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1
Integrated Planning and Other Legislation
Amendment Bill 2001
INTEGRATED PLANNING AND OTHER
LEGISLATION AMENDMENT BILL 2001
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The objectives of this Bill are to :
· improve the operation of aspects of the Integrated Planning Act
1997 (IPA), in particular the Integrated Development Assessment
System (IDAS) by:
-- changing the way some key aspects of the Act operate;
-- removing some requirements and procedures that are not
adding value to the planning and development assessment
system;
-- clarifying and simplifying the operation of other aspects of
the IPA; and
-- removing anomalies and improving the text.
· implement IDAS for a development related approval in the
Electricity Act 1994 (the Electricity Act).
· amend the Building Act 1975 (the Building Act) for consistency
with an amendment to the IPA.
· Amend the Local Government and Other Legislation Amendment
Act 2000 to omit a redundant uncommenced section.
· Amend the Sewerage and Water Supply Act 1949 for consistency
with changes made in this Bill; and
· Amend the Water Act 2000 for consistency with the provisions of
this Bill.
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Integrated Planning and Other Legislation
Amendment Bill 2001
Reasons for the Bill
In August 1998, the Minister for Communication and Information, Local
Government and Planning announced an operational review of the
Integrated Planning Act 1997 (IPA), to commence during the first half of
1999. Public submissions were invited for the review in May 1999, and
120 submissions were received. These were assessed and a preliminary
report was produced recommending various legislative and administrative
changes. The report was the basis for extensive discussions with key
stakeholder groups about the actions that should be taken.
The main reason for the legislation is to make the legislative changes
agreed with stakeholders to reflect the findings of the review, and to refine
the way in which parts of the IPA operate. The Bill also seeks to clarify
local governments' power to charge private certifiers a fee for carrying out
certain statutory building functions.
Way in which the objectives are to be achieved
The objectives of the Bill are to be achieved by amending the IPA and
related legislation to implement the findings of the operational review of
the legislation.
Why this way of achieving the objectives is reasonable and appropriate
There is no alternative to amending legislation to achieve the objectives
of the Bill. The operational improvements proposed for the IPA rely on
changes being made to the Act to give effect to the improvements.
Similarly, the amendments to the other legislation are necessary to achieve
the objectives identified.
Alternatives to the Bill
There are no alternatives to the amending legislation if the findings of
the operational review of the IPA are to be implemented, and the
integration of development assessment processes into IDAS is to proceed.
Administrative cost to government
The changes proposed as a consequence of the operational review, and
the implementation of IDAS, are expected to further streamline processes,
and reduce administrative costs and duplication of procedures at State and
local government levels.
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Integrated Planning and Other Legislation
Amendment Bill 2001
Consistency with fundamental legislative principles
The fundamental legislative principles relevant to the Bill, together with
a commentary on aspects of the Bill's consistency with these principles, is
set out below
Appropriate delegation
The Bill continues principles reflected in the IPA allowing for delegation
of administrative processes in appropriate circumstances, while retaining
critical policy and administrative decisions with appropriately accountable
entities.
The only delegation related provision in the Bill is section 2.6.25 which
has been expanded to allow Ministers proposing designation of land for
community infrastructure to delegate certain procedural aspects for the
proposed designation to the chief executive of a public sector entity.
Currently this section only allows for delegation to the chief executive or a
senior executive of the Minister's department. (The definition of "public
sector entity" also has been changed to clarify the definition includes
Government Owned Corporations).
For example, this would now allow the Minister administering the
Electricity Act 1994 to delegate procedural requirements about the
designation, such as the giving of public notices, to a Government Owned
Corporation such as Powerlink or Energex.
However section 2.6.25 does not authorize the Minister to delegate key
decisions about the designation, such as whether to proceed with the
designation, whether there has been appropriate public consultation, and
key decisions about applications for early acquisition on hardship grounds
arising from a designation.
Adverse effect on rights and liberties (including retrospective
application)
Many provisions in the Bill are designed to clarify and enhance the
rights and liberties of individuals. Examples include:
· Changes to division 4 of chapter 1 of the IPA designed to
simplify and clarify existing use rights. The changes have
combined and rationalized the existing provisions to make them
easier to interpret, without changing their intent or scope.
· Changes to the bases on which owners may seek early
acquisition of designated premises on hardship grounds (section
2.6.19) have been expanded to allow owners with the benefit of
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Integrated Planning and Other Legislation
Amendment Bill 2001
existing development approvals to seek acquisition if the
designation has made the proposed development unviable.
Previously, the provisions only applied to development
applications that had, or were likely to be refused.
· The powers of the Planning and Environment Court to make
findings of substantial compliance with procedures have been
expanded to apply to all proceedings, instead of only appeal
proceedings (section 4.1.5A). This will ensure person's rights to
hearings are not compromised on the basis of technicalities
concerning processes.
Some provisions in the Bill may adversely affect the rights and liberties
of some individuals. However careful consideration has been given in
developing these provisions to ensure that any effects on individuals have
been limited, and are justified having regard to the public benefits of the
provisions. These provisions are:
· Changes to designation arrangements (sections 2.6.15 and
2.6.19) for when an interest only (such as an easement) is taken
over the designated land. The changes prevent designations
ceasing to have effect after six years because technically the land
would still be in private ownership. They also prevent owners
seeking acquisition of the owners' remaining interests on
hardship grounds. Both of these changes address anomalies in
the existing arrangements, which do not account for the taking of
easements, and while ostensibly reducing owners rights, are of
little practical disbenefit.
· Changes to the bases on which owners may seek early
acquisition of designated premises on hardship grounds which
effectively combine two currently separate grounds related
personal circumstances (as opposed to development related
circumstances discussed above). The two grounds concern the
need to sell land for personal reasons, and the inability to obtain a
fair market value. Whereas these grounds may currently apply
independently, their combination in the Bill means that early
acquisition on hardship grounds may be claimed for personal
reasons only, and where the owner has been unable to sell the
land at a fair market value. This potentially reduces the range of
available circumstances in which hardship may be claimed for
personal reasons. However the changes are considered justified
having regard to:
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Integrated Planning and Other Legislation
Amendment Bill 2001
-- Practical difficulty in determining whether the inability to
achieve a fair market value is related to the designation, or a
range of other factors which influence the market for the
land; and
-- The crucial need for clarity in applying the criteria for
hardship, given the substantial financial risk that may arise
for designators, particularly for corridor designations which
may affect hundreds, or even thousands of owners. Faced
with these risks, such designators may decide against
designation, which ultimately may expose the public to
higher costs in providing the infrastructure.
· The declarations and orders powers of the Planning and
Environment Court (sections 6.1.21 and 6.1.22) have been
modified to broaden the circumstances in which the Court can
cancel a development approval. Currently the court can only
cancel an approval on the basis of fraud by the applicant. The Bill
removes this limitation, but replaces it with a requirement for the
court to consider compensation for any person who has suffered
loss as a result of the cancellation. Experience in other
jurisdictions suggests such a power, when available, is only, if
ever, invoked by the courts in the most extreme of circumstances.
However, without this power, development approvals that may
have been given in error, and with serious adverse consequences,
would stand.
· The Bill enables "assessing authorities" to give enforcement
notices for offences about extracting material from Queensland
waters without first giving a show cause notice (section 4.3.8).
The provision is related to the pending integration of
development approvals for these activities into IDAS, and
reflects enforcement arrangements under existing legislation.
Some provisions in the Bill are proposed to have retrospective effect. In
all cases, this is intended to reinforce or clarify, and not compromise, the
rights of persons under the IPA. The retrospective aspects of the Bill are:
· Sections 5.3.5(6) and (7) have been amended to clarify local
governments have always had the power to charge a fee set by
resolution for accepting materials from private certifiers. The
validating provisions do not affect the outcome of legal action
commenced before the legislative amendments come into force.
Similarly, the validating provisions will not affect any written
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Integrated Planning and Other Legislation
Amendment Bill 2001
agreements to settle claims parties have entered into. The
validating legislation is intended to merely clarify existing
arrangements and expectations among stakeholders.
· New section 6.1.35C has been inserted to confirm and protect
rights obtained under preliminary approvals before the
commencement of the section.
Immunity from proceeding or prosecution
The Bill contains no provisions conferring immunity from proceeding or
prosecution. However the powers for the Minister to call in a development
application in chapter 3 part 6 have been expanded to allow the Minister to
also call in an application to change or cancel a development approval.
These provisions already exclude appeals against the Minister's decision,
so the expanded call in powers will also exclude appeals. The Minister's
decision is however subject to judicial review by the Planning and
Environment Court under section 4.1.21.
Compulsory acquisition and compensation
Changes to acquisition under hardship are discussed above.
Regard for aboriginal and islander custom
The Bill includes a new section (section 3.1.14) recognising and
accommodating disparities between the IDAS process and processes for
according procedural rights to native title interests under the
Commonwealth Native Title Act 1993. The section provides that if
notification is required under the Commonwealth Act, the decision stage of
IDAS does not start until the notification requirements of that Act are
complete.
Authority to amend Act only through another Act
The Bill contains no provisions authorising amendment by other than an
Act.
Consultation
The majority of the changes proposed in the Bill will implement the
findings of the operational review of the IPA. 120 public submissions were
received for the review. A comprehensive report addressing matters raised
in the submissions was the basis of intensive consultation with State
agencies and other key stakeholder groups affected by the report
recommendations. The Bill is based on the outcome of that consultation,
and has itself been the subject of further consultation with the same groups.
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Integrated Planning and Other Legislation
Amendment Bill 2001
The following State agencies were consulted:
· Environmental Protection Agency (EPA)
· Department of Natural Resources and Mines (DNRM)
· Department of Primary Industries (DPI)
· Department of Main Roads (MRD)
· Department of Transport (DOT)
· Department of State Development (DSD)
· Department of Housing (DOH)
· Premier's Department
· Department of Families
· Department of Education
· Department of Public Works
· Crown Law
· Treasury
· Office of Rural Communities, DPI
· Department of Emergency Services
Other key stakeholder groups consulted included the following:
· Local Government Association of Queensland;
· Brisbane City Council;
· Environmental Defenders Office;
· Queensland Conservation Council;
· Housing Industry Association;
· Urban Development Institute of Australia;
· Property Council of Australia;
· Institution of Engineers Australia;
· Royal Australian Planning Institute;
· Master Builders Association;
· Private Certification Group;
· Queensland Environmental Law Association
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Integrated Planning and Other Legislation
Amendment Bill 2001
PART 1--PRELIMINARY
Short title
Clause 1 describes the short title of the Act as being the Integrated
Planning and Other Legislation Amendment Act 2001.
Commencement
Clause 2(1) provides that certain provisions are to commence on assent.
Clause 2(2) provides that the remaining provisions of the Act will
commence on a date to be fixed by proclamation.
Clause 2(3) provides that uncommenced provisions of this Act will not
commence automatically 12 months after the passage of the Act, as
provided for by s 25DA or the Acts Interpretation Act 1954. This
provision will allow increased flexibility in the commencement of the
various parts of the Act.
PART 2--AMENDMENT OF INTEGRATED PLANNING
ACT 1997
Act amended in pt 2
Clause 3 declares that part 2 of the Act, and the schedule of minor
amendments, amend the IPA.
Amendment of s 1.1.2 (Commencement)
Clause 4 amends the original commencement provisions of the IPA.
Section 1.1.2(2) provided for the commencement of chapter 2, part 2,
division 2 (Review by independent reviewer). It is proposed these
provisions be removed from the Act altogether1 and accordingly the
commencement provision is unnecessary.
1 See note on Clause 19.
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Integrated Planning and Other Legislation
Amendment Bill 2001
Amendment of s 1.2.3 (What advancing the Act's purpose includes)
Clause 5 amends s 1.2.3(2) to replace the existing definition of "the
precautionary principle" for the purposes of the IPA, with the definition
provided in the Intergovernmental Agreement on the Environment and the
Commonwealth Environment Protection and Biodiversity Conservation
Act 1999. The amendment allows for a consistent interpretation of the term
for both Commonwealth and Queensland legislation.
Replacement of s 1.3.2 (Meaning of "development)
Clause 6 amends s 1.3.2 by removing the separate categories of work in
paragraphs (a) to (c), ie building work, plumbing and drainage work, and
operational work, and replacing them with the one category of "work"
which encompasses all three.2 Paragraphs (d), and (e) are renumbered.
Amendment of s 1.3.4 (Meaning of "lawful use")
Clause 7(1) amends the heading of s 1.3.4 to refer to the inclusion of the
definition of "use" in the section.
Clause 7(2) amends s 1.3.4 to add the definition of "use" as it applies to
premises, for the purposes of the IPA. The definition in Schedule 10
(Dictionary) is amended to refer to s 1.3.4.
The definition of "use", now included in s 1.3.4, has been amended to
make it clear that the use of land includes any use of the land that is
ancillary to the primary use.
It is possible for there to be more than one "primary" use of land, for
example, a factory and a retail outlet of similar scale. If this were so, the
term use would include all primary uses, and the ancillary uses to each
those primary uses.
The term "ancillary" is a common planning term in many jurisdictions,
and is supported by considerable judicial authority. The term replaces the
term "incidental to and necessarily associated with" currently used in the
definition of use. There is little judicial authority about the current term,
although it is possible it may be interpreted too narrowly, and exclude
activities that desirably should be considered ancillary. In particular, the
term "necessarily associated with" may imply "absolute" dependency
2 See note on Clause 8.
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Integrated Planning and Other Legislation
Amendment Bill 2001
between the activity and the primary use, rather than "functional"
dependency.
Section 5.8.8 authorises the chief executive to prepare guidelines about
determining whether an activity is a material change of use. Draft
guidelines have been prepared and were circulated for public consultation
with the draft Bill. The draft guidelines give considerable guidance about
determining primary and ancillary uses.
Replacement of s 1.3.5 (Definitions for terms used in "development")
Clause 8 replaces the definitions that apply for interpreting the meaning
of the aspects of development, for consistency with amended s 1.3.23.
"Development" under the IPA is conceived as an action, ie something
that is done or carried out, rather than a result. The IPA is amended to
provide for three types of development carrying out work, reconfiguring a
lot, or making a material change of use of premises rather than the current
5 types of development. For the purposes of the IPA, the result of making a
material change of use of premises is a use of the land for a different
purpose. The use is ongoing. The end result of carrying out work is a
work, eg carrying out building work may result in a building. The building
is a work and continues in existence.
· Lot
The definition is unchanged.
· Material change of use
New paragraph (c) makes it clear that a material change of use that is a
change in intensity must involve an increase in intensity or scale. A
reduction in intensity cannot be a material change of use.
· Reconfiguring a lot
The definition is unchanged.
· Work
The concept of different kinds of work is removed from the IPA and
replaced with the one concept of "work" which is defined inclusively. The
definitions of "building work", "plumbing and drainage work" and
"operational work" is replaced by a single definition of "work", which
3 See Clause 6.
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Integrated Planning and Other Legislation
Amendment Bill 2001
includes, but is not limited to, building, drainage, plumbing, and other
specified types of work. The full extent of "work" is governed by the
common understanding as defined in a dictionary. The "catch-all"
provision (item (e) of the current definition) is removed, together with the
concept of materiality. It should be noted that transitional arrangements are
made for interpreting the meaning of "operational work" where it appears
in another Act or in a planning instrument.4
New section 1 lists types of work included in the term "work". For
building, plumbing or drainage work (paragraphs (a) to (c)), the definition
removes repetition by relying on the definitions in the Building Act 1975,
and the Sewerage and Water Supply Act 19495.
New paragraph (1) (e) of the definition of "work" extends the existing
aspect of work which is extraction, to include "clay" and "other material"
in the list of material in the definition, and to include extraction of material
from places other than where it occurs naturally, for example, material that
has been deposited in a place during earlier extractive activities. This
change relates to proposed amendments of the coastal legislation.
New paragraph (1)(f) of the definition includes in the definition work
made assessable under IDAS by the Water Act 2000.
New section 2 of the definition of "work" makes it clear that certain
activities are not included in the definition, ie clearing vegetation on non-
freehold land (dealt with under the Land Act 1994), or placing temporary
advertising devices on premises, for example:
· "For Sale" signs for real estate;
· election signs;
· signs for mobile or itinerant vendors; and
· "Garage Sale" signs
· "sandwich board" signs
Replacement of ch 1, pt 4 (Uses and Rights)
Clause 9 replaces existing ch 1, pt 4, and combines existing Divisions 1,
2 and 3 to improve the structure of the part and the clarity of the provisions.
There is no intention to change the substance of the part.
4 See new section 6.1.53A.
5 See Schedule 10 as amended in this Bill.
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Integrated Planning and Other Legislation
Amendment Bill 2001
The part now deals with all existing uses and rights, whether acquired
before or after the commencement of the Act, in a single division.
Part 4 Heading
The heading is amended to indicate the purpose of part 4.
Section 1.4.1 (Lawful uses of premises on 30 March 1998)
Subsection 1 provides for the continuing lawfulness under the IPA of
existing uses that were lawful under the repealed Act (previously dealt with
in s 1.4.6).
The equivalent provision in the repealed Local Government (Planning
and Environment) Act 1990 suggested an existing lawful use of premises
would completely lose the protection afforded by that Act if the use
changed in any way. As a consequence s 1.4.6(2) and (3) were included in
the IPA. However, similar provisions to these are unnecessary under the
IPA and have not been retained.
New section 1.4.1 makes it clear that if the use changes after the
commencement of the IPA, the protection afforded by subsection 1
continues for the "underlying" existing use to the extent that use continues
(ie is not abandoned).
Section 1.4.2 (Lawful uses of premises protected)
Protects lawful uses under the Act that might otherwise become unlawful
or be subject to further regulation than previously, because of the
commencement of new or amended planning scheme provisions.
Section 1.4.3 (Lawfully constructed buildings and works protected)
This replaces, consolidates and amends existing s 1.4.4 and s 1.4.7 to
clarify that existing buildings and other works are protected from a
requirement to be altered or removed, to the extent they are lawful. If the
buildings and works are lawful by the operation of other factors, for
example, the Standard Building Regulation, their lawfulness under the Act
is implied.
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Integrated Planning and Other Legislation
Amendment Bill 2001
Sections 1.4.4 (New planning instruments can not affect existing
development approvals)
This is similar to existing s 1.4.2 and protects existing development
approvals. The heading and the body of the section is amended to refer
more correctly to development approvals rather than permits. The term
"development approval" is inclusive of both preliminary approvals and
development permits. Previous s 1.4.5 is therefore unnecessary. The
section is also restructured for clarity.
Section 1.4.5 (Implied and uncommenced right to use premises
protected)
This is similar to existing s 1.4.3, and protects implied and
uncommenced rights to use premises. The section has been amended to
extend its protection to rights acquired by endorsement for compliance
under s 3.5B.7.
Section 1.4.6 (Strategic port land)
This has the same effect as existing s 1.4.8 (inserted by the Local
Government and Other Legislation Amendment Act 2000 and commenced
on 1 December 2000).
Section 1.4.7 (State forests)
This states that certain activities6 are existing lawful uses of a State
forest. To the extent State forests are used for those activities, no approval
is required under a planning scheme. This amendment reflects difficulties
the State may experience compared to private forestry interests in
establishing the lawfulness of existing uses in the State forestry estate.
Firstly, the State is obliged under the Forestry Act 1959 to manage State
Forests in a manner consistent with their primary purpose of forestry.
Secondly, the vast extent of the State forestry estate means it is sometimes
difficult to establish the existence of lawful uses for given "premises"
within that estate. The amendment confirms that the basic use of State
forests for forestry, grazing and recreation consistent with the duties
imposed by the Forestry Act 1959 are taken to be existing lawful uses
under the IPA.
6 See definition of "forest practice" in schedule 10.
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Integrated Planning and Other Legislation
Amendment Bill 2001
Section 1.4.8 (Sch 8 may still apply to certain development)
This states the effect of regulation by the State under schedule 8 on
uncommenced development protected from regulation by planning
schemes as an existing lawful use, either in its own right or as part of an
existing lawful use7. The development is subject to regulation under
Schedule 8 from the date of commencement of any applicable provision of
the schedule. For example, clearing of endangered native vegetation may
be work necessarily associated with an existing agricultural use.
Nevertheless, if the work is assessable development under schedule 8 it
will require a development permit.
Amendment of s 2.1.3 (Key elements of planning schemes)
Clause 10 amends s 2.1.3 by removing subsection (1)(d). Experience
with the development of planning schemes indicates the inclusion of
performance indicators in schemes to assess the achievement of desired
environmental outcomes is not necessarily achieving any purpose as the
tendency is to use general indicators across schemes. The removal of the
provision does not preclude local governments from using performance
indicators in their planning schemes if it is considered worthwhile in the
particular circumstances, but this will no longer be mandatory.
The section is also amended by removing subsection (1)(e) which
requires certain prescribed local governments to include a benchmark
development sequence within their planning schemes. New subsection
(1)(d) replaces this provision with a requirement for all local governments
to include a priority infrastructure plan within their planning schemes.
Subsection (2) is amended for consistency and clarity.
Insertion of new s 2.1.3A (Core matters for planning schemes)
Clause 11 inserts a new s 2.1.3A which re-positions previous section 4,
part 1 of schedule 1 in the body of the Act. Subsection (4) has been
amended to extend the definition of "valuable features" to both terrestrial
and aquatic resources and areas listed in paragraphs (a) to (d).
7 See amended section 1.3.4 (Meaning of "lawful use").
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Integrated Planning and Other Legislation
Amendment Bill 2001
Insertion of new s 2.1.7A (When superseded planning scheme may
apply)
Clause 12 inserts a new s 2.1.7A which enables a person to ask a local
government to apply a particular superseded planning scheme for assessing
proposed development. This process replaces a similar process currently
administered through the acknowledgement notice provisions of IDAS.
While the immediate need for a different process for assessing the
application of superceded planning schemes arises because of changes in
IDAS removing acknowledgement notices, this matter is in any case more
appropriately dealt with under chapter 2 of the IPA, because the issue is a
question of which policy regime will apply for assessing proposed
development, rather than an administrative decision about the development
itself.
New subsection (1) enables a person to ask the local government to
apply a superseded planning scheme to the proposed development.
New subsection (2) provides for the form of the request and the payment
of a fee, and requires that the request be made within two years of the
creation of the superseded planning scheme. This is consistent with the
provisions for compensation8.
New subsection (3) requires the local government to make the request
publicly available from the time it receives the request until either a
decision is made or the request is deemed to be approved under subsection
(9).
New subsections (4) to (6) limit the time within which the local
government must decide the request.
New subsection (7) requires the local government to either agree to or
refuse the request.
New subsection (8) requires the local government to notify the person of
its decision in writing within a specified time.
New subsection (9) provides that if the local government fails to make a
decision within the time, or the extended time, provided, the application is
deemed approved.
New subsection (10) provides that if the local government agrees, or is
deemed to have agreed, to a particular superseded planning scheme
applying for development that was exempt development under that
8 See s 5.4.2 and definition of "superseded planning scheme" in schedule 10.
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Integrated Planning and Other Legislation
Amendment Bill 2001
superceded scheme, the person must substantially start that development
within the specified time.
However, if
· the local government agrees to the request, and the proposed
development is assessable development under the relevant
superseded planning scheme, or
· the local government refuses the request,
the person may make a development application (superseded planning
scheme)9. For a refused request, the development application may provide
a basis for a later claim for compensation under chapter 4 part 5.
Replacement of s 2.1.16 (Meaning of "planning scheme policy")
Clause 13 replaces existing s 2.1.16 to clarify the role and scope of a
planning scheme policy and its relationship with the planning scheme. The
provision makes it clear that the role of a planning scheme policy is limited
to providing guidance about how a discretion is to be exercised under a
local dimension of a planning scheme.
Amendment of s 2.1.18 (Adopting planning scheme policies in
planning schemes)
Clause 14 amends s 2.1.18 to further clarify10 the relationship between
the planning scheme and a planning scheme policy. While a planning
scheme may apply, adopt or incorporate a planning scheme policy, it is
intended that a planning scheme policy itself should include the substance
of any locally prepared documents (such as engineering standards), rather
than itself "calling up" those documents. This is intended to ensure locally
produced standards intended to applied in development assessment are
clearly available in a planning scheme policy, which follows a publicly
accountable process. The amendment supports this original intention
9 See definition of "development application (superseded planning scheme)" in schedule
10
10 See amended sections 2.1.16 and 2.1.23.
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Integrated Planning and Other Legislation
Amendment Bill 2001
Amendment of s 2.1.23 (Local planning instruments have force of law)
Clause 15 amends s 2.1.23 to further clarify11 the relationship between
the planning scheme and a planning scheme policy. New subsection (4)
clarifies that a planning scheme policy cannot regulate development by
requiring any process to be followed or rules to be complied with, such as
requiring development to be assessable or self assessable or subject to code
or impact assessment. A planning scheme policy may only provide support
for a planning scheme, for example, by including performance measures or
"deemed to comply" provisions indicating aspects of development or use
of premises that would or would not comply with the local dimension of a
planning scheme.
Amendment of s 2.1.25 (Covenants not to be inconsistent with
planning schemes)
Clause 16 amends the heading and subsection (1) of s 2.1.25 to make it
clear there must be an actual conflict between the planning scheme and a
covenant for the covenant to be of no effect. If the planning scheme is
silent on the matter the subject of a covenant, while they could be viewed
as inconsistent, they are not in conflict.
The provision removes the possibility of conflict between this section
and s 3.5.33. The effect of the amendment will be that if, as a condition of
a development approval, an applicant is required to enter into a statutory
covenant, the covenant may conflict with the planning scheme. The IPA
therefore envisages that in certain circumstances, justifiable on planning
grounds, a condition may be in conflict with a planning scheme.
Amendment of s 2.2.1 (Local governments must review planning
scheme every 6 years)
Clause 17 amends the heading and subsections (1)(a) and (b) to change
the time within which a local government must review its planning
schemes to 8, rather than 6, years of the commencement, or previous
review, of the scheme. This time is consistent with the 4 year corporate
cycle that exists for local government.
11 See amended sections 2.1.16 and 2.1.18.
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Integrated Planning and Other Legislation
Amendment Bill 2001
Amendment of s 2.2.5 (Local government must review its priority
infrastructure plan every 4 years)
Clause 18 replaces section 2.2.5, which required local governments to
review their benchmark development sequence. The benchmark
development sequence is no longer a concept for the Act. New subsection
(1) requires prescribed local governments to review their priority
infrastructure plans a minimum of every 4 years. This review is required to
be undertaken in consultation with the State agencies that participated in
the preparation of the priority infrastructure plan.
The 4-year review period has been selected as this effectively represents
the mid-point in the 8-year life of a planning scheme. Such reviews will
also ensure there is always sufficient land identified within the priority
infrastructure area to accommodate expected growth without the priority
infrastructure area acting to artificially affect the land market by inflating
land prices if the supply of available land was allowed to fall too low.
While all planning schemes must include priority infrastructure plans, not
all local government areas in Queensland are subject to growth pressures
that warrant review of the plan. Accordingly, this section only applies to
local governments prescribed in a regulation. However, there is nothing to
prevent a local government that is not prescribed from reviewing its
priority infrastructure plan or for a prescribed local government to review
the plan on a more regular basis, particularly if the rate of growth in the
local government area warrants it.
Subsections (2) and (3) requires a local government to assess its priority
infrastructure plan in consultation with relevant State agencies and advise
them proposed changes.
Omission of ch 2, pt 2, div 2 (Independent review of planning schemes)
Clause 19 omits the provisions of the Act providing a process for a
person to seek an independent review of a planning scheme. The
provisions were included in the IPA as originally enacted but their
commencement has previously been deferred. The provisions have been
removed because of concerns about their equity and effectiveness.
Replacement of s 2.6.1 (Who may designate land)
Clause 20 replaces s 2.6.1, which is compressed for clarity. The new
provision states that either a Minister or a local government may designate
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land for community infrastructure. The new provision does not preclude
the designation of land for community infrastructure already existing on
the land. However, there is often nothing to be achieved by doing this,
except where extension or expansion of the community infrastructure is
proposed on the land.
Replacement of s 2.6.5 (How IDAS applies to designated land)
Clause 21 replaces s 2.6.5 with an amended section that clarifies how
IDAS applies to development carried out under a designation. The new
provision replicates the existing exemption under IDAS for development
that is self-assessable or assessable under a planning scheme, and in
addition exempts reconfiguration of a lot, which without the exemption
would be assessable because of the operation of schedule 8.
Replacement of ss 2.6.7 - 2.6.9
Clause 22 replaces sections 2.6.7 to 2.6.9. The new provisions include
processes which may be followed with respect to Ministerial designation of
land for community infrastructure. Previous schedules 6 and 7, have been
omitted from the Act.
Section 2.6.7 (Matters the Minister must consider before designating
community infrastructure land)
New section 2.6.7(1)(a) provides for the matters a Minister must be
satisfied about before designating land for community infrastructure. The
section draws attention to the duty imposed in chapter 1 on all decision
makers under the Act to consider environmental effects. The link is further
strengthened in a footnote drawing attention to sections 1.2.2 and 1.2.3.
Subsection (2) lists six processes that, if undertaken, will satisfy the
designating Minister under s 2.6.7(1)(a). These processes are not intended
to be exclusive and the Minister may choose to be satisfied in some way
other than in this.
The statutory guidelines referred to in subsection (2)(a) will clarify how
the designating Minister's duty to advance the Act's purpose with respect to
consideration of environmental effects may be done.
Subsection (1)(a)(ii) requires the designating Minister, in the course of
environmental assessment, to be satisfied adequate consultation has been
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carried out about the proposed development for which the land is being
designated. This consultation may have been carried out by the entity
proposing to provide the community infrastructure. Subsection (1)(a)(ii)
requires the designating Minister to taken account of all the issues raised in
the course of that consultation.
Subsection (1)(b) requires the designating Minister to consider all
properly made submissions made as a consequence of any public
consultation carried out by the Minister under subsection (3). If
consultation with respect to the proposed development, the subject of the
designation, and the proposed designation, has been given under one of the
processes mentioned in subsection (2), and submissions concerning both
the development and the designation have been considered as part of that
process, subsection (1)(b) will not apply.
Subsection (2) specifies processes which will satisfy the requirement
under subsection (1)(a) for adequate public consultation. As mentioned
above, this list is not exclusive. Subsection (2)(a) provides that public
consultation in accordance with guidelines made by the chief
executive12will be sufficient to satisfy a designating Minister.
Specific reference to the Coordinator-General carrying out a
coordination in relation to community infrastructure under section 29A of
the State Development and Public Works Organisation Act 1971, has been
removed, as subsection (2)(a) will apply for the Minister for State
Development in this circumstance.
A Minister wishing to designate land may wish to do so in conjunction
with local government processes. New subsection (2)(d) provides for a
designating Minister to be satisfied under subsection (1)(a) where a local
government designates land for community infrastructure by way of a new
planning scheme or scheme amendment under ch 2 part 6 division 3.
Subsection (3) is a "safety net" provision placing the onus on the
designating Minister to ensure that all owners of affected land, or local
governments affected by the designation, as distinct from the development
the subject of the designation, are advised in writing of the proposed
designation, and given the opportunity to make submissions. The "owner"
for the purposes of this section, and any public consultation under (2) is the
owner at the time notice of a proposed designation is given. For any
subsequent owners, possible designation of land should be the subject of a
search. Local governments are required to keep available for information
12 See s 5.8.8..
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and purchase copies of notices about Ministerial designations13 and to
include designations in planning schemes.14
Subsection (4) requires that the notice given by the designating Minister
to owners or local governments under subsection (3) give those entities a
minimum of 15 days in which to make a submission for consideration
under subsection (1)(b).
Section 2.6.8 (Procedures after designation)
This is substantially the same as section 4 of previous schedule 6.
Section 2.6.9 (Procedures if designation does not proceed)
This is substantially the same as section 5 of previous schedule 6.
Amendment of s 2.6.12 (Designation of land by local governments)
Clause 23 amends s 2.6.12 to clarify that there is only one process by
which a local government may designate land for community infrastructure
and that is in the process of making a new planning scheme, or amending
an existing planning scheme, under schedule 1 of the Act.
Amendment of s 2.6.15 (When designations do not cease)
Clause 24(1) amends s 2.6.15(1)(a) to clarify that land over which a
registered public utility easement is held by a private entity is treated in the
same way as land that is owned by a private entity, for the purposes of
designation.
Clause 24(2) amends s 2.6.15(1)(b) to clarify that land over which the
State or a local government holds a public utility easement is treated in the
same way as land that is owned by the State or local government, for the
purposes of designation.
13 See section 5.7.2(1)(n).
14 See section 2.6.11.
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Replacement of s 2.6.19 (Request to acquire designated land under
hardship)
Clause 25 inserts a new s 2.6.19. The previous wording of the section
suggested an owner could ask only for acquisition of their whole property
even if only part of the property was subject to hardship because of the
designation. The previous wording also did not provide an explicit enough
linkage between the hardship experienced by the applicant and request to
acquire the affected land.
The new provision clarifies that the interest that is the subject of the
owner's request under the section is that part of the owner's property in
request of which the owner is suffering hardship even if this is less or
greater than the designated area. The new provision is sufficiently flexible
to allow the owner to ask for part only of the land subject to hardship to be
acquired. However, it does not allow the designator to grant part of a
request if all of the land is suffering hardship.
Subsection (1) provides for when an application may be made to a
designator to acquire land because of hardship.
Subsection (2) prevents an application under the hardship provisions if
the designated land is already subject to a public utility easement for the
purpose of the designation, or a process to acquire an easement for the
purpose has commenced. For example, if an electricity easement exists or
is being acquired over property, an owner cannot request acquisition of the
remaining interest in the designated land.
Subsection (3) provides that the owner may ask the designator to buy
either the interest in the designated land alone, or if the owner owns
adjoining land the value of which, if held on its own, would also suffer as a
consequence of the designation, the owner's total interest in the designated
and adjoining land.
Subsection (4) provides decision options for the designator.
Subsection (5) provides for the things a designator must take into
account in making a decision. Under subsection (5)(a) the owner must
need to sell the land for personal reasons and have also attempted to sell it
for a fair market value (calculated without taking the designation into
account). Subsections 5(b) provides for where an owner genuinely wishes
to develop the land but has been refused or is unlikely to be granted the
necessary development approval. Subsection 5(c) is a new criterion, and
provides for where an owner has already obtained development approval
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for a proposal but the effect of the designation is such as to make the
proposal uneconomical or unviable in some other way.
Subsection (6) provides a definition for the section.
Replacement of s 2.6.25 (Ministers may delegate certain administrative
powers about designations)
Clause 26 replaces s 2.6.25 to expand a designating Minister's power to
delegate, to include steps the Minister must take after a designation has
taken place, and with respect to acquisition of land under hardship The
chief executive officer of a public sector entity15 is included in those who
may exercise the delegated power of the Minister. The powers capable of
delegation are limited to matters of process, and not substantive decisions
which must be taken in the course of the designation process.
Replacement of ch 3 (integrated development assessment system
(IDAS))
Clause 27 replaces chapter 3. Major changes to chapter 3 include:
· An application must be properly made and all time frames in the
IDAS process start from the time an application is properly
made.
· Acknowledgement notices are no longer a concept under the Act.
Instead an assessment manager must in some cases endorse a
copy of a properly made application and return it to the applicant.
· Non-acceptance notices must be sent if the assessment manager
receives an application that is not properly made.
· Improved provisions providing further guidance about the
variation of a planning scheme as part of a preliminary approval.
· Transitional referral co-ordination is moved to chapter 3 of the
Act.
· The requirements for changing applications have been refined
and are dealt with in separate sections according to their effect on
the IDAS process.
15 See amended definition of "public sector entity" in schedule 10.
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· The notification stage has been changed to a "floating" stage to
be more flexible and responsive to individual circumstances, in
particular changes made to development applications in the
course of the IDAS process.
· Provisions for changing or canceling development approvals are
consolidated in a new part 5A of chapter 3 of the Act.
· An additional stage is added to IDAS. The compliance stage will
simplify aspects of the IDAS process by allowing for
development that simply requires assessment for compliance
with certain standards proceed straight through a simple
compliance check. The stage will also apply for checking
documents related to development (as opposed to checking the
development itself) for compliance.
Individual sections are changed in the following way:
Section 3.1.1 (What is IDAS)
The section is amended to remove a redundant reference to "State and
local government". This is partly to simplify the text, but also reflects the
potential, subject to any constitutional limitations, for Commonwealth
entities to participate in aspects of the IDAS process.
Section 3.1.2 (Development under this Act)
Subsection (1) states a basic premise of the IPA that all development is
exempt unless it is made assessable or self-assessable. Development is
made assessable or self-assessable either by a planning scheme (or
temporary planning scheme), or by schedule 8.16 Schedule 8 reflects the
development the State wishes to be assessable or self-assessable.
Subsection (2) introduces the concept of compliance development and
compliance assessment. Compliance assessment may be required for
assessable, self-assessable, or exempt development.
Subsection (3) provides for schedule 9 (which replaces previous
schedule 8, part 3) to identify development that is exempt for a planning
scheme (or temporary planning scheme) ie development the State wishes to
not be regulated by the local government. Development listed in schedule
16 See definitions of assessable and self-assessable development in schedule 10.
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9 is exempt only for the purposes of the planning scheme, and may still be
regulated under schedule 8.
Subsection (4) provides for the effect of an inconsistency between a
planning scheme (or temporary planning scheme) and schedule 8.
Previous subsection (4) was inserted particularly for the circumstance
where building work was assessable under schedule 8 but self-assessable
under the planning scheme. Building work will now be dealt with by way
of compliance assessment, and the provision is no longer necessary.
Section 3.1.3 (Code and impact assessment for assessable development)
Existing subsections (1) to (3) are unchanged. Subsection (2)(a) and (b)
are clarified. New section 3.1.10 deals with matters about codes previously
dealt with in subsections (4) and (5).
Section 3.1.4 (When is a development permit necessary)
Previous subsection (1) is substantially reproduced and states that a
development permit is only necessary for assessable development.
Previous provisions regarding self assessable and exempt development are
dealt with separately in new sections 3.1.11 and 3.1.12.
Section 3.1.5 (Approvals under this Act)
Subsection (1) is amended to provide that a preliminary approval
approves "development", rather than "assessable development". This
reflects the fact that one of the uses of the preliminary approval process is
to allow applicants to seek approval, not of development specifically
defined under a planning scheme, but of a concept, such as a "shopping
centre" or an "industrial estate". The assessment type for such a concept
may not actually be clear under the planning scheme, and the current
wording implies that the preliminary approval process may only be used
for development that is clearly assessable under the scheme. (Further
reforms have been made elsewhere in chapter 3 to provide support for the
assessment of conceptual development applications).
Subsection (2) makes it clear that a preliminary approval is not sufficient
authority to allow the actual commencement of development, and that it is
not mandatory to seek preliminary approval for any development.
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Subsection (3) is included for clarity and to provide that in addition to
the other matters listed, a development permit is subject to any
requirements for compliance assessment.
Subsection (4) provides for a compliance permit to authorise compliant
development to occur. The conditions that may be attached to a
compliance permit are limited to requirements that must be fulfilled to
make the development (or related documents or plans) compliant with a
relevant prescribed standard.
Subsection (5) provides for a compliance certificate to approve existing
documents, plans or works. Again, any conditions may only specify how
compliance with a relevant prescribed standard can be achieved.
Section 3.1.6 (Preliminary approval may override local planning
instrument)
Generally,
· the provisions for preliminary approvals which vary the effect of
a planning scheme, previously limited to material changes of use
requiring impact assessment, can now accommodate a broader
range of development;
· an applicant for a preliminary approval that varies a planning
scheme must apply at the same time for the change to the scheme
to be made;
· all applications for preliminary approvals involving variations to
the planning scheme will require public notification. The only
exception will be where a preliminary approval is "staged" and
the development being applied for is subject to code assessment
because of the operation of a preliminary approval for an earlier
stage;17
· a preliminary approval for a material change of use may vary the
effect of the planning scheme for aspects of development related
to the material change of use. For example, a preliminary
approval for a material change of use for a "master planned
community" may vary assessment requirements or include codes
for building work associated with the material change of use (eg
for building height, bulk or density), or associated
17 See amended s 3.4.2.
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reconfiguration (eg through lot size or other lot characteristics) A
preliminary approval for other development may vary the
operation of the scheme only for that aspect of development.
· a variation to the operation of a scheme as a consequence of a
development approval may only be in response to an application
dealt with under this section. A local government may not vary
the scheme in this way without an application seeking the
variation. Any change to the scheme that is not the consequence
of a preliminary approval dealt with under this section, would
need to be made using the Schedule 1 process in the Act.
It should be noted that while a preliminary approval can over-ride a
planning scheme, it cannot over-ride a State code to the extent it "covers
the field" for a stated effect.18
Subsection (1) provides for the section to apply if an application for a
preliminary approval includes an application to vary the planning scheme.
Subsections (2) and (3) provide that to the extent the application is for
both a preliminary approval for a material change of use and an application
to vary the planning scheme, then the preliminary approval can provide for
how a subsequent proposal should be assessed or dealt with by -
· requiring that development be impact or code assessable, exempt
development or compliant development;
· specifying codes for the code assessable development.
Similarly, subsections (4) and (5) provide that to the extent the
application is for development other than a material change of use, and an
application to vary the planning scheme, then the preliminary approval can
provide for how subsequent development should be assessed or dealt with.
Subsection (6) provides for either type of approval to prevail over the
planning scheme.
Subsection (7) provides for that part of the approval that is contrary to
the planning scheme to fall away once the proposed development is
approved and completed or and time stipulated in the approval for its
completion expires. The variations approved as part of such a development
approval do not actually amend the relevant planning scheme, but merely
take precedence over any provisions of the scheme inconsistent with the
approval until the development is completed, or the approval lapses. In
18 See new section 3.1.10
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particular, these variations do not constitute a "change" to the planning
scheme for the purposes of chapter 5 part 4.
Subsection (8) reproduces previous subsection (5), with an additional
reference to schedule 9, for consistency with other changes.
Previous subsection (6) is removed for the same reasons section 3.1.2(4)
has been removed.
Section 3.1.7 (Assessment manager for development applications)
Subsections (1) is amended for clarity. Subsections (2) and (2A) are
unchanged apart from renumbering.
New subsections (4) and (5) provide that where there is only one
concurrence agency for an application they automatically becomes the
assessment manager when the planning scheme has no interest in the
application and no alternative assessment manager is prescribed. Because
of the changed role of the concurrence agency, there is deemed to be no
concurrence agency for the application. The provision will still apply
where there is more than one aspect of development dealt with in the
application but the same concurrence agency for all aspects. For example,
the application may be for multiple environmentally relevant activities
(ERAs). If the Environmental Protection Agency (EPA) is the only
concurrence agency for each of the ERAs, then the EPA will, by the
operation of the section, be the assessment manager for the application.
The purpose of the provision is to simplify schedule 1A of the Integrated
Planning Regulation (alternative assessment managers).
Subsections (6) and (7) apply where a concurrence agency directs an
assessment manager to give a preliminary approval only, for certain
development. When the applicant later applies for a development permit
for the development covered by the preliminary approval, then by operation
of the subsections the concurrence agency who has directed the
preliminary approval automatically becomes the assessment manager.
However, the assessment manager for the original application may indicate
that they wish to continue as assessment manager for any subsequent
application, in which case, the subsections do not apply for the subsequent
application.
If a concurrence agency becomes the assessment manager for a
subsequent development application, the Integrated Planning Regulation,
schedule 1 will require the development to be code assessable. By the
operation of section 3.5.5 (Development requiring code assessment)
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subsections (2) and (3), the concurrence agency will be limited to a
consideration of matters within their concurrence agency jurisdiction.
Subsection (8) reproduces previous subsection (3).
Footnote 14 to the section is removed for consistency with other
amendments which have the effect that a private certifier does not
undertake the functions of an assessment manager.
Section 3.1.8 (Referral agencies for development applications)
This is amended to correct an incorrect reference to a referral agency
"deciding" an application.19
New section 3.1.9 (Compliance assessor for requests for compliance
assessment)
This defines "compliance assessor" and specifies the compliance
assessor's role.20
New section 3.1.10 (Codes under legislation)
Subsection (1) deals with codes for IDAS made and identified by the
State in the IPA, another Act or a State Planning Policy. Provision is made
for these codes to have one of three relationships with a local planning
instrument. The local planning instrument may:
· not change the effect of the code for IDAS in any respect the
State code is a complete code;
· increase the effect of the code only, but not change it in any other
respect, eg a local planning instrument may regulate the clearing
of non-native vegetation not addressed by the State code for
vegetation clearing;
· change the effect of the code in any respect, eg by replacing the
code with an alternative code in the local planning instrument.
The relationship for a particular code must be identified in the regulation
or Act creating the code. However, subsection (2) provides for a default
relationship in the event that the relationship is not identified. In that case
19 See sections 3.3.16 and 3.3.17.
20 See definition of "compliance assessor" in schedule 10.
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the local planning instrument may change the effect of the code in any
respect.
Subsections (3) and (4) provide that to the extent a code purports to
"cover the field" for a stated effect, the planning scheme is of no effect.
Subsection (5) provides for a regulation to identify codes that a local
government has the option to include in their planning scheme. These
codes have no effect until a local government choose to adopt the codes by
including them in its planning scheme and amends its scheme accordingly.
New section 3.1.11 (Self assessable development and codes)
The section identifies the relationship between self assessable
development and codes.
New section 3.1.12 (Exempt development and codes or planning
instruments)
The section identifies the relationship between exempt development and
codes or planning schemes or policies. The section provides that exempt
development is not regulated by either applicable codes21, or local planning
instruments. Exempt development may, however, be subject to compliance
assessment22, and the assessment criteria may be contained in a code, other
than an applicable code.
New section 3.1.13 (Stages of IDAS)
The section replaces previous section 3.1.9. A new stage, the
compliance stage, is added to subsection (1).
Subsection (2) makes it clear that for an application for assessable
development which does not lapse, there may only be an application stage
and a decision stage. This would be the case for relatively simple
development applications. For any particular application, any, all or none
of the other three stages may apply.
Subsection (3) removes any doubt that the compliance stage always
applies for compliant development, even though compliant development
may also be development to which the other stages of IDAS apply.
21 See definition of "applicable code" in schedule 10.
22 See chapter 3 part 7.
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New section 3.1.14 (Native Title Act (Cwth))
The new section recognizes and accommodates disparities between the
IDAS process and processes for notifying native title parties under the
Commonwealth Native title Act 1993 ("NTA). The section enables
procedural rights to be provided to native title parties (under section 24HA
and section 24KA of the NTA) within the IDAS process by, in effect,
stopping the clock of the particular IDAS stage until the procedural rights
have been provided.
Section 3.2.1 (Applying for development approval)
Subsections (1) and (2) are unchanged.
Subsection (3)(a) is amended to require a "mandatory requirements part"
in an development application form. The legislation requires only that the
part contain a description of the land. There could , however, be other
mandatory requirements.
Subsection (3)(b) requires that for a material change of use, a
reconfiguration, or certain works below high water mark, the written
consent of the owner of the land to the making of the application must be
supplied, however, the way it is supplied is not mandatory. It may either be
included in the application itself or in a document supporting the
application.
Applications for works no longer require the consent of the owner of the
land, however, they are still subject to subsection (5).
Subsection (3)(c) allows for a non-mandatory supporting information
part to be included in the form.
Subsection (4) provides for the fee to accompany applications.
Subsection (5) is replaced. The original subsection is redundant 23.
New subsection (5) provides for where development is for the taking of
or interfering with a State resource. If the resource is specified in the
Integrated Planning Regulation or another regulation, the regulation may
also require that the applicant provide certain evidence to support the
development application.
23 See definition of "development application (superseded planning scheme) in schedule
10.
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The requirement that this evidence be produced in certain circumstances
provides, where indicated, an opportunity for the State as owner of land
and other resources to be aware of and agree to the making of a
development application without the need for the State to reconsider the
application as owner of the land which is or contains the resource.
Subsection (6) provides that the consent of the State as owner is not
required where subsection (5) applies or where another Act (rather than a
regulation) requires the application to be supported by the specified
information.
Subsections (7) to (9) have been omitted. There is no provision for an
assessment manager to accept as properly made any application other than
one that is properly made.
New subsection (7) lists the attributes of a development application for it
to be properly made. Subsection (7)(c) requires the mandatory
requirements part of the form to be correctly completed. For the present
form, referral agencies for the application are a mandatory requirement. If
these are not stated correctly, the situation may be rectified by the operation
of s 3.2.9. If the situation is not rectified, the application effectively cannot
progress past the application stage.
New subsection (8) is particularly relevant with respect to applications
for preliminary approval.24 The provision makes it clear that an applicant
may apply for approval for development in the most general of terms. An
application does not necessarily have to align with how aspects of
assessable development are specified in the planning scheme, but may be
quite conceptual. For example, an application for the conceptual approval
for a shopping centre would not be required to include details of the types
of shops ultimately to be included in the centre. However, the more general
the application, the more general any approval would need to be.
New subsection (9) makes it clear that land held by the State as State
land is a resource of the State and is subject to the same consent regime
(under subsections (5) and (6)) as other State resources.
Section 3.2.2 (Applications for works involving material change of use)
The heading is changed to reflect changes in the body of the section.
24 See sections 3.1.5 and 3.1.6.
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Subsections (1)(a) of the section is amended to remove confusion about
the meaning of "work" in this context. "A work" (which replaces "a
structure or works"), in this context, is intended to mean the result of
development, for example, carrying out building work (development)
results in a building (a work).
Under the provision if an application is made to carry out work, and at
the time of the application, the result of that work (ie the building in the
example above) cannot lawfully be used without an approval for the
material change of use of the land on which it is situated, then the
application for the carrying out of work is taken also to be an application to
change the use of the land.
Section 3.2.3 (Non-acceptance notices)
New section 3.2.3 provides for when an applicant lodges a development
application that is not properly made. The section provides for the
assessment manager to give the applicant a notice with details about why
the application is not properly made, within the prescribed period.
If the applicant does not change the application as required in the notice
within 20 business days or any longer period allowed by the assessment
manager, the application lapses, and together with any application fee, less
reasonable costs for the processing of the application thus far, must be
returned to the applicant.
The change to the application in response to the non-acceptance notice is
dealt with under s 3.2.7. It should be noted that nothing in the section
prevents the applicant changing the application in some way other than that
suggested in the non-acceptance notice, or changing the application in
some other way under s 3.2.7.
Subsection (4) makes special provision for an application for
development involving a resource of the State. A non-acceptance notice is
not required to be given to the applicant only because the application is not
supported by either the consent of the owner, or evidence about the
allocation of the resource required under section 3.2.1(5).
Where the entity administering the resource is also the assessment
manager, this will enable an applicant to apply for both the resource
allocation and the development approval at the same time. In that
circumstance, the development application will remain in the application
stage, without the need for a non-acceptance notice to be issued, until the
resource allocation issues have been dealt with and the necessary evidence
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to support the development application is available. At that stage the
application will become "properly made".
Section 3.2.4 (When applications must be endorsed as accepted)
New section 3.2.4 provides for when an applicant lodges a development
application that is properly made. Within the prescribed time the
assessment manager must endorse the application in some way to indicate
acceptance and give the applicant a copy. This action is necessary only if
there are one or more referral agencies for the application, the application
requires referral coordination, or the applicant asks for the action to be
taken. Consequently, if there are no referral agencies and referral
coordination does not apply for an application, and the applicant does not
request it, there is no need for the assessment manager to acknowledge
acceptance of an application.
Original sections 3.2.5 and 3.2.6 are removed.
Section 3.2.5 (Additional third party advice or comment )
This is original section 3.2.7 renumbered and clarified.
New section 3.2.6 (Public scrutiny of applications and related material)
New section 3.2.6 clarifies the material for an application that the public
may inspect or purchase. The application, any information request, any
properly made submission and any referral agency response, received by
the assessment manager, may be inspected or purchased. An application
includes any supporting material specified in the new definition included in
schedule 10, subject to the exception in subsection (3). Existing paragraph
(2)(b) has been omitted because the mew definition makes the exception
redundant.
The supporting material no longer includes the information request,
which is listed as a separate document. Reference to "the
acknowledgement notice" is removed.
Subsection (1) provides for the documents related to an application that
must be kept by the assessment manager for inspection and purchase.
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Subsection (2) provides for the period during which the documents must
be kept available.
Subsections (3) and (4) provide for the treatment of sensitive
information.
Section 3.2.7 (Changing an application (generally))
Section 3.2.9 makes general provision for when an applicant may change
an application. It applies only until a decision is made by the assessment
application on the application.
The changes covered by the section include:
· a change in response to a non-acceptance notice
· a change in response to an information request
The change may not however, be one which, if it had been included as
part of the original application, would have meant the application was not
properly made. For example, if the application required the consent of the
owner under section 3.2.1, a change which involved adding a piece of land
for which the consent of the owner was not obtained, would not be covered
by the section.
The application must give the assessment manager notice in writing of
any proposed change, accompanied by the appropriate fee. For a change
in response to a non-acceptance notice, if the development application fee
has already been paid, and the notice is given within the prescribed time, no
further fee is payable. If the development application fee has not been
paid, this is the only fee payable if the notice is given within the prescribed
time.
New section 3.2.8 (Changing an application (that does not stop IDAS)
Subsection (1) lists a number of circumstances that in themselves will
not stop the IDAS process. These are where:
In paragraph (a), the application is changed in response to a non-
acceptance notice;
In paragraph (b), the applicant gives more or better particulars about the
application. It should be noted that if the application is subject to impact
assessment, and the notification stage has commenced before the applicant
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applies for a change to be made, the applicant may be required to start the
notification stage again whether or not the stage has been completed.25
In paragraphs (c) and (d), the change reduces the scale or intensity, or
removes altogether an aspect of development;
In paragraph (e), the assessment manager and any concurrence agency
exercise a discretion with respect to the significance of the change. The
discretion is a "catch-all" discretion intended to be exercised only in regard
to similar types of matters to those dealt with in the preceding paragraphs.
In paragraph (f), the change corrects details about the name or address
of the applicant or owner.
In paragraph (g), the property details, including the address of the land,
are changed and the applicant receives written notice from the assessment
manager they are satisfied the change will not interfere with the ability of a
person, ie either the assessment manager or a referral agency, to make an
informed assessment of the application.
If the changes in the details of the property effectively changed its
location, it is probable such a change would adversely affect a referral
agency's ability to assess the application. A range of different
environmental factors may be relevant in the changed location. For
example, if the new location was affected by contamination the changed
application would require referral to the Administering Authority for
assessment.
Subsection (2) makes it clear that the section does not apply for a change
that is sufficiently significant as to involve further referral agencies or to
change the assessment status of the application from code to impact
assessable.
Subsection (3) puts the onus on the applicant to advise concurrence and
advice agencies in writing about any change made, other than a change in
response to a non-acceptance notice.
New section 3.2.9 (Changing an application (that restarts IDAS for
part of the application))
This section provides for the circumstances where a development
application form should have specified a referral agency for the application,
but did not, and the omission is not discovered until after the end of the
25 See amended section 3.3.5.
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application stage. If, in all other respects, the application has been properly
made, the matter can be corrected by the necessary referral being made.
For the aspect of the application affected by the referral, the application
returns to the beginning of the information and referral stage. The
omission does not affect the other aspects of the application, for which it is
taken to be properly made.
Previous section 3.2.10 (Notification stage does not apply to some
changed applications)
The substance of this section has been more appropriately placed in
section 3.3.5 of part 4 of chapter 3, which deals with the notification stage.
New section 3.2.10 (Changing an application (that restarts IDAS
completely)
Subsection (1) provides that this section applies to any change other than
those dealt with specifically in 3.2.8 and 3.2.9.
Subsection (2) puts the onus on the applicant to give the assessment
manger details of the change, and to advise any referral agencies, or the
chief executive if referral coordination applies. Advice to the referral
agencies is all that is required as the application will return to the referral
stage and new details will be given. The purpose of the advice is to cause
the assessment process to stop. The Acts Interpretation Act requires that
the advice to the referral agencies be given as soon as practicable after
details of the change are given to the assessment manager.
Subsection (3) provides that for these changes the IDAS process
recommences at the start of the information and referral stage when the
assessment manager receives notice of the change from the applicant.
Section 3.2.11 (Withdrawing an application)
This section applies only to withdrawing a development application.
The process to cancel a development approval is in part 5A of chapter 3.
Subsection (1) provides for the applicant to withdraw an application by
advising in writing the assessment manager, any referral agency, and the
chief executive if referral coordination applies. Previously the onus was
on the assessment manager to advise referral agencies.
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Subsection (2) is amended to remove unnecessary words and is
renumbered.
Previous section 3.2.12 (Applications lapse in certain circumstances)
This section has been omitted and lapsing provisions for individual
actions are included in the specific sections dealing with the actions to
increase readability.
Section 3.2.12 (Refunding fees)
Existing section 3.2.13 is renumbered and amended for consistency with
s 3.2.3 which requires application fees to be refunded to an applicant if the
application is not properly made, and is not amended by the applicant.
Section 3.2.13 (When does application stage end)
Existing section 3.2.15 is renumbered as 3.2.13. Subsection (1) is
amended for consistency with other amendments to provide that the
application stage ends when the application is properly made. An
application may be properly made, either initially, in response to a non-
acceptance notice under s 3.2.3, or as provided for if a referral agency is
omitted.26
Subsection (2) reinforces the effect of the provision. An application that
is not properly made remains in the application stage. If the assessment
manager gives the applicant a non-acceptance notice, and the applicant
does not respond by changing the application within 20 business days
(section 3.2.3), the application lapses. However, if the assessment manager
does not give the applicant a non-acceptance notice, the application
remains "live", but still within the application stage. This applies regardless
of whether an approval is subsequently purportedly given for the
application. While there is at common law an assumption of validity for
such an approval, a declaratory action could be taken under section 4.1.21
to establish the application was not properly made. If such an action were
successful, the application would still be in the application stage.
26 See section 3.2.9.
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Section 3.3.1 (Purpose of information and referral stage)
This is amended for clarity and to include reference to applications
requiring referral coordination.
New section 3.3.2 (When information and referral stage applies)
Section 3.3.2 clarifies that the information and referral stage only applies
for an application for which there are one or more referral agencies, or
referral coordination applies for the application, and the assessment
manager makes an information request.
New section 3.3.3 (When can information and referral stage start)
Section 3.3.3 clarifies that when the information and referral stage
applies, it starts immediately the application stage ends, ie when an
application is properly made.
Section 3.3.4 (Referral agency responses before application is made)
This is renumbered and a section reference amended, but otherwise
unchanged .
Section 3.3.5 (Applicant gives material to referral agency)
Subsection (1) is amended for consistency with other provisions to
provide for each referral agency to receive a copy of the application
endorsed as accepted. Referral agencies nominated by the chief executive
if referral coordination applies are omitted from the definition of "referral
agency" by subsection 6. At this stage no referral agencies have been
nominated. Previous subsection (1)(c) is redrafted as 1(b)(ii) and (iii) for
readability.
Subsection (2) and (3) are redrafted to include provision for lapse of the
application.
Subsection (4) is renumbered but substantially unchanged.
Subsection (5) is renumbered and amended for consistency with NCP
requirements.
Subsection (6) is renumbered but substantially unchanged.
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Subsection (7) includes a definition of "referral agency" for the section.
Section 3.3.6 (Applicant advises assessment manager)
This is amended for consistency with other changes, and for clarity.
Section 3.3.7 (Referral coordination)
Subsection (1) extends the circumstances in which the chief executive is
required to coordinate an information request. Previously a form of the
"EIS process" for "designated developments" under the repealed Act was
dealt with as a transitional matter in s 6.1.35C. The substance of that
provision is relocated to this section to indicate the State's continuing
involvement in ensuring quality and consistency of information supplied by
applicants through information requests. The new provision will continue
to reference the lists of development in the IP regulation.27
Subsection (2) provides that in certain circumstances, the assessment
manager may decide that referral coordination does not apply and advise
the proponent accordingly.
If referral coordination is required, subsection (3) requires the applicant
to give the chief executive the things listed, within 3 months of receiving a
copy of the application, endorsed as accepted, from the assessment
manager. (Section 3.3.5 will also apply if referral agencies for the
application are specified by regulation. The same time limit applies.)
Subsection (4) provides that if this is not done within the specified time,
the application lapses.
Subsection (5) provides for where an assessment manager also fulfils the
role of concurrence agency because the responsibilities of the concurrence
agency are delegated or devolved. For example, responsibilities for certain
environmentally relevant activities (ERAs) are devolved to local
government. Where the local government, in addition to its role as
assessment manager for an application for a material change of use for an
environmentally relevant activity, also has devolved concurrence
responsibilities for the ERA, it will not be counted as a concurrence agency
for the purposes of referral coordination.
27 Schedules 6 and 7.
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Section 3.3.8 (Information requests to applicants (generally))
The section is amended to extend information requests to advice
agencies.
Subsection (4)(a) and (b) has been amended to remove references to
acknowledgement notices for consistency with other amendments. The
amendment also extends the information request period for an application
requiring impact assessment from 10 to 20 days.
Subsection (7) is amended to make it clear that the assessment manager
and each referral agency may individually extend their information request
period without the applicant's agreement.
Subsection (8) is amended to provide that for an information request
period to be further extended, the applicant must agree in writing before the
original period or as extended under subsection (7) ends.
It should be noted that for any application there may be multiple
information requests, each with its own information request period.
Reference should be made to the definition of "information request
period" in schedule 10, which makes it clear that for any application there
may be multiple information requests, each with its own information
request period.
Section 3.3.9 (Information requests to applicants (referral
coordination) )
New subsections (2), (3) and (4) replace existing subsection (2) for
consistency with changes to s 3.3.7. Under the new subsections the chief
executive (who under s 3.3.7 has been advised an application requires
referral coordination) must consider who should be advice agencies for the
application and consult with those agencies and any prescribed referral
agencies for the application..
Within 20 business days of receiving advice from the applicant (also
required under s 3.3.7) that all the prescribed referral agencies have been
notified of the application, the chief executive must either ask the applicant
to supply further specified information, or advise the applicant that no
further information is required.
The chief executive must notify all referral agencies for the application
about the request.
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Reference should be made to the definition of "information request
period" in schedule 10.
Subsections (5) and (6) provide for one extension by the chief executive
of the information request period without the consent of the applicant.
Notice must be given to the applicant before the initial information request
period ends.
Subsection (7) provides for an extension of the information request
period with the consent of the applicant, before the existing information
request period ends.
These provisions are consistent with other similar provisions of the Act.
Subsection (6) is amended to require all referral agencies to be advised
of any extended information request period.
Section 3.3.10 (Applicant responds to any information request)
Subsection (1)(a) requires the applicant to respond to an information
request in one of two ways. The applicant may advise the entity making an
information request whether or not they believe the information they are
supplying satisfies the information request, and ask that assessment of the
application proceed. Alternatively, the applicant may advise that they do
not intend to supply any of the information requested, and ask that
assessment proceed.
This will allow an applicant to state whether they believe they have fully
satisfied the information request, or have deliberately not met part or all of
the request. It will also provide certainty for the entity where all the
information requested is not supplied, or information is supplied
progressively, that the applicant does not intend to supply any further
information.
Subsection (2) is amended to provide for reference to referral agencies
generally.
Subsection (3) is unchanged.
New subsection (4) provides for an application to lapse if an information
request is not answered as required within 6 months or a longer period
stated in the request.
The intent of the provision is that if there is more than one requesting
authority, the application will lapse if the applicant fails to comply with any
requesting authority's information request within the respective time
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frame, even though the applicant may have complied with another
requesting authority's request within the required time for that request.
New subsection (5) provides for the respective response periods to be
extended in writing before the end of the original period.
Section 3.3.11 (Referral agency advises assessment manager of
response)
This is renumbered but otherwise unchanged.
Section 3.3.12 (When referral assistance may be requested)
This is renumbered but otherwise unchanged.
Section 3.3.13 (Chief executive acknowledges receipt of referral
assistance request)
Section 3.3.13(c) is amended to refer to referral agencies.
Section 3.3.14 (Chief executive may change information request)
Section 3.3.14(3) is amended to require the chief executive to give a
copy of a changed information request to the assessment manager in
addition to other entities.
Section 3.3.15 (Applicant may withdraw request for referral
assistance)
This is renumbered but otherwise unchanged.
Section 3.3.16 (Referral agency assessment period)
Previous section 3.3.14 is redrafted for clarity and for consistency with
other changes.
Subsection (1) specifies a 20 business day assessment period for a
referral agency both where the assessment is part of the EIS process under
chapter 5 part 7A, and in all other circumstances. For all other
circumstances, the assessment period commences at the end of the referral
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agency's information period28, as defined in schedule 10. Reference to
prescribed periods is redundant and has been removed.
Subsection (2) provides for the assessment period to be extended without
the agreement of the applicant. Subsection (3) provides for the assessment
period to be extended with the agreement of the applicant. Subsection (4)
requires an agency whose assessment period is being extended to advise
the assessment manager in writing.
Section 3.3.17 (Referral agency assesses application)
Subsection (1) is changed to make it clear that a referral agency is only
required to assess that part of an application that relates to its jurisdiction.
It has no jurisdiction and is not required to consider or assess any other part
of an application.
Subsection (2)(b) is removed as these matters will be subject to
compliance assessment.
Section 3.3.18 (Referral agency's response)
Previous section 3.3.16 is redrafted for clarity and for consistency with
other changes.
Subsection (1) and (2) requires referral agencies to give any response
they wish to make to the assessment manager within their respective
referral agency's assessment period under s 3.3.16. They must also provide
the applicant with a copy.
Subsection (3) provides that if a concurrence agency does not respond
within the specified period, the assessment manager is not required to
include the concurrence agency's requirements in its decision about the
application29.
Section 3.3.19 (How a concurrence agency may change its response)
This is renumbered but otherwise unchanged.
28 See definition in schedule 10.
29 See section 3.5.13
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Section 3.3.20 (Concurrence agency's response powers)
Subsection (1) provides for how a concurrence agency may, within the
limits of its jurisdiction, direct the assessment manager to deal with an
application, including stating a currency period for an approval. Subsection
(2) provides for how a concurrence agency must, within the limits of its
jurisdiction respond to the assessment manager.
Subsection (1)(b) has been changed to the negative to provide that the
concurrence agency may direct the assessment manager not to approve a
stated part of the application. This approach implies that the assessment
manager must refuse the stated part of the application but allows the
assessment manager to exercise its discretion about the remainder of the
application.
Both this implied partial refusal and an outright refusal under subsection
(2) are required to satisfy subsection (4).
Subsection (1)(c) provides that a concurrence agency may apply a
shorter currency period for a development approval.
New subsection (5) applies instead of subsection (4) when schedule 8
development is proposed on designated land and there is a concurrence
agency for the development. The subsection provides special criteria to be
satisfied for a concurrence agency's implied partial refusal or outright
refusal. In that case a concurrence agency must be satisfied about the effect
of their decision on the intent of the designation.\
New subsection (6) provides that where a concurrence agency is
required to assess the cost of supplying infrastructure for development, the
concurrence agency cannot impliedly direct refusal of part, or direct
outright refusal, of an application. Rather the concurrence agency may
either direct that conditions be imposed on an approval or make no
requirement. The term `cost impact' has been replaced with `additional
costs' to accord with the terminology used in chapter 5, part 1.
New subsection (7) provides that a concurrence agency must provide
reasons for its actions if it directs the imposition of conditions on an
approval, or the refusal of all, or the implied refusal of part, of an
application.
New subsection (8) makes it clear that the application of the
precautionary principle to a decision under this section means that if the
applicant has failed to supply the concurrence agency with sufficient
information to inform the concurrence agency's decision, the concurrence
agency must take a precautionary approach in making a decision. The
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reference to the precautionary principle is included for the purpose of
removing doubt about its application in the particular circumstances. The
reference is not intended to limit in any way its application for the rest of
the Act.
Section 3.3.21 (Advice agency's response powers)
New section 3.3.21 extends the range of recommendations an advice
agency may make. These are consistent with the response alternatives for a
concurrence agency.
New subsection (3) enables an advice agency to give the assessment
manager advice about the application from outside their jurisdiction.
The subsection also provides for an advice agency to advise the
assessment manager that it wishes its response to be treated as a properly
made submission for the application. This limits the time in which the
advice agency may give this advice to the agency's assessment period
under section 3.3.16.
By advising the assessment manager in this way the advice agency gains
a right of appeal as a submitter for the application.30
New section 3.3.22 (When does information and referral stage end)
Subsection (1) provides that where there are no prescribed referral
agencies for an application, but either the chief executive nominates
referral agencies and makes an information request, or the assessment
manager makes an information request. In those circumstances, the
information and referral stage ends when the assessment manager's
information period31 ends.
Subsection (2) provides for where there are referral agencies for an
application. In that case, the stage does not end until the assessment
manager knows that all referral agencies have been advised of their right of
response, and they have either responded or the prescribed period for their
responses has ended. The assessment manager's information period32 must
also have ended.
30 See also sections 3.5.23 and 4.1.29.
31 See definition in schedule 10.
32 See definition in schedule 10.
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The footnote makes it clear that the stage does not apply, and therefore
does not end, where there are no referral agencies, no referral coordination,
and the assessment manager does not make an information request.
Section 3.4.1 (Purpose of notification stage)
This is unchanged.
Section 3.4.2 (When the notification stage applies)
Subsection (1) provides that all applications for impact assessable
development, or for preliminary approval where a variation of the planning
scheme is required, or for both, must be publicly notified.
Subsection (2) provides that these applications must be publicly notified
irrespective of whether code assessable development is also included in the
application or a referral agency has directed that the application be refused.
New subsection (3) makes an exception to the requirement for public
notification if a preliminary approval has already been issued for
development and the application proposes certain changes to the way
subsequent development applications would be dealt with under the
approval. There is no need to publicly notify the application provided
· the only change in the type of assessment is from code
assessment to either self assessment or compliance assessment,
and
· any new code sought to be included in the preliminary approval
to apply for subsequent approvals is substantially consistent with
codes contained in the existing preliminary approval.
Section 3.4.3 (When can notification stage start)
The amended section provides for the public notification stage to
commence at the earliest two days after the application is made. This time
lapse accommodates the assessment manager's administrative processes.
The new provision does not refer to the acknowledgement stage, which no
longer applies, and does not require the applicant to wait until the
information request period is finished to commence public notification. The
two stages may therefore run concurrently.
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New section 3.4.4 (When the application lapses if notification stage not
started)
This section provides for the lapse of the application if the applicant
does not proceed with the notification stage in the required time.
New section 3.4.5 (When the notification stage must be restarted)
The effect of subsections (1) and (2) is that if an application requires
public notification and the applicant changes the application by giving
more and better particulars, or in any way other than
· in a minor way, such as reducing scale or intensity, or removing
an aspect of the development, or
· to correct details of the owner or the property, or
· to include an omitted referral agency;
the application must be publicly notified in its changed form even if
notification in its original form is in progress or has been completed.
This would include the circumstance where an applicant has commenced
notification immediately on lodging an application and has subsequently
been advised that the application is not properly made.
Subsection (3) substantially reproduces previous section 3.2.10. It
provides an exception to the need to restart or repeat the notification. If
the assessment manager is of the view, and notifies that applicant in
writing, that the change would not attract a substantial submission, the
assessment manager has the discretion to dispense with further public
notification.. The subsection encourages an applicant to change an
application in response to submissions received provided the changes do
not create fresh grounds for submissions.
Subsection (4) makes it clear that restarting the notification stage does
not affect any other stages except the decision stage. The decision stage
starts (if not already started), or starts again, the day after the fresh
notification stage ends.33
Section 3.4.6 (Public notice of applications to be given)
Subsections (1) to (3) are unchanged.
33 See section 3.5.1
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Subsection (4) is amended for consistency with the amended definition
of "adjoining owner".
Subsection (5)(f) is amended for more correct expression.
Subsection (5)(g) is amended to provide that if land owned by the State
is held on trust, both the trustee and the State are to be advised as adjoining
owners under the section.
New subsection (5)(h) requires that the State, as generally the owner of
watercourses, to be advised as an adjoining owner under the section where
the bed or bank of a watercourse adjoins the land.
New subsection (5)(i) is inserted to require that the State, or a State
Government department that holds land in freehold, be notified as an
adjoining owner.
New subsection (5)(j) is inserted to require that where land is held by the
State under the Land Act, the State must be advised as an adjoining owner.
Section 3.4.7 (Notification period for applications)
Subsection (1) renumbers and amends previous subsection (a) for
consistency with amendments to section 3.1.6, to provide a public
notification period for an application for preliminary approval which seeks
to vary the planning scheme.
For applications not requiring referral coordination and not involving
application for preliminary approval the public notification period is 15
business days from the giving of public notice. For other applications the
public notification period is 30 business days.
New subsection (2) clarifies the position with respect to public notifying
development applications over the Christmas/New Year period.
Section 3.4.8 (Requirements for certain notices)
This is renumbered but otherwise unchanged.
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New section 3.4.9 (Notice of compliance to be given to assessment
manager)
This section provides for the lapse of the application if the applicant
does not give the assessment manager notice within the required time that
the notification has been completed.
Section 3.4.10 (Circumstances when applications may be assessed and
decided without certain requirements)
This is renumbered but otherwise unchanged.
Section 3.4.11 (Making submissions)
Subsection (1) and (2) are amended to allow a concurrence agency to
make a submission about an application during the notification period, but
not about a matter within its concurrence jurisdiction. As a submitter the
agency would have a right of appeal. Matters within a concurrence
agency's jurisdiction are presumably dealt with to the extent of the
agency's interest in its referral response. The concurrence agency is a co-
respondent for any appeal about its response.
The remaining provisions are renumbered but otherwise unchanged.
Section 3.4.12 (Submissions made during notification period effective
for later notification period)
This is renumbered but otherwise unchanged.
Section 3.4.13 (When does notification stage end)
The section is amended to provide for where the applicant may have to
undertake public notification more than once where any changes made to
an application are substantial.
Where the applicant carries out the notification, the end of the
notification stage (or if there be more than one, each notification stage) is
linked to the notice required to be given to the assessment manager, rather
than the completion of a notification period, which may have been
repeated.
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Section 3.5.1 (When does decision stage start)
Subsection (1) and (2) are amended in response to other changes
removing the concepts of "acknowledgement notice" and "building referral
agency" from the Act.
Subsection (1) provides that it is not necessary for the compliance stage
related to an aspect of an application to be completed before the decision
stage starts. The compliance stage is sufficiently flexible to occur at any
time.
Subsection (2) provides for where an application may be substantially
changed after the decision stage has started and public notification must be
repeated. The decision stage re-starts when the final public notification
stage ends. The section does not prevent the assessment manager from
proceeding with the assessment of the application before the public
notification stage has ended and the decision stage has started.
Subsection (3) is unchanged.
Section 3.5.2 (Assessment necessary even if concurrence agency refuses
application)
This is unchanged.
Section 3.5.3 (References in div 2 to codes, planning instruments, laws
or policies)
This is unchanged.
New section 3.5.4 (When assessment manager must not assess part of
an application)
This new section applies when an application for more than one aspect
of development is made to a local government and an aspect of the
development applied for is an aspect in which the local government has no
interest under its planning scheme. If it were applied for separately either
another agency would be prescribed by regulation as the alternative
assessment manager, or the Minister would be required to decide an
alternative assessment manager.
In that case the local government must not assess that part of the
application. Rather than "integrating" the development, the local
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government's role is to coordinate the separate responses for the aspects of
development. For example, if an application for a subdivision involves
assessable vegetation clearing under schedule 8, and the planning scheme
does not regulate vegetation clearing, the application will be referred to the
Department of Natural Resources as a concurrence agency. The local
government will consider the subdivision, DNR will consider the
vegetation clearing, and the local government will coordinate the two
separate responses in its approval/refusal of the application without further
consideration of the vegetation clearing.
Section 3.5.5 (Development requiring code assessment)
The heading of the section and subsection (1) are amended to refer to
"development" requiring code assessment. The change is in response to the
change to section 3.1.6 which allows an application for a preliminary
approval to seek approval for both the proposed development and a change
to the planning scheme. The change to the planning scheme is not
"development" and is assessed under new section 3.5.7. As an application
may now be for both development and non-development, the terminology
assessment of "an application" in terms of code and impact assessment
may no longer be correct.
Subsection (2) is amended similarly to (1), and also, in (2)(b), to limit
the consideration of the common material for an application to only those
parts of the material that are relevant to the codes against which the
assessment manager must assess the development. A decision based on a
broader consideration of the common material would exceed the function
of code assessment under the Act.
Subsection (2)(c) includes in the assessment of the development any
State planning policies whether or not reflected in the planning scheme.
This is consistent with the requirements for impact assessment in the same
circumstances.
Subsection (2)(d) has been added to ensure the infrastructure provisions
of chapter 5, part 1 continue to apply. This allows the proposal to be
assessed against the priority infrastructure plan and related matters, and for
the assessment manager to impose conditions requiring:
· the supply of non-trunk infrastructure, or
· infrastructure payments, or
· additional cost payments.
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Subsection (3) is unchanged.
Subsections (4) and (5) provide for the assessment of a development
application where a person has asked the local government to assess the
application under a superseded planning scheme, and the local government
has agreed and has given a notice to that effect, which accompanies the
application.
Subsection (5)(c) has been introduced to clarify that where an
assessment manager is assessing and deciding a development application
(superseded planning scheme) under subsection (4), the infrastructure
provisions of the existing scheme continue to apply. The ability to lodge a
development application (superseded planning scheme) is a mechanism
about protecting development entitlements under a previous scheme.
There was concern this mechanism may also be used to avoid current
infrastructure charges and payments, particularly as local governments
transition from current headworks policies to infrastructure charges and
payments schedules. Subsection (5)(c) allows the entitlements under a
superseded scheme to be pursued, but ensures current charges and
payments apply. This ensures there is equity between those developments
able to proceed under the superseded scheme and those under the existing
scheme, and all new development contributes its share of funding for
infrastructure at current rates.
Section 3.5.6 (Development requiring impact assessment or not
requiring code assessment)
The heading of the section and subsection (1) have been amended to
indicate the function of this provision as a default provision for the
assessment of development. References to impact assessment have been
deleted from subsections (1) and (2). The section applies for development
requiring impact assessment and any other development not requiring code
assessment under section 3.5.5. For example, the section would apply to a
conceptual application for preliminary approval where limited detail is
available, such as a shopping centre where a number of individual uses are
envisaged but not yet determined, and which may be subject individually to
self, code or impact assessment.
Section 3.5.6 is also amended in the same way as section 3.5.5 with
regard to the application of the infrastructure provisions of the existing
planning scheme for a development application (superseded planning
scheme).
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New section 3.5.7 (Assessment for s 3.1.6 preliminary approvals that
override a local planning instrument)
Subsection (1) provides for the assessment of the part of an application
under s 3.1.6 which seeks to vary the planning scheme, in relation to a
preliminary approval. The local government will always be the assessment
manager for these proposals.
Subsection (2) provides the process for the assessment of this aspect of
the application and lists a number of factors for which the assessment
manager must have regard.
Paragraph (c) is particularly relevant where the preliminary approval
might make a change in the type of assessment for an aspect of
development from impact to code assessment. The consequence would be
that no further notification would be required for a later application, and
there would be no further opportunity for submissions to be made. Under
the provision the assessment manager needs to have regard to whether
potential submitters were provided with sufficient detail for the current
application for preliminary approval for them to be able to reasonably
address issues, so that their inability to make submissions about subsequent
applications would not compromise their rights in this regard.
Paragraph (d) requires the assessment manager to have regard to the
effect of the proposed variations on the structure and integrity of the
planning scheme as a whole.
Paragraph (e) provides for prescribed matters to be considered to the
extent they apply for the application.
Section 3.5.8 (Assessment manager may give weight to later codes,
planning instruments, laws and policies)
This is renumbered but otherwise unchanged.
Section 3.5.9 (Decision making period (generally)
This is renumbered but otherwise unchanged.
Section 3.5.10 (Decision making period (changed circumstances)
This is renumbered but otherwise unchanged.
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Sections 3.5.11 (Applicant may stop decision making period to make
representations)
This is renumbered but otherwise unchanged.
Previous Section 3.5.12
This is replaced by section 3.5.13(4).
Section 3.5.12 (Applicant may stop decision making period to request
chief executive's assistance)
This is renumbered but otherwise unchanged.
Section 3.5.13 (Decision generally)
Subsections (1) and (2) are unchanged. However, associated
amendments to s 3.3.20 make it clear that the assessment manager's
discretion to approve all or part of the application is fettered only by a
concurrence agency's direction to either refuse the whole application or not
approve a part of the application. The direction to not approve part does
not imply that the assessment manager must take any particular action with
respect to the rest of the application. The approval or refusal of the
remainder of the application is at the discretion of the assessment manager.
Subsection (3) and (4) require the assessment manager to take the action
directed by a concurrence agency, ie to condition, to refuse, or not to
approve part of, an application.
Subsection (5) provides that where different, shorter currency periods for
an application are specified by more than one concurrence agency, the
shortest is the currency period for the integrated development approval.
Subsection (6) provides that subsections (1) to (4), about the decision
generally, do not apply to that part of an application for a preliminary
approval that seeks to vary the planning scheme. A decision about that part
of the application is not a decision about development and those provisions
are not relevant. The decision about that part of the application is dealt
with separately under section 3.5.16.
Subsection (7) removes doubt about aspects of a decision. Paragraphs
(a) and (b) repeat previous provisions. New paragraph (c) makes it clear
that in approving only part of an application the assessment manager is
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taken to have refused the remainder. While the assessment manager is not
required to advise an applicant of the decision to refuse by implication, the
assessment manager must nevertheless give reasons for the decision under
section 3.5.17(2)(e).
Sections 3.5.14 (Decision if development requires code assessment)
Section 3.5.14 is amended for consistency with changes to s 3.5.5.
Sections 3.5.15 (Decision for development not requiring code
assessment)
Section 3.5.13 is amended for consistency with changes to s 3.5.6.
Subsection (5) makes it clear that the application of the precautionary
principle to a decision under this section means that if the applicant has
failed to supply the assessment manager with sufficient information to
inform the assessment manager's decision, the assessment manager must
take a precautionary approach in making a decision. The reference to the
precautionary principle is included for the purpose of removing doubt
about its application in the particular circumstances. It is not intended to
limit in any way its application for the rest of the Act.
New section 3.5.16 (Decision if application under s 3.1.6 requires
assessment)
Section 3.5.16 provides a decision making process for that part of an
application for a preliminary approval that seeks to vary the planning
scheme. Subsection (1) allows the assessment manager to approve the
variations applied for, approve them in part, approve different variations
subject to their consistency with the terms of the preliminary approval for
the proposed development, or refuse the variations applied for.
Subsection (2) provides that a variation can only be approved to the
extent that the development for which the variation is required is also
approved.
Subsection (3) and (4) provide that, as with the decision for the
development, the decision with respect to the variation must not
compromise the desired environmental outcomes for the planning scheme
area and must be consistent with State planning policies whether or not
reflected in the planning scheme.
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Section 3.5.17 (Decision notice)
Subsection (1) is amended to remove the need for the decision notice to
be in an approved form. References to the approval or refusal of an
application are amended to refer to "all or part" of the application,
throughout the section.
New subsection (2)(g) provides for variations to the planning scheme in
relation to a preliminary approval under s 3.1.6 to be included in the
decision notice.
Subsection (2)(j) provides for any compliance assessment necessary to
be stated in the decision notice.
Subsection (2)(k) provides for the names and address of principal
submitters to be included in the decision notice.
New subsection (3) requires a copy of each concurrence agency
condition to be attached to the decision notice.
New subsection (4)(a) provides a further instance to trigger the
assessment manager giving principal submitters a copy of the decision
notice, ie the applicant advises they do not intend to apply for a negotiated
decision notice.
New Division 4 Negotiated decision notices.
This division has been drafted to deal with confusion about the
relationship between suspension of the applicant's appeal period and
making representations for a negotiated decision notice. The applicant
may suspend their appeal period in writing (under section 3.5.19) before
making an application for a negotiated decision notice (under section
3.5.18). The applicant may decide to take this course of action to give them
more time to prepare their application. Alternatively, and even if the
applicant takes no action to suspend their appeal period, the appeal period
will automatically be suspended as soon as the application for a negotiated
decision notice is received.
Section 3.5.18 (Changing approvals during the applicant's appeal
period)
Subsection (1) enables an applicant, during their appeal period, to apply
to the assessment manager to change their decision about a development
application. This does not apply for that part of the decision which is a
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concurrence agency's response, or if the assessment manager decided to
refuse the application.
Subsection (2) and (3) provide for the form of the application and the
matters relevant to the reconsideration of the application.
Subsection (4) provides for the assessment manager to advise the
applicant that their application to change the decision was unsuccessful.
Subsection (5) provides for the assessment manager to give a negotiated
decision notice to the applicant and other specified parties.
Subsections (6) and (7) provide for the form and timing for the giving of
the negotiated decision notice.
Subsections (8) and (9) transfer and maintain the effect of existing
sections 5.1.9 (6) and (7), regarding the ability of a local government to
issue a new notice of charge if the development approved by a negotiated
decision notice is different in a way that affects the amount of the
infrastructure charge for the development. As payments for infrastructure
under an infrastructure payments schedule can now also be required
through a condition of approval, sections 3.5.18 (8) and (9) now also allow
a condition requiring an infrastructure payment to be amended for the same
reasons. These provisions have been relocated to section 3.5.18, as they are
a direct consequence of the issuing of a negotiated decision notice.
Section 3.5.19 (Applicant may suspend applicant's appeal period)
Subsection (1) and (2) allows an applicant to apply once only in writing
to the assessment manager to suspend their appeal period. Subsection (3)
provides that the applicant can choose to withdrawn the application to
suspend their appeal period in which case the withdrawal takes effect the
day after the withdrawal. If they do not withdraw, the suspension lasts for
20 days, unless during that time the applicant makes an application for a
change under s 3.5.18 and section 3.5.20 takes effect.
Section 3.5.20 (When appeal period is automatically suspended)
Section 3.5.20 provides for when an applicant applies under s 3.5.18 for
a change of the assessment manager's decision. If the applicant has not
sought a suspension of their appeal period under s 3.5.19, their appeal
period is nevertheless automatically suspended. If the applicant has sought
a suspension under s 3.5.19, their appeal period remains suspended, even
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beyond the 20 day suspension period allowed for in that section, until the
balance of the appeal period restarts as provided for in s 3.5.21.
Section 3.5.21 (When balance of appeal period restarts)
Section 3.5.21 provides for the balance of an applicant's appeal period to
restart, either when they withdraw their application for a change of the
assessment manager's decision, or the assessment manager decides the
matter and notifies the applicant as required under s 3.5.18 that their
application has not been successful.
It should be noted that the applicant's appeal period is only suspended by
either an application under s 3.5.18, or an application under s 3.5.19. It
does not return to the beginning, but continues from the point where it was
suspended. The period recommences only when section 3.5.22 applies.
Existing sections 3.5.22 to 3.5.26
These are omitted. All changes to development approvals are provided
for under new part 5A.
Section 3.5.22 (When applicant's appeal period starts again)
Section 3.5.22 provides that if the assessment manager as a consequence
of reconsidering their decision, changes it in some way and gives the
applicant a negotiated decision notice, their appeal period starts again, from
the beginning.
Section 3.5.23 (When approval takes effect)
The section is amended to insert a new subsection (1)(b)(ii) the effect of
which is to allow a submitter to advise the assessment manager in writing
that they wish to waive their appeal rights.34
New subsection (2) requires the assessment manager to give the
applicant a copy of the submitter's notice that they wish to waive their
appeal rights.
New subsection (3) inserts a definition of "submitter" that makes it clear
that, although they do not come within the general definition of "submitter"
34 See s 4.1.28.
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in schedule 10, for the purposes of this section only the term includes an
advice agency that has asked the assessment manager to treat their response
to an information request as a submission.35 As a consequence, an advice
agency may also waive their appeal rights under subsection 1(b)(ii)
Section 3.5.24 (When development may start)
Subsection (1) is amended to refer to "assessable development" starting
when a development permit takes effect. The purpose of this amendment is
to allow exempt or self-assessable development to proceed before the
approval takes effect where assessable and other development is dealt with
in an application for a preliminary approval.
Subsection (2) provides conditions to when assessable development may
start once the permit has taken effect under s 3.5.23. A condition of the
permit may require that other development for the premises be approved, or
substantially started or completed, before the permit takes effect. Also
compliance assessment may be required for some aspect of or related to the
development before development may start.
Section 3.5.25 (When approval lapses)
Subsections (1) and (7) (renumbered as (2)) are unchanged.
Subsections (2) to (6) which deal with currency periods for development
applications. have been omitted and to the extent necessary appear in the
definition of "currency period".36
Section 3.5.26 (Certain approvals to be recorded on planning scheme)
Subsection (1)(b) is inserted to require the chief executive to be advised
in writing when a local government notes an inconsistent approval on its
planning scheme, as required under subsection (1)(a). This will enable the
chief executive to ensure the planning scheme available for inspection
under s 5.7.7 is current. No time for giving the advice is specified,
however, the generic provisions of the Acts Interpretation Act 1954 require
the action be taken as soon as possible.
35 See section 3.3.21
36 See schedule 10.
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Section 3.5.27 (Approval attaches to land)
This is renumbered but otherwise unchanged.
Section 3.5.28 (Application of div 6)
This is renumbered but otherwise unchanged.
Section 3.5.29 (Conditions must be relevant or reasonable)
This is renumbered but otherwise unchanged.
Section 3.5.30 (Conditions generally)
This is renumbered but otherwise unchanged.
Section 3.5.31 (Conditions that cannot be imposed)
Section 3.5.31 currently prevents a local government from imposing a
condition requiring the construction of infrastructure or a monetary
payment for infrastructure. With the introduction of conditioning powers
for non-trunk infrastructure and for infrastructure payments under an
infrastructure payments schedule, it has been necessary to amend this
section. The amendment to subsection (1)(b) prevents a condition
requiring the construction of, or a payment for, infrastructure, other than in
the way provided for in chapter 5, part 1. However, subsection (2) makes
clear that subsection (1)(b) in particular does not act to prevent conditions
being imposed to protect or maintain the efficiency of State owned or State
controlled transport infrastructure.
Section 3.5.32 (Agreements)
This section has been amended to include reference to `the person in
whom the benefit of the approval vests'. This is because there ceases to be
an `applicant' for a proposal once a development approval is issued. The
amended wording allows parties to enter into an agreement to secure the
performance of a condition, including a condition about infrastructure
under chapter 5, part 1, after an approval has been issued.
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Existing section 3.5.33 (Request to change or cancel conditions)
This is omitted. All changes to development approvals are provided for
under new part 5A.
Section 3.5.33 (Covenants not to be inconsistent with development
approvals)
This is renumbered but otherwise unchanged.
Section 3.5.35 (Limitations on lessening cost impacts for
infrastructure) and Section 3.5.36 (Matters a condition lessening cost
impacts for infrastructure must deal with)
These sections have been deleted and replaced by the additional cost
provisions of chapter 5, part 1, divisions 5 (for local government) and 6 (for
State).
New part 6 is inserted (Changing or Cancelling Development
Approvals)
Part 6 replaces sections 3.5.22 to 3.5.26, section 3.5.33, and transitional
section 6.1.44 with a separate part dealing with all changes to development
approvals. Division 1 deals with all changes (including changes to
currency periods and conditions) sought by application. Division 2 deals
with changing or canceling certain conditions by the assessment manager
or concurrence agency without the consent of the owner or occupier of
land.
The scope for changing a development approval under division 1 of part
6 is limited in two ways.
Firstly, section 3.6.2(5) states a deciding entity must refuse an
application for a change if it is satisfied that if a fresh application for the
development, including the change, was made at the time the original
application was made, it would need to be treated in a different way to that
provided for under the division.
Secondly, the use of this part is limited generally by the definition of
"development approval" for the Act37. The definition states the relationship
37 See schedule 10
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between a development application and any approval of that application.
The scope of an approval cannot exceed (but may vary or be less than) the
scope of the application. Therefore an application to change a development
approval is also limited to dealing with the development originally applied
for That is, no new aspects of development can be dealt with and added by
a change, but aspects may be varied or removed.
It is not intended that an application for change under the division be
used where a new development application is necessary. Because of these
constraints, it is envisaged that only relatively minor changes, limited to the
jurisdiction and interest of the deciding entity, will be dealt with through
this Part. For that reason, provision is made (see section 3.6.2(1)) for an
application for change to be treated in a similar way to a simple
development application, for which there are no referral agencies, and
therefore no integration or co-ordination of referrals or responses. The
deciding entity for the matter will act as the assessment manager, wholly
responsible for the application.
New section 3.6.1 (Application to change or cancel a development
approval)
Subsection (1) provides that any person may make an application38 under
the section. Thus a prospective owner, a leaseholder, or an occupier, would
not be precluded from making an application, with the owner's consent.
The subsection also makes it clear that the division applies only if the
approval has taken effect.39
Subsection (2) prevents an application to change a preliminary approval
into a development permit under the division. A preliminary approval does
not authorise assessable development to occur40 and changes to conditions
of a preliminary approval are more appropriately dealt with in the
consideration of a subsequent application for a further preliminary
approval or a development permit.
Subsection (3) provides for how an application is made to the deciding
entity. This is the entity that made the decision about the particular aspect
sought to be changed. For example, if the Court or a Tribunal in deciding
an appeal imposes a condition on a development approval, an application to
change the condition must be made to the Court or Tribunal.
38 See definition of "change application" in schedule 10.
39 See s 3.5.23
40 See s 3.1.5
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For any approval, a person may make separate applications to different
entities to change a particular aspect for which that entity had the
jurisdiction to determine.
Subsections (4) and (5) provide for the consent of the owner or a
purchaser of the land.
New section 3.6.2 (Deciding entity must assess and decide application
to change or cancel a development approval)
Subsection (1) provides for an application to be assessed and decided in
a similar way to a development application for which there are no referral
requirements, using the IDAS decision-making process. However the
application stage for IDAS does not apply .
Because the IDAS process is used, the deciding entity could, for
example, make an information request about the change sought and failure
to respond would result in the application for the change lapsing41.
Subsections (2) and (3) require the deciding entity's considerations to be
the same as its original considerations for the development application, but
allows other relevant matters to also be considered.
Subsection (4) provides that the deciding entity must make a decision, to
either approve the application in full or part, or refuse the application.
Subsection (5) requires the deciding entity to refuse the application if the
proposal, including the change, if re-applied for, would require a different
application to that originally made and because of the change, it would
need:
· to be referred to additional concurrence agencies,
· to be publicly notified, or if it had already been publicly notified
· it would attract additional submissions (unless the change
resulted in the removal, or decrease in scale or intensity, of an
aspect of the development).
The subsection uses the term "if it could, and had, included the change".
This reflects the fact that the limitations in this subsection only apply if it is
possible to conceptualise the original application as including the change.
It would not apply if the change sought was, for example, to alter the hours
of operation for a facility, the subject of a development application. This
41 See section 3.3.10.
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type of change is not a change to an aspect of development, so it could not
have been a substantive part of the original application, and would not
result in a different application for the purposes of this subsection.
Subsection (6) provides that for a change that removes, or reduces the
scale or intensity of an aspect of development, the application does not
require refusal on the basis of the likelihood of a substantial submission
about the change. This is consistent with section 3.2.8 about changing a
development application.
Subsections (7) to (9) apply where an application is made to cancel a
development approval. A deciding entity must approve the application
unless a condition of the approval requires action to be taken to mitigate
adverse environmental effects and cancellation would result in the required
action not being taken, eg if an approval required site remediation.
Cancellation of an approval requires the release of any monetary security
given in relation to the approval.
Subsection (10) makes it clear that the removal of an aspect of
development from an approval can occur under the division.
Subsection (11) makes it clear that the currency period for an approval,
even though it may otherwise have lapsed after the date an application to
change it was made, does not lapse before the application is decided.
New section 3.6.3 (Deciding entity must give notice of decision)
The section provides for notice of a deciding entity's decision to be
given to the applicant and, if the deciding entity is the assessment manager,
for notice also to be given to any concurrence agencies. Similarly if the
deciding entity is a concurrence agency, notice must be given to the
assessment manager for the application.
New section 3.6.4 (Effect of notice)
The section provides for notice of a decision under the division to take
effect the date the applicant is given the notice, and for the effect of the
decision in the notice to override the effect of the development approval to
the extent they are inconsistent.
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New section 3.6.5 (When operational conditions may be changed or
cancelled by assessment manager or concurrence agency)
This section replaces the previous transitional arrangement under s
6.1.44. Section 6.1.44 operated when other legislation was consequentially
amended to integrate development previously approved under the
legislation into the IPA. If under the other legislation an agency, including
a local government, had the power to unilaterally change or cancel
conditions imposed on an approval under the other legislation, s 6.1.44
saved that power with respect to conditions imposed by the agency on a
development approval under the IPA.
New section 3.6.5 no longer relies on a pre-existing power but allows
agencies generally to change or cancel conditions of an operational nature
imposed by them on development approvals.
Subsection (1) limits the application of the section to "development
conditions" imposed under other Acts, or operational conditions. The term
"operational condition" is defined in subsection (12). A condition may be a
development condition under another Act, and also fall within the
definition of an operational condition for section (12). However the
requirements of this section apply separately, not cumulatively to such
conditions. Consequently, an operational condition under another Act may
be changed exclusively on the grounds under the other Act, and is not
subject to the constraints placed upon changing an operational condition
under this section.
Subsection (2) provides that this section does not apply if another Act
authorises conditions of a development approval to be changed in another
way. For example, Part 7 of this Bill includes arrangements for the chief
executive administering the Water Act 2000 to change conditions about
dam safety by simply giving a notice. The provisions of that Part would
over-ride the operation of this section.
Subsection (3) provides that an entity can only change or cancel a
condition imposed by that entity on a development approval, or if the entity
did not impose the condition, the entity with jurisdiction for the condition.
Subsection (4) establishes the grounds upon which development
conditions and operational conditions respectively may be changed:
· "Development conditions" defined under the Environmental
Protection Act 1994 (EPA) may be changed or cancelled on the
grounds mentioned in section 130(2) of that Act. These are the
same grounds upon which an environmental authority under that
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Act may be changed. The language of section 130(2) is specific
to environmental authorities, and it is intended that, when applied
to development conditions, the grounds be read, as far as
practicable, as applying in the context of a development
condition.
· "Development conditions" defined under another Act may be
changed or cancelled on a ground mentioned in the other Act.
· "Operational conditions" may be changed or cancelled if the
entity is satisfied the change or cancellation reflects a standard of
environmental performance under a statutory instrument with
which the condition does not comply. This is intended to support
consistency and accountability in the way such conditions may
be changed, and is consistent with principles of continuous
environmental improvement.
Subsection (5) provides that the consent of the owner and/or any
occupier of the land is not required to the change or cancellation.
Subsection (6) requires that the changed condition must, like all other
conditions, satisfy the tests of reasonableness and relevance under the Act.
Subsections (7), (8) and (9) provide for how notice of the intended
change or cancellation should be given to the owner and any occupier of
the land. Submissions may be made by the owner/occupier about the
intended change or cancellation and if made must be taken into
consideration by the entity in deciding whether to proceed with the change
or cancellation. Further notice of the entity's final decision must be given
to the owner/occupier.
Subsection (10) provides for the assessment manager for the
development application to be notified and subsection (11) provides for
when the changed condition or cancellation takes effect.
Subsection (12) defines "operational condition" for this section. The
term means a condition stating a standard of environmental performance
for an activity that is the natural and ordinary consequence of the
development, the subject of the application on which the approval is based.
"Standard of environmental performance" is intended to be applied
broadly. It may for example apply to emission standards, traffic
management standards, site circulation standards or standards of visual or
aural amenity.
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An operational condition must also apply to the activity or use that is the
consequence of development, and not to the development itself. This is
intended to reflect the "performance" approach adopted by the Act
generally.
A condition aimed at achieving a standard of environmental
performance may be expressed in different ways. For example, a condition
designed to ensure adequate on-site parking might be expressed as a
requirement to construct a specified number of car parking spaces as part of
carrying out the development. Such a condition would not be able to be
changed under this section, as it is a condition about carrying out the
development.
If however the condition required the use resulting from the development
to be conducted in such a way that there was at all times provision for
adequate on site parking, such a condition could subsequently be changed
under this section. This approach is also consistent with the use of
compliance assessment for conditioning under Part 7 of this Chapter. A
condition about environmental performance could be accompanied by
another condition requiring submission for compliance assessment of a
plan showing how the standard of environmental performance is to be
achieved and maintained. It is then up to the applicant to propose the best
strategy for meeting the desired standard of performance. If the
performance standard is subsequently changed in a planning scheme for
example, the condition could be changed under this section to require the
submission of a new plan demonstrating performance against the new
standard.
This provides an incentive for assessment managers and concurrence
agencies to express conditions as performance standards, as it allows the
entity to subsequently upgrade the standards consistent with those in a new
planning scheme for example.
New part 7 is inserted (Compliance Stage)
The purpose of this stage is to enable certain development to be dealt
with under IDAS more simply and effectively without compromising the
benefits of integrated development assessment. The application of the
compliance stage will mean that certain development ("compliant
development"), documents or works will need to be approved for
compliance with certain criteria. Codes which apply in these
circumstances, for example, the Standard Building Regulation, will not be
applicable codes for assessable development. The entity carrying out the
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compliance check or action, for example, a building certifier, will not be an
assessment manager.
Currently, the only assessment processes available under IDAS are
impact and code assessment for assessable development, and self
assessment. Even though these processes are streamlined, with clear
timeframes and outcomes, there are nevertheless types of development for
which a far simpler process would be more suitable. These are types of
development for which:
· clear technical standards are available,
· the exercise of broad discretion in determining compliance is
unnecessary and
· integrated referral arrangements are unnecessary, or, in the case
of building work, referral arrangements can be coordinated by a
private certifier qualified to determine referral requirements.
Furthermore, the current arrangements suggest that, for assessable
development, the assessment process ends when a development permit is
given. Under these arrangements, if there are some detailed technical
matters outstanding at the end of the assessment process, the lack of clear
direction in the Act has meant assessment managers and concurrence
agencies have required these technical issues to undergo a further IDAS
process by, for example:
· giving only a preliminary approval for the development; or
· making such detailed works (such as landscaping or engineering
works) assessable in their own right under a planning scheme
For building work assessed under the Standard Building Regulation by
private certifiers, existing IDAS assessment processes:
· subject certifiers to time frames and other requirements designed
to ensure accountability for public sector assessment managers,
when in fact certifiers are providing a private service under
contact;
· treat certifiers as assessment managers for development that
often also requires assessment by other assessment managers,
necessitating complex arrangements to establish when a certifier
may start carrying out assessment; and
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· require certifiers to engage in formal referral and concurrence
arrangements which may be disproportionate to the responses
required from other entities for the building work
The compliance arrangements under this part are distinguished from
other forms of assessment under IDAS by the following:
· Compliance assessment may apply for any type of development
under IDAS (assessable, self assessable or exempt)
· Assessment may be carried out for development identified in a
regulation, development identified in a condition of a
development approval, development identified in a preliminary
approval, or for a plan of subdivision presented to a local
government for its approval. The Bill does not provide for
development requiring compliance assessment to be identified in
a planning scheme.
· Assessment may be of compliant development, documents or
completed works against codes, standards, conditions or other
matters specified under a regulation. This differs from
assessment for assessable development which is limited to
assessing proposed development against policies or codes. In this
sense, compliance assessment can be seen as assessment for
particular development, rather than simply of particular
development
· Assessment is carried out by an entity prescribed under a
regulation, not by an assessment manager
· Assessments are not "integrated" in that there are no formal
referral arrangements, but may be carried out in parallel.
· A regulation identifies the key parameters for assessment,
including the development triggering assessment, the
development, documents or works requiring assessment, the
entity to which a request is made, any fees, time limits for
assessment, the consequences of not responding in time, and any
additional actions that may, or must be taken by the person
seeking endorsement or the entity.
For much of the development to which the stage will apply, the
compliance stage will be the only stage. For example, for a proposal
involving only building work requiring assessment under the Building Act,
the development will be specified as exempt under schedule 8 and all that
will be required under IDAS will be the checking of building plans for
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compliance with the Standard Building Regulation, (and possibly,
completed work for compliance with plans).
There will be circumstances when the stage will apply for assessable
development, for example when, as a condition of a development approval,
a landscaping plan or an environmental management plan is required to be
prepared and checked for compliance with the condition, or subdivision
plans need to be "stamped" by the local government prior to registration
under the Land Title Act 1994. In that case, the stage will be undertaken as
a final step after the development approval has been given.
The compliance arrangements will help clarify uncertainties over the
finality of such conditions. Such uncertainties have in the past led to
assessment managers and concurrence agencies directing preliminary
approvals due to the perception that a condition requiring submission of
detailed plans for further assessment would lack finality. By making it
clear the Act contemplates that such conditions may be imposed without
offending the principle of finality, the compliance stage will encourage a
more streamlined approach to assessment.
Under these arrangements requiring submission of documents
demonstrating compliance with a condition of the development approval
would not lack finality, provided the condition established the desired
outcome or end state being sought. In other words, provided the condition
established "what" was required, a further condition requiring the applicant
to demonstrate "how" would not lack finality.
Examples
1. A condition of a development approval for a contaminated site might
reasonably require the partial or complete decontamination of the site to a
stated standard to mitigate any increased risks to health and safety
resulting from the proposed development. A further condition requiring the
submission for compliance assessment of a decontamination or
management plan to demonstrate how this end state is to be achieved
would not lack finality.
2. A development approval for a material change of use for a small
shopping centre may require the landscaping of the premises to maintain a
standard of amenity for the locality described in the planning scheme, or
for identified access/egress points to be designed to maintain safety
standards for the relevant street. Further conditions requiring submission
for compliance assessment of a landscaping plan or engineering drawings
demonstrating how these outcomes are to be achieved would not lack
finality.
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3. A condition of a development approval for a material change of use
for an environmentally relevant activity under the Environmental
Protection Act 1993 may establish an allowable limit on emissions to air or
water. A further condition requiring submission for compliance assessment
of plans for pollution mitigation machinery or works demonstrating how
these limits are to be achieved would not lack finality.
4. A development approval for a large industrial complex may include
numerous conditions relating to the safety and environmental performance
of the operation, both in terms of how the development for the operation is
carried out, and how the subsequent use is to be managed to mitigate
adverse environmental impacts. A further condition requiring submission
for compliance assessment of an environmental management plan
demonstrating how all these conditions can be met in a coordinated way
through implementing management systems and practices during and after
construction would not lack finality.
New section 3.7.1 (Purpose of compliance stage)
This section explains the purpose of the new IDAS stage. It allows for
compliant development, or documents (such as plans prepared), or works
that have been carried out, to be assessed for compliance with a matter or
thing prescribed under a regulation, or the condition of a development
approval, for example
· codes prescribed under a regulation, for example the Standard
Building Law;
· a condition of a development approval requiring compliance with
a landscaping code
New section 3.7.2 (When compliance stage applies)
This section provides for compliance assessment:
· for compliant development42 where the State specifies by
regulation that certain development must be assessed for
compliance, for example, that building work must be assessed for
compliance with the Standard Building Law;
42 See definition in schedule 10.
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· a preliminary approval requires that certain development must be
assessed for compliance with a code in the approval;
· a condition of a development approval requires that certain
documents or works be assessed for compliance with a condition
of the approval;
· where an Act other than the IPA requires a plan to be approved
by the local government before it can be registered under that
other Act. For example, the Land Title Act 1994 requires local
government to endorse a plan of subdivision before it can be
registered.43
New section 3.7.3 (What may be assessed for compliance)
Section 3.7.3 provides for a regulation to prescribe compliant
development, documents or works that must be assessed for compliance
with matters or things, being prescribed codes, standards, or conditions of a
development approval.
New section 3.7.4 (When compliance stage starts)
The start of the compliance stage for compliant development, a
document, or a work will either be prescribed by regulation, or, if it is not
prescribed, will be the day compliance assessment is requested.
New section 3.7.5 (Process for compliance assessment)
Subsections (1) and (2) provide for a request to be made to a compliance
assessor44for assessment of compliant development, documents, or works
carried out, and the fee payable for assessment. It is an offence to not seek
compliance assessment for prescribed compliant development 45
Subsections (3) and (4) provide for a compliance assessor to assess
compliant development, documents, or works carried out against certain
prescribed matters or things. The compliance assessor must either approve
the development, document or work for compliance, or approve with or
43 Section 50g of the Land Title Act 1994.
44 See definition in schedule 10.
45 See section 4.3.4A.
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without conditions or instructions for achieving compliance with the
prescribed matters or things. A compliance request cannot be refused.
Subsection (5) provides for the compliance assessor to give a
compliance permit for compliant development, or a compliance certificate
for a document or work, within a prescribed time.
Subsection (6) provides for when a compliance assessor approves
development with conditions, or a document or work with instructions, for
achieving compliance. Written notice of the conditions or instructions
must be given within the prescribed time.
Subsection (7) provides for the action that may be taken by a person
making a request if the compliance assessor fails to make a decision within
the required time.
New section 3.7.6 (Regulation may prescribe additional requirements
and actions)
This section provides for a regulation under the IPA or another Act (eg
Building Act) to prescribe things that are mandatory or discretionary in
carrying out the compliance assessment. This might include the form for
documents, scale of plans, paper size, etc.
Also a regulation may, for example, prescribe additional actions to be
taken by the compliance assessor, such as a need to give approved
documents to another entity, or the need to give the approval in a particular
form.
Section 3.7.7 (Endorsement under this part has effect for 2 years)
This section provides for an approval of a document to have effect for
the period of time stated in a regulation or, if not stated, for two years. Any
development which is the subject of the document, eg building work
specified in a plan, must commence within the relevant period or the
approval of the plan lapses. However, provided the development has
commenced, the approval of the document has continuing effect.
Section 3.7.8 (Endorsement of plan taken to be approval for other Acts
Subsection (1) refers to any requirement under another Act, and in
particular to the requirement under the Land Title Act 1994, s 50g, for local
government approval of a plan of subdivision before the plan can be
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registered, and makes it clear that approval as a consequence of compliance
assessment constitutes local government approval for the purposes of those
Acts.
Subsection (2) provides that if compliance assessment is not required
under part 7 for a plan of subdivision then, local government approval is
not required for the plan under s 50g of the Land Title Act.
Section 3.7.9 (Codes for compliance assessment are not applicable
codes)
This section makes it clear that codes against which compliant
development, documents or plans are required to be assessed are not
applicable codes.46This means that, if the development requiring
compliance assessment is also assessable development, the assessment
manager is not required to assess the development application against
codes identified in the regulation as codes for compliance assessment.
Previous part 6 is renumbered as part 8.
Heading to Part 8 Ministerial Powers and Development Applications
and Approvals
The heading is amended to more appropriate reflect the function of the
part.
Sections 3.8.1 (When Ministerial direction may be given)
This is renumbered but otherwise unchanged.
Section 3.8.2 (Notice of direction)
This is renumbered but otherwise unchanged.
Section 3.8.3 (Effect of direction)
This is renumbered but otherwise unchanged.
46 See definition of "applicable code" in schedule 10.
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Section 3.8.4 (When a development application may be called in)
This section was amended in the Local Government and Other
Legislation Amendment Act 2001. It is not further amended in this Bill.
Section 3.8.5 (Notice of call in)
Section 3.8.5 is simplified to deal only with the notice of call in.
Subsection (1) provides for how the Minister47 may call in an
application.
Subsection (2) requires the Minister to give reasons for calling in the
application.
Subsection (3) requires the Minister to advise certain interested parties
of the call in.
Section 3.8.6 (Effect of call in)
Section 3.8.6 clarifies the action the Minister must take, and other effects
if an application is called in.
Subsection (1) applies the section.
Subsection (2) provides that if an application is called in before it is
decided by the assessment manager, the Minister takes the assessment
manager's place and continues the IDAS process from the point in the
process the application has reached.
Subsection (3) provides that if an application is called in after it has been
decided by the assessment manager, the Minister takes the assessment
manager's place and repeats the decision stage of the IDAS process.
However, subsection 3(b) enables the Minister to decide to also repeat any
of the other stages of IDAS.
Subsection (4) provides for the Minister to be the assessment manager
for the application until a decision is made but the IDAS timeframes do not
apply to actions taken by the Minister as the assessment manager.
Subsection (5) requires the original assessment manager to give the
Minister reasonable assistance to assess and decide the application.
47 See definition of "Minister" in schedule 10.
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Subsection (6) allows the Minister to consider, in addition to the matters
the original assessment manager would be required to consider, matters
relevant to the State interest which gave rise to the call in.
Subsection (7) prevents the applicant from changing the application
without the Minister's written agreement.
Section (8) provides for a concurrence agency for the application to be
an advice agency.
Subsection (9) provides for interested parties to be notified of the
Minister's decision.
Subsection (10) provides for the Minister's decision to be attributed to
the original assessment manager. However, subsection (11) removes the
right to appeal the decision.
Subsection (12) provides for any appeal commenced before the call in to
be of no effect.
Section 3.8.7 (Process if call in decision does not deal with all aspects of
the application)
This is renumbered but otherwise unchanged.
Insertion of New Division 3 Ministerial call in powers (changed or
cancelled conditions)
The new division will allow the Minister48 to call in an application to
change or cancel a condition of a development approval. The provisions
are similar to those for calling in a development application.
Section 3.8.8 (Definition for div 3)
The term "change application" is defined for the division.
Section 3.8.9 (When a change application may be called in)
This section provides that a change application may be called in only if it
involves a State interest, and it is called in within the specified time.
48 See definition of "Minister" in schedule 10.
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Section 3.8.10 (Notice of call in)
This section allows the Minister to call in a change application by giving
written notice to the entity deciding the application, stating the reasons for
the call-in. The applicant for the change must be given a copy of the
notice.
Section 3.8.11 (Effect of call in)
Subsection (1) states the section applies to the calling in of change
applications.
Subsection (2) provides for when the Minister calls in an application
before the deciding entity has made a decision. The Minister must
continue with the process for the application.
Subsection (3) provides for when the Minister call in an application after
the deciding entity has made a decision. The Minister is required to
reassess the application and make a decision.
Subsection (4) provides for the Minister to be the deciding entity for the
application and for time limits for processing a change application to not
apply to the Minister, as deciding entity.
Subsection (5) provides for the original deciding entity to assist the
Minister in assessing and deciding the application. The entity must give
the Minister all the material about the application in the deciding entity's
possession before the application was called in.
Subsection (6) provides for additional matters the Minister may consider
in assessing and deciding the application.
Subsection (7) provides for the Minister to notify the original deciding
entity of the Minister's decision
Subsection (8) provides for the effect of the Minister's decision.
Subsections (9) and (10) provide that there is no appeal against the
Minister's decision, and any appeal in progress before the application was
called in is of no effect.
Insertion of New Division 4 Report to Parliament
This division is substantially similar to the former section 3.6.9. It has
been included as a separate division to reflect the insertion of division 3 in
this Part.
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Section 3.8.12 (Report about decision)
Subsection (1) requires the Minister to prepare a report about the
Minister's decision under division 2 or 3.
Subsection (2) states the things the report must contain.
Subsection (3) requires the report to be tabled in the Legislative
Assembly within 14 sitting days after the Minister's decision is made.
Part 7 - Plans of Subdivision
This part is omitted from chapter 3 and replaced as necessary in part 6
compliance stage. Amendments to the Integrated Planning Regulation
1998 will be made to complete the transition allowing plans of subdivision
to be dealt with in the compliance stage.
New section 4.1.5A (How court may deal with matters involving
substantial compliance)
Clause 28 inserts new section 4.1.5A to provide the Court with the
power to deal with any proceeding before it, if the Court is satisfied there
has been substantial compliance with procedural requirements.49
In particular, the Court may have before it an appeal about a
development decision and may become aware that some procedural
requirement for the application has not been complied with, for example,
the proponent may have failed to comply in some respect with the public
notification requirements of IDAS. Provided the Court is satisfied that
despite any failure in compliance, the public has been made sufficiently
aware of the existence and nature of the proposed development and has had
the opportunity to make submissions, the Court may proceed to decide the
appeal.
49 See also Clause 41 which omits previous section 4.1.53.
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Amendment of s 4.1.21 (Court may make declarations)
Clause 29 amends s 4.1.21. The intent of the section is to confer open
standing on potential applicants. Therefore, any person may apply to the
Court for a declaration about any matter mentioned in section 4.1.21(1),
including anything that should have been done by any person under the
Act. This includes the endorsement as "properly made", under section
3.2.4, as of an application form.
Clause 29(1) substitutes the word "for" for "under" in subsection (1)(a).
The purpose of this change is to clarify that in accordance with s 36 of the
Acts Interpretation Act matters done under another Act for the purposes of
the IPA may be the subject of a declaration under this section.
Clause 29(2) omits section 4.1.21(1)(e) for consistency with other
amendments to the Act to remove the concept of "acknowledgement
notices
Clause 29(3) amends subsection (7) to require the Minister to be
satisfied a State interest is involved before electing to be a party to
declaration proceedings. No time has been nominated in either this section
or section 4.1.46 (Minister entitled to be a party to an appeal involving a
State interest). It is intended with respect to both sections that the time
within which the Minister may make the election be limited only by the
rules of the Court and that the Minister have the maximum time to make
the election to lessen the need to "call in" applications under section 3.6.5.
Amendment of s 4.1.22 (Court may make orders about declarations)
Clause 30 inserts a new subsection (2), to replace subsections (2) and
(3). The original subsections provide for where fraud has occurred and
confine the Court's ability to amend or cancel a development approval to
such cases. The intent of the original subsections was to protect innocent
parties by preserving the existence of approvals not affected by fraud.
However in most cases a development approval may be declared void
under section 4.1.21 without the need for an order under this section.
The new subsection allows the Court to make an order to cancel a
development approval. However, the Court, in making such an order must
also order appropriate compensation for any loss suffered as a consequence
of the order. For example, if a development approval was given in error,
the Court could order the cancellation of the approval and compensation
for any loss suffered from the cancellation by an innocent party.
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It is not anticipated the expanded powers of the court under this section
would be exercised often. However occasionally, the continuance of rights
under a development approval may have extreme adverse environmental or
public safety consequences, and it is appropriate the court have the power
to act in these circumstances.
Amendment of s 4.1.23 (Costs)
Clause 31 amends section 4.1.23 for clarity, and for consistency with
other amendments to the Act.
Subsection (1) clarifies section 4.1.23(1) is subject to qualifications in
subsections (2) to (6).
Subsection (2) clarifies section 4.1.23(2) is subject to qualification in
subsection (7).
Subsection (3) updates a section reference for consistency with changes
made to Chapter 3.
Subsection (4) replaces the concept of an acknowledgement notice with
that of an endorsed application for consistency with changes made in
Chapter 3, Part 2.
Amendment of s 4.1.27 (Appeals by applicants)
Clause 32 replaces subsection (2A) for consistency with other changes
to the Act, which provide that the applicant's appeal period may be
suspended by notice under s 3.5.19, or automatically by the operation of s
3.5.20 when a negotiated decision notice is sought under s 3.5.18.
Amendment of s 4.1.28 (Appeals by submitters)
Clause 33 replaces section 4.1.28
Subsection (1) provides that a submitter may only appeal about that part
of a development approval decided by the assessment manager. A
submitter may not appeal about the conditions a concurrence agency
required to be attached to an approval. Also a submitter may only appeal
about that part of a development approval under a transitional planning
scheme that, if it had been processed under the repealed Act, would have
required public notification. This broadly equates to impact assessable
development under the IPA.
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Subsection (2) provides that a submitter may appeal about the giving of
the development approval generally, or any provision of the approval,
subject to subsection (1).
Subsection (3) provides that a submitter may not appeal if the submitter
withdraws their submission before a decision is made about the application
or if the submitter advises the assessment manager in writing that they will
not be appealing the decision.
Subsection (4) provides that a submitter must lodge their appeal within
20 business days of being given a decision notice or negotiated decision
notice for the application.
Amendment of s 4.1.29 (Appeals by advice agency submitters)
Clause 34(1) replaces subsection (1) with new subsections (1) or (1A) to
achieve consistency with the grounds upon which other submitters may
appeal under section 4.1.28.
Clause 34(2) inserts a new subsection (3) for consistency with s
4.1.28(3)(b). The subsection provides that an advice agency who has
elected to have its response treated as a submission for an application50 and
has subsequently waived its appeal rights51 may not appeal.
Replacement of ss 4.1.30 and s 4.1.31
Clause 35 inserts new section 4.1.30.
Section 4.1.30 (Appeals for matters arising after approval given (co-
respondents))
Section 4.1.30 has been replaced for consistency with new arrangements
for changing or cancelling development approvals under Chapter 3, Part 6.
Subsection (1) identifies the application of the section. The section
applies for a notice giving a decision about a change application if there
were concurrence agencies for the original development application. This
is linked to requirements for notifying potential respondents under section
4.1.41.
50 See section 3.3.21(3)(b)
51 See section 3.5.23.
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Subsection (2) prevents a person to whom a notice about a change
application is given under subsection (1) from appealing if the notice is
about extending the currency period for a development approval resulting
from a development application (superseded planning scheme).
Subsection (3) provides for the person mentioned in subsection (1) to
appeal the decision in the notice.
Subsection (4) provides the appeal must be started within 20 days after
the day the notice is given.
Subsection (5) provides for an appeal about a deemed refusal of a
change application.
Subsection (6) provides for when an appeal under subsection (5) may be
started.
Section 4.1.31 (Appeals for matters arising after approval given (no co-
respondents)
Section 4.1.30 has been replaced for consistency with new arrangements
for changing or cancelling development approvals under Chapter 3, Part 6.
Subsection (1) identifies the application of the section. The section
applies for a notice giving a decision about a change application if there
were no concurrence agencies for the original development application.
This is linked to requirements for notifying potential respondents under
section 4.1.42
Subsection (2) provides for the person mentioned in subsection (1) to
appeal the decision in the notice.
Subsection (3) provides the appeal must be started within 20 days after
the day the notice is given.
Subsection (4) provides for an appeal about a deemed refusal of a
change application.
Subsection (5) provides for when an appeal under subsection (5) may be
started.
Amendment of s 4.1.33 (Stay of operation of enforcement notice)
Clause 36 modifies provisions about the effect of appeals about the
giving of enforcement notices.
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Subsection (1) modifies section 4.1.33(2)(b) by replacing the words
"carrying out development that" with the word "stopping".
Subsection (2) modifies provisions about removing material from
Queensland waters. Existing section 4.1.33(2)(d) (uncommenced) provides
for the removal of quarry material from a watercourse or lake (quarrying in
non-tidal waters). New section 4.1.33(2)(e) provides for removal of
material from tidal waters, and is relevant to proposed amendments to the
Coastal legislation which will make dredging in tidal waters assessable
development.
Amendment of s 4.1.40 (Certain appellants must obtain information
about submitters
Clause 37 modifies requirements for applicants or submitters to obtain
information from the assessment manager. The changes are for consistency
with changes to the scope of sections 3.5.15 and 3.5.16, and with new
provisions allowing submitters to waive their appeal rights under section
3.5.23(1)(b)(ii).
Replacement of s 4.1.41 (Notice of appeal to other parties (div 8))
Clause 38 replaces s 4.1.41 to clarify the list of entities to whom notice
of an appeal under division 8 must be given.
Subsection (1) provides that written notice must be given to the chief
executive in all circumstances and to other parties as required.
Subsection (2) states the times in which notice to particular parties must
be given.
Subsection (3) states matters to be included in the notice of appeal.
Replacement of s 4.1.43 (Respondent and co-respondents for appeals
under div 8)
Clause 39 replaces section 4.1.43 for consistency with changes made to
related sections in Chapter 4 Part 1. The replaced section also includes
provisions about co-respondents that were previously implied by section
4.1.45, but not explicitly stated in that section.
Subsection (1) provides subsections (2) to (9) apply for appeals by
applicants, submitters, and advice agency submitters respectively.
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Subsection (2) provides the assessment manager is the respondent for all
appeals mentioned in subsection (1)
Subsection (3) provides the applicant is a co-respondent for a submitter
appeal.
Subsection (4) provides a principal submitter is entitled to elect to
become a co-respondent.
Subsection (5) provides for submitters other than a principal submitter to
become co-respondents if the principal submitter has elected to be a
respondent.
Subsection (6) provides for a concurrence agency to be a co-respondent
if the appeal is about a concurrence agency response.
Subsection (7) allows for the assessment manager to apply to the court to
withdraw from the appeal if the appeal is only about a concurrence agency
response.
Subsection (8) provides for respondents and co-respondents to be heard
as parties to the appeal.
Subsection (9) provides a person who has received a notice under section
4.1.41 and who is not the respondent or co-respondent may elect to be a co-
respondent.
Subsection (10) identifies respondents and co-respondents for appeals
about decisions for change applications
Replacement of s 4.1.45 (How an entity may elect to be co-respondent)
Clause 40 replaces s 4.1.45 with a provision that clarifies how an entity
who is entitled to be a co-respondent may join an appeal, by linking the
election to join to the rules of Court.
Amendment of s 4.1.52 (Appeal by way of hearing anew)
Clause 41 replaces s 4.1.52(2)(b) for consistency with new grounds for
changing an application under Chapter 3, Part 2. The effect of the change is
to provide the Court in its "de-novo" jurisdiction with essentially the same
powers to accept and consider a change to the proposal being appealed as
those available to an assessment manager under ss 3.2.8 and 3.2.9. Changes
under those sections generally do not require the entire IDAS process to be
recommenced, whereas those under s 3.2.10 do.
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Omission of s 4.1.53 (Court may decide appeal even if particular
requirements not complied with)
Clause 42 omits s 4.1.53. The effect of this section has been effectively
replaced and superseded by the more general power under section 4.1.5A
which allows the Court to deal with any matter of non-compliance,
including in an appeal, if the Court is satisfied no persons rights have been
compromised.
Amendment of s 4.2.7 (Jurisdiction of tribunals)
Clause 43 amends s 4.2.7 to replace the reference to a tribunal hearing
an appeal with a broader reference to the tribunal "deciding a matter". This
reflects the possibility that the tribunal's jurisdiction may be expanded
under a regulation to require it to hear matters other than simply appeals.
Insertion of new s 4.2.9A (Appeals by persons requesting compliance
assessment)
Clause 44 inserts a new section 4.2.9A to provide for appeals to the
tribunal by persons requesting compliance assessment under Chapter 3 Part
7.
Subsection (1) provides for a person to appeal a compliance assessor's
decision, or, if provided for under a regulation, to appeal to the tribunal if a
compliance assessor has not responded to a request for compliance
assessment within the time provided for under section 3.7.5(7). (The
regulation may in some circumstances provide that a non-response by a
compliance assessor is taken to mean the request has been approved,
however in other circumstances, the regulation will provide for an appeal to
the tribunal)
Subsection (2) establishes the applicant's appeal period for an appeal
under subsection (1)(a).
Subsection (3) establishes when an appeal under subsection 1(b) may be
started.
Subsection (4) provides for the tribunal to decide the matter being
appealed as if it were the compliance assessor. This makes the tribunal's
role for an appeal under this section similar to the "de novo" jurisdiction of
the court for an appeal, rather than the tribunal's traditional role in appeals
of a "referee" of particular points of dispute.
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Replacement of ss 4.2.10 and 4.2.11
Clause 45 replaces ss 4.2.10 and 4.2.11 for consistency with provisions
about compliance assessment under Chapter 3 Part 7, and assessment of
change applications under chapter 3 Part 6 respectively.
Section 4.2.10 (Appeals by Compliance Assessors)
Subsection (1) provides a compliance assessor may appeal to the tribunal
about the giving of a compliance permit in circumstances prescribed under
a regulation. This replaces a similar provision which allowed an advice
agency rights of appeal under certain circumstances. These provision were
originally included in the IPA to facilitate appeals by certain advice
agencies for building related matters against the decision of a private
certifier. As private certifiers will, under this Bill, assess building work
under the compliance assessment arrangements in Chapter 3, Part 7, and
the agencies that were formally advice agencies will also be compliance
assessors, a change is required to section 4.2.10 is necessary if appeal
rights are to continue to be available to these entities.
Subsection (2) provides for the time within which an appeal under
subsection (1) must be started.
Section 4.2.11 (Appeals for matters arising after approval given (Co-
respondents))
Subsection (1) identifies the application of the section. The section
applies for a notice giving a decision about a change application if there
were concurrence agencies for the original development application. This
is linked to requirements for notifying potential respondents under section
4.2.17.
Subsection (2) provides for the person mentioned in subsection (1) to
appeal the decision in the notice.
Subsection (3) provides the appeal must be started within 20 days after
the day the notice is given.
Subsection (4) provides for an appeal about a deemed refusal of a
change application.
Subsection (5) provides for when an appeal under subsection (5) may be
started.
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Replacement of s 4.2.12 (Appeals for matters arising after approval
given (no co-respondents))
Clause 46 replaces s 4.2.12 for consistency with new arrangements for
changing or cancelling development approvals under Chapter 3, Part 6.
Subsection (1) identifies the application of the section. The section
applies for a notice giving a decision about a change application if there
were no concurrence agencies for the original development application.
This is linked to requirements for notifying potential respondents under
section 4.2.18.
Subsection (2) provides for the person mentioned in subsection (1) to
appeal the decision in the notice.
Subsection (3) provides the appeal must be started within 20 days after
the day the notice is given.
Subsection (4) provides for an appeal about a deemed refusal of a
change application.
Subsection (5) provides for when an appeal under subsection (5) may be
started.
Amendment of s 4.2.14 (Stay of operation of enforcement notice)
Clause 47 amends s 4.2.14 for consistency with amendments to s 4.1.33.
Replacement of ss 4.2.17 and 4.2.18
Clause 48 replaces ss 4.2.17 and 4.2.18 for consistency with ss 4.2.11
and 4.2.12, and with changes in chapter 3 for change applications and
compliance assessment.
Section 4.2.17 (Notice of appeal to other parties (div 3)
Subsection (1) indicates to whom the registrar must give written notice
of an appeal.
Subsection (2) requires the notice to specify the grounds of appeal and
the appeal rights for the person to whom the notice is given.
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Section 4.2.18 (Notice of appeal to other parties (div 4)
Subsection (1) indicates to whom the registrar must give written notice
of an appeal.
Subsection (2) requires the notice to specify the grounds of appeal.
Replacement of s 4.2.33 (Matters the tribunal may consider in making
a decision)
Clause 49 replaces s 4.2.33 for consistency with changes to Chapter 3
introducing compliance assessment.
Subsection (1) states the application of subsection (2).
Subsection (2) establishes the basis upon which the tribunal must decide
the appeal.
Amendment of s 4.2.34 (Appeal decision)
Clause 50 amends s 4.2.34 for consistency with changes to Chapter 3
introducing compliance assessment.
Subsection (1) includes a reference in s 4.3.2(2)(d) to how a tribunal may
deal with a failure to decide a request for compliance assessment.
Subsection (2) adds a reference to compliance assessment to s
4.2.34(2)(e).
Replacement of s 4.2.35A (Notice of compliance)
Clause 51 replaces s 4.2.35A for consistency with changes in Chapter 3
introducing compliance assessment.
Omission of s 4.3.2A (Certain assessable development must comply
with codes)
Clause 52 omits section 4.3.2A. This section established an offence for
contravening certain codes in planning schemes mentioned in ss 3.1.2 and
3.1.6. These codes were codes for self-assessable development, and ss
3.1.2 and 3.1.6 provided they were not to be considered "applicable codes"
if the development to which these codes applied was made assessable
under schedule 8. This had the effect of maintaining the codes' "self
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assessable" status from the point of view of the planning scheme. For
building work, this meant a private certifier could still receive and decide
applications for building work even if there were relevant codes under a
planning scheme.
However with the introduction of compliance assessment in Chapter 3
Part 7, building work will no longer be assessable under schedule 8, and the
relevant provisions under ss 3.1.2 and 3.1.6 have been removed.
Consequently, the offence relating to these provisions became redundant.
Insertion of s 4.3.4A (Offences relating to compliance assessment)
Clause 53 inserts a new section 4.3.4A establishing offences about
compliance assessment.
Subsection (1) provides a penalty for carrying out development that
requires compliance assessment without a compliance permit or other than
in accordance with the permit.
Subsection (2) provides a penalty for not requesting compliance
assessment for a completed work within the prescribed time.
Sanctions for not requesting a compliance certificate for documents are
dealt with under other legislation. For example, plans of subdivision
cannot be registered under the Land Title Act without the approval of the
local government.
Replacement of s 4.3.5 (Carrying on unlawful use of premises)
Clause 54 replaces section 4.3.5 to reinforce the effectiveness of
designations for community infrastructure by expanding the range of
sanctions available for not complying with an aspect of a designation..
Subsection (1) is unchanged and provides a penalty for the unlawful use
of premises. The subsection applies to a use that is not the natural and
ordinary consequence of a material change of use of the premises made in
accordance with the Act. (The use includes an ancillary use and carrying
out works necessarily associated with the use.)52
Subsection (2) provides a penalty for failing to comply with any
requirements for the carrying out a particular use (whether the primary use,
an incidental or associated use, or associated works) that is otherwise
52 See s 1.3.4.
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lawful, imposed by a local planning instrument or as a consequence of
designation of the land. Subsection (2) also introduces a new penalty for
not complying with any requirements about the use of designated land that
are part of the designation. These requirements may be included in a
designation under section 2.6.4, and may include requirements about how
the use of the designated land for the purposes of the designation is to be
conducted (for example hours of operation)
Amendment of s 4.3.8 (Application of div 2)
Clause 55(1) amends section 4.3.8(c) to remove unnecessary words.
Clause 55(2) inserts new paragraph (f) to provide a further exception to
the general rule that an assessing authority must give a show cause notice
to a person before they can give the person an enforcement notice. The
amendment provides that no show cause notice is required when an
assessing authority proposes to give an enforcement notice about the
removal of specified quarry material from Queensland waters. A show
cause notice would delay the effect of an enforcement notice and may
result in continued or increased environmental harm occurring.
Existing section 4.1.33(e) provides for the removal of quarry material
from a watercourse or lake (quarrying in non-tidal waters). New section
4.1.33(f) provides for removal of material from tidal waters, and is relevant
to proposed amendments to the Coastal legislation which will make
dredging in tidal waters assessable development.
Amendment of s 4.3.11 (Giving enforcement notice)
Clause 56 amends section 4.3.11(5) to remove an ambiguity giving rise
to potential limitations in the use of the provision. The intent of the
provision is that, because of the irreversibility of the action, a local
government or private certifier may not delegate their power to order the
demolition of a building. However the current wording of the provision
also prevents delegation of a power to order re-instatement of a demolished
building, or other orders about demolition which could appropriately be
delegated.
Amendment of s 4.3.13 (Specific requirements of enforcement notice)
Clause 57 amends s 4.3.13 for consistency with changes to Chapter 3
introducing compliance assessment.
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Subsection (1) adds a reference to compliance assessment to the list of
matters an enforcement notice may deal with.
Subsection (2) renumbers the remaining paragraphs.
Replacement of s 4.3.16 (Processing application required by
enforcement notice)
Clause 58 replaces s 4.3.16 for consistency with changes to chapter 3
introducing compliance assessment.
Replacement of chapter 5, part 1 Infrastructure charges
Clause 59 replaces the part.
Major changes include:
· Replacement of Benchmark Development Sequencing by
Priority Infrastructure Area.
· Introduction of Priority Infrastructure Plans.
· Introduction of conditioning powers for non-trunk infrastructure.
· Renaming of Infrastructure Charges Plans to Infrastructure
Charges Schedules and detailed changes to requirements for
preparing Infrastructure Charges Schedules for trunk
infrastructure.
· Introduction of Infrastructure Payments Schedules and power to
impose conditions requiring payments for trunk infrastructure as
conditions of approval.
· Simplification and streamlining of requirements for
infrastructure providers to obtain additional costs for providing
infrastructure to certain developments.
Division 1--Non-trunk infrastructure
This new division provides outlines the parameters within which
assessment managers may exercise their powers to impose conditions on
development approvals (as set out in chapter 3, part 5, division 6) for lower
order (or non-trunk) infrastructure. This is infrastructure that is primarily
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directed towards servicing the land the subject of the application and may
be the infrastructure that:
· internally reticulates the site; or
· is necessary to mitigate a direct impact of the proposal, such as
an upgrade of an intersection to maintain the safety or efficiency
of the intersection after the proposal commences; or
· is necessary to connect the site to external trunk infrastructure
networks.
It is recognised these types of conditions are routinely imposed and in
large part are separate from the broader and more strategic planning and
associated funding arrangements put in place under divisions 3, 4 and 5
that deal with trunk infrastructure.
Section 5.1.1 (Conditions local governments may impose for non-trunk
infrastructure)
A point to note about this section is that subsection (2) requires a
condition for non-trunk infrastructure to specify the infrastructure to be
provided and when. In other words, the section generally envisages
developers constructing the specified infrastructure. However, if an
applicant wished to pay the local government to supply the infrastructure,
an infrastructure agreement between the parties could be entered into.
Sections 3.5.32 and 5.2.1 refer.
Division 2--Trunk infrastructure
This new division sets out general planning and funding requirements
for trunk infrastructure.
Section 5.1.2 (Priority infrastructure plans for trunk infrastructure)
Section 2.1.3 requires each planning scheme to include a priority
infrastructure plan (PIP). This section merely states that these plans must
be prepared in accordance with prescribed guidelines. It is important that
there is clarity and certainty about how these plans are prepared. The costs
and impacts of supplying infrastructure to service development proposals
are very significant. The overall content of a PIP is set out in the definition
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of the term in schedule 10 (Dictionary). In general terms a PIP means the
part of the planning scheme that:
(a) identifies the priority infrastructure area; and
(b) identifies existing trunk infrastructure; and
(c) includes details of any future trunk infrastructure; and
(d) states the assumptions on which the plan is based; and
(e) states the desired standard of service of each infrastructure
network; and
(f) includes and charges or payments schedules.
Section 5.1.3 (Funding trunk infrastructure for certain local
governments)
This section requires that certain local governments only fund certain
trunk infrastructure using infrastructure charges schedules.
Subsection (1) clarifies that the local governments affected by the
section are those local governments with a significant business activity (as
defined under the Local Government Act 1993), involving the supply of
trunk infrastructure. The clause currently affects those local governments
operating the 18 largest retail water businesses.
Subsection (2) requires these local governments only use infrastructure
charges schedules for up front funding of trunk infrastructure related to
these activities (essentially water supply and sewerage infrastructure). This
section is not intended to prevent local governments using alternative
funding methods available under other legislation (e.g. special rates under
the Local Government Act 1993) to fund this trunk infrastructure.
The operations of these significant business activities are generally
subject to prices oversight by the Queensland Competition Authority and it
is considered more appropriate to require the routine infrastructure
contributions for trunk infrastructure provided for under this part to be
dealt with through infrastructure charges schedules. The greater level of
financial rigour involved in their preparation is consistent with the rigour of
overall level of pricing oversight provided for these activities. These local
governments also have the option of using infrastructure charges schedules
for other infrastructure networks. as other local governments have the
option of using infrastructure charges schedules to fund trunk
infrastructure.
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Subsection (3) allows the Minister to approve the use of an infrastructure
payment schedule to fund infrastructure in a low growth area of a local
government that would otherwise be required to prepare an infrastructure
charges schedule. It is anticipated this power would be exercised by the
Minister in limited circumstances.
An example may include a low growth area of a local government area
that has been included in the priority infrastructure area of the local
government because the area is already serviced, and the infrastructure is
currently funded under an agreement, or there are joint infrastructure
funding arrangements between the local government and an adjoining local
government that funds the same type of infrastructure through an
infrastructure payment schedule.
Division 3--Trunk infrastructure funding under an infrastructure
charges schedule)
This division replaces existing division 2 in the part dealing with
infrastructure charges plans. The majority of the changes reflect the
transition from infrastructure charges plans to infrastructure charges
schedules, including the planning elements of infrastructure charges plans
now being a separate part of the priority infrastructure plan, and charges
now being intended only for trunk infrastructure.
Section 5.1.4 (Making or amending infrastructure charges schedules)
This section specifies the process and other matters for preparing or
amending an Infrastructure charges schedule.
Subsection (1)(a) requires an infrastructure charges schedule to be
prepared in accordance with guidelines prescribed in regulations.
An infrastructure charges schedule forms part of the planning scheme
and would ordinarily have to be made or amended according to the process
specified in Schedule 1 of the Act by virtue of section 2.1.5. However,
subsection (1)(b) allows an infrastructure charges schedule to be made or
amended as if it were a planning scheme policy according to the process
specified in Schedule 3 of the Act. In comparison to Schedule 1, Schedule
3 does not require any preliminary consultation or consideration of State
interests in respect of the infrastructure charges schedule. This abbreviated
process is considered appropriate as an infrastructure charges schedule is
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now simply the technical schedule of charges for the trunk infrastructure
identified in the priority infrastructure plan. It is considered no additional
value can be added to the schedule by subjecting it to the full schedule 1
process. it is important to point out that the abbreviated process still
involves public consultation. All that is removed is the State review of the
schedule.
The planning elements of the former infrastructure charges plan,
including planning assumptions, desired standards of service and plans for
trunk infrastructure, now form part of the priority infrastructure plan,
which remains subject to the full Schedule 1 process and is subject to State
review.
Subsection (2) is introduced to clarify when the schedule becomes part
of the planning scheme and takes effect.
Section 5.1.5 (Key elements of an infrastructure charges schedule)
Section 5.1.5 identifies the key elements of an infrastructure charges
schedule and defines "infrastructure charge". In this regard, deleting
reference to an infrastructure charge being a general charge under the Local
Government Act 1993 establishes the IPA as the head of power for levying
infrastructure charges in place of the Local Government Act.
Subsection (2) clarifies matters about the levying of charges for certain
infrastructure. Subsection (2)(b) allows a charge to be levied for trunk
infrastructure not owned by the local government if the owner of the
infrastructure agrees. This would allow a local government to levy charges
on behalf of a private infrastructure provider. Arrangements between the
parties as to how the charges are to be imposed, collected and transferred
would need to be settled as part of the agreement. Subsection (2)(c) is also
a new provision and allows a local government to levy infrastructure
charges for trunk infrastructure the local government has provided on a
State controlled-road.
For example, a local government may have constructed trunk drainage
infrastructure that runs under a State-controlled road. Subsection (2)(c) is
intended to remove any doubt as to the local government's ability to charge
for the infrastructure. Similarly, a local government may have constructed
or upgraded a road that subsequently became a State-controlled road.
Subsection (2)(c) would allow the local government to recover the cost of
the road works through infrastructure charges or payments, provided the
local government had not been paid for the cost of the road works in some
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other way (such as the State compensating the local government for the
cost of the road when it became a State-controlled road).
Section 5.1.6 (Infrastructure charges)
Subsection (1)(a) clarifies that charges can only be levied for trunk
infrastructure. Subsection (1)(b) requires charges to be calculated on the
basis of the establishment cost of the infrastructure that can be reasonably
apportioned to the premises. Subsection (1)(c) is intended to ensure that an
infrastructure charge levied for an existing lawful use can only be for the
current share of usage of the infrastructure by the existing use and not
future uses having regard to the planning scheme provisions for the site or
the infrastructure provided.
Subsection (2) allows a landowner and local government to enter into an
agreement to pay charges not based on the existing use and not associated
with a development application. Such a situation may arise if the local
government provided discounts for the early payment of charges or the
landowner wanted to pay the charges in advance to increase the value or
sale/development potential of the land.
Subsection (3) carries forward existing section 5.1.5(3).
Section 5.1.7 (Infrastructure charges notices)
Subsection (1) defines an infrastructure charges notice and lists the
maters the notice must contain. Item (e) requires the local government to
identify any infrastructure necessary to service the premises, but which is
not yet available (e.g. this might include a length of water main required to
provide water to the internal reticulation systems of a subdivision).
Specific requirements apply to necessary infrastructure under section 5.1.9.
Subsections (2), (3) and (4) specify when, and to whom, the notice must
be given depending on whether the notice is issued as the result of a
development approval issued by the local government, or as the result of a
compliance assessment by either the local government or a private certifier.
Subsection (5) clarifies that if a notice of change is issued other than as
the result of a development approval or compliance assessment, the notice
must be given to the owner of the land.
Subsection (6) requires that a copy of a notice issued under sections (2),
(3) and (4) must also be given to the owner of the land if the owner is not
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the person who received the notice under sections (2), (3) and (4). Since
charges are, for the purposes of recovery, taken to be a rate, unpaid charges
could lead to a local government taking recovery action, possibly including
selling the land. For this reason, it is important to ensure owners of land
are aware of any charges levied in respect of their land.
Subsection (7) has been introduced to clarify that if a charge is issued in
association with a development approval or compliance assessment, the
charge cannot be recovered unless the entitlements in the approval or the
document endorsed through the compliance assessment are exercised. This
section also states the notice of charge lapses if the approval or endorsed
document to which it relates stops having effect. This may include the
approval lapsing or being cancelled, or the endorsement expiring.
Section 5.1.8 (When infrastructure charges are payable)
This section specifies when charges have to be paid, if the charges are
associated with applications for certain types of development and replaces
the existing section 5.1.10. The aspects of development listed operate in a
hierarchical manner, on the basis infrastructure to service the development
is most likely to be required, and should be paid for, while the works for
reconfiguration or building work are being carried out. If items (a) to (c)
do not apply, item (d) requires the charge to be paid at the time stated in the
infrastructure charges notice.
Section 5.1.9 (Agreements about, and alternatives to, paying
infrastructure charges)
Alternatives to paying the charge must be stated in an infrastructure
agreement. These items replace and simplify existing sections 5.1.11,
5.1.12 and 5.1.15.
Subsection (2) relates to item (1)(b). If the trunk infrastructure is
necessary but not yet available to service the premises, and the local
government does not plan to provide the infrastructure in a timeframe
appropriate for the development, the applicant may exercise the option of
supplying the necessary infrastructure even though in overall terms the
infrastructure items needed may be more than reasonably can be
apportioned to the needs of the applicant's proposal. Subsection (2) goes
on to provide for the applicant to be refunded any charges collected by the
local government from other users of the infrastructure.
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For example, if extension of a water main was necessary for a
subdivision but the local government did not intend to provide the main at
the time needed by the development proposal, the applicant could enter
into an agreement with the local government to construct the water main
instead of paying a charge for the main (the applicant may still have to pay
charges for other items in the network , such as the treatment works or
other upstream trunk infrastructure). If the extended water main also
serviced other premises, subsection (2) ensures any charges collected by
the local government from other users for their share of the main are
refunded to the applicant who provided the main. In this way the applicant
is, over time, only responsible for paying for their share of the necessary
infrastructure, but carries the risk and financing costs of providing the item.
Subsections (3) to (6) carry forward existing sections 5.1.15 (3) to (6)
regarding when and how land for public parks infrastructure or local
community facilities is to be given.
Section 5.1.10 (Local Government may supply different trunk
infrastructure to that identified in an infrastructure charges schedule)
This section is included to allow a local government to supply a different
item of infrastructure to that specified in the infrastructure charges
schedule, provided the infrastructure provides the same standard of service.
The provision has been included to provide a degree of flexibility for local
governments in providing infrastructure to take account of changes in
technology, standards and similar matters, but safeguards the community
and persons who have paid charges by requiring the same standard of
service to be delivered.
Section 5.1.11 (Infrastructure charges taken to be a rate)
This carries forward existing section 5.1.14. For the purposes of
recovery, an infrastructure charge is taken to be a rate. This means local
governments can use the powers under the Local Government Act 1993 for
recovering unpaid rates to recover unpaid infrastructure charges.
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Division 4--Trunk infrastructure funding under an infrastructure
payments schedule)
This division, by introducing the infrastructure payments schedule
mechanism introduces new flexibility into the infrastructure funding
regime under the Act. It is included in response to stakeholder comments
and suggestions.
An infrastructure payments schedule has certain things in common with
headworks contribution policies under the repealed Local Government
(Planning and Environment) Act 1990.
In particular payments imposed under an infrastructure payment
schedule can only be imposed as a condition of a development approval.
The power to impose payments is therefore governed by the powers set out
in chapter 3, part 5, division 6 (Conditions) and as such may be appealed to
the Court. This is one of the key distinguishing differences between a
charge and a payment under the Act.
Thus, payment schedules are more limited in their application than
infrastructure charges schedules, which do not rely on a development
application or approval to be able to be levied.
Imposing a condition under this division for trunk infrastructure does not
prevent a local government imposing a condition for non-trunk
infrastructure under Division 1.
Section 5.1.12 (Making or amending infrastructure payments
schedules)
Specifies the process and other matters for preparing or amending an
infrastructure charges schedule. Subsection (1)(a) requires an
infrastructure charges schedule to be prepared in accordance with
guidelines prescribed in regulations. As for infrastructure charges
schedules, subsection (1)(b) allows an infrastructure payments schedule to
be prepared under Schedule 3 of the Act as if it were a planning scheme
policy.
Section 5.1.13 (Key elements of an infrastructure payments schedule)
Defines an "infrastructure payment" and identifies the key elements of
an infrastructure payment schedule and closely follows section 5.1.5. The
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list of items is essentially the same, although there is no requirement to
identify estimated timing for the provision of the trunk infrastructure.
Infrastructure payments schedules are therefore more likely to be based on
thresholds for infrastructure provision rather than estimated timing as for
an infrastructure charges schedule. Although the list of key elements is
similar, it is not envisaged the same level of detail would be required in an
infrastructure payment schedule as for an infrastructure charges schedule.
The regulatory guidelines will address the level of detail required for an
infrastructure payments schedule.
Section 5.1.14 (Infrastructure payments)
This is the equivalent of section 5.1.6 for payments. It defines how a
payment should be calculated in an infrastructure payments schedule. As
for infrastructure charges schedules, infrastructure payments schedules can
only deal with trunk infrastructure that is designed to meet the desired
standard of service stated in the priority infrastructure plan and must be
based on the proportion of the establishment cost of the infrastructure that
can be reasonably apportioned to the premises.
Section 5.1.15 (Imposing conditions for infrastructure payments)
This section deals with the parameters for imposing conditions for
infrastructure payments. Subsection (1) details the matters a condition for
an infrastructure payment must contain. Item (e) requires the local
government to identify any infrastructure necessary to service the premises,
but which is not yet available (e.g. this might include a length of water
main required to provide water to the internal reticulation systems of a
subdivision). Specific requirements apply to necessary infrastructure under
section 5.1.17.
Section 5.1.16 (When payment must be made)
This is the equivalent of section 5.1.8 for infrastructure payments and
specifies when payments must be made.
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Section 5.1.17 (Agreements about, and alternatives to, making
infrastructure payments)
Once again, this section is the payments equivalent of section 5.1.9 with
regard to the ability to enter into an agreement to do other things as an
alternative to making an infrastructure payment. The specific arrangements
relating to infrastructure which is necessary, but not yet available, to
service the premises, including the entitlement to a refund arrangement in
certain circumstances, also apply for infrastructure payments.
Section 5.1.18 (Local government may supply different trunk
infrastructure to that identified in an infrastructure payments
schedule)
This is the equivalent of section 5.1.10 for infrastructure payments.
Division 5--Conditions local governments may impose for additional
infrastructure costs
This is a new division replacing the local government cost impact
powers previously contained in sections 3.5.35 and 3.5.36. With the
replacement of benchmark development sequences by priority
infrastructure plans, the triggers for additional cost assessment are now tied
to elements of the priority infrastructure plan. An effort has been made to
simplify and rationalise the additional costs that can be recovered.
An important point to note is that the division deals with costs of
infrastructure. it does not seek to deal with the merits of a proposal. While
costs are affected by development being proposed inside or outside the
priority infrastructure area, the fact that costs are higher or lower is not of
itself to be taken to mean that a particular proposal should be approved or
refused. The decision about whether to approve or refuse a proposal is a
development assessment decision that must be made according the
provisions set out in chapter 3. Similarly, the willingness of an applicant to
pay the additional costs for trunk infrastructure for development outside the
priority infrastructure area also is not, of itself, reason to approve an
application if there are other planning considerations that have not been
satisfactorily resolved.
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Section 5.1.19 (Conditions local governments may impose for
additional infrastructure costs)
This section establishes the parameters for local governments imposing
conditions for additional infrastructure costs.
Subsection (1)(a) refers to development being inconsistent with the
assumptions in the priority infrastructure plan. Examples may include:
· development for a different type of use being proposed (e.g. light
industrial use instead of commercial as assumed in the priority
infrastructure plan), or
· development for a different scale or intensity of use be proposed
(e.g. medium density residential at 18 dwellings per hectare
instead of low density residential at 10 dwellings per hectare as
assumed in the plan), or
· development that imposes different infrastructure timing
requirements (e.g. an anticipated expansion of a commercial
centre occurring before the assumed time in the plan and as a
consequence brings forward the construction of planned trunk
infrastructure).
Also, development proposed on land that is wholly or partly outside the
priority infrastructure area also triggers assessment under this division as
detailed infrastructure planning may not have been undertaken for the land
because it is at least partly outside the priority infrastructure area (and
therefore outside the area within which trunk infrastructure planning must
be carried out as part of the plan making process).
The ability of a local government to impose a condition requiring an
applicant to pay the additional costs of supplying trunk infrastructure is
dependent on the provider's ability to demonstrate there will be additional
costs in supplying the infrastructure, taking into account any anticipated
income received from any infrastructure charges or payments levied on the
development. As additional costs are recovered through conditions of a
development approval, they are challengeable in the Court on appeal.
Subsection (2) details the matters an additional cost impact condition
must state. Item (a) requires the infrastructure provider to identify the
nature of the additional costs the development would impose for the
infrastructure provider. Item (f) gives the applicant the option of supplying
all or part of the infrastructure instead of making a payment. Item (g)
requires that any further approval or compliance requirements for the
works to establish the infrastructure be identified.
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Subsection (3) requires the payment to be made on the day works
associated with the development or works associated with the development
commences. Paying for the infrastructure at the time construction
commences is intended to ensure the infrastructure is available by the time
construction for the development is completed. An agreement can be
entered into for the payment to be made at a different time.
Subsection (4) clarifies when an additional cost payment must be repaid.
For an additional cost payment to be repaid, the development approval in
respect of which the payment was required must no longer have effect (i.e.
it has lapsed, been cancelled etc), the additional cost payment must have
been made, and the infrastructure for which the payment was made had not
been supplied. If these requirements are met, subsection (5) requires the
local government to repay the payment. If however the local government
had already supplied the infrastructure for which the payment was
required, it does not have to repay the additional cost payment.
Subsection (6) carries forward existing sections 3.5.35(2) and (3). The
intent of the section is to allow an infrastructure provider to impose
conditions related to future infrastructure provision and funding taking into
account the intended future development of the catchment as a whole and
the trunk infrastructure required to service the future development, even
though these requirements may be in excess of those required to service the
particular development itself.
Subsection (7) prevents a local government imposing an additional cost
condition for State infrastructure (such as a local government imposing a
condition for additional costs for State schools).
Subsection (8) clarifies that an additional cost condition applies as well
as any routine infrastructure charges or conditions requiring payments, or
the supply of non-trunk infrastructure.
Section 5.1.20 (Local Government additional trunk infrastructure
costs in priority infrastructure area)
The previous section establishes the general parameters for conditions
about additional infrastructure costs. This section deals with those costs as
they apply in priority infrastructure areas.
If the additional costs are the result of the local government having to
supply trunk infrastructure to service the development earlier than
anticipated in the priority infrastructure plan, subsection (1)(a) allows the
local government to require the applicant to pay the difference between the
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establishment cost of the infrastructure and any charges or payments made
by the applicant for that item. Establishment cost is intended to cover the
cost of planning, designing and constructing the infrastructure.
For example, the priority infrastructure plan indicates water and sewer
mains would be extended to a new emerging area in year 10 of the plan
period. If development occurs in this area in year 2 instead of year 10 as
assumed, the trunk water and sewerage infrastructure must be provided
earlier than anticipated in the plan. Assume the establishment cost of this
trunk infrastructure is $100 000. Also assume the infrastructure charges
levied on the applicant for trunk water and sewerage amount to $62 000
overall, and that $10 000 of this amount represents the applicant's share of
the mains mentioned above. Because the mains are needed to service the
development proposal, they must be provided earlier than anticipated.
Subsection (1)(a) provides for the local government to impose a condition
requiring the applicant to pay, in addition to their infrastructure charges (ie
the $62 000), the difference between the establishment cost of the
infrastructure that is being supplied earlier than anticipated and the amount
of any charge paid for this infrastructure (ie $100 000 - $10 000). This
would result in an additional cost of $90 000 in this instance. It also means
the applicant effectively pays the full cost of the infrastructure that needs to
be supplied earlier than anticipated. Of course, subsection (2) also
provides for an applicant to enter into agreement with the local government
to be refunded the additional costs from other users who will benefit from
the infrastructure.
If the additional costs are the result of development for a different type
of use (e.g. light industrial instead of commercial use as assumed in the
plan), or development for a greater scale or intensity of use is proposed,
subsection (1)(b)(i) establishes parameters for the additional costs to be
determined.
For example, if a residential proposal proposed higher residential
densities than assumed in the plan and this proposal triggered the need for
larger diameter trunk water and sewer mains and increased capacity at the
sewerage pump station in order to maintain the stated desired standard of
service, the local government could impose a condition requiring the
applicant to pay the extra costs of providing this upgraded infrastructure.
These costs would be additional to the amounts levied or imposed under
the local government's infrastructure charges or payments schedules.
If the additional costs are the result of development for a lesser scale or
intensity of use (e.g. lower than planned for residential densities),
subsection (1)(b)(ii) establishes parameters for the local government to
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require the applicant to pay the difference between the cost of the
infrastructure identified in the plan and the cost of the infrastructure
necessary to service the development.
For example, if trunk infrastructure for a residential area was planned at
a density of 15 dwellings per hectare and development for a proposal at 8
dwellings per hectare was lodged, the local government impose a condition
requiring the applicant to pay the difference between the planned for
infrastructure and the infrastructure actually required by the development.
If the change in density resulted in different (i.e. `smaller') trunk
infrastructure being provided, this provision allows the local government to
impose a condition requiring the applicant to pay the difference between
the smaller trunk infrastructure actually provided, and the trunk
infrastructure the local government planned to provide. This would be in
addition to paying the amounts set out in the infrastructure charges or
payments schedules for the development.
If the infrastructure required to service the proposal was not actually
different from the planned infrastructure, this provision would have the
effect of allowing the local government to charge the applicant as if it the
proposal were for development for the planned density of 15 dwellings per
hectare.
Demonstrating additional costs in these types of situations will depend
on how the charges or payments are calculated under the relevant
infrastructure charges or payments schedules. Section 5.1.21 (2)(b)
requires an infrastructure provider to take into account charges or payments
when determining if a proposal will result in additional costs.
For subsection (2) agreements it is expected the local government would
continue to levy charges or payments for the area and refund these to the
applicant according to the terms of the agreement. In this way the
applicant is responsible for bearing the cost of supplying the infrastructure
ahead of schedule and effectively becomes the banker for the
infrastructure, but is also able to use the agreement mechanism to ensure
that over time they only end up paying for their share of the infrastructure
(assuming the area is fully developed). The applicant bears an element of
risk in this regard in that the area may not be fully developed or developed
within a reasonable timeframe.
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Section 5.1.21 (Local government additional trunk infrastructure costs
outside priority infrastructure areas)
This section deals with additional costs as they apply for development
wholly or partly outside the priority infrastructure area.
It is anticipated the establishment costs referred to in this section would
cover the cost of planning, designing and constructing the trunk
infrastructure made necessary by the development. It also is anticipated
that maintenance costs for the infrastructure may include things like the
periodic cleaning of a sewer or the routine repair of a road that has been
made necessary by the development. Operating costs may include the cost
of electricity to operate a sewage pump station made necessary by the
development. Temporary infrastructure made necessary may include items
such as an oxygen injection system for an under-utilised sewer or a re-
chlorination system for an under utilised water main.
Subsections (2) and (3) refer to development of land in areas that while
outside the priority area are still earmarked for longer term development
for urban purposes. In these areas the section states that the trunk
infrastructure made necessary by the development, includes the
infrastructure necessary to service the balance of the area earmarked for
urban purposes. Of course, it may not be practical or desirable for that
infrastructure to be supplied as part of the proposal. In these cases
temporary infrastructure may be more appropriate together with a
contribution for the applicant's share of the cost of the trunk infrastructure
ultimately required to service the area.
Examples include:
· provision of a temporary 100mm diameter water main to the
premises until the larger 300mm diameter water main required to
service the catchment is provided, together with a contribution
for the share of the cost the 300 mm diameter main reasonably
attributable to the premises;
· the cost of a temporary signalised intersection plus a contribution
towards a grade separated intersection;
· provision of a temporary detention basin on site plus a
contribution to the cost of drainage works for the catchment.
Outside the priority infrastructure area provision also is made for
maintenance and operating costs of the necessary infrastructure and the
establishment, operating and maintenance costs of temporary infrastructure
are included. This is to minimise the costs on local governments for
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development occurring in areas that have not necessarily been planned for
in terms of the supply of infrastructure. The 5 year maintenance and
operating period is considered to be sufficient time for a local government
to update its infrastructure planning and introduce amended and updated
priority plans and areas that take account of development approved by the
local government outside the priority infrastructure area.
These provisions effectively mean applicants for development outside
the priority infrastructure area are responsible for paying the full cost of
infrastructure made necessary by the development premises. This includes
paying for infrastructure necessary to service the wider catchment area if
the planning scheme identifies the land as being part of an area earmarked
for longer term urban growth. These provisions among other things create
pricing signals that are designed to favour development in areas where the
infrastructure is available or planned to meet anticipated growth demands.
Ad hoc urban growth that that occurs without regard for the planning and
supply of essential supporting trunk infrastructure imposes significant costs
on the community and over time constrains governments' ability to provide
residents and businesses with necessary services at the desired standards
for those services. The provisions in this section do not prevent
development occurring outside priority areas or in ways not anticipated in
the plans. Rather the section is about ensuring the infrastructure costs of
unplanned development are met by the applicant, not the community as a
whole.
Division 6--Miscellaneous
Section 5.1.22 Agreements for infrastructure partnerships
Section 5.1.22 moves and replaces section 5.2.2. The provisions of
section 5.2.2 are amended to give statutory recognition of infrastructure
partnerships. An infrastructure partnership is an agreement whereby a
developer agrees to fund or supply infrastructure (which serves a
catchment larger than the development site) and be reimbursed as further
development occurs.
In most cases the local government would collect charges or payments
from the other users of the infrastructure for their share of the infrastructure
under an infrastructure charges or payments schedule and pass this money
onto the original developer.
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Section 5.1.22 provides a broad head of power for such agreements to be
entered into and is not limited to trunk infrastructure.
Sections 5.1.23 to 5.1.25
These sections carry forward in an updated way existing sections 5.1.16
to 5.1.18 regarding the disposal of land for public parks infrastructure or
local community facilities as sections 5.1.23 to 5.1.25 respectively.
Amendment of section 5.2.1 (Meaning of "infrastructure agreement")
Clause 60 amends s 5.2.1 to update the references to the other sections
of the Act that allow agreements to be entered into about infrastructure.
Omission of s 5.2.2 (Agreements may be entered into about
infrastructure)
Clause 61 omits s 5.2.2. The section is no longer necessary as the
content of the section has been recast and included in part 1 of the chapter.
See sections 5.1.9, 5.1.17 and 5.1.22.
Amendment of section 5.3.5 (Private certifier may decide certain
development applications and inspect and certify certain works)
Clause 62 amends s 5.3.5 to clarify the ability of local governments to
charge private certifiers a fee for receiving building approval documents for
archiving.
New subsection (6) restates the existing requirements prescribing
documents that a private certifier must give an assessment manager if the
private certifier decides a development application. New subsection (6)(b)
requires private certifiers to pay the fee set by the assessment manager for
receiving the documents.
New subsection (7) restates the existing requirements prescribing
documents that a private certifier must give an assessment manager if the
private certifier issues any certificate required by the or another Act. New
subsection (7)(b) requires private certifiers to pay the fee set by the
assessment manager for receiving the documents.
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New subsection (8) clarifies that if the assessment manager is a local
government, it may fix, by local law or resolution, a reasonable fee for
accepting any document mentioned in subsection (6) or (7).
New subsection (9) validates the fees already received by local
government for accepting any document mentioned in subsection (6) or
(7).
New subsection (10) saves the effect of any findings made before the
commencement of subsection (9) by the court about the validity of
particular fees.
Amendment of s 5.4.2 (Compensation for reduced value of interest in
land)
Clause 63 replaces section 5.4.2(b) for consistency with other
amendments that have removed the concept of acknowledgement notices
from the Act, and deal differently with development applications under
superseded planning schemes.53
Amendment of s 5.4.4 (Limitations on compensation under ss 5.4.2 and
5.4.3)
Clause 64(1) amends s 5.4.4 for consistency with changes made
elsewhere in the Bill.
Subsection amends s 5.4.4(1)(b) by inserting vegetation clearing as a
further example for the subsection. Vegetation clearing on freehold land
became development under the Act at the commencement of the Vegetation
Management Act 2000. Previously local governments dealt with vegetation
clearing by local law only.
Subsection (2) amends s 5.4.4(1)(e) and (f) by replacing references to a
benchmark development sequence and an item of infrastructure with
references to a priority infrastructure plan and trunk infrastructure
respectively. These changes relate to terminology only and the intent and
effect of the provisions is unchanged.
Subsection (3) renumbers the balance of s 5.4.4(1).
53 See sections 3.2.1, 3.2.3 and definition of "development application (superseded plan-
ning schemes).
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Amendment of s 5.7.2 (Documents local government must keep
available for inspection and purchase)
Clause 65 amends s 5.7.2(1) by:
· reflecting new terminology related to changes in the way local
governments deal with requests to consider development
applications under superseded planning schemes (see section
2.1.7A);
· introducing the requirement for local governments to maintain an
infrastructure charges register of all charges levied by the local
government; and
· adding a requirement for local governments to keep available
copies of all compliance permits and compliance certificates
given by or to them under Chapter 3 Part 7.
Subsection (1) removes the paragraphs of s 5.7.2 to be replaced.
Subsection (2) inserts references to the new requirements.
Subsection (3) inserts a new s 5.7.2(1A) listing the details the register
must record for each infrastructure charge levied. The purpose of the
register is to provide a publicly accessible mechanism for interested
persons to be able to find out if infrastructure charges have been levied on
land, whether the charge has been paid, and the amount of any unpaid
charge. The register will highlight any outstanding debts in respect of the
land, and also any charges that have been paid and the units of demand that
may be used as `credits' against any future infrastructure charges. Units of
demand refers to the units on which the charges are based. These might
include area (e.g. hectares of developable land, square metres of industrial
or commercial floorspace), type of use (e.g. dwelling house, multiple
dwelling), or some other unit of demand (e.g. equivalent persons).
As a consequence of this information being available in the register, the
requirement for a limited planning and development certificate to include a
statement about the amount of any unpaid infrastructure charges for the
premises has been deleted.
It is not necessary to have a register for infrastructure payments as they
are imposed as conditions of approval and would be searchable by
reference to any development approval for the premises.
Subsections (4) and (5) renumber the remaining paragraphs and
subsections of s 5.7.2.
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Amendment of s 5.7.4 (Documents assessment manager must keep
available for inspection and purchase)
Clause 66 amends s 5.7.4.
Subsection 1 amends s 5.7.4(1)(a) by requiring the assessment manager
to keep available for inspection and purchase plans and other documents to
which reference is made in a decision notice or negotiated decision notice.
Subsection (2) amends s 5.7.4(1)(c) by including a reference to "change
application" for consistency with changes to the arrangements for changing
development approvals in Chapter 3 Part 6.
Amendment of s 5.7.5 (Documents assessment manager must keep
available for inspection and purchase)
Clause 67 amends s 5.7.5(3)(e)(v) by replacing a reference to a minor
change to an approval with a reference to a change to an approval under
Chapter 3 Part 6. The term "minor change" for a development approval has
been removed by the Bill, and replaced with new criteria for determining
the basis upon which an approval may be changed or cancelled. These
criteria are discussed in the explanatory note for Chapter 3 Part 6 above.
Amendment of s 5.7.6 (Documents chief executive must keep available
for inspection and purchase)
Clause 68 amends s 5.7.6 to take account of new terms and documents
provided for elsewhere under the Bill
Subsection (1) omits paragraph (f) for consistency with the omission of
the independent review provisions from the Act, and replaces it with a
reference to a written notice about a notation on a planning scheme given to
the chief executive by a local government under s 3.5.26.
Subsection (2) inserts a reference to "change application" in section
3.7.6(j) for consistency with changes to the arrangements for changing or
canceling development approvals under Chapter 3 Part 6.
Subsection (30 changes a section reference.
Subsection (4) inserts three further paragraphs requiring the chief
executive to keep available for inspection and purchase:
· notices of a development approval that is inconsistent with the
planning scheme;
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· final terms of reference and EIS prepared under the Act;
· statutory guidelines issued by the chief executive about how the
Act's purpose is advanced.
Subsection (5) makes it clear documents required to be made available
by the chief executive may be kept in hard copy or electronically.
Documents are made available for inspection on the Department's internet
site.
Amendment of s 5.7.7 (Documents chief executive must keep available
for inspection only)
Clause 69 adds a subsection to s 5.7.7 to make it clear that the
documents required to be made available by the chief executive under the
section may be kept in either hard copy or electronically. Documents are
made available for inspection on the Department's internet site at
www.dcilgp.qld.gov.au
Replacement of s 5.7.9 (Limited planning and development
certificates)
Clause 70 replaces s 5.7.9 by omitting the requirement for a limited
planning and development certificate to include a statement about the
amount of any unpaid infrastructure charges for the premises, as a
consequence of this information about infrastructure charges being
available in the infrastructure charges register.
Amendment of section 5.7.10 (Standard planning and development
certificates)
Clause 71 amends s 5.7.10 to correct an unintentional omission and to
require that a standard planning and development certificate must now
include the details from the infrastructure charges register for the premises.
New chapter 5, part 7A - Environmental Impact Statements.
Clause 72 inserts a new chapter 5, part 7A. Individual sections provide
as follows:
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Section 5.7A.1 (When EIS process applies)
This section provides for part 7A to apply to assessable development or
to community infrastructure on land to be designated, that is prescribed by
regulation.
The part also applies for any proposal that is a "controlled action" under
the Commonwealth Environment Protection and Biodiversity Conservation
Act 1999, subject to the written agreement of the chief executive.
Section 5.7A.2 (Purpose of EIS process)
This section states the various aspects of the purpose of undertaking the
EIS process for a proposal.
Section 5.7A.3 ( Applying for terms of reference)
Subsection (1) provides for the action that must be taken by a person
proposing development or proposing designation of land for community
infrastructure if part 7A applies.
Subsection (2) provides for the form of an application for terms of
reference for an EIS under part 7A, and for a fee to accompany the
application.
Subsections (3) and (4) provide for when an EIS that is necessary under
part 7A must be prepared if an applicant proposes to make an application
for preliminary approval.
Section 5.7A.4 (Draft terms of reference for EIS)
Subsection (1) and (2) require the chief executive to prepare draft terms
of reference for an EIS for a proposal where:
· an application has been made for terms of reference,
· the chief executive has decided that draft terms of reference
should be publicly notified, and
· the chief executive has consulted with any assessment manager
or referral agency for a development application made or
required to be made for the proposal, or with the designator for
proposed community infrastructure.
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Subsections (3) provides the detail required to be included in a notice
advertising the draft terms of reference.
Subsection (4) provides for how and when the notice must be published.
Subsection (5) provides for a minimum 15 business days period in which
comments may be made about the draft terms of reference.
Subsection (6) limits the amount that may be charged for a copy of the
draft terms of reference.
Subsection (7) provides for a copy of the draft terms of reference and
details to be kept available for public inspection.
Subsection (8) provides for a person to make comments in writing to the
chief executive during the 15 business days period provided for.
Subsection (9) requires the chief executive to give copies of the
advertised notice and the draft terms of reference to certain local
governments, and to any referral agencies for a proposal that will require
development approval.
Subsection (10) requires any local government that receives copies of the
advertised notice and the draft terms of reference to keep them available for
public inspection during the 15 business days period when comments may
be made about the draft terms of reference.
Section 5.7A.5 (Terms of reference for EIS)
Subsection (1) requires the chief executive to either prepare terms of
reference or finalise the draft terms of reference, within a specified time.
Subsection (2) requires the chief executive to consider comments
received during the comment period about any draft terms of reference, if
applicable.
Subsections (3) and (4) allow for the period for preparing or finalising
the terms of reference to be extended by the chief executive for a specified
time.
Subsection (5) requires the chief executive to give the terms of reference
to the assessment manager and any referral agencies for a proposal for
which development approval has been sought or will be required, or to the
designator for a proposal for which designation is proposed.
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Section 5.7A.6 (Preparation of draft EIS)
This section provides for a draft EIS to address the terms of reference to
the satisfaction of the chief executive, and for the chief executive to give
the proponent a notice to that effect.
Section 5.7A.7 (Public notification of draft EIS)
Subsection (1) provides the detail required for a notice advertising the
draft EIS.
Subsection (2) provides for the way the notice must be published.
Subsection (3) provides for a minimum 30 business days period in which
comments may be made about the draft EIS.
Subsection (4) limits the amount that may be charged for a copy of the
draft EIS.
Subsection (5) provides for a copy of the draft EIS to be kept available
for public inspection. The chief executive may decide the associated
documents also required to be kept available.
Subsection (6) requires the chief executive to give copies of the
advertised notice and the draft EIS to specified local governments.
Subsection (7) requires any local government that receives a copy of the
draft EIS to keep the document available for public inspection during the
period for making submissions.
Section 5.7A.8 (Making submissions on draft EIS)
Subsections (1) and (2) provide for when submissions about the draft
EIS may be made and when the chief executive must, or may, accept a
submission.
Subsection (3) provides for when a submission that has been accepted by
the chief executive may be amended or withdrawn.
Section 5.7A.9 (Chief executive evaluates draft EIS, submissions and
other relevant material)
Subsection (1) provides for the chief executive to consult, where
relevant, with the assessment manager and any referral agency for a
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development application for the proposal, and to consider the draft EIS,
submissions accepted, and other relevant material.
Subsection (2) provides only two options for the chief executive. The
chief executive must either ask the proponent to change the draft EIS, or
advise that the draft EIS has been accepted as the EIS for the proposed
development.
Subsection (3) is intended to remove any doubt that the action the chief
executive takes under subsection (2) will be the result of the chief
executive's considerations under subsection (1).
Subsection (4) allows the chief executive to consider changes the
proponent makes to the draft EIS as requested under subsection (2), and
requires the chief executive, if satisfied with the changes, to accept the
changed draft EIS as the EIS for the proposed development.
Section 5.7A.10 (EIS assessment report)
This section requires the chief executive to prepare an EIS assessment
report within 30 business days of giving the proponent notice that the EIS
is accepted for the development.
Subsection 5.7A.11 (Criteria for preparing report)
This section provides for the matters that must be considered by the
chief executive in preparing the EIS assessment report.
Subsection 5.7A.12 (Required content of report)
This section provides for the matters that must be addressed by the chief
executive in the EIS assessment report.
Section 5.7A.13 (Who the chief executive must give EIS and other
material to)
This section links to the completion of the EIS assessment report, the
time within which the chief executive must give the report, the EIS and
other documents to the assessment manager and all referral agencies for the
development application related to the development the subject of the EIS.
If a development application has not yet been made the chief executive
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must give the documentation to the entities that would be assessment
manager and referral agencies.
For development on land designated or proposed to be designated for
community infrastructure, the chief executive must give the documentation
to the designator or proposed designator.
Section 5.7A.14 (How IDAS applies for development the subject of an
EIS)
For development that is the subject of a development application,
subsections (1) and (2) modify the IDAS process only to replace the
information period and notification stage with the processes used to
prepare the EIS. The assessment manager and all referral agencies retain
their jurisdictions over the application, and the application is decided in the
normal way.
The effect of subsection (3) is that where an EIS has been prepared for
development but no development application has yet been made, the IDAS
process is modified only for a limited time, and only if the development
applied for, to the extent it has been the subject of an EIS, is substantially
the same as the development the subject of the EIS.
Section 5.7A.15 (Matters a designator must consider)
For development that is community infrastructure, the subject of a
designation or proposed designation, the designator must have regard to the
EIS and the EIS assessment report in order to fulfill their duty of advancing
the Act's purpose imposed on decision makers under the section 1.2.2 and
1.2.3 of Act.
Amendment of s 5.8.2 (Regulation-making power)
Clause 73 amends section 5.8.2 by adding subsection 2(c). The
subsection provides for minor changes of use to be prescribed by regulation
and so to be confirmed as not constituting a material change of use. The
term "minor" is not intended to refer to the intensity (including the scale)
of a use. Rather it is intended that the regulation give guidance as to
activities that are inherently not material changes of use, irrespective of
degree.
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Amendment of s 5.8.4 (Application of Judicial Review Act 1991)
Clause 74(1) amends s 5.8.4(1) by making it subject to subsection (2).
Clause 74(2) inserts a new subsection (1A) which allows reasons for
decisions to be sought under the provisions of part 4 of the JRA if judicial
review would have been available to a person, but for the limitation in the
IPA.
Clauses 74(3) and (4) amend subsection (2) for consistency with new
subsection (1A) and to retain the existing operation of the Act which
provides that decisions under the Act are not subject to judicial review
under the Judicial Review Act 1991 (JRA). Declarations about decisions
and other matters under the Act may be sought in the Planning and
Environment Court.54 However, the amendments make it possible for
reasons for decisions made under the IPA to be sought under the JRA.
Clause 74(5) renumbers the subsections.
Insertion of new s 5.8.8 (Chief Executive may issue guidelines)
Clause 75 inserts a new s 5.8.8 that allows the chief executive to issue
guidelines giving guidance about the specified matters.
Subsection (1) allows the chief executive to issue the guidelines.
Subsection (2) requires the chief executive to consult with entities the
chief executive considers appropriate about the guideline.
Subsection (3) requires the chief executive to gazette the making of the
guidelines and to keep them available for inspection and purchase.
Amendment of s 6.1.28 (IDAS must be used for processing application)
Clause 76 amends sections 6.1.28(2) and (3) for consistency with other
amending provisions which remove the concept of acknowledgement
notices from the Act.
54 See section 4.1.21.
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Amendment of s 6.1.29 (Assessing applications (other than against the
Standard Building Regulation))
Clause 77 amends section 6.1.29(3) by including temporary local
planning instruments in the list of matters which may be relevant for the
assessing of development applications under transitional planning
schemes.
Amendment of s 6.1.31 (Conditions about infrastructure for
applications)
Clause 78 amends the transitional provisions of the Act regarding the
continued operation of existing policies about infrastructure to give the
Minister the ability to extend the date on which the policies expire on a
local government by local government basis. The amended provision is
consistent with section 6.1.11(2), which allows the Minister to extend the
life or a transitional planning scheme beyond 31 March 2003.
Subsection (4) is amended to delete reference to benchmark
development sequencing, and subsection (5) is amended to change the
reference to the additional cost provisions from section 3.5.35 to chapter 5,
part 1, Division 5.
Replacement of s 6.1.35C (Future effect of approvals for applications
mentioned in s 3.1.6)
Clause 79 omits the existing transitional provisions for applications
requiring referral coordination. The substance of these provisions is
reproduced in section 3.3.7(1)(b).
Clause 79 inserts a new provision to preserve the validity of preliminary
approvals given under previous s 3.1.6. As a consequence of amended
sections 3.1.6 and 3.4.2 a development proponent seeking to vary the
planning scheme must state the proposed variation in the development
application, and publicly notify the proposed change with the application.
Previously a scheme could be varied without these requirements. New
transitional section 6.1.35C makes provision for the lawfulness of
development approvals given, and development applications made and
subsequently approved, to the extent stated, before the commencement of
the new arrangements under s 3.1.6.
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Omission of s 6.1.44 (Conditions may be changed or cancelled by
assessment manager or concurrence agency in certain circumstances)
Clause 80 omits s 6.1.44. Changes to and cancellation of development
approvals by assessing entities is now dealt with in division 3 of new part 6,
chapter 3.
Replacement of ch 6 pt 2 Part 2 Transitional Provisions for
Integrated Planning and Other Legislation Amendment Act 2001
Clause 81 replaces provisions as under:
Section 6.2.1 (Transitional provisions for infrastructure charges plans)
Section 6.2.1 transitions any infrastructure charges plans in effect or
being prepared prior to the commencement of the amended provisions of
chapter 5, part 1. The intention is to allow these infrastructure plans to
continue to operate within the amended infrastructure planning and
funding framework without requiring local governments to amend the
plans.
Subsection (1) preserves any existing infrastructure charges plans as if
they were infrastructure charges schedules, and also clarifies that any
infrastructure identified in an infrastructure charges plan is taken to be
trunk infrastructure. This allows the conditioning powers for non-trunk
infrastructure to operate for any development infrastructure not identified
in the infrastructure charges plan.
Subsection (2) allows a local government to continue to prepare an
infrastructure charges plan as if the amended Act had not commenced.
Subsection (3) provides for such a plan, once it is adopted by the local
government, to operate in the way described under subsection (1).
Subsection (4) defines "infrastructure charges plan" for this section. The
definition had previously been in schedule 10, but this Bill removes the
term from all sections of the Act other than section 6.2.1. The definition
refers to the definition, as it existed in the repealed Act immediately before
the commencement of section 6.1.2. The full definition has not been
replicated for the purpose of this section as it relies on several other defined
terms which are also being removed by this Bill, and its inclusion in full
would have involved a substantial list of additional definitions.
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Section 6.2.2 (References to operational work)
New s 6.1.56 makes provision about references to "operational work".
The concept of "operational work" has been removed from the Act55.
However, this section preserves the previous meaning of the term where it
appears in another Act, in a State planning policy, or in a planning scheme
or planning scheme policy.
Amendment of sch 1 (Process for making or amending planning
schemes)
Clause 82(1) amends section 2(2) (part 1) for consistency with the
omission from the Act of provisions dealing with the independent review of
planning schemes, and to simplify the procedures for making and
amendment to a planning scheme. Under these changes, no scheme
amendments will be required to be subject to a statement of proposals
under schedule 1.
The requirement for a statement of proposals for scheme amendments
was originally intended to apply to major amendments such as the
inclusion of a new strategic plan, however the application of the
requirement has caused considerable confusion, raising the prospect of
scheme amendments being subject to statements of proposals for little
added benefit.
Clause 82(2) omits section 4 (part 1) (Core matters for planning
schemes). These provisions have been relocated in new section 2.1.3A.
Clause 82(3) replaces the heading of section 11 (part 2) to more
adequately reflect the action taken by the Minister under the section.
Clause 82(4) omits section 11(3A) (part 2) as the Act has been amended
to provide generally for the Minister to delegate powers and functions
under the Act.56
Clause 82(5) replaces section 11(4) to clarify that the Minister cannot
impose a condition about public access to a planning scheme unless the
condition is for requiring greater public access.
55 section 1.3.5 (Definitions of development)
56 See section 5.8.5.
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Omission of schedules 6 and 7
Clause 83 omits these schedules. They are replaced by s 2.6.7 which
provides for the matters that must be considered before a Ministerial
designation proceeds, and for what may satisfy a designating Minister as
adequate consultation. Sections 2.6.8 and 2.6.9 now provide the process to
be followed after designation, or if designation is proposed but does not
proceed.
Replacement of sch 8 (Assessable and self-assessable development)
Clause 84 replaces existing schedule 8 with a schedule comprising only
existing parts 1 (assessable development) and 2 (self-assessable
development). Existing part 3 (exempt development that cannot be made
assessable or self-assessable development) is amended and replaced in a
separate schedule 9. The order of the items in the schedule has been
changed to group together material changes of use, reconfiguration, and
work. Apart from moving the groupings, existing parts 1 and 2 are also
specifically amended as follows:
Item 1 (carrying out building work etc.) is omitted. This development
will no longer be assessable development requiring a development
application, but will be exempt development requiring only compliance
assessment under new chapter 3, part 7.
Item 3 (carrying out operational work for the reconfiguration of a lot
etc.) is omitted This development will no longer be assessable development
requiring a development application, but will be exempt development
requiring only compliance assessment under new chapter 3, part 7.
Item 3A (now item 4) is amended to refer only to "work" for
consistency with amendments to s 1.3.2 The item is also amended to
include in paragraphs (f) to (h) new circumstances where clearing of native
vegetation is not assessable for a mining activity as defined under the
Environmental Protection Act 1994, for the use of fire under the Fire and
Rescue Authority Act 1990, for conservation and restoration of natural
areas, and for certain ancillary works and encroachments under the
Transport Infrastructure Act 1994.
Item 4(e) (now item 3) is amended to make it clear reconfiguration of
land by the State is exempt for land already held, (rather than acquired) by
the State, only when the subdivision is for a public purpose listed in
paragraph (a) of the schedule to the Acquisition of Land Act 1967. Any
subdivision of land held by the State, irrespective of the purpose for which
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it was acquired, and subdivided for any purpose other than a public purpose
(eg for commercial purposes) is assessable development.
The provision is amended to correctly refer to "schedule" in the
Acquisition of Land Act 1967 and to confine the exception to where the
public purpose is listed in paragraph (a) of the schedule.
Item 6 (now item 1) is reworded for clarity and for consistency with s
75 of the Environmental Protection Act 1994.
New items 5 and 6 are related to uncommenced provisions of the Water
Act 2000.
Item 9 (now item 2 of part 2 (self-assessable development)) is
amended to clarify that exempt building work for the section is building
work declared to be exempt under the Standard Building Regulation.
Government owned corporations are specifically excepted from the
meaning of "public sector entity" for the item.57
New item 3 of part 2 is related to uncommenced provisions of the Water
Act 2000.
Part 3 of schedule 8 (exempt development) becomes new schedule 9.
Part 4 of schedule 8 (definitions) is not reinserted. The definitions have
been replaced in schedule 10.
Insertion of new schedule 9 (Development that is exempt for a
planning scheme)
The heading is changed to clarify that the schedule refers only to
development that is exempt from regulation under a planning scheme.
Development listed under this schedule is not exempt from regulation
under schedule 858 (ie parts 1 and 2.). inclusion of these items under an
entirely separate schedule also reinforces this.
Items 1 to 5 replace previous items 10 to 12 of part 3 and are amended
for consistency with amendments to s 1.3.2..
Item 6 (previous item 13) is amended to refer only to "work" for
consistency with amendments to s 1.3.2.
Paragraphs (a) and (b) are amended to allow local government to
regulate the clearing of native vegetation involved in management practices
57 See definition of "public sector entity" in schedule 10.
58 See amended section 3.1.2.
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for agriculture, or weed or pest control, under their planning schemes.
Paragraph (a)(ii) is related to uncommenced provisions of the Water Act
2000.
The word "and" at the end of each paragraph is replaced with "or".
Item 8(e) (previous item 15) is amended to make it clear that the State's
exemption from the need to have plans of subdivision approved by local
government applies with respect to the subdivision of land already held
(rather than acquired) by the State, only when the subdivision is for a
public purpose listed in paragraph (a) of the schedule to the Acquisition of
Land Act 1967. Any subdivision of land held by the State, irrespective of
the purpose for which it was acquired, and subdivided for any purpose
other than a public purpose (eg for commercial purposes) is subject to Part
7 of Chapter 3 of the Act.
The provision is amended to correctly refer to "schedule" in the
Acquisition of Land Act 1967 and to confine the exception to where the
public purpose is listed in paragraph (a) of the schedule.
Item 10 is inserted because quarrying activity in a State forest or on
other State land is a change of use of premises and as such may be
assessable development under schedule 8 part 1, item 6. It is not intended
that the works be made assessable or self-assessable under a planning
scheme.
Items 11 to 17 (previous items 17 to 21B) are amended for consistency
with amendments to s 1.3.2.
Although apparently broader, the definition of "work" is not intended to
change the substance of the exemption for public sector entities, by
including assessable or self-assessable building work. As pointed out
elsewhere,59the provisions of new schedule 9 (development that is exempt
for a planning scheme) are subject to the provisions of schedule 8.
Amendment of sch 10 (Dictionary)
Clause 85 replaces schedule 10. The substantial changes to the IPA in
the Bill have meant that many new definitions are included, others are
amended, and others omitted. Numerous definitions previously included in
schedule 8 have also now been included in schedule 10 due to the splitting
of schedule 8 up into schedules 8 and 9. Because of the extensive changes
59 See note on s 3.1.2.
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to the definitions resulting from the provisions of the Bill, and to facilitate
ease of use of the Bill, schedule 10 has been replaced entirely. Specific
definitions which have been added, amended or omitted are:
"adoptable code" - for new section 3.1.9.
"acknowledgement notice" omitted because of the removal of
acknowledgement notices from Chapter 3 Part 2.
"acknowledgement period" omitted because of the removal of
acknowledgement notices from Chapter 3 Part 2.
"advice agency" - to add to its original meaning under the Act those
agencies nominated by the Chief Executive to be advice agencies for an
application subject to referral coordination.
"agency's referral day" for sections 3.3.8 and 3.3.17.
"agricultural activity" omitted.
"ancillary works and encroachments" relocated from schedule 8.
"Appellant" included for clarity.
"applicable code" - the definition is amended to make it clear that
applicable codes apply only for assessable or self-assessable development.
Codes for compliance assessment are not applicable codes.
"applicant" The term is currently included in the definitions twice due
to different meanings for chapters 3 and 4 respectively. These two
definitions have been combined. The provisions in the Act in which the
term also includes the person with the benefit of the approval have also
been expanded to include sections 3.5.32 and Chapter 5 Part1, consistent
with amendments to these provisions in the Bill.
"approved form" is modified for clarity.
"area of high nature conservation value" Relocated from schedule
8.
"area vulnerable to land degradation" Relocated from schedule 8.
"assessable development" is amended to make it clear the same
development may be assessable under both schedule 8, part 1 and the
planning scheme. The current wording may suggest that assessable
development may only be identified under one or the other, however the
scheme of the Act contemplates development may be assessable under
both.
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"assessing authority" has been amended by including a new item
reflecting the inclusion of compliance assessment under Chapter 3 Part 7.
"building" is amended to draw directly on the definition in the
Building Act 1975.
"building work" is amended to draw directly on the definition in the
Building Act 1975.
"building referral agency" is omitted as a result of changes in the Bill
associated with the introduction of compliance assessment in Chapter 3
Part 7.
"change application" is defined for s 3.6.1.
"code assessment" is amended in response to other changes to the Act
that have made the current definition incorrect and incomplete. The new
definition refers to s 3.5.4 which comprehensively addresses code
assessment.
"complete code" is inserted for new section 3.1.9.
"compliance assessment" refers to s 3.7.1.
"compliance assessor" - refers to s 3.1.9.
"compliance certificate" refers to s 3.1.5.
"compliance permit" refers to s 3.1.5
"compliant development" refers to s 3.1.2.
"consultation period" - is amended to state the consultation period for
Ministerial designations. This information was previously contained in
schedule 6.
"core matter" - for new section 2.1.3A, but previously schedule 1, is
amended to change a section reference, for consistency with other
amendments.
"currency period" - previously the definition referred to s 3.5.21 and
the terms of that section, for a material change of use approval, are
reproduced here. For all other development, the currency period will be
governed by the period stated in the approval. Many of the currency
periods that previously applied for various works will be superseded
because the works will be subject to compliance assessment under Chapter
3 Part 6. this has allowed the definition to be simplified and included in
schedule 10.
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"deciding entity" - for chapter 3 part 6.
"decision making period" a section reference is changed.
"decision notice" A section reference is changed
"deemed refusal" is amended to take account of new arrangements
for changing development approvals under Chapter 3 Part 6.
"designated interest"- is inserted in response to changes to s 2.6.19.
"designation" for chapter 2 part 6
"designator" for chapter 2 part 6.
"desired standard of service" the current definition is retained, but
moved from section 5.1.2 to schedule 10, with reference to priority
infrastructure plan instead of planning scheme.
"development application (superseded planning scheme)" is
amended and simplified to reflect changes in the arrangements for seeking
assessment under a superseded planning scheme, in particular the inclusion
of section 2.1.7A.
"development infrastructure" - is amended to remove reference to
items and incorporates existing `sub-definitions' into relevant clauses of
primary definition.
Item (a)(ii) excludes State-controlled roads.
Item (a)(iii) public parks infrastructure includes a range of
embellishments for which charges can be levied. The local government
can include additional items, but the community will have the opportunity
to decide what embellishments it is prepared to pay for through the public
notification stage of preparing a priority infrastructure plan. It is
considered certain items should not be funded under an infrastructure
charges schedule or infrastructure payments schedule including facilities
operated on a commercial basis, enclosed sports facilities, kiosks etc. The
statutory guidelines will provide further examples.
Item (b) includes a list of `local community facilities' for which land can
be acquired. As was the case previously, no embellishments, other than
works to ensure the land is suitable for development, are permitted for local
community facilities.
"development infrastructure item"- is omitted because the term has
been superseded by "development infrastructure"
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"development offence" is amended to account for new offences under
section 4.3.4A relating to compliance assessment.
"drainage work" - is amended to draw directly on the definition of
sanitary drainage work in the Sewerage and Water Supply Act 1949.
"EIS" is inserted for the purposes of chapter 5 pt 7A.
"EIS assessment report" is inserted for the purposes of chapter 5 pt
7A.
"environmentally relevant activity" is defined for the purposes of the
Act.
"essential management" relocated from schedule 8,
"impact assessment" has been modified to omit the term "(other than
code assessment)". Changes made to Chapter 3 to better support the
assessment of "conceptual" development application through the
preliminary approval process have resulted in changes which recognise the
possibility of assessment under section 3.5.6 other than code assessment
and impact assessment.
"information period" is inserted for the purposes of the Act,
particularly section 3.3.1 and 3.3.22.
"information request" section references are changed
"information request period" section references are changed
"infrastructure charges plan" is omitted due to changes to
infrastructure funding arrangements in Chapter 5 Part 1. However a
definition of "infrastructure charges plan" has been included for savings
purposes in section 6.2.1
"infrastructure charge" - is defined by reference to s 5.1.7.
"infrastructure charges notice" is defined by reference to s 5.1.7.
"infrastructure charges register" is defined by reference to s 5.7.2.
"infrastructure charges schedule" - replaces `infrastructure charges
plan' definition in 5.1.4. The `planning' elements of an infrastructure
charges plan (planning assumptions, desired standards of service and plans
for trunk infrastructure) are now proposed to become separate elements of
the priority infrastructure plan. A charges schedule would then consist of
the infrastructure to be funded under the schedule, estimates of the cost of
the infrastructure and the charges to be applied. The key aspects of
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calculating the charge, including transparency and fair apportionment,
remain in place and will be covered in detail in the statutory guidelines.
"infrastructure payments" is defined by reference to s5.1.14.
"infrastructure payments schedule" is defined for provisions
allowing local governments to fund trunk infrastructure via conditions on
development under an infrastructure payments schedule rather than charges
levied under an infrastructure charges schedule. The structure and content
of an infrastructure payment schedule is broadly consistent with that for an
infrastructure charges schedule.
"infrastructure provider" - is defined to identify the entities that can
undertake a cost impact assessment. This includes providers of trunk
infrastructure other than a local government, if the entity has an agreement
for the provision of trunk infrastructure in the local government's area.
This would allow a local government to impose an additional cost
condition for trunk infrastructure provided by another entity such as a local
government owned corporation or private infrastructure provider. Any
agreement between the local government and the entity for the provision of
trunk infrastructure would need to detail how additional cost issues will be
dealt with.
"last day for making submissions" is included for section 5.7A.7.
"licensed brothel" relocated from schedule 8.
"life cycle cost" is omitted due to changes to infrastructure funding
arrangements under Chapter 5 Part 1.
"local community purpose" is omitted due to changes to
infrastructure funding arrangements under Chapter 5 Part 1.
"major hazard facility" relocated from of schedule 8.
"mining activity" the definition draws on the definition in the
Environmental Protection Act 1994.
"Minister" is amended to remove reference to schedules 6 and 7, and
to reflect changes to the call in provisions in Chapter 3 Part 8.
"network' is amended to remove the word "items", reflecting changes
to infrastructure charging arrangements under Chapter 5 Part 1.
"nominated interest" is inserted in response to changes to s 2.6.19.
"non-acceptance notice" is inserted for the purposes of amended s
3.2.3.
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"non-urban area" is inserted for the purposes of the Act.
"non-trunk infrastructure" is inserted for general conditioning powers
under Division 1. Non-trunk infrastructure is development infrastructure
that is not trunk development infrastructure.
"notification period" a section reference is changed.
"operational work" has been omitted to reflect changes to the
definition of "development" in section 1.3.2.
"owner of land"- is defined specifically for chapter 2, part 6
(designation of land for community infrastructure). However, the general
definition of "owner" applies for the purposes of a request to acquire
designated land under hardship.
"partial code" - is inserted for new section 3.1.9.
"plan" for Chapter 3 Part 7 has been omitted as the arrangements for
approving such plans will be included in a regulation for compliance
assessment.
"plans for trunk infrastructure" is defined in relation to an element
of the priority infrastructure plan. Clarifies that the infrastructure planning
undertaken for a scheme is intended to be for higher order trunk
infrastructure only. Plans for infrastructure will generally show that
infrastructure required to service existing areas and the assumed growth
identified in the planning assumptions, at the desired standards of service
stated by the local government in the PSP.
"plumbing work" - is amended to draw directly on the definition of
water plumbing work or sanitary plumbing work in the Sewerage and
Water Supply Act 1949.
"priority infrastructure area" is inserted to describe the area for
which detailed infrastructure planning is expected to be carried out. The
priority infrastructure area concept replaces the benchmark development
sequence concept. The priority infrastructure area will consist of the
existing developed areas (generally defined by those areas serviced with a
mains pressure water supply network) and those areas required to
accommodate between 10 and 15 years growth for residential, retail or
commercial and industrial purposes. The 10 to 15 year planning horizon
for the priority infrastructure area has been selected on the basis of
ensuring sufficient land is available to accommodate future development
without the identification of the area artificially influencing the land market
in the local government area. Part 2 of the definition allows a local
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government to include additional areas in the priority infrastructure area if
the local government is satisfied the area is serviced with infrastructure.
"priority infrastructure plan" is inserted and lists the elements of a
priority infrastructure plan, which is intended to be the primary mechanism
for integrating land use and infrastructure planning. Most of the elements
of the priority infrastructure plan are separately defined. Item (d) requires
that a priority infrastructure plan state the assumptions about future growth
on which the plans for infrastructure are based. These assumptions may
include the type, location, amount, timing and intensity of future growth in
each of the categories covered by the priority infrastructure area. Whilst it
is desirable to build State infrastructure intentions into the priority
infrastructure plans they are primarily about local government supplied
development infrastructure. Priority infrastructure plans will be required to
be reviewed a minimum of every 4 years.
"properly made application" a section reference has been changed.
"properly made submission"- is amended to provide for submissions
made with respect to environmental impact statements under new part 7A,
chapter 5. Paragraph (e)(vi) is amended to provide for submissions to be
addressed to a delegate of the designating Minister.
"proponent" is inserted for new part 7A, chapter 5.
"public sector entity" - is amended to clarify that the term includes a
government owned corporation. This clarity is particularly relevant for the
purposes of designation, in particular the powers of a designating minister
to delegate certain administrative functions.
"public utility easement" is defined for the purposes of the Act.
"referral agency's assessment period" a section reference is
changed.
"referral agency's response" a section reference is changed.
"referral assistance" a section reference is changed.
"referral coordination" a section reference is changed.
"regional ecosystem" relocated from schedule 8.
"regional ecosystem map" - relocated from schedule 8.
"remnant endangered regional ecosystem" - relocated from schedule
8.
"remnant map" relocated from schedule 8.
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"remnant vegetation" - relocated from schedule 8.
"requesting authority" a section reference is changed.
"reviewer's report" is omitted for consistency with the omission of
independent reviews.
"routine management" - relocated from schedule 8.
"self assessable development" is amended for consistency with
amendments to the definition of "assessable development"
"stage" of IDAS. A section reference is changed.
"State infrastructure" is inserted to describe the infrastructure for
which State agencies may be able to obtain cost impacts. The range of
State infrastructure is consistent with the previous cost impact provisions.
"submitter's appeal period" a subsection reference is changed.
"supporting material" is inserted. The term was previously used in s
3.2.8 and has been modified in response to amendments to that section.
"trunk infrastructure" is inserted for higher order development
infrastructure. Definition requires that planning schemes, through the
priority infrastructure plan, define the infrastructure that is considered to be
trunk infrastructure. Trunk infrastructure is generally that which has, as its
key function, network distribution or collection rather than providing direct
user connections. In defining trunk infrastructure local governments will
need to consider what level of infrastructure they can plan for with
adequate certainty.
"urban area" is defined for the purposes of the Act.
"use" is amended to refer to the definition of "use" now included in s
1.3.4.
"variable code" - is defined by reference to new section 3.1.10.
"work" is defined by reference to s 1.3.5.
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PART 3--AMENDMENT OF BUILDING ACT 1975
Act amended in pt 3.
Clause 86 declares that pt 3 amends the Building Act 1975.
Amendment of s 3 (Definitions)
Clause 87 amends the definition of "building work". This is for
consistency with changes to the IPA in the Bill which combine all works
related definitions into a single "works" definition. The detailed definition
of particular works will now be found in legislation specific to that work.
Insertion of new s 46A (Fees for statutory functions)
Clause 88 inserts a new s 46A to clarify local government may charge
fees for carrying out functions required under the Act.
Subsection (1) enables a local government, by local law or resolution, to
fix a reasonable fee in relation to functions required to be performed under
the Act.
Subsection (2) requires the local law or resolution to prescribe the
person liable to pay the fee.
Subsection (3) validates the fees already received by a local government
for performing functions required by the Act.
Subsection (4) ensures the validating of the fees already received by
local government under subsection (3) does not affect a decision of a court
concerning the reasonableness of the fees made before the commencement
of these provisions.
PART 4--AMENDMENT OF ELECTRICITY ACT 1994
Act amended in pt 4
Clause 89 declares that part 4 amends the Electricity Act 1994.
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Omission of ch 4, pt 4, div 4A
Clause 90 omits a division inserted in the Electricity Act in 1996.
Powerlink Queensland was corporatised in 1995 and as a consequence lost
the Crown exemption from regulation under the Local Government
(Planning and Environment) Act 1990 and planning schemes under that
Act. The division was inserted to temporarily restore the exempt status of
electricity operating works, pending the introduction of the then proposed
new planning and development legislation.
The division is linked to section 29 of the State Development and Public
Works Organisation Act 1971, and consideration of the environmental
effects of electricity operating works under that Act. Section 29 ceased to
operate from 30 March 2000.
The provisions are no longer necessary as the designation process under
the IPA is available for electricity operating works as community
infrastructure and requires the consideration of environmental impacts.
Development on land designated for community infrastructure is exempt
from the operation of planning schemes.
The requirement in s 111G for local governments to consult with the
Minister for Mines and Energy with respect to development proposals for
land affected by existing or proposed electricity operating works will be
replaced by an advice referral under the Integrated Planning Regulation.
Insertion of new s 112A
Clause 91 inserts a new s 112A providing exemption for certain
vegetation clearing works.
Subsection (1) provides subsection (2) has effect despite the Integrated
Planning Act 1997 schedule 8, part 1. Schedule 8, Part 1 identifies
assessable development.
Subsection (2) provides that work for clearing of native vegetation on
freehold land for operating works is exempt development if the land is
designated for the operating works under Chapter 2, Part 6 of the
Integrated Planning Act 1997.
Subsection (3) provides definitions for section 112A.
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Insertion of new ch 14, pt 4
Clause 92 removes doubt about the application of section 20 of the Acts
Interpretation Act 1954 to the repeal of chapter 4, part 4, division 4A.
Section 20 provides among other things for the preservation of all rights
acquired under, and any rights saved by the operation of, the repealed
provisions.
Therefore, the effect of section 111C with respect to projects
commenced and used before the commencement of the Electricity
Amendment Act 1996 (EAA), and section 111D with respect to the
Chalumbin to Woree transmission line, continues by the operation of the
AIA irrespective of the repeal of the division. Further, the effect of section
111B with respect to proposed operating works of which the Minister gave
notice in accordance with that section, also continues by the operation of
the AIA irrespective of the repeal of the division.
Existing lawful uses and rights are also protected under the IPA.
PART 5--AMENDMENT OF LOCAL GOVERNMENT
AND OTHER LEGISLATION AMENDMENT ACT 2000
Act amended in pt 5
Clause 93 declares that part 5 amends the Local Government and Other
Legislation Amendment Act 2000.
Omission of s 62 (Amendment of s 5.3.5 of Act No 69 of 1997)
Clause 94 omits an uncommenced S 62 of the Local Government and
Other Legislation Amendment Act. This section was to amend s 5.3.5 of
the IPA to allow a regulation to prescribe what development approvals must
be given before a private certifier may issue a development permit for
building work. This amendment is no longer necessary due to the
introduction of the new Part 5B compliance stage under IDAS.
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PART 6--AMENDMENT OF SEWERAGE AND WATER
SUPPLY ACT 1949
Act amended in pt 6
Clause 95 declares that part 6 amends the Sewerage and Water Supply
Act 1949.
Amendment of s 2 (Definitions)
Clause 96 inserts definitions of "drainage", "drainage work",
"plumbing", and "plumbing work". This is for consistency with changes to
the IPA in the Bill which combine all works related definitions into a single
"works" definition. The detailed definition of particular works will now be
found in legislation specific to that work.
PART 7--AMENDMENT OF WATER ACT 2000
Act amended in pt 7
Clause 97 states that part 7 amends the Water Act 2000.
Amendment of s492 (Changing safety conditions)
Clause 98 amends s 492 to broaden its application. This section
currently provides for the chief executive administering the Water Act 2000
to change "safety conditions" for a referable dam. The amended section
allows the chief executive to also change development conditions about
dam safety in the same way. (Development conditions are defined as
conditions of a development approval under the Integrated Planning Act
1997).
Insertion of this provision means that section 492 of the Water Act 2000
will apply to changing such conditions instead of the new section 3.6.5 of
the Integrated Planning Act 1997 contained in this Bill. Subsection (2) of
that section provides that the section does not apply if another Act
authorises an entity to change conditions in another way.
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Integrated Planning and Other Legislation
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Amendment of schedule 2 (Amendments about planning matters)
Clause 99 includes a number of minor changes to section references for
the Integrated Planning Act 1997.
SCHEDULE
MINOR AMENDMENTS OF INTEGRATED PLANNING
ACT 1997
Clause 1 amends section 1.3.8 by omitting paragraph (g) for consistency
with other amendments to the Act to remove the concept of
acknowledgement notices from the Act.
Clause 2 amends sections 2.6.20, 2.6.21(a), 2.6.24(1)(a) and (b) and
2.6.23(2) by replacing the term "interest" with "nominated interest", for
clarity and consistency with amendments to s 2.6.1960
Clause 3 amends section 2.6.21 by replacing the term "interest" with
"nominated interest", for clarity and consistency with amendments to s
2.6.1961
Clause 4 amends sections 2.6.21(b) and (c), 2.6.23(1)(c) by replacing the
term "interest" with "designated interest", for clarity and consistency with
amendments to s 2.6.1962
Clause 5 amends sections 3.7.8(a) and (b) to correct an incorrect
reference to a provision of the Acquisition of Land Act 1967.
Clause 6 amends section 4.3.7(1) to correct an incorrect reference.
Clause 7 amends section 4.3.7(2) to correct an incorrect reference.
Clause 8 amends section 4.3.13 to correct the terminology.
Clause 9 amends s 4.3.18 to correct an incorrect reference.
60 See Clause X of this amendment Bill.
61 See Clause X of this amendment Bill.
62 See Clause X of this amendment Bill.
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Clause 10 amends section 4.3.20 for consistency with new provisions for
compliance assessment.
Clause 11 amends section 5.6.4 to change a section reference.
amends section 5.7.5(3), to correct the terminology.
Clause 12 amends section 5.7.5(3) to correct the terminology.
Clause 13 amends section 5.7.5(3) to remove a redundant word.
Clause 14 amends section 5.7.6(e)(iii) to remove a redundant word.
Clause 15 amends section 5.8.5 (Delegation by Minister) by
renumbering and relocating the provision.
Clause 16 inserts a section to advise of proposed numbering and
renumbering of parts of chapter 5.
Clause 17 amends the definition of "assessable development" in section
6.1.1 to account for the insertion of new schedule 9.
Clause 18 amends the definition of "assessable development" in section
6.1.1 to account for the insertion of new schedule 9.
Clause 19 amends s 6.1.30(2) to correct incorrect references.
Clause 20 amends s 6.1.30(2) to correct an incorrect reference.
Clause 21 amends s 6.1.32 to correct an incorrect reference.
Clause 22 amends s 6.1.34 to correct an incorrect reference
Clause 23 omits s 6.1.41 for consistency with other omissions.
Clause 24 amends s 6.1.51A to correct an incorrect reference
Clause 25 amends schedules 1, 2, and 3 by removing the words "by
resolution" with respect to local government decisions.
Clause 26 amends the definition of "code" in schedule 10, by replacing
"in" with "under".
© State of Queensland 2001