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1
Integrated Planning and Other Legislation
INTEGRATED PLANNING AND OTHER
LEGISLATION AMENDMENT BILL 1998
EXPLANATORY NOTES
GENERAL OUTLINE
Objective of the Legislation
The objectives of this Bill are to:
· clarify the intended operation of the Integrated Planning Act 1997
(IPA) and related legislation, in particular the Integrated
Development Assessment System (IDAS), private certification
and transitional arrangements;
· simplify aspects of IDAS, in particular for routine applications;
· remove anomalies in the legislation;
· correct typographical and other minor errors in the text of the
legislation.
Reasons for the Bill
The IPA was debated and passed by Parliament in November 1997. For
the most part, the Act commenced on 30 March, 1998. Building and
environmental management systems were integrated into IDAS in April
and July, 1998 respectively.
Because of the scope and magnitude of the reform introduced by the
IPA, it is to be expected difficulties will be encountered with the operation
of the new system in its early stages. Monitoring of the Act's
implementation suggests some difficulties being experienced could be
quickly overcome by clarifying certain provisions and improving some of
the procedures. The proposed amendments are intended to do this. They are
operational in character and do not affect the policy intent of the IPA.
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Integrated Planning and Other Legislation
Ways in which the objectives are to be achieved
The objectives of the Bill are to be achieved by making modifications to:
· chapter 3 of the IPA to improve the efficiency of IDAS,
particularly for minor applications, and to modify or remove
some provisions assessment managers are finding difficult or
costly to administer;
· chapter 5 of the IPA, particularly for private certification;
· chapter 6 of the IPA (Savings and Transitionals) to clarify its
application in areas such as the scope of approvals, the ability to
enforce decisions made under the former Local Government
(Planning & Environment) Act 1990 (P&E Act), and to clarify
when the compensation arrangements of the P&E Act and the
IPA apply;
· the Environmental Protection Act 1994 (EPA) to clarify the
operation of IDAS for Environmentally Relevant Activities
(ERAs);
· the Local Government Act 1993 to allow local governments
greater flexibility in making and amending development related
local laws, particularly as a result of public interest testing;
· the Transport Infrastructure Act 1994 to clarify the application of
building control in port areas;
· the Land Title Act 1994 to clarify that certain leases resulting from
a development approval under IDAS must be approved by local
governments before they are registered.
Alternatives to the Bill
The alternative to the Bill is to allow the continued operation of the IPA,
and IDAS in particular, in their present forms. This would compromise
their efficient and effective operation and achievement of their potential for
administrative reform. Fine tuning of a new administrative system is an
important part of its successful operation and is anticipated by the
participants in the system.
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Integrated Planning and Other Legislation
Administrative cost to government
It is expected that refinements to the operation of IDAS and other IPA
processes proposed by the Bill will improve efficiency and so probably
reduce administrative costs. However, it is possible there may be some
minor administrative costs experienced initially due to adjustment of the
current administrative arrangements for issuing acknowledgment notices
under IDAS, although these would be outweighed by savings in time and
efficiency after this initial period.
Consistency with fundamental legislative principles
The retrospectivity proposed for certain provisions in the Bill merely
corrects anomalies in the previous Act amending the IPA (Building &
Integrated Planning Amendment Act 1998) concerning amendments to the
Local Government Act and the Environmental Protection Act.
Also, the proposed amendment of section 6.1.25 in the IPA for building
applications in progress at 30 April 1998 (when the amendments to the
Building Act commenced) is retrospective. This amendment clarifies these
applications may be completed under the former provisions of the Building
Act. This validates the approvals and preserves the rights of applicants.
All retrospective amendments are therefore "beneficial provisions" under
section 34 of the Statutory Instruments Act 1992.
In all other respects there are no matters concerning fundamental
legislative principles.
Consultation
The amendments result from feedback from users of the legislation. This
included targeted sessions with key stakeholders. Representatives of local
government (including the Local Government Association of Queensland),
the Urban Development Institute of Australia, the Housing Industry
Association, the Queensland Master Builders' Association, and other
professionals were invited to form an IPA Implementation Group. The
group discussed specific implementation issues and proposed solutions.
Feedback has also been received from:
· attendees at the many seminars, training sessions and
presentations conducted by officers of the Department since the
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Integrated Planning and Other Legislation
IPA came into effect;
· discussions with officers of other agencies responsible for
administering aspects of the IPA;
· consultation with officers of other agencies about the effect of the
proposed amendments on their responsibilities; and
· discussions with officers of other agencies when finalising the
drafting instructions.
The proposed amendments are based closely on the feedback received
from consultation. Where the amendments impact on the administrative or
statutory responsibilities of government agencies, these agencies have been
consulted and have collaborated in drafting the Bill
PART 1--PRELIMINARY
Short title
Clause 1 describes the short title of the Act as being the Integrated
Planning and Other Legislation Amendment Act 1998.
Commencement
Clause 2 deals with the commencement of different parts of the Bill.
Subclause (1) refers to proposed amendment to section 6.1.25 dealing with
building approvals in progress when the relevant parts of the Building &
Integrated Planning Amendment Act 1998 (BIPA) commenced on 30 April
1998. This amendment is proposed to commence from that same day.
Subclause (2) proposes to amend the BIPA to remove a minor
amendment that had already been made to the Local Government Act (1993)
in the IPA. The amendment has been included on the recommendation of
the Office of the Parliamentary Counsel.
Subclause (3) deals with a specific requirement of the transitional
provisions of the IPA, as well as the majority of amendments to the EPA
(other than those mentioned in subclause 4), and states these provisions
commence on the date of assent.
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Integrated Planning and Other Legislation
Subclause (4) deals with specific provisions of the EPA that correct
references to a part of that Act that should have been made as part of the
amendments in the BIPA. To clarify the operation of IDAS for applications
already made since the integration of environmental approvals on July 1
1998, these sections need to start on that day.
Subclause (5) states that all other provisions are proposed to commence
on a day to be fixed by proclamation.
PART 2--INTEGRATED PLANNING ACT 1997
Act amended in pt 2
Clause 3 declares that part 2 amends the Integrated Planning Act 1997
(IPA).
Amendment of s 1.3.5 (Definitions for terms used in "development")
Clause 4 amends the definition of "building work". It is currently limited
to development involving building work and associated earth works. This
definition fails to recognise other works regulated by the Building Code of
Australia such as the drainage and disposal of roof water from buildings
and site drainage. These and other forms of work not captured by the
current definition of building work are dealt with under the Building Code
of Australia. The amendment allows all work regulated by the Standard
Building Regulation (which includes the Building Code of Australia) to be
categorised as building work. This means that the scope of the definition of
building work under the IPA can remain consistent with the scope of the
Building Code of Australia and the Standard Building Regulation, even if
these documents are subsequently amended.
However, this will not lead to an expansion by regulation of the scope of
the definition of development in the IPA, as any works reasonably likely to
be covered by the Building Code of Australia and the Standard Building
Regulation in future are currently included in the definition of operational
works under the IPA.
The definitions of plumbing work and drainage work are proposed to be
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Integrated Planning and Other Legislation
amended to exclude respectively from those definitions, a fire service and a
stormwater installation regulated by the Building Code of Australia. These
proposed amendments are complementary to the proposed amendment of
the definition of building work.
Amendment of s 3.2.1 (Applying for development approval)
Clause 5(1) omits subsection (3)(a)(iii) requiring applications to be made
with the written consent of all copyright holders to allow the assessment
manager to reproduce and sell (to cover the cost of reproduction) all material
forming part of the application for any purpose under this Act.
This requirement has caused great confusion and uncertainty. It does not
require copyright holders to assign their copyright, nevertheless copyright
holders have been concerned that widespread dissemination of copyright
material will compromise the value of intellectual property, and make
breaches of copyright law more likely.
As IDAS provides for an integrated approval to be sought for many
aspects of development, applicants have in some cases been faced with a
requirement to obtain approval from many copyright holders in respect of a
single application, some of whom the applicant may not have engaged
directly in the conceptualisation of the applicant's proposal.
The requirement has also been deficient in that, while it applies to
material submitted with an application, it does not apply to material
subsequently supplied in response to an information request by the
assessment manager or a concurrence agency.
It is proposed the subsection be deleted to overcome the current
problems. This does not diminish the effectiveness of the legislation or in
any way limit the rights of individuals to view information provided with
the applications. This information continues to be available for public
inspection.
Subsection (4) is proposed to be amended to remove the requirement for
a fee to accompany an application to a private certifier. Fees for private
certifiers are negotiated by contractual arrangements under section 5.3.9.
Subsection (8) is proposed to be amended to make it clear that there is a
difference between the receipt of an application that is not properly made,
and subsequent acceptance of that application by the assessment manager.
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Integrated Planning and Other Legislation
The Act currently provides that, if an assessment manager accepts an
application that is not properly made, the application is taken to be properly
made. There has been concern that this subsection does not distinguish
effectively enough between the receipt and the acceptance of an application
that is not properly made. In particular, there has been concern that if an
assessment manager received in the mail an application that is not properly
made, the assessment manager would be obliged to treat it as properly made
because it has been "accepted".
The proposed amendment clarifies that receipt and acceptance of an
application that is not properly made are two distinct actions. As subsequent
IDAS time limits are counted from the day an application is received, any
time taken by the assessment manager to determine whether to accept an
application that is not properly made is subtracted from the time available to
complete the next stage.
Example: For an application that requires an acknowledgment notice to
be given, if the assessment manager takes 3 days from the day the
application was received to decide to accept the application, the
acknowledgment notice must be given within 7 days of the day of the
assessment manager's decision to accept the application (i.e. within the
normal 10 day acknowledgment period from the receipt of the application).
Amendment of s 3.2.3 (Acknowledgment notices generally)
Clause 6 adds a new subsection (1A) which states that an
acknowledgment notice does not need to be issued if each of three
circumstances apply. The effect of this amendment is to exempt relatively
straightforward applications from requiring acknowledgment notices. This
reduces the administrative load for the assessment manager and time delays
for the applicant.
For applications involving referrals and/or public notification the
acknowledgment notice provides information necessary for the applicant to
take the next steps in the IDAS process. However, for other applications
there are no further actions the applicant need take. The information simply
confirms basic information about the application. While this may be useful,
the costs for the applicant and the assessment manager are considered to
outweigh the benefits.
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Integrated Planning and Other Legislation
Omission of s 3.2.4 (Circumstances when immediate decision notice
may be given)
Clause 7 omits section 3.2.4 which is no longer required due to the
proposed insertion of section 3.2.3(1A).
Amendment of s 3.2.8 (Public scrutiny of applications)
Clause 8 amends the requirement for an assessment manager to keep
available for public inspection and purchase, each development application
and any supporting material available.
The general intent of the legislation is that applications are on the public
record and should be available for members of the public to inspect.
Subsection (2) of the Act places some caveats on this to the extent that
sensitive security information or other information not reasonably necessary
for a third party to access for the purpose of evaluating or considering the
effects of the development, need not be made available for public inspection.
There has been uncertainty as to what information can be withheld, in
particular, whether the names and addresses of submitters should be
available for inspection. Many submitters wish their personal details to be
suppressed. Proposed new subsection (2A) makes it clear the assessment
manager may remove the name and address from a submission before
making the contents of the submission available for inspection and
purchase.
Amendment of s 3.2.9 (Changing an application)
Clause 9 is a necessary consequential amendment resulting from the
insertion of section 3.2.3(3).
Amendment of s 3.2.12 (Applications lapse in certain circumstances)
Clause 10 amends one of the time limits within which an applicant must
take certain actions under IDAS. Subsection (2)(c) presently requires an
applicant to commence public notification of an application subject to impact
assessment within 10 business days after the applicant became entitled to
commence the action.
Operational experience indicates that this period is too short for applicants
to organise and undertake the public notification requirements specified in
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the Act. This is particularly the case for applications in rural and remote
areas where newspaper and postal services may not operate on a daily basis.
If the applicant does not start notification within 10 days of becoming
entitled to do so, the application lapses. This has created difficulties when
assessment managers have issued information requests after the end of the
information request period. Applicants are often willing to comply with the
information request, but are compelled to start public notification
immediately. This means potential submitters could be denied essential
information on which to base their submissions.
The extension of the period from ten business days to 20 business days
will allow an applicant time to carry out the requirements of the Act, as well
as to supply further information necessary to allow potential submitters to
assess the proposal. The 20 day period is consistent with subsection 2(a)
relating to forwarding material to referral agencies.
Subclause (2) also adds a further time limit, reflecting the requirement for
an applicant to provide a certificate of compliance with public notification
requirements.
Omission of s 3.2.14 (Service provider notice for reconfiguring a lot)
Clause 11 omits the requirement for an applicant for works associated
with reconfiguring a lot to publish a notice in a newspaper advising service
providers of the proposed works. The intent of the section was to provide a
means by which infrastructure service providers such as Telstra, Optus,
Allgas and the like, could be advised of intended subdivision works so that
they could make contact with applicants about the timing of their own
infrastructure works with the subdivision works.
In practice the service provider notice has proven to be unnecessary from
the point of view of service providers and an unduly onerous requirement
for applicants. Experience indicates that most service providers make direct
contact with local governments on a regular basis to find out future
subdivision works intentions. This is considered to be the most efficient and
most effective way for service providers to find out about the intended
subdivision works.
Replacement of s 3.2.15 (When does application stage end)
Clause 12 is a necessary consequential amendment resulting from the
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insertion of section 3.2.3(1A). The new replacement section relates the end
of the application stage to whether or not an acknowledgment notice has
been given. Also, the present wording contains an error in that it suggests
the stage ends when the acknowledgment period has expired, rather than
when the acknowledgment notice is issued. This is inconsistent with the
intent of IDAS and section 4.1.21(1)(e) (Court may make declarations).
Amendment of s 3.3.3 (Applicant gives material to referral agency)
Clause 13 addresses some confusion that has arisen as to whether the
acknowledgment notice issued by the assessment manager is determinative
of subsequent aspects of the IDAS process. In particular, it is questioned
whether it is the acknowledgment notice which determines the referral
agencies to be consulted for an application, or the regulation specifying
referral agencies. The intent of the Act is that the regulation be determinative
of the referral agencies for an application.
The acknowledgment notice is intended to facilitate a common
understanding between the assessment manager and the applicant of the
nature and scope of development the applicant is seeking approval for, and
to inform the applicant about the applicant's responsibilities for the
application. However, it is not intended to be determinative of subsequent
aspects of the IDAS process, such as the referral agencies for the
application. Accordingly the words "mentioned in the acknowledgment
notice" are incorrect and should be deleted.
A new subsection (5) is also proposed. It recognises the situation where
the functions of a referral agency have been devolved or delegated to the
assessment manager. This subsection clarifies that, in these situations, there
is no requirement for the applicant to separately refer the application to the
referral agency.
Amendment of s 3.3.4 (Applicant advises assessment manager)
Clause 14 amends section 3.3.4 in relation to the amendment of section
3.3.3. It makes clear for an applicant that a notice to the assessment manager
about completion of referrals does not apply in those situations where the
assessment manager and the referral agency are the same entity.
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Amendment of s 3.3.6 (Information requests to applicant (generally))
Clause 15 replaces subsection (4) and adds a new subsection (4A). This
is a necessary consequential amendment resulting from the insertion of
section 3.2.3(3) and specifies how the information request period is
determined for those applications not requiring acknowledgment notices.
Amendment of s 3.3.14 (Referral agency assessment period)
Clause 16 amends the section in relation to extension of the referral
agency assessment period, and clarifies an extension to the referral agency
assessment period with the applicant's agreement may only occur if the
agreement is obtained before the period ends.
Amendment of s 3.4.4 (Public notice of applications to be given)
Clause 17 amends the requirement for the applicant to publish a notice in
a newspaper circulating generally in the local government's area.
Uncertainty has arisen over whether the terms "generally" and "in" mean
the newspaper must circulate throughout the whole local government area
rather than simply in the locality of the land the subject of application. In the
context of applications made in the Brisbane metropolitan area in particular,
this would prevent local newspapers being used for publishing newspaper
notices, and act as a restriction on trade by limiting the available avenues of
notification. Accordingly it is proposed to amend the wording to refer to a
newspaper circulating generally in the locality of the land the subject of the
application.
The term "generally" in the context of the amended provision is intended
to refer to a newspaper with a general circulation, as opposed to a
newspaper, journal or other periodical with a restricted circulation (for
example, a professional or trade journal).
Insertion of new s 3.4.9A
Clause 18 inserts a new section to provide for submissions lodged
during the notification period for an application to be carried over and
recognised as properly made submissions if that application for any
reason has to be re-notified. This continues a provision that existed under
the former Local Government (Planning & Environment) Act 1990 (P&E
Act).
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Integrated Planning and Other Legislation
Subsection (2) goes on to allow a person to amend their submission
during the later notification period, or at any time before the decision is
made to withdraw the submission.
Subsection (3) provides for a submission that is not properly made to
continue to be part of the common material for the application
notwithstanding its re-notification, and for the submission to be withdrawn
before a decision is made.
Replacement of s 3.5.1 (When does decision stage start)
Clause 19 is a necessary consequential amendment resulting from the
insertion of section 3.2.3(1A). The new replacement section relates the start
of the decision stage to whether or not an acknowledgment notice has been
given.
If a referral agency is a building referral agency there is no requirement
for an acknowledgment notice to be given. However, the information and
referral stage still applies. This matter is dealt with in subsection (1). The
effect is to require the decision stage to start after the information and
referral stage has ended. Subsection (1) also deals with applications
requiring acknowledgment notices. Subsection (2) deals with the situation
where there are no referral agencies. In this situation all relevant stages of
IDAS run concurrently.
Amendment of section 3.5.7 (Decision making period (generally))
Clause 20 amends the section in relation to the decision making period. It
is consistent with proposed amendments to section 3.3.14.
Amendment of s 3.5.15 (Decision notice)
Clause 21(1) amends the section to require the assessment manager to
advise the applicant on the decision notice for an approved development, of
any other codes the applicant may need to comply with for self-assessable
development related to the development approved. For example, a planning
scheme may include a code covering the design of works for car parking
areas and make the carrying out of the works self-assessable. A person
must comply with the code but is not required to obtain a development
permit. A similar provision currently applies to the issuing of a decision
notice by private certifiers under section 5.3.5(3)
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Integrated Planning and Other Legislation
The clause also amends the section to require that it be noted on the
decision notice whether or not there have been submissions about the
application. Paragraph (h) currently requires only the appeal rights of
applicants and submitters to be stated. It is necessary for the applicant to
know whether there are submitters, as this will affect when development
may start and, if the applicant appeals, who the applicant must notify.
It is also proposed to amend the section (subclause 2) to establish when
the assessment manager must give a decision notice or negotiated decision
notice to submitters, according to whether the decision is to approve or
refuse the application. If an application is refused, there is no reason why a
decision notice cannot be given to the applicant and any submitters at the
same time, however this is not presently provided for.
Amendment of ch 3 pt 5 div 4 heading (Representations about
conditions)
Clause 22 amends the heading of this division to reflect amendments to
section 3.5.17 broadening the range of matters an applicant may make
representations to the assessment manager about.
Amendment of s 3.5.17 (Changing conditions during the applicant's
appeal period)
Clause 23 relates to clause 22 and broadens the range of matters about a
development approval an applicant may make representations to an
assessment manager about. Subsection (1) currently allows an applicant to
make representations about conditions of the approval. The amendment
allows the applicant to make representations about any matter in a decision
notice, other than a refusal or a matter directed by a concurrence agency to
be included in the decision notice. For example, this may include:
· the currency period for the approval;
· an aspect of a code or type of assessment stated in a preliminary
approval;
· a decision of the assessment manager to give a preliminary
approval instead of a development permit.
Applicants may still not make representations to the assessment manager
about a refusal of an application. It is more appropriate that a dispute about a
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Integrated Planning and Other Legislation
refusal be resolved through the appeal processes in chapter 4 of the Act.
An applicant may also not make representations to the assessment
manager about matters a concurrence agency has directed to be included in a
decision notice. Applicants may make representations to a concurrence
agency about the agency's response under section 3.5.9.
Amendment of s 3.5.19 (When approval takes effect)
Clause 24 amends the section to establish when a development approval
takes effect, according to whether an appeal is made to the Planning and
Environment Court, or a Building and Development Tribunal.
Currently, this section effectively prevents development starting if the
applicant appealed the decision to either the court or a tribunal. However,
under the former provisions of the Building Act 1975, an applicant could
start development, even if the applicant had appealed to Building Tribunal.
This reflected the role of the tribunal as a "referee" of particular matters of
dispute, as well as the fact that many matters of dispute were unaffected by
development commencing. The applicant in any case bore responsibility if
an adverse finding in an appeal involved additional work to correct
development already commenced.
The proposed amendment to section 3.5.19 reinstates the ability for an
applicant to start development, even if an appeal is made to a tribunal.
However, if the applicant appeals to the court, development may still not
start until the appeal is withdrawn or determined. This reflects the "de
novo" jurisdiction of the court, and recognises that starting development
may compromise the scope of the court's powers in hearing the matter
anew.
Section 3.5.19 still provides that, in the event that there were submitters
for the application, development may not start until any submitter appeal is
determined, or the submitter's appeal period ends.
Replacement of s 3.5.20 (When development may start)
Clause 25 replaces the section and the proposed new wording links more
directly with section 3.5.19. Currently, the relationship between this section
and section 3.5.19 is unclear as it seems to imply that development may
start even if the applicant has appealed an aspect of an approval.
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Amendment of s 3.5.22 (Request to extend currency period)
Clause 26 amends subsection (4) to exclude private certifiers from the
application of the subsection. Their fees are negotiated by contractual
arrangements under section 5.3.9.
Amendment of s 3.5.24 (Request to change development approval
(other than a change of a condition))
Clause 27 amends the section to require a request to change a
development approval to be also notified to a building referral agency where
the request concerns an aspect of the approval within the jurisdiction of the
advice agency.
Subsection (4) is proposed to be amended to exclude private certifiers
from the application of the subsection. Their fees are negotiated by
contractual arrangements under section 5.3.9.
Amendment of s 3.5.25 (Deciding request to change development
approval (other than a change of a condition))
Clause 28 amends the section to require the assessment manager when
deciding a request to change a development approval, to also have regard to
the advice of a building referral agency where the request concerns an aspect
of the approval within the jurisdiction of the agency.
Amendment of s 3.5.26 (Request to cancel development approval)
Clause 29 amends subsection (4) to exclude private certifiers from the
application of the subsection. Their fees are negotiated by contractual
arrangements under section 5.3.9.
Amendment of s 3.5.33 (Request to change or cancel conditions)
Clause 30 amends subsection (4) to exclude private certifiers from the
application of the subsection. Their fees are negotiated by contractual
arrangements under section 5.3.9.
Clause 30 also amends the section to require the assessment manager
when deciding a request to change or cancel conditions of a development
approval, to also have regard to the advice of a building referral agency
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where the request concerns an aspect of the approval within the jurisdiction
of the agency.
Insertion of a new s 3.7.1A
Clause 31 inserts a new definition of "plan" so that part 7 will also apply
to leases of more than 10 years if they divide land into parts (other than a
lease wholly contained in a building). This was a requirement under the
former P&E Act and it is considered appropriate to carry it forward. See
also proposed amendments to the Land Title Act 1994 in part 6 of the Bill.
Amendment of s 3.7.2 (Plan for reconfiguring under development
permit)
Clause 32 clarifies the requirements for a plan of subdivision to be
approved by a local government.
Amendment of s 3.7.3 (Plan submitted under condition of
development permit)
Clause 33 amends subsection (3) to make clear that the conditions of the
development permit to be complied with for the purpose of this section are
only those about the reconfiguration. This is to clarify that other conditions
on the development approval not related to the reconfiguration are not
affected by this provision.
Amendment of s 3.7.8 (Application of pt 7 to acquisitions for public
purposes)
Clause 34 clarifies an exemption from the application of part 7, dealing
with local government approval of subdivision plans. It was intended that
this section carry forward the exemption in the former P&E Act for State
agencies lodging plans of subdivision prior to acquiring land. The current
wording is unclear and could be read to apply the exemption more broadly.
In particular it could be read to apply to anyone, including a private sector
entity, carrying out one of the purposes listed in schedule 2. The alteration of
the wording clarifies the intent and limits its application to public sector
entities.
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Amendment of 4.1.21 (Court may make declarations)
Clause 35 modifies the existing declarations powers of the Planning and
Environment Court to recognise that, under other proposed amendments to
section 3.2.3, an acknowledgment notice is not needed for some
development applications.
Amendment of s 4.2.24 (Establishing a tribunal)
Clause 36 amends the section to clarify the role of the registrar in relation
to appeals received outside the time started for starting an appeal. The
amendment to subsection (1) makes it clear that the registrar must only give
a copy of the notice to a chief executive if the appeal has started within time.
New proposed subsection (4) covers the situation where a notice of appeal
is received out of time. The amendments are consistent with the way the
registrar's functions operated previously under the Building Act.
Amendment of s 4.2.27 (Tribunal may allow longer period to take an
action)
Clause 37 inserts a new subsection (2) which excludes the application of
the section to the registrar for determining whether an appeal has been made
within time.
Amendment of s 4.2.34 (Appeal decision)
Clause 38 amends subsection (3) to clarify that the decision of a tribunal
is not only taken to be the decision of an assessment manager for a
development application, but also the decision of any other entity whose
decision may be appealed to the tribunal.
A new subsection (5) is inserted to clarify when the decision of the
tribunal takes effect. This amendment is consistent with the way the tribunal
operated previously under the Building Act.
Amendment of s 4.3.3 (Compliance with development approval)
Clause 39 inserts a new subsection (4) to allow non-compliance with
rezoning conditions to be able to be prosecuted in the same way as
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non-compliance with development approval conditions. Because rezoning
approvals are not recognised as continuing approvals it is necessary to
ensure the enforcement provisions in the Act may be utilised for
non-compliances.
Amendment of s 5.1.15 (Alternatives to paying infrastructure charges)
Clause 40 amends subsection (1) to clarify that the written agreement is
between the person who received notice of the infrastructure charge, and the
local government.
Amendment of s 5.3.3 (What is a private certifier)
Clause 41 amends the section to clarify that a private certifier may be an
individual, a corporation, or a public sector entity acting through an
individual. The current wording limits private certifiers to being an
individual. It is not the intent of the legislation that public sector entities or
private corporations be prevented from being private certifiers. The main
purpose of the legislation is to ensure that those people performing the
functions of a private certifier are either themselves appropriately qualified
and/or accredited, or are acting through entities that fulfil those
requirements.
Confusion has been expressed as to when a local government is
considered to be undertaking private certification. The receipt of an IDAS
application is not intended to be considered as a written contract for the
purposes of the IPA. A new subsection (4) is proposed to be inserted to
clarify that receipt of an IDAS application form only is not a written
contract, and additional written engagement is required to undertake private
certification.
Amendment of s 5.3.5 (Private certifier may decide certain
development applications and inspect and certify certain works)
Clause 42 amends the section to require a private certifier to not decide a
development application until other aspects of development prescribed
under a regulation have been approved and the approval has taken effect.
Many development proposals involve different types of assessable
development (e.g. change of use, building work, reconfiguration, etc.).
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Integrated Planning and Other Legislation
Because private certifiers in many cases will have jurisdiction to deal only
with an aspect of the overall proposal, the IPA requires that certifiers not
decide their component of a proposal ahead of any other assessable
components.
These earlier approvals are likely to set parameters for the application
made to the certifier. Because the private certifier enters the assessment
process after the assessment manager has finalised the assessment of other
aspects of the proposal, it is important that the certifier ensure the application
is consistent with the earlier approvals given.
However, some aspects of a development (such as landscaping and car
parking) could be assessed and approved by the assessment manager
without influencing the approval of the building work (the number of
parking spaces and the layout being assessed previously as part of the
material change of use). In those instances a private certifier could be
permitted to issue a development permit in advance of the completion of
other assessments, on condition those other assessments were approved
prior to commencement of building. Such aspects would include certain
aspects of plumbing and drainage work and operational works. However
other aspects of development would always require assessment by an
assessment manager. These are:
· any aspect of development requiring impact assessment, and
· any assessable material change of use (whether code assessment
or impact assessment was required).
For aspects of development other than an aspect requiring impact
assessment or a material change of use, the amended provision indicates a
regulation will identify those aspects that must be approved before a private
certifier may decide a development application. This enables the
requirements to be specifically documented according to the type of
development assessment which may be undertaken by private certifiers. (To
date this is only building work assessed under the Building Act but there is
the potential under the IPA to extend private certification to other code
assessments). This section will not be commenced until the regulation is
also commenced. The date will be set by proclamation.
Proposed subsection (3) delays the commencement of the decision stage
for applications being assessed by private certifiers to when the private
certifier is entitled to make a decision.
Proposed new subsection (4) clarifies that in addition to deciding a
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Integrated Planning and Other Legislation
development application, a private certifier may also decide subsequent
changes to an approval.
Omission of s 5.3.7 (Entities (including local governments) may
undertake private certification)
Clause 43 repeals the existing provision as the proposed amendments to
section 5.3.3 now deal with entities undertaking private certification.
Amendment of s 5.3.9 (Engaging private certifiers)
Clause 44 transfers existing section 5.3.5(2) to a new subsection (3) to
improve readability of the Act.
Amendment of s 5.7.10 (Standard planning and development
certificates)
Clause 45 introduces a new subsection (2) which is intended to clarify
which decision notices issued prior to the commencement of the IPA need
to be included in a standard planning and development certificate.
Subsection (2) clarifies there is no legal obligation to provide details of
approvals that were given under the Building Act prior to 30 April 1998
when the building approval process was integrated into IDAS. The reason
for this is that there was no system for the public to formally request and
obtain details about building approvals issued under the former provisions
of the Building Act. Accordingly, local governments' ability to comply with
this requirement varies from one to another. It is considered an unnecessary
burden on local governments for these prior approvals to now be included
in these certificates.
Amendment of s 6.1.1 (Definitions for pt 1)
Clause 46 amends the definitions of "applicable codes" and "transitional
planning scheme". Regarding the first definition, the words "including a
requirement mentioned in section 6.1.23(1A)" have been inserted to clarify
that statements in planning schemes requiring actions to be carried out to the
satisfaction of a nominated person (such as landscaping to the satisfaction of
the shire engineer), are requirements of an applicable code for
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Integrated Planning and Other Legislation
self-assessable development under a planning scheme. There has been
confusion as to whether statements of this type require an IDAS application
to be made. The intent of the Act was that they be treated as self-assessable
development. This amendment clarifies this intention and should be read
together with the proposed amendment to section 6.1.23.
Regarding the definition of "transitional planning scheme", the proposed
amendment incorporates a reference which was inadvertently omitted.
Amendment of s 6.1.9 (Preparation of planning schemes under
repealed Act may continue)
Clause 47(1) corrects a typographical error by replacing the number 10
with number 11.
Subclause (2) inserts a new subsection (3A) to clarify that a planning
scheme completed after commencement of the Act, but as if the P& E Act
had not been repealed, operates exactly the same as a former planning
scheme. In particular, prohibited uses in the planning scheme are taken to be
expressions of policy that the use is inconsistent with the intent of the zone.
This amendment is made to remove any doubt about the operation of
transitional planning schemes made after commencement. It was always the
intention that the provision in section 6.1.2(3) apply both to former planning
schemes and transitional planning schemes made after commencement.
Amendment of s 6.1.23 (Continuing effect of approvals issued before
commencement)
Clause 48 amends the section consistent with the proposed amendment
to section 6.1.1.
Amendment of s 6.1.25 (Effect of commencement on certain
applications in progress)
Clause 49 amends subsection (1)(b) and clarifies that an approval issued
after commencement of the IPA as if the repealed Act had not been
repealed, is taken to be a development approval. There has been confusion
that local governments are required to assess and decide applications under
the repealed Act but issue preliminary approvals or development permits
under the IPA. This was not the intent and the amendment clarifies that local
governments are to issue approvals as if the repealed Act were still in place.
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Integrated Planning and Other Legislation
The approvals are then transitioned into IDAS development approvals by
the operation of this section.
Subclause (3) clarifies the intent of the IPA for building applications in
progress when amendments to the Building Act commenced (i.e. April 30
1998). This is consistent with the operation of the IPA for planning
applications in progress.
Amendment of s 6.1.28 (IDAS must be used for processing
applications)
Clause 50 amends a reference in section 6.1.28 to the acknowledgment
notice to a reference to any acknowledgment notice, reflecting the proposed
amendment to section 3.2.3 omitting the requirement for an
acknowledgment notice for certain applications.
Amendment of s 6.1.31 (Conditions about infrastructure for
applications)
Clause 51 amends subsection (1)(b)(i) and clarifies that the section
applies if the local government has a local planning policy about
infrastructure (an instrument made under the former P&E Act) or a
planning scheme policy (an instrument made under the IPA). The term local
planning policy is used deliberately to avoid doubt. The term transitional
planning scheme policy is defined for the part and includes the provisions of
a local planning policy that are not inconsistent with chapter 3. However, in
the context of this provision, use of this term may introduce doubt as it may
be claimed these infrastructure policies do not meet the criteria for being
transitional planning scheme policies (because they may be inconsistent
with chapter 3).
Amendment of s 6.1.34 (Consequential amendment of transitional
planning schemes)
Clause 52 substitutes a new section in place of the current section. The
purpose of the amendment is to make the intent of the section clear. That is,
the amendment of a transitional planning scheme under this section is to be
carried out in the way described in the section. There has been uncertainty as
to whether an amendment under this section must follow the whole process
set out in schedule 1. This was not intended.
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Integrated Planning and Other Legislation
Amendment of s 6.1.35A (Applications to change conditions of
rezoning approvals under repealed Act)
Clause 53 amends the section to make clear that the ability to amend
conditions attached to an approval given under section 4.4(5) of the repealed
Act (i.e. a rezoning approval) applies both to approvals given before and
after commencement of this section.
Clause 2(4) provides for this section to commence on assent.
Amendment of s 6.1.35C (Applications requiring referral
coordination)
Clause 54 substitutes a new section in place of the current section. The
purpose of the amendment is to clarify the intent of the provision. In
particular, under section 8.2 of the repealed Act provision was made in
section 16 of the regulation to the Act for the local government to not
require the EIS process to be undertaken if the local government was
satisfied the development was minor or of an ancillary nature. Subclause (1)
clarifies that this intent is carried forward. Similarly, under the repealed Act
a local government could, by local planning policy, expand the list of
designated developments set out in the schedule to the Act. The definition of
designated development has been amended to clarify that intent has been
carried forward.
Amendment of s 6.1.50 (Right to compensation continued)
Clause 55 inserts a new subsection (3) to clarify that actions giving rise
to claims for compensation under the repealed Act must be dealt with in
accordance with the compensation provisions under that Act. This is to put
beyond doubt that any of the IPA compensation provisions cannot apply to
changes made before commencement of this section.
Amendment of sch 1 (Process for making or amending planning
schemes)
Clause 56 amends schedule 1 by deleting references to section
11(3)(a)(1) and (2) to allow the Minister to advise the local government that
it need not consult the Minister again during the process of amending a
planning scheme. This was the intent of the provision. The current wording
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Integrated Planning and Other Legislation
leads to confusion as to the actions of both local governments and the
Minister under section 18 of schedule 1.
Amendment of sch 8 (Assessable, self-assessable and exempt
development)
Clause 57(1) clarifies the intent of items 4(b) and (c) by stating the
provisions more clearly. Subclause (4) is a necessary adjunct to subclause
(1).
Subclause (2) inserts a new item. It is to be noted that subclauses (1) and
(2) propose amendments to provisions which have not yet commenced.
Subclause (3) inserts into the list of developments under item 10 a
reference to a recently passed Act, the Offshore Minerals Act 1988.
Including this Act in the list of exemptions is consistent with the status
given to all minerals-related legislation.
Amendment of sch 10 (Dictionary)
Clause 58(2) amends the definition of "agency's referral day". It follows
from the proposed amendment to section 3.3.3 which deals with the
situation where an assessment manager may be both a referral agency and
an assessment manager. Subclause (2) also inserts a definition of "building
referral agency" consistent with amendments elsewhere in the Bill.
Subclause (3) clarifies that an assessing authority includes the State
which may take enforcement action against persons carrying out building
work on behalf of the State.
PART 3--BUILDING ACT 1975
Act amended in pt 3
Clause 59 declares that part 3 amends the Building Act 1975.
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Integrated Planning and Other Legislation
Amendment of s 3 (Definitions)
Clause 60 replaces the definition of "building certifier" to include a
reference to "a person or a public sector entity". The effect of this will
enable accreditation of corporations and public sector entities. This is
consistent with the proposed amendment to section 5.3.3 (What is a private
certifier) of the Integrated Planning Act 1997 (IPA).
This clause also introduces a complementary definition of "public sector
entity" consistent with the definition in the IPA.
Amendment of s 22 (Enforcement notices)
Clause 61 amends the section to correct a cross reference to subsection
(4).
Amendment of s 29 (Function of accrediting bodies)
Clause 62 replaces the word "individuals" with "persons and public
sector entities". This is consistent with the proposed amendment to section
5.3.3 (What is a private certifier) of the IPA.
Subclause (2) is amended to make the provisions appropriate for
application to corporations and public sector entities.
Amendment of s 30 (Persons must not practice as building certifiers
without accreditation)
Clause 63 excludes local government and public sector entities acting as
assessment managers but not as private certifiers, from the requirement to
be accredited. However, the individuals who perform the building certifying
functions will continue to be accredited.
Amendment of s 42 (Chief executive may investigate building certifier)
Clause 64 replaces the word "person" with "building certifier or a
complainant" to make it consistent with the term used in section 41 related
to this section.
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Integrated Planning and Other Legislation
Amendment of s 48 (Information to be supplied by the State)
Clause 65 expands the application of the section to include public sector
entities. This will require public sector entities when undertaking
self-assessable building work to provide local government with information
prescribed under a regulation.
Amendment of s 50 (Prosecution of offences)
Clause 66 proposes a new subsection to remove the constraint of only
permitting local government, rather than any person, to lay a complaint
against building certifiers.
PART 4--BUILDING AND INTEGRATED PLANNING
ACT 1998
Act amended in pt 4
Clause 67 declares that part 4 amends the Building and Integrated
Planning Act 1998 (BIPA).
Schedule (Consequential amendments)
Clause 68 amends the BIPA to remove an unnecessary duplication of an
amendment previously made as a consequential amendment of the
Integrated Planning Act 1997.
PART 5--ENVIRONMENTAL PROTECTION ACT 1994
Act amended in pt 5
Clause 69 states the intention of the part to amend the Environmental
Protection Act (EPA).
Note: In this part an environmentally relevant activity is referred to as an
27
Integrated Planning and Other Legislation
ERA.
Amendment of s 40A (Application of pt 4)
Clause 70 amends section 40A(1)(d) to clarify that the meaning of
"development" in the term "development permit" in the paragraph is
confined to development specified as assessable in schedule 8, part 1,
section 6 of the Integrated Planning Act 1997 (IPA).
Section 40A was inserted in the EPA by the BIPA, and determines the
circumstances in which an environmental authority (a license or approval) is
required under part 4 of the EPA. It was intended that part 4 apply to ERAs
that, in order to establish or expand, would not require a development
approval under the IPA for development of a type that triggered referral to
the administering authority, or for which the administering authority was the
assessment manager. Under the Environmental Protection Regulation, this
type of development is currently stated as a material change of use for an
ERA. However the current wording of section 40A suggests that the section
does not apply if any development approval is required to establish the
activity.
A new defined term of "schedule 8 development" also has been
included, and is used in this section. This replaces the former lengthy
reference to a development prescribed in the Environmental Protection
Regulation for schedule 8 of the IPA, but does not otherwise change the
application of this section.
The term "development approval" in this paragraph has been replaced by
"development permit". This more accurately reflects the requirement in the
IPA for there to be a development permit in order for any assessable
development to start, and establishes a closer link with division 3 of part 4B
of the EPA (as amended by this Bill), dealing with development in relation
to existing ERAs.
Amendment of s 60F (Application of pt 4A)
Clause 71 amends section 60F to clarify that the meaning of
"development" in the term "development permit" in part 4A is confined to
development specified as assessable in schedule 8, part 1, section 6 of the
IPA. This reflects the amendment made to section 40A.
The amended section clarifies that part 4A applies to the carrying out of a
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Integrated Planning and Other Legislation
level 1 ERA only if the administering authority has been the concurrence
agency or assessment manager for a development application under the IPA
for the ERA. This will occur if the development is of a type specified in the
Environmental Protection Regulation for the purposes of the IPA (currently
a material change of use for the ERA).
Amendment of s 60Z (Application of pt 4B)
Clause 72 amends section 60Z to replace existing words with the term
"schedule 8 development", which is to be defined in the dictionary in the
same words.
Amendment of s 60ZA (Assessing application)
Clause 73 amends section 60ZA(1) to clarify its application.
Section 60ZA performs two functions:
· it identifies the matters that are relevant considerations for the
administering authority when it is assessing a development
application under sections 3.3.15(1)(a) or 3.5.4(3) of the IPA; and
· it provides that, despite the IPA, the administering authority may,
within its jurisdiction under the IPA, assess the effects of an entire
ERA, even if the development application is for an intensification
of an existing activity. This is consistent with the considerations
that would previously have been brought to bear under part 4 of
the EPA, for a proposed intensification of an existing ERA. The
IPA would otherwise permit only an assessment of the effects of
the development actually applied for, as it protects all lawfully
established uses, buildings and works from further regulation
under IDAS.
The amendment simplifies and clarifies the intent of the provision as
originally drafted, as well as including an illustrative example.
Amendment of s 60ZB (Conditions of development approval)
Clause 74 amends section 60ZB to clarify its application.
Section 60ZB is intended to perform the same functions with respect to
the setting of conditions on a development approval under the IPA by the
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Integrated Planning and Other Legislation
administering authority, as section 60ZA performs for the assessment of
the development application.
Consequently, a similar amendment has been made to this section as for
section 60ZA, simplifying it and providing an illustrative example.
Replacement of ch 3, part 4B, div 3
Clause 75 replaces previous division 3 of part 4B,and applies only to the
expansion or intensification of an existing use comprising one or more
ERAs (regardless of whether the ERAs are subject to one or more licences
or environmental approvals, or to a single environmental authority).
If a development permit takes effect for the material change of use, the
permit cancels the environmental authority or authorities for the ERA or
ERAs to which the permit relates (including authorities for activities that,
under the IPA, are incidental to or necessarily associated with the use
proposed to be expanded or intensified).
Under section 60ZB the permit may be conditioned by the administering
authority as if the development application was for a material change of use
for establishing the entire ERA (including the proposed expansion or
intensification). In this way, the conditions of the cancelled environmental
authorities effectively transfer to the development permit, to the extent they
are about the continuing use of the premises for the ERA or ERAs, or the
proposed expansion or intensification.
If the ERA or ERAs are level 1 ERAs, the person conducting the ERA
or ERAs will also require one or more licences under part 4A to conduct the
activity or activities, as well as the development permit. The licence will
deal with aspects of the person's suitability to conduct the activity or
activities.
Under the IPA, a development permit lapses if development has not
taken place within the currency period for the permit (usually 4 years for a
material change of use). However, this clause provides the permit does not
lapse to the extent the conditions of the permit apply to the activity or
activities already established.
Amendment of s 62 (Administering authority may require additional
information)
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Integrated Planning and Other Legislation
Clause 76 amends section 62 to clarify that this is a provision of general
application to environmental authorities and the administering authority may
require additional information from an applicant for a part 4 or a part 4A
environmental authority. The current wording simply refers to "this part"
but does not make it clear whether that means part 4 or 4A or both. It was
always intended that the provision apply to both and this amendment is
included to remove doubt. It is also made retrospective (see clause 2) to July
1 1998 to ensure there is no doubt about the procedural correctness of the
processes undertaken since commencement.
Amendment of s 64 (Authority may call conference)
Clause 77 amends uncommenced section 64 to clarify that this is a
provision of general application to environmental authorities and the
administering authority may call a conference with respect to an application
for a part 4 or a part 4A environmental authority. The amendment is also
proposed to have effect retrospectively for the same reasons as stated above.
Amendment of s 65 (Extensions of time for decision on applications)
Clause 78 amends section 65 to clarify that this is a provision of general
application to environmental authorities and the administering authority may
extend the time for making its decision on an application for a part 4 or a
part 4A environmental authority. The amendment is also proposed to have
effect retrospectively for the same reasons as stated above.
Amendment of s 67 (Failure to decide applications taken to be refusal)
Clause 79 amends section 67 to clarify that this is a provision of general
application to environmental authorities and if the administering authority
fails to make a decision on an application for a part 4 or part 4A
environmental authority within the time required for the decision, the
application is taken to be refused. The amendment is also proposed to have
effect retrospectively for the same reasons as stated above.
Amendment of sch 1 (Original decisions)
Clauses 80(1) and (2) amend errors in schedule 1.
Subclause (3) amends schedule 1 by inserting decisions made about
applications for the amendment of part 4A licences and level 1 approvals.
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Integrated Planning and Other Legislation
The amendment ensures that decisions to amend or refuse part 4A
environmental authorities have the same status as original decisions, with
rights of review and appeal, as similar decisions for part 4 environmental
authorities.
Amendment of sch 4 (Dictionary)
Clause 81 amends schedule 4 by inserting a definition of "schedule 8
development" in the dictionary.
PART 6--LAND TITLE ACT 1994
Act amended in pt 6
Clause 82 declares that part 6 amends the Land Title Act 1994.
Amendment of s 65 (Requirements of instrument of lease)
Clause 83 inserts a new subsection to reflect the proposed amendments
to chapter 3, part 7 of the Integrated Planning Act 1997 requiring local
government approval of a lease of part of a lot for more than 10 years (other
than a lease wholly contained in a building).
PART 7--LOCAL GOVERNMENT ACT 1993
Act amended in pt 7
Clause 84 declares that part 6 amends the Local Government Act 1993.
Amendment of s 854 (Local laws and local law policies about
development)
Clause 85 amends the section to provide local government with greater
flexibility in relation to local laws dealing with development. Under the
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Integrated Planning and Other Legislation
current Act local governments are prevented from making a local law or
local law policy about development if the process would be similar to or
duplicates all or part of the processes detailed in the IPA. This has
unintended consequences.
Firstly, local laws that were in the process of being made at the time the
IPA commenced cannot be completed. Also, local governments carrying
out public interest tests as part of their National Competition Policy (NCP)
reviews are currently prevented from making any changes to local laws
dealing with development, even if those changes are necessary to meet NCP
requirements. The proposed amendments allow local laws in preparation at
the time the IPA commenced to be completed as local laws, and also
existing local laws and local law policies to be amended until the time the
local government makes its first IPA scheme.
The clause also clarifies the validity of local laws that apply in
amalgamated local government areas.
PART 8--TRANSPORT INFRASTRUCTURE ACT 1994
Act amended in pt 8
Clause 86 declares that part 6 amends the Transport Infrastructure Act
1994.
Replacement of s 172 (Strategic port land not subject to zoning
requirements)
Clause 87 relates to a consequential amendment of section 172 prior to
commencement of the IPA to change a reference in that Act from the Local
Government (Planning and Environment) Act 1990 to the IPA. However,
in making that consequential change it had an unintended effect in that while
building work on strategic port land was required to comply with the
Standard Building Regulation, it was unclear whether IDAS applied for
building work that is assessable or self assessable against the Standard
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Integrated Planning and Other Legislation
Building Regulations. This was not intended and the proposed amendment
corrects this anomaly.
© The State of Queensland 1998