 5
of costs of investigation 6
Recovery
4.4.6.(1) This section applies if-- 7
(a) a person is convicted of an offence against this Act; and 8
(b) the court convicting the person finds the assessing authority has 9
reasonably incurred costs and expenses in taking a sample or 10
conducting an inspection, test, measurement or analysis during 11
the investigation of the offence; and 12
(c) the assessing authority applies for an order against the person for 13
the payment of the costs and expenses. 14
(2) The court may order the person to pay to the assessing authority the 15
reasonable costs and expenses incurred by the authority if it is satisfied it 16
would be just to make the order in the circumstances of the particular case. 17
(3) This section does not limit the court's powers under the Penalties 18
and Sentences Act 1992 or another law. 19
3--Evidence 20
Division
of div 3 21
Application
4.4.7. This division applies to a proceeding under this Act. 22
and authority 23
Appointments
4.4.8. It is not necessary to prove-- 24
(a) the appointment of the chief executive or the chief executive 25
officer (by whatever name called) of an assessing authority; or 26
(b) the authority of the chief executive or the chief executive officer 27
s 4.4.9 188 s 4.4.13
Integrated Planning
(by whatever name called) of an assessing authority to do 1
anything under this Act. 2
3
Signatures
4.4.9. A signature purporting to be the signature of the chief executive or 4
the chief executive officer (by whatever name called) of an assessing 5
authority is evidence of the signature it purports to be. 6
coming to complainant's knowledge 7
Matter
4.4.10. In a complaint starting a proceeding, a statement that the matter of 8
the complaint came to the complainant's knowledge on a stated day is 9
evidence of the matter. 10
equipment and installations 11
Instruments,
4.4.11. Any instrument, equipment or installation prescribed under a 12
regulation that is used by an appropriately qualified person in accordance 13
with any conditions prescribed under a regulation is taken to be accurate and 14
precise in the absence of evidence to the contrary. 15
certificate or report 16
Analyst's
4.4.12. A certificate or report purporting to be signed by an appropriately 17
qualified person and stating any of the following matters is evidence of the 18
matter-- 19
(a) the person's qualifications; 20
(b) the person took, or received from a stated person, a stated sample; 21
(c) the person analysed the sample on a stated day, or during a stated 22
period, and at a stated place; 23
(d) the results of the analysis. 24
aids generally 25
Evidentiary
4.4.13. A certificate purporting to be signed by the chief executive officer 26
s 4.4.14 189 s 4.4.14
Integrated Planning
(by whatever name called) of an assessing authority stating any of the 1
following matters is evidence of the matter-- 2
(a) a stated document is-- 3
(i) an appointment or a copy of an appointment; or 4
(ii) a direction or decision, or a copy of a direction or decision, 5
given or made under this Act; or 6
(iii) a notice, order or permit, or a copy of a notice, order or 7
permit, given under this Act; 8
(b) on a stated day, or during a stated period, a stated person was or 9
was not the holder of a development permit for stated 10
development; 11
(c) on a stated day, or during a stated period, a development permit-- 12
(i) was or was not in force for a stated person or development; 13
or 14
(ii) was or was not subject to a stated condition; 15
(d) on a stated day, a stated person was given a stated notice or 16
direction under this Act; 17
(e) a stated amount is payable under this Act by a stated person and 18
has not been paid. 19
for acts or omissions of representatives 20
Responsibility
4.4.14.(1) Subsections (2) and (3) apply in a proceeding for an offence 21
against this Act. 22
(2) If it is relevant to prove a person's state of mind about a particular act 23
or omission, it is enough to show-- 24
(a) the act was done or omitted to be done by a representative of the 25
person within the scope of the representative's actual or apparent 26
authority; and 27
(b) the representative had the state of mind. 28
(3) An act done or omitted to be done for a person by a representative of 29
the person within the scope of the representative's actual or apparent 30
authority is taken to have been done or omitted to be done also by the 31
s 5.1.1 190 s 5.1.1
Integrated Planning
person, unless the person proves the person could not, by the exercise of 1
reasonable diligence, have prevented the act or omission. 2
(4) In this section-- 3
"representative" means-- 4
(a) of a corporation--an executive officer, employee or agent of the 5
corporation; or 6
(b) of an individual--an employee or agent of the individual. 7
"state of mind" of a person includes-- 8
(a) the person's knowledge, intention, opinion, belief or purpose; and 9
(b) the person's reasons for the intention, opinion, belief or purpose. 10
CHAPTER 5--MISCELLANEOUS 11
ART 1--INFRASTRUCTURE CHARGES 12
P
1--Preliminary 13
Division
of "development infrastructure item" 14
Meaning
5.1.1.(1) A "development infrastructure item" is land, capital works 15
or land and capital works for any of the following infrastructure-- 16
(a) urban water cycle management infrastructure (including 17
infrastructure for water supply, sewerage, collecting water, 18
treating water, stream managing, disposing of waters and flood 19
mitigation); 20
(b) transport infrastructure (including roads, vehicle lay-bys, traffic 21
control devices, dedicated public transport corridors, public 22
parking facilities predominantly serving a local area, cycle ways, 23
pathways and ferry terminals); 24
(c) infrastructure for local community purposes. 25
s 5.1.2 191 s 5.1.4
Integrated Planning
(2) In subsection (1)-- 1
"capital works", for local community purposes, means works that ensure 2
land is suitable for development for its intended purpose. 3
"roads" does not include State-controlled roads. 4
"urban water cycle management infrastructure" includes rural 5
residential water cycle management infrastructure. 6
of "desired standard of service" 7
Meaning
5.1.2. A "desired standard of service", for a network of development 8
infrastructure items, is the standard of performance stated in an 9
infrastructure charges plan for the network. 10
of "life cycle cost" 11
Meaning
5.1.3. The "life cycle cost", for a network of development infrastructure 12
items, is the amount of the capital cost of the network plus the amount 13
representing the present value of operating and maintenance costs of the 14
network over 30 years, or the longer period decided by the entity preparing 15
the infrastructure charges plan. 16
of "infrastructure charges plan" 17
Meaning
5.1.4.(1) An "infrastructure charges plan" is the part of a planning 18
scheme that-- 19
(a) identifies development infrastructure items making up a network 20
of development infrastructure items; and 21
(b) states the desired standard of service for the network having 22
regard to user benefits and environmental effects of the network; 23
and 24
(c) evaluates alternative ways of funding the items. 25
26
Example for subsection (1)(b)--
27
For water supply, the desired standard of service may be expressed as the
28
minimum head of pressure available at each domestic or business service point.
(2) For development infrastructure items for which an infrastructure 29
s 5.1.5 192 s 5.1.5
Integrated Planning
charge is intended, the plan must-- 1
(a) explain why an infrastructure charge is intended for the items; and 2
(b) state the estimated proportion of the capital cost of the items to be 3
funded by the charge; and 4
(c) include a schedule stating the estimated timing for, and estimated 5
capital cost of, the items; and 6
(d) state the method or methods by which the charge must be 7
calculated; and 8
(e) state each area in which the charge applies; and 9
(f) identify each type of lot, work or use, in respect of which, the 10
charge applies; and 11
(g) for each type of lot, work or use in an area stated under 12
paragraph (e)--calculate the rate at which the charge applies using 13
a method stated under paragraph (d); and 14
(h) if the charge is payable by a person other than an applicant for a 15
development approval--state when the charge is payable. 16
(3) The capital cost mentioned in subsection (2)(c) must be calculated so 17
as to minimise the life cycle cost for the desired standard of service for the 18
network. 19
(4) The infrastructure charges plan must be prepared having regard to 20
any guidelines approved by the chief executive for preparing the plan. 21
(5) For an infrastructure charges plan, a planning scheme may also apply 22
to a development infrastructure item even though the item is not within or 23
wholly within a local government's area. 24
2--Charging for development infrastructure items 25
Division
infrastructure charges 26
Fixing
5.1.5.(1) If a local government fixes a general charge under the Local 27
s 5.1.6 193 s 5.1.7
Integrated Planning
Government Act 1993, section 559(2)95 for the capital cost of a 1
development infrastructure item (an "infrastructure charge") the charge 2
must be fixed only in the way stated in this division. 3
(2) A local government need not, in circumstances it considers 4
appropriate, fix an infrastructure charge in respect of a particular lot, work 5
or use. 6
(3) However, a local government must not fix an infrastructure charge to 7
fund the capital cost of a development infrastructure item servicing a work 8
or use of land authorised under the Mineral Resources Act 1989. 9
charge must be based on plan and other matters 10
Infrastructure
5.1.6.(1) An infrastructure charge must not be fixed for a development 11
infrastructure item unless the item is identified in an infrastructure charges 12
plan. 13
(2) For an item identified in an infrastructure charges plan, an 14
infrastructure charge-- 15
(a) must be fixed in accordance with the plan; and 16
(b) must not be more than the proportion of the cost of the item that 17
reasonably can be apportioned to the premises for which the 18
charge is fixed, taking into account the likely share of the usage of 19
the item for the premises; and 20
(c) may take into account money already spent on supplying an 21
existing development infrastructure item to the premises. 22
(3) Subsection (2)(c) applies only if the money already spent on 23
supplying the existing item has not been recovered or is not intended to be 24
recovered in another way. 25
a charge for an item not included in plan 26
Fixing
5.1.7.(1) Despite section 5.1.6, a local government may fix, but only 27
under this section, an infrastructure charge for a development infrastructure 28
95 Local Government Act 1993, section 559(2) (Power to make and levy rates and
charges)
s 5.1.8 194 s 5.1.8
Integrated Planning
item not identified in the infrastructure charges plan. 1
(2) The infrastructure charge must only be-- 2
(a) payable by an applicant; and 3
(b) for a development infrastructure item to service development that 4
is-- 5
(i) inconsistent with the planning scheme; or 6
(ii) consistent with the planning scheme, but is urban 7
development (including rural residential development) not in 8
an area identified to accommodate the next 5 years (or other 9
period approved by the Minister) of development in a 10
benchmark development sequence; and 11
(c) calculated-- 12
(i) on the basis of the minimum life cycle cost necessary to 13
achieve the desired standard of service for a similar network 14
of items included in the infrastructure charges plan; and 15
(ii) having regard to any guidelines approved by the chief 16
executive. 17
(3) If an infrastructure charge is fixed under this section, the local 18
government must review and amend its infrastructure charges plan as soon 19
as practicable after the charge is paid to reflect the approved development. 20
of charge 21
Notice
5.1.8. If an infrastructure charge is fixed, the person who is to pay the 22
charge must be given a written notice stating-- 23
(a) the amount of the charge; and 24
(b) the land to which, for the purposes of recovery, the charge 25
applies; and 26
(c) the day by which the charge is payable; and 27
(d) the development infrastructure item for which the charge has been 28
fixed; and 29
(e) the person to whom the charge must be paid. 30
s 5.1.9 195 s 5.1.9
Integrated Planning
required if charge is payable by applicant 1
Actions
5.1.9.(1) This section applies if the person to whom a notice under 2
section 5.1.8 is to be given is an applicant under a development application 3
for development resulting in a lot, work or use in respect of which the 4
charge mentioned in the notice applies. 5
(2) If the application was made to a local government, the local 6
government must give the notice under section 5.1.8, within 5 business 7
days after the local government gives the applicant the decision notice about 8
the development, to the applicant. 9
(3) If the application was made to an assessment manager other than a 10
local government, the local government must give the notice under 11
section 5.1.8, within 10 business days after the local government receives a 12
copy of the decision notice from the assessment manager. 13
(4) If the application was made to a private certifier, the local government 14
must give the notice under section 5.1.8, within 10 business days after the 15
day the local government receives a copy of the decision notice from the 16
private certifier. 17
(5) If as a result of a decision of a court on the application, the local 18
government fixes an infrastructure charge, the local government must give 19
the notice under section 5.1.8 within 20 business days after the local 20
government receives a copy of the decision about the appeal. 21
(6) If the assessment manager gives the applicant a negotiated decision 22
notice and the development approved by the negotiated decision notice is 23
different from the development approved in the decision notice in a way that 24
affects the amount of the infrastructure charge, the local government may 25
give the applicant a new notice under section 5.1.8 to replace the original 26
notice. 27
(7) For subsection (6), the new notice must be given-- 28
(a) if the assessment manager is the local government--within 29
5 business days after the negotiated decision notice is given; or 30
(b) if the assessment manager is not the local government--within 31
10 business days after the local government receives a copy of the 32
negotiated decision notice from the assessment manager or 33
private certifier. 34
(8) The local government may, with the written agreement of the 35
s 5.1.10 196 s 5.1.10
Integrated Planning
applicant, give a new notice under section 5.1.8 to replace the original 1
notice, if the original notice was in error. 2
(9) If the owner of the land the subject of the application is not the 3
applicant, the owner must also be given a copy of any notice given to the 4
applicant under this section. 5
charge is payable by applicant 6
When
5.1.10.(1) The infrastructure charge is payable-- 7
(a) if the notice of charge states that the development infrastructure 8
item for which the charge is payable is necessary to service the 9
premises for which the approval has been given before the use of 10
the premises starts, but is not yet available to service the 11
premises-- 12
(i) for reconfiguring a lot--before works for the reconfiguration 13
start; and 14
(ii) for building work--before the building work starts; or 15
(b) if paragraph (a) does not apply-- 16
(i) for reconfiguring a lot--before the approval by the local 17
government of the plan of subdivision; and 18
(ii) for building work--bef