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Sustainable Planning Bill 2009
Sustainable Planning Bill 2009
Explanatory Notes
Introduction
Short title of Bill
Sustainable Planning Bill 2009
Objectives of Bill
The object of the Bill is to seek to achieve ecological sustainability by:
· managing the process by which development happens;
· managing the effects of development on the environment (including
managing the use of premises); and
· coordinating and integrating planning at the local, regional and State
levels.
Policy rationale
The Bill is a key part of implementing a broad planning and development
reform process which originated in February 2006 with the IPA/IDAS
reform project (the improvement project). The improvement project
involved extensive stakeholder consultation through a series of forums,
stakeholder meetings and public consultation, and culminated in the release
of a discussion paper (Dynamic Planning for a Growing State: Options for
Improving Queensland's Integrated Planning Act 1997 and Integrated
Development Assessment System). The discussion paper was published in
August 2006, and contained 86 proposed improvements grouped under 22
strategies.
The improvement project was based on an expectation that the current
Integrated Planning Act 1997 (current IPA) would be amended to reflect
the proposed improvements. However, the results of both consultation
exercises indicated that although there was widespread support for the
fundamentals of the current IPA, there was a need to extend the scope of
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Sustainable Planning Bill 2009
the review beyond the improvements contained in the discussion paper.
The extended scope of the review indicated a need for new legislation to
replace the current IPA.
The expanded proposals for reforming Queensland's planning and
development assessment system were contained in a further paper released
publicly in August 2007 Planning for a Prosperous Queensland A
Reform Agenda for Planning and Development in the Smart State (the
reform agenda). Of the 80 reform actions identified in the reform agenda,
42 involved significant legislative change. Some of these reforms were
contained in amendments to the current IPA in the Urban Land
Development Authority Act 2007, such as extended powers of Ministerial
direction and call in, an expanded regional planning framework, and the
introduction of State planning regulatory provisions. These reforms,
together with most of the other legislative initiatives contained in the
reform agenda, are reflected in this Bill.
Outcomes to be achieved by the Bill are a significantly improved and
streamlined land use planning and development framework and systems
that reduce costs and get development on the ground sooner through:
· streamlining at plan-making and development assessment levels
leading to simpler, clearer and better integrated planning that produces
more certain development assessment. This results in greater
certainty, faster processing, and reduced costs for both applicants and
the local government. Broad economic benefits are realised including
the State's commitment to the Housing Affordability Strategy.
· clarity in plan-making that "front loads" plans with consistent
provisions and structure, and clearer and better integrated State
interests in planning. This certainty and integration enables faster
development assessment and cost benefits.
· greater flexibility and responsiveness the streamlined systems
including the movement of processes out of a regulatory framework
gives the State greater flexibility to adjust the framework and its State
level planning interests to meet emerging needs of the State and other
stakeholders
Plan making is improved by:
· enhancing mechanisms to achieve State level planning outcomes such
as accelerated and clearer State planning policy development
processes and enhanced Ministerial powers to intervene in the
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Sustainable Planning Bill 2009
planning and development process, such as directly amending local
planning instruments where an urgent issues arises;
· clarifying and confirming the precedence and relationship between
State planning instruments;
· introducing limited prohibition to apply in prescribed circumstances
enhancing the certainty of development outcomes;
· making the infrastructure charging regime even more transparent and
equitable including through more flexible plan development process;
and
· streamlining the plan-making process for local government including
through the introduction of standard planning scheme provisions.
Moving components of the plan making processes from the legislation
to subordinate legislation and statutory instruments offers the State
greater flexibility and responsiveness to emerging issues in plan
making.
Development assessment processes are enhanced by the clarity and
certainty achieved by improved plan making through a potential reduction
in the number of applications entering the system; more applications
progressing through simpler processes (such as the new compliance
assessment track); greater certainty in making applications; and more
reliable and compliant applications being made. Time and cost benefits
with flow-on economic effects result in faster better integrated
development on ground. This is achieved through:
· streamlining and simplifying development assessment processes such
as shortened timeframes for taking certain actions, including times for
responding to requests for information, greater flexibility regarding
lapsed applications, changes to provide for electronic application and
assessment processes, deemed approval for certain code assessable
applications, and measures to improve the quality of applications; and
· enhancing access to more options for dispute resolution, for example,
by expanding the jurisdiction of what was previously known as the
Building and Development Tribunals (now called the Building and
Development Dispute Resolution Committee) and giving the courts
powers in the case of vexatious appeals.
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Sustainable Planning Bill 2009
How objectives are to be achieved
As with the current IPA, a key theme of the Bill's object is integration. The
Bill's sustainability outcomes are to be achieved through integrating
processes and outcomes in the following ways:
· by providing for an integrated framework of State, regional and local
performance-based planning instruments with statutory effect;
· by maintaining and reforming the Integrated Development
Assessment System (IDAS) to improve its efficiency and
effectiveness; and
· by providing for integrated approaches to dispute resolution and
enforcement.
The Bill also contains other mechanisms for achieving its objects such as:
· planning partnerships between the State and local government through
the master planning process, to facilitate a flexible, cooperative and
efficient approach to achieving planning outcomes;
· the ability for a Minister to designate land for community
infrastructure to facilitate efficient provision of key infrastructure;
· a funding system for trunk infrastructure through infrastructure
charges schedules and regulated infrastructure charges schedules;
· infrastructure agreements to facilitate a flexible cooperative approach
between public and private sectors in providing key infrastructure;
· a balanced and accountable system of compensation for injurious
affection; and
· limited and accountable processes for planning authorities to acquire
land for planning purposes.
These mechanisms are also available under the current IPA.
Alternative method of achieving the policy objectives
All of the initiatives described above require legislative support to provide
the necessary level of community confidence in Queensland's planning and
development assessment system. Consequently there is no viable
alternative for achieving the Bill's objectives.
However this Bill is only one component of a broader reform agenda.
Reform of Queensland's planning system requires not only legislative
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change, but broad procedural and cultural changes to underpin the Bill's
facilitative and performance-based approach. These other reforms are not
alternatives to the legislation, but are intended to complement its effective
implementation.
Estimated cost to government of implementation
As with the current IPA, the Bill proposes an integrated planning and
development assessment system with a very broad scope, and will be
administered across many State agencies.
This Bill will be administered from within current budget allocations, and
will not require allocation of significant additional funds for its
implementation.
Consistency with fundamental legislative principles
Administrative power and review
The principle administrative system under the Bill is IDAS. Administrative
functions under IDAS are subject to clear jurisdictional, procedural and
time limits and are subject to extensive appeal rights and rights of review.
Under the reform agenda, some of these rights of review and appeal are to
be extended, for example by expanding the jurisdiction of what was
previously the Building and Development Tribunals (now called the
Building and Development Dispute Resolution Committee).
Other administrative functions include:
· assessment of applications for approval of a master plan (chapter 4);
· assessment of applications to acquire designated land under hardship
(chapter 5, part 6); and
· assessment of applications for compensation for injurious affection
(chapter 9, part 3).
These functions also give rise to extensive rights of review and appeal.
Chapter 6, part 11 provides for significant powers of Ministerial direction
and call-in with respect to development applications. Chapter 6, part 11,
division 1, enables the Minister to issue a direction to an assessment
manager to not decide an application for a specified period. The purpose of
this power is to enable the Minister to consider whether further action is
needed in relation to the application. The Minister can not call in the
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application after the period stated in the direction. This ensures that the
rights of the applicant are protected by limiting the ability of the Minister
to intervene in the process. The Minister also has the power to direct
assessment managers, applicants and concurrence agencies to take an
action under IDAS and to direct an assessment manager to impose
conditions on an application in limited circumstances.
There is no penalty associated with the giving of a direction by the Minister
so there is no financial hardship or prejudice to be suffered by the person
who is the subject of a direction.
The Minister's powers of direction are designed to put into place the policy
decisions of executive government, and are intended to protect or give
effect to a State interest. These powers are intended to allow a more
pro-active and management-based approach to Ministerial involvement in
matters of State significance.
The powers of direction are not subject to statutory rights of review or
appeal. However it is subject to extensive Parliamentary oversight,
primarily through a requirement for the Minister to report to Parliament
upon their use (clause 422). Further discussion of the directions powers is
set out below.
Chapter 6, part 11, division 2 enables the Minister to call-in a development
application. This is a reserve power of the State which allows the Minister
to protect the interests of the State in relation to development applications
and approvals. This power is intended to allow the government to
intervene in the development assessment process, where State interests are
involved, and to be the final arbiter on State interest matters (see further
detail below).
Delegation of administrative functions
Many of the functions exercised under the Bill will be carried out under
delegated authority, primarily by virtue of:
· for local government, the delegation arrangements under the Local
Government Act 1993; and
· for State agencies, the delegation arrangements for chief executives
and other officers under the Public Service Act 2008.
Both of these legislative frameworks contain extensive checks and balances
to ensure the accountable exercise of delegated authority.
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Under the Bill, the Minister may delegate any of the Minister's powers or
functions to an appropriately qualified public service officer. Since this is
the delegation of administrative power to appropriate persons, it is not a
breach of fundamental legislative principles. This ability to delegate
administrative functions has been a long standing feature of the current
IPA.
Natural justice and the rights and liberties of individuals
Requirements for public consultation
The policy and administrative frameworks in the Bill include extensive
arrangements to ensure procedural fairness. For example, processes for
making planning instruments include statutory guarantees of substantial
public consultation. IDAS balances a need for a streamlined and efficient
development assessment system with rights of public consultation, and
significant opportunities for applicants to respond to adverse outcomes
without the need to initiate expensive legal action (for example through
seeking a negotiated decision notice).
In a limited number of instances, planning instruments can take effect
before consultation with affected parties. For example, temporary local
planning instruments can be made immediately with the Minister's
agreement to address a pressing issue. State planning regulatory provisions
can also have immediate effect when they are publicly notified, however,
only in situations where immediate effect is necessary to prevent harm or
the implementation of a regional plan or structure plan being compromised.
In these instances, the draft instrument can have effect for a maximum of
12 months, to ensure that these instruments do not remain in effect
indefinitely. In this situation, a reduction in procedural fairness for
individuals has been balanced with a need to achieve good planning
outcomes for the community at large.
Judicial review
Clause 757 ousts the jurisdiction of the Judicial Review Act 1991 (JRA) in
relation to the making of decisions. However it also provides that a person
who has been denied an opportunity of making an application under the
JRA can apply for a statement of reasons for the decision. In addition, any
person who is aggrieved by a decision or action made under the Bill, has
full review and appeal rights to the Planning and Environment Court and/or
the Building and Development Dispute Resolution Committee (except in
the limited case of Ministerial call-ins and directions about a development
application).
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Further, under clause 456, any person may bring proceedings in the
Planning and Environment Court for a declaration about a matter that has
been done, will be done or should have been done under this Bill (except in
the limited case of Ministerial call-ins and directions about a development
application). The Bill provides extensive declarations and orders powers to
the Planning and Environment Court, which give the same rights of review
of administrative decisions as are available under the JRA. These are in
addition to the comprehensive appeal rights available to applicants and
submitters under the Bill. In addition, the Bill contains an expanded
jurisdiction for what was previously the Building and Development
Tribunal (now called the Building and Development Dispute Resolution
Committee), including the ability to make declarations about specific
matters.
The Planning and Environment Court and the Building and Development
Dispute Resolution Committee are expert jurisdictions that can deal with
the review of applications expeditiously, as they are familiar with the
planning and development assessment system. In this respect, it is
considered that the Bill enhances the ability to seek review of
administrative decisions, particularly for the general public, by allowing
such reviews to occur in an accessible expert jurisdiction.
The combined effect of these provisions ensures that the ousting of the
jurisdiction of the JRA does not operate to the prejudice of any person.
Ministerial call in powers
Clause 424 provides that the Minister may "call in" a development
application. The call-in power may be exercised either before or after an
application has been decided by an assessment manager. This is a reserve
power of the State which allows the Minister to protect the interests of the
State in relation to development applications and approvals. This power is
intended to allow the government to intervene in the development
assessment process, where State interests are involved, and to be the final
arbiter on State interest matters. This power is not intended to be used
routinely or often. However, occasions may arise where a State interest
(such as an important environmental value) could be severely affected by
the implementation of a development approval. In these situations,
exercising the reserve power to call the application in and assess and
decide, or reassess and re-decide, the application allows the Minister to
redress what otherwise could become a serious problem for the community.
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Under the Bill, there is no right of appeal against the Minister's decision on
the application. It is also not possible for declaratory proceedings to be
brought (except by the assessment manager in limited circumstances). If
there was an ability to appeal or to bring declaratory proceedings in respect
of an application which has been called in, this would be inconsistent with
the intent of the Bill to allow the State to be the final arbiter on matters of
State interest. Appeal rights are precluded because decisions made under
this part of the Bill are effectively policy decisions of executive government
made to protect or give effect to a State interest
The Minister is directly accountable to Parliament, and must prepare a
report providing an analysis of any submissions made on the application
and the Minister's reasons for the decision. The Minister must table a copy
of this report in the Legislative Assembly within 14 sitting days of making
the decision.
The combined effect of these provisions is to provide certainty about
Ministerial call-ins, and finality about decisions regarding State interests. It
is the only way to ensure that State interests are not prejudiced or
threatened by the potential for ongoing litigation. It also ensures that
accountability for decisions in relation to Ministerial call-ins is allocated to
Parliament.
There are similar existing Acts dealing with development involving a State
interest, which have no appeal rights, such as the State Development and
Public Works Organisation Act 1971, under which a person may not appeal
against the Coordinator-General's decision under the Act or the relevant
law. The call-in arrangements are also the same as for the current IPA.
Ministerial directions
Under the Bill, the types of directions the Minister can give about a
development application have been reduced. The directions powers now
relate mainly to procedural issues (e.g. requiring an applicant to take an
action within a certain timeframe). There is no right to appeal or seek
declarations in relation to these directions. Because these direction powers
are intended to give the Minister the power to "speed up" the IDAS
process, any appeal rights or ability to seek a declaration would frustrate
these objectives.
In addition to these procedural-type directions, the Minister can also direct
an assessment manager to impose conditions on any approval, but only
where the proposed development affects a State interest. Again, there is no
right to appeal or seek declarations in relation to these directions for the
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same reasons given in relation to Ministerial call in powers. However, as
with a Ministerial call in, the Minister is required to table a report about the
direction in the Legislative Assembly.
Superseded planning schemes
The Bill provides that a person may ask a local government to apply a
superseded planning scheme to proposed development. This request must
be made within 1 year of the new planning scheme being made. Under the
current IPA, the application has to be made within 2 years. This reduction
of time may be seen as a restriction on the rights of the individual.
Consultation with stakeholders resulted in a commitment by the State
government to review the mechanism for making a development
application under a superseded planning scheme and to consider the option
of reducing the time period for lodgement from 2 years to 1 year.
Throughout consultation, there was support from State and local
government stakeholders to reduce this timeframe.
The reduced timeframe is intended to give the new planning scheme, which
reflects current planning standards, its full effect more quickly. The
reduced timeframe also ensures that any right to compensation is limited to
those persons with an immediate intention to realise their development
rights and reduces the amount of time the superseded planning scheme has
effect. In any event, the transitional provisions (chapter 10) ensure that
where a planning scheme was changed or amended prior to the
commencement of the new legislation, the 2 year timeframe continues to
apply. Also, if a person makes a request to a local government to apply a
superseded planning scheme, the person then has a further 6 months to
lodge a development application or request for compliance assessment.
Existing use rights
Like the current IPA, the Bill contains comprehensive arrangements for
protecting existing development and use rights against the commencement
of the Bill, and instruments made under it. For example, clause 681
ensures that if an existing use of premises was lawful prior to the
commencement of this Bill as an Act, then the use will remain lawful.
Clause 682 protects a lawful use of premises from anything in a planning
instrument which may stop, change or further regulate the use if it was a
lawful use immediately before the commencement of the planning
instrument. Clause 685 protects existing implied rights to use premises
where the use has not started immediately before the commencement of a
new planning instrument.
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The combined effect of these provisions is to ensure that the Bill does not
adversely affect the existing rights and liberties of any person under the
current IPA.
Changes to code assessment
The current IPA confers an apparent presumption in favour of approval for
development applications requiring code assessment. Over time the effect
of this presumption has been diminished, for example through the
introduction of requirements to give weight to State planning policies and
regional plans in code assessment, and the restriction on making decisions
contrary to the State planning regulatory provisions.
The new assessment and decision rules in the Bill clarify and accurately
reflect the current status by removing this apparent presumption in favour
of approval. Instead, the Bill is based on the view that planning
instruments such as codes should "speak for themselves" in the sense that
they state how applications are to be assessed against the instrument, the
weight to be given to the instrument and whether compliance with the
instrument is mandatory. Furthermore, instead of a presumption in favour
of approval, the Bill contains a presumption in favour of policy, in the sense
that decisions may conflict with a planning instrument only in limited
circumstances.
Prohibitions
As a result of extensive feedback during public consultation, the Bill makes
limited provision for prohibition of certain development. The current IPA
and other legislation, such as the Vegetation Management Act 1999, contain
"prohibitions" in the sense that they prevent applications for certain types
of development being made. Prohibitions which are currently set out in
other legislation have been consolidated into schedule 1 of the Bill. In
addition, State planning regulatory provisions can already state
development that may not occur.
However, the Bill also includes the possibility of future prohibitions being
included in planning schemes, temporary local planning instruments and
structure plans, if the standard planning scheme provisions provide that the
development can be prohibited. In this way, prohibitions will be limited
and controlled by the State, consistent with maintaining the fundamental
performance basis of the planning and development framework. Limited
prohibitions reflect a balance between affecting the rights and liberties of
individuals and protecting the community from undesirable impacts of
development.
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Sustainable Planning Bill 2009
This consolidation of prohibitions in schedule 1 of the Bill is not a breach
of fundamental legislative principles, since it involves simply grouping
together existing provisions from disparate pieces of legislation, and
putting them all in the one place for ease of reference. There has been no
change to existing provisions.
The making of planning schemes and structure plans is subject to public
consultation and so the public is given the right to make submissions about
any proposed prohibitions. The standard planning scheme provisions are
also subject to public consultation. If a planning scheme or a structure plan
includes a prohibition, a person is given 1 year from the date of
commencement of the relevant instrument within which they may ask the
local government to apply the superseded planning scheme. If this request
is refused, the person has a right to seek compensation. Temporary local
planning instruments are not subject to public consultation, however they
have effect for a maximum of 12 months, after which time a planning
scheme amendment must be made. A declaration about the exercise of any
of these powers to include a prohibition in a planning instrument can be
sought in the Planning and Environment Court under clause 456 of the Bill.
Legal representation in the Building and Development Dispute Resolution
Committee
Clause 560 prevents an agent representing a person before a Building and
Development Dispute Resolution Committee from being a lawyer. This
has been a long standing feature of the Building and Development Tribunal
(now called the Building and Development Dispute Resolution
Committee), and is generally acknowledged by users as contributing to this
entity's efficiency in dealing with essentially technical matters.
Assessment against later planning instruments
The Bill allows for policy documents made after a development application
is made but before it is determined to be given weight in development
assessment by assessment managers, referral agencies and appeal bodies.
This function is circumscribed by judicial authority, in particular to ensure
instruments are not made with the express purpose of prejudicing
assessment of development applications. The weight given to a particular
policy instrument is proportionate to the stage of its development, and
particularly community awareness.
Laws and policies can be implemented over time to reflect changing public
attitudes. Clause 317 is designed to ensure that these new laws and policies
can be considered in the assessment of development applications. This is
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Sustainable Planning Bill 2009
particularly important since time frames for consideration of an application
may be extensive. This provision is an extension of the long-standing
"non-derogation" doctrine applied by the courts to cases where new
policies are being developed at the time a development application is being
considered.
The Planning and Environment Court has kept a careful watch on matters
where this provision has been used, and has ensured that it is applied fairly
in circumstances where its application is warranted. In particular the Court
will not allow an assessment manager to give weight to any code, law or
policy that appears to have been developed specifically in response to the
application itself.
The Bill does not provide for the retrospective application of new laws and
policies. It simply allows these laws and policies to be considered and, if
warranted, given appropriate weight.
Powers of entry, search and seizure
The only power of entry afforded in the Bill is for the purpose of
implementing aspects of a development approval or compliance permit if a
local government is satisfied the person with the benefit of the approval or
permit has taken all reasonable steps to secure the agreement of another
owner. For example, this allows a local government to enter property to
carry out downstream drainage works necessary for implementing a
development approval upstream of the premises. There have been instances
in the past of owners unreasonably withholding access to land for these
purposes, with the result that planning outcomes for the development of an
area are compromised.
Clause 715 provides for the assessment manager or local government to
enter land to undertake works if the assessment manager or local
government is satisfied that the applicant has tried to obtain the agreement
of the owner, but has been unsuccessful, and that this is necessary to
implement the development approval or compliance permit. This power of
entry provision does not allow for the seizure of documents or other
property. The powers are in fact intended to avoid a circumstance where a
local government would otherwise have to acquire the private property for
the purpose of undertaking works to facilitate downstream drainage. This
legislatively authorised interference with another person's property is
complemented by a right of compensation under clause 716 which will
operate to alleviate the effects of this power of entry. Clause 716 provides
that any person who suffers a loss as a result of the assessment manager
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Sustainable Planning Bill 2009
entering land to undertake works, is entitled to be paid reasonable
compensation.
The Bill contains no powers of search or seizure. Although the Bill
provides for an integrated framework of offences and penalties, it
specifically recognises that other legislation which provides the jurisdiction
for entities to act within the integrated development assessment framework
contains its own arrangements in this regard.
Onus of proof
Onus on applicants
The Bill provides that in an appeal involving a development application
(whether by the applicant or submitters) it is the applicant who must prove
their case. This has been a long-standing feature of Queensland planning
legislation, as it affords the applicant the opportunity of establishing their
case first in a proceeding. In most planning appeals, there is no particular
disadvantage to an applicant in bearing the onus of proof. By allowing the
applicant to state their case first, a context is established for the court's
consideration of the matters in dispute, allowing the court to address the
issues more expeditiously.
These provisions exist in the current IPA, and were strongly supported by
environmental and community sector interests, and were not opposed by
development and local government sectors.
This shifting of the onus of proof is considered to be consistent with
fundamental legislative principles since it ensures that persons affected by
a decision are not further disadvantaged in an appeal by having to establish
their case. Similar provisions exist in the Urban Land Development
Authority Act 2007 (sections 42, 44, 45, 86, 90, 141).
Executive officers of corporations
Clause 611 deems that each of a corporation's executive officers commits
an offence if the corporation commits an offence. The clause provides that
the following is a defence to this offence: if the executive officer can prove
that he was not in a position to influence the corporation's conduct, or
exercised due diligence. This has the effect of reversing the onus of proof.
The reversal of the onus of proof is justified for the following reasons:
· the matter that is the subject of proof is peculiarly within the
defendant's knowledge, and it would be very difficult or expensive for
the State to attempt to prove this;
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Sustainable Planning Bill 2009
· the relevant fact is inherently impractical to test by alternative
evidentiary means, and the defendant is particularly well-positioned to
disprove guilt;
· this provision does not relieve the prosecution of proving the elements
of the offence in every case. Rather, it attempts to mitigate the
capacity of individuals to use corporate structures to avoid legal
responsibility for their actions;
· this provision simply relieves the prosecution, (after having proved the
elements of an offence), from having to further prove conspiracy
among, or individual liability of, the company's officers;
· the available defence is broad and would not be difficult to establish in
cases where it is appropriate.
Offences under the Bill can potentially have serious environmental
repercussions (e.g. the release of pollutants or toxins contrary to the
conditions of a development approval). Where corporations are involved in
such offences, it is appropriate that there is effective accountability at a
corporate level.
Further, the process of development of a particular site can involve many
individuals acting in a representative or contractual capacity. It would not
be appropriate to prosecute only the individual directly responsible for the
offence, if that person was acting under instructions of another. The
provision does not indicate that a person is presumed guilty merely that
certain events are evidence that the person has committed an offence.
(Note: the provision does not state that this is conclusive evidence of the
commission of an offence.)
The Bill also provides the standard defences for an officer of a corporation,
namely: it is a defence for the officer to prove the officer exercised
reasonable diligence, or that the officer was not in a position to influence
the course of the conduct of the corporation in relation to the offence.
Acts or omissions of representatives
Clause 624 provides that, if a person's representative performs an act, then
the person is deemed to have performed that act. The clause allows for the
defence that the person was not in a position to prevent the act. This
appears to reverse the onus of proof in criminal proceedings.
The reversal of the onus of proof is justified for the following reasons:
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Sustainable Planning Bill 2009
· the matter that is the subject of proof is peculiarly within the
defendant's knowledge, and it would be very difficult or expensive for
the State to prove this;
· the relevant fact is inherently impractical to test by alternative
evidentiary means, and the defendant is particularly well-positioned to
disprove guilt;
· this provision does not relieve the prosecution of proving the elements
of the offence in every case;
· this provision simply relieves the prosecution, (after having proved the
elements of an offence), from having to further prove conspiracy
among or individual liability of each of the representatives;
· the available defence is broad and would not be difficult to establish in
cases where it is appropriate.
Offences under the Bill can potentially have serious environmental
repercussions (eg: the release of pollutants or toxins contrary to the
conditions of a development approval). Where corporations are involved in
such offences, it is appropriate that there is effective accountability at a
corporate level. Further, the process of development of a particular site can
involve many individuals acting in a representative or contractual capacity.
It would not be appropriate to prosecute only the individual directly
responsible for the offence, if that person was acting under instructions of
another.
The provision does not indicate that a person is presumed guilty merely
that certain events are evidence that the person has committed an offence
(note: the provision does not state that this is conclusive evidence of the
commission of an offence).
The Bill also provides the standard defences of proving that the person
exercised reasonable diligence, or was not in a position to influence the
person's representative.
Retrospectivity
Under the transitional provisions of the Bill, a person who received an
acknowledgement notice stating that they may carry out development
under a superseded planning scheme, may apply to extend the timeframe
within which the development may be carried out. Under the current IPA,
there is no ability to extend this timeframe. Extending this ability to rights
obtained under the current IPA enhances the rights available to persons,
and is designed to enhance and clarify their rights by addressing
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deficiencies in the existing provisions. As such, it does not adversely affect
rights or liberties, nor does it impose obligations retrospectively. Curative
retrospective legislation, without significant effects on the rights and
liberties of individuals, is justified to correct unintended legislative
consequences.
Immunity
The Bill affords no powers of immunity from prosecution other than those
normally afforded to the State under legislation (see clause 14). This
clause provides that the Act binds all persons, including the State of
Queensland, the Commonwealth and all other States. However, clause
14(3) provides that the Act does not bind the functions and powers of the
Coordinator-General under the State Development and Public Works
Organisation Act 1971.
The Coordinator General's actions are regulated by the State Development
and Public Works Organisation Act 1971. Clause 14 is not saying that the
Coordinator-General is immune from the Bill; it is simply saying that the
Bill does not bind his functions and powers. As such, the Bill does not
confer immunity from proceeding or prosecution to any person.
Acquisition and compensation
The Bill includes provisions dealing with acquisition and/or compensation
in 3 respects:
· Acquisition of designated land under hardship (chapter 5, part 6).
These provisions allow for a person to seek early acquisition of
designated land on the basis of hardship, such as a pressing need to
sell the land for personal reasons. Compensation is calculated using
the provisions of the Acquisition of Land Act 1967.
The Bill ensures procedures for designating land for public purposes
cannot blight the land indefinitely, provides statutory rights to request
early acquisition of designated land on hardship grounds and requires
land to be taken under the Acquisition of Land Act 1967 within a
reasonable time of its designation.
· Compensation for injurious affection (chapter 9, parts 3 and 4). These
arrangements provide for compensation in circumstances where an
owner's property values have been injuriously affected by the
implementation of a planning scheme by a local government. The
arrangements require an owner to first submit a request to carry out
development or assess development under a superseded planning
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Sustainable Planning Bill 2009
scheme. Compensation is only claimable if the local government
refuses the request. Clause 704 provides that reasonable
compensation may be claimed for a reduction in the value of an
interest in land if a change to a planning scheme or planning scheme
policy reduces the value of an owner's interest in the land. Clause 711
establishes criteria for determining the reasonable amount of
compensation payable.
An assessment manager may enter land to undertake works if he is
satisfied that the applicant has tried to obtain the agreement of the
owner, but has been unsuccessful, and that this is necessary to
implement the development approval. Clause 716 provides that any
person who suffers a loss as a result of the assessment manager
exercising these powers of entry, is entitled to be paid reasonable
compensation.
The current IPA has a limitation on the amount of compensation that
can be awarded. The new Bill simply continues this limitation.
Further, the Bill provides that any person who is dissatisfied with a
decision relating to the payment of compensation, can appeal to the
Planning and Environment Court against this decision.
· Acquisition of land or entry onto land for planning purposes, or to
facilitate works (chapter 9, part 4). The Bill includes power of entry
provisions, which do not allow for the seizure of documents or other
property. The powers are in fact intended to avoid a circumstance
where a local government would otherwise have to acquire the private
property for the purpose of undertaking works to facilitate
downstream drainage. This legislatively authorised interference with
another person's property is complemented by a right of compensation
under clause 716 which will operate to alleviate the effects of this
power of entry. Clause 716 provides that any person who suffers a
loss as a result of the assessment manager entering land to undertake
works, is entitled to be paid reasonable compensation.
In all of the above cases, detailed provision is made for just compensation
and for appeal rights for persons dissatisfied with the terms of
compensation.
Aboriginal and islander custom
This Bill does not adversely impact upon Aboriginal or Islander custom.
Special procedural arrangements are afforded for the assessment of
development applications and applications for compliance permits or
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Sustainable Planning Bill 2009
certificates where these procedures conflict with notifying future acts under
the Commonwealth Native Title Act 1993.
Clause 310 recognises and accommodates disparities between the IDAS
process and processes for notifying native title parties under the
Commonwealth Native Title Act 1993 (NTA). The clause enables
procedural rights to be provided to native title parties within the IDAS
process by, in effect, "stopping the clock" of the particular IDAS stage until
the procedural rights have been provided.
Most native title notifications under the NTA are likely to occur during the
process of granting tenure or other access to a State resource, prior to any
development application affecting the resource. As these processes may
result in indigenous land use agreements which map out arrangements
about the form and impacts of subsequent development, notification of the
"future acts" of development assessment is likely to be unnecessary, and is
hence unlikely to affect IDAS. However, because the NTA deals with
notification for "future acts" which may affect native title interests other
than on the premises proposed for development, they may not be preceded
by a resource allocation process, and hence may affect the IDAS process.
Clause 89 states the three core matters for preparation of a planning
scheme:
· land use and development;
· infrastructure;
· valuable features.
The phrase "valuable features" is defined to include areas of cultural
heritage significance, including areas of indigenous cultural significance,
to the present generation or past or future generations.
Delegation of legislative power and Parliamentary scrutiny
The Bill provides for Parliamentary scrutiny of key instruments made by
the Minister with prohibitive effect. In particular, State planning regulatory
provisions made in support of a regional plan are required to be tabled in
Parliament and are subject to disallowance (clause 66).
The Bill provides extensively for certain matters to be prescribed under a
regulation. These matters are administrative arrangements concerned with
implementing IDAS, such as the identification of assessable development,
assessment managers and referral agencies. Any amendments to the
regulation, for example to expand the scope of assessable development,
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Sustainable Planning Bill 2009
will be subject to the normal requirements of the Statutory Instruments Act
1992 for regulatory impact assessment and Parliamentary scrutiny and
disallowance.
Some matters currently prescribed under a schedule to the current IPA are
instead provided for under a regulation under this Bill. In particular the
identification of assessable and self-assessable development, and the
identification of assessment managers, currently contained in schedules 8
and 8A of the current IPA, are now provided for under a regulation. The
inclusion of these arrangements in the current IPA reflected stakeholder
uncertainty at the time about how the new planning and development
assessment framework would work. They are nevertheless matters of a
mechanical nature best located together with other mechanical aspects of
IDAS under a regulation.
Clauses 232(1), (2) and (3), 299(4), 397(1), 415 and 730(3)(g) authorise
the making of regulations about matters of significance. The operation of
IDAS depends on the detail provided in the regulation. For example, for
the compliance assessment, the regulation prescribes development,
documents or works required to be assessed for compliance, and other
details. These are not matters that would normally require the attention of
Parliament, given the mechanism of disallowance is available. The extent
of this delegation of legislative power is appropriate in the circumstances,
and provides the level of detail necessary to ensure the provisions of the
Bill are workable.
Any amendment to an Act of Parliament should be made by Parliament
itself amending the Act, rather than by the Executive Government via
subordinate legislation. However, a clause which may have this effect may
be excusable in the following instances, where it is clear that the clause is
designed to facilitate:
· immediate executive action;
· the effective application of innovative legislation;
· transitional arrangements;
· the application of national schemes of legislation.
The instances noted here (clauses 232(1), (2) and (3), 299(4), 397(1), 415
and 730(3)(g)) involve the facilitation of the effective application of
innovative legislation, and therefore come within the guidelines previously
outlined by the Committee.
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Sustainable Planning Bill 2009
The Bill (clause 871) provides a transitional regulation making power
which expires 5 years after commencement. This is longer than the period
usually provided for under legislation with transitional arrangements. This
Bill substantially amends many aspects of the current IPA and complex
transitional arrangements are required to protect rights acquired under the
existing legislation. Problems in matters relating to development can take
some time to become apparent. It is therefore necessary to provide an
appropriate time frame for the expiry of any transitional regulation to
ensure that individuals' rights are not prejudiced. This transitional
provision is designed to preserve rights acquired under the current IPA in a
post-IPA environment.
The extent of this delegation of legislative power is appropriate in the
circumstances, and provides the level of detail necessary to ensure the
provisions of the Bill are workable.
Amendment authorised only by Act
The Bill contains no arrangements authorising amendment by subordinate
legislation or statutory instrument.
Consultation
Widespread community consultation, including local government, business
and industry, was held across Queensland during the development of the
reform agenda and there was widespread stakeholder support for the
reform actions.
A series of stakeholder workshops was held involving representatives from
State and local government and industry to discuss and develop key aspects
of the legislation.
Consultation with key stakeholders continued throughout the development
of the legislation through:
· regular meetings of the Planning Reform Reference Panel, consisting
of local government, industry and community representatives;
· legal peer review workshop which consisted of solicitors and
barristers from the Queensland Environmental Law Association and
the Queensland Law Society; and
· professional planner peer review workshops attended by planning
professionals from local government, private practice and industry.
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Sustainable Planning Bill 2009
Notes on Provisions
Chapter 1 Preliminary
This chapter:
· provides for the short title and commencement arrangements for the
Bill;
· establishes the Bill's purpose and how the purpose may be advanced;
· defines the key terms of development, ecological sustainability and
lawful use;
· provides supporting definitions for aspects of development;
· explains the concept of ecological sustainability;
· establishes particular rules of interpretation for the meaning of words
in the Bill and instruments made under it;
· establishes the scope and application of the Bill.
Part 1 Introduction
Short title
Clause 1 provides for the short title of the Bill.
Commencement
Clause 2 states the Bill commences on a day to be fixed by proclamation.
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Sustainable Planning Bill 2009
Part 2 Purpose and advancing the
purpose
Purpose of Act
Clause 3 states that the purpose of the Bill is to seek to achieve ecological
sustainability in three ways:
· managing the process by which development takes place, including
ensuring that the process is accountable, effective and efficient and
delivers sustainable outcomes;
· managing the effects of development on the environment (including
managing the use of premises); and
· continuing to coordinate and integrate planning at the local, regional
and State levels.
Ecological sustainability is defined in clause 8.
Managing the process by which development occurs is a key aspect of the
Bill. Chapter 6 establishes the integrated development assessment system
(IDAS). IDAS is a single, integrated system for development assessment
involving both local and State levels of government. Its purpose is to
achieve decision-making which is efficient, accountable and coordinated,
and which provides opportunities for community involvement. IDAS
ensures the outcomes of integrated planning are achieved by testing
proposed development against the policy benchmarks established in
planning instruments.
IDAS also allows for the effects of development on the environment to be
managed. This is achieved through ensuring proposed development
conforms to appropriate standards of design, health, amenity and safety,
and by managing the ongoing effects of development on the environment
after development occurs. To achieve this, the Bill treats the ongoing use
of premises (which is not in itself development), as an impact of
development. This allows for the management of the ongoing use of
premises through, for example, conditions of development approvals.
Clause 3(c) emphasises the coordination and integration of planning at the
three levels at which it occurs in Queensland. Planning at the local and
State levels are directly associated with the respective levels of
government. Regional planning is primarily the responsibility of the State
(clause 25 provides a regional plan is a State interest), however in practice,
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Sustainable Planning Bill 2009
regional planning is a cooperative activity between local and State
governments, through regional planning committees.
Coordination of planning refers to the linking of planning activity within
and between levels of government, and the linking of different aspects of
planning such as natural resource planning, land use planning and
infrastructure planning. The Bill facilitates coordination of planning by:
· providing for robust communication and consultation within and
between levels of government as part of the processes it establishes for
making planning instruments;
· establishing bodies such as regional planning committees to
coordinate planning at a regional level; and
· establishing the scope of planning instruments in a way which
requires or facilitates coordination of different aspects of planning.
Integration refers to the combination and rationalisation of planning
outcomes, and their presentation in an integrated way. The Bill facilitates
integrated planning by establishing a clear hierarchy of planning
instruments which interact in such a way as to result in integrated planning
outcomes. For example, some State planning instruments have effect in
development assessment only until such time as their outcomes are
integrated in planning schemes. The planning scheme remains the key
document in the Bill for integrating State, regional and local planning
outcomes and depicting them in a spatial way at a local level.
The Bill's theme of integration is further reflected in:
· integrated development assessment (chapter 6); and
· integrated dispute resolution and enforcement (chapter 7).
Advancing Act's purpose
Clause 4 requires entities to advance the Act's purpose in performing
functions or exercising powers under the Bill. Such functions or powers
include making planning instruments, designating land for community
infrastructure, or acting as an assessment manager under IDAS.
However, if an entity other than a local government is acting as an
assessment manager or referral agency, or if a local government is acting as
a referral agency under devolved or delegated powers, the entity is
required, not to advance the Bill's purpose but to have regard to it. This
acknowledges these entities have jurisdictions under other legislation and
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Sustainable Planning Bill 2009
must advance the purposes of that legislation in exercising functions or
powers under this Bill.
Example 1 - The Department of Environment and Resource Management
(DERM) may be a concurrence agency under this Bill for development
applications that involve taking or interfering with water under the Water
Act 2000. In discharging this function under this Bill, DERM would be
primarily advancing the purposes of the Water Act 2000 relating to
sustainable management of the State's water resources. However in doing
so, DERM would also be required to have regard to the purposes of this
Bill relating to ecological sustainability through managing development
and its effects.
Example 2 - Local governments exercise devolved responsibilities under
the Environmental Protection Act 1994 for particular environmentally
relevant activities under that Act. A local government may be the
assessment manager for a development application for an industrial
activity because development for that activity is assessable development
under its planning scheme. The local government may also have
jurisdiction as the administering authority under the Environmental
Protection Act 1994 because that activity is a devolved environmentally
relevant activity under that Act. In exercising its jurisdiction under the
Environmental Protection Act 1994, the local government is advancing the
purposes of that Act relating to minimising environmental harm through
managing the release of contaminants such as air, noise and water
pollutants, while also having regard to the purposes of this Bill. In
exercising its assessment manager jurisdiction under this Bill, the local
government is required to advance the purposes of this Bill relating to
ecological sustainability. Discharging these functions in an integrated
development assessment framework means the outcome can optimise
achievement of the purposes of both pieces of legislation.
Clause 4 also states that the requirement to advance or have regard to the
Act's purpose does not apply to code assessment or compliance
assessment. This is because code assessment and compliance assessment
are bounded and therefore inconsistent with the open, discretionary nature
of assessment required by this clause. However, in preparing a code, or a
standard for compliance assessment, an entity must advance the purpose of
the Act in accordance with this clause.
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Sustainable Planning Bill 2009
What advancing Act's purpose includes
Clause 5 identifies seven ways that the purpose of the Bill may be
advanced. Although not an exhaustive list, it indicates the breadth of
relevant matters and serves as an illustrative guide to entities performing a
function or exercising a power under the Bill. In advancing the Act's
purpose, the matters specified in this clause are to be taken into account
during the making of planning instruments and the assessment of
development applications. It is necessary to deal with these matters in the
making of planning instruments to provide a comprehensive framework for
managing the effects of development. This is the most efficient and
effective means to deal with the short and long-term cumulative effects of
development, and provides an appropriate context within which
development assessment can occur.
Part 3 Interpretation
Division 1 Dictionary
Definitions
Clause 6 states the dictionary defines particular words used in the Bill.
Division 2 Key definitions
Meaning of development
Clause 7 defines development by reference to five distinct actions.
Development is a broad concept covering a wide range of actions affecting
the physical environment, including carrying out building work and
making a material change in the use of land. Development is defined to be
an action rather than the result of an action. For example, development is
the carrying out of building work and the making of a material change of
use rather than the results of those actions, which are a building and a use
of premises.
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Sustainable Planning Bill 2009
Meaning of ecological sustainability
Clause 8 defines ecological sustainability as a balance that integrates three
separate elements. This term has been defined for the purposes of this Bill,
that is, with relevance to its planning and development assessment
functions. It draws on the goal, core objectives and guiding principles of
the national strategy for ecologically sustainable development endorsed by
the Council of Australian Governments on 7 December 1992. Additionally,
because this is planning legislation, the meaning of the term has been
expanded to include planning concepts about amenity, including the social
and physical wellbeing of people and communities.
Meaning of lawful use
Clause 9 defines lawful use and establishes its relationship to development
and to development in accordance with the Act. This is an important issue
to clarify as the Bill deals with the process of "development" (as defined),
and also, as referred to in the purpose statement, the effects of development
which include the use of premises.
Accordingly, the Bill establishes a framework for regulating a use (e.g.
through the imposition of conditions on development approvals (for
assessable development), and through the need to comply with codes
dealing with use (for self-assessable development)). However, in many
situations there will be no need to regulate the consequent use, whether or
not the development (including a material change of use) requires a
development permit. For example, it is likely once the building of a house
is completed in accordance with a development permit, the consequent use
of the house will not be further regulated by way of conditions on the
development permit or a code. It should be noted that consequences of use
which in themselves constitute "development", such as operational works
for a forestry use, are regulated as development.
Division 3 Supporting definitions and
explanations for key definitions
Definitions for terms used in development
Clause 10 defines the five aspects of development and other terms used in
the definition of development. The five aspects are mutually exclusive for
example, an aspect of development cannot be both building work and
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Sustainable Planning Bill 2009
operational work. However, a particular project or proposal may involve
two or more aspects of development.
Example - A proposal to develop a vacant lot for a dwelling house involves:
· a material change of use (the start of a new use of premises);
· building work (the structural aspects of the dwelling);
· plumbing and drainage work (the plumbing and sanitary drains to
and from the lot boundary); and
· operational work (driveways and landscaping).
However not all of this development will necessarily be assessable,
self-assessable, or require compliance assessment. Chapter 6, part 1
establishes which development requires a development approval or
compliance permit.
Building work is development involving the building, repairing, altering,
underpinning, moving or demolishing of buildings, and associated
incidental earthworks. Building work includes excavation in connection
with building work, or that may affect the stability of a building or other
structure. However other excavation is operational work.
Items 2 and 3 define building work specifically for administering IDAS in
relation to a Queensland heritage place under the Queensland Heritage Act
1992. This part of the definition includes matters which may not be
building work for other purposes under the Bill (such as painting, or
altering, repairing or moving historic artefacts), but which are defined as
building work specifically for the purpose of applying IDAS to such
activities.
Item 4 clarifies matters that are not covered by building work such as the
building of a retaining wall in connection with reconfiguring a lot (a
retaining wall in connection with other building work is building work).
Amendments to the definition of "building work" in 2006 sought to
distinguish the building of retaining walls in relation to other building work
from the building of such walls for other purposes, in particular
reconfiguration of a lot. The changes in this Bill are intended to further
clarify this distinction.
A material change of use is development that involves:
· the start of a new use of premises;
· the re-establishment of a use that has been abandoned; or
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Sustainable Planning Bill 2009
· a material increase in the character, intensity or scale of the use of the
premises.
A new use may start on premises when development occurs on vacant land,
or when a new use starts that is not incidental to or necessarily associated
with an existing use of premises.
Example - The extension of a service station to include motor vehicle
repairs would be the start of a new use of the premises, as the repair
function is not incidental to or necessarily associated with the service
station function.
The test of whether a former use has been abandoned is intended to
establish a "high bar", including evidence of an intention to abandon the
use.
Example - A shop or factory which remains vacant for a lengthy period due
to difficult market conditions has not been abandoned.
Whether a change in the character, intensity or scale of a use is "material"
must be considered in the context of the use. Some uses involve regular or
irregular change which is a normal feature of the use. This normal "ebb
and flow" of use is not a material change of use.
Example 1 - The use of holiday accommodation may vary considerably
according to seasons and holiday periods. Such variations which are
normal and expected would not constitute a material change of use.
Example 2 Extractive industries by their nature can involve significant
fluctuations in activity according to demand for the quarry material.
Normal fluctuations in response to market demand would not constitute a
material change of use. A substantial and permanent increase in the scale
of production (such as in response to a major and permanent new source of
demand or planned expansion of market reach), may however constitute a
material increase in intensity or scale.
Operational work is development, other than building, drainage or
plumbing work, that materially affects premises or their use. This is a broad
category of work which covers a range of development activities.
Examples of operational work are given in the definition, and include
extracting sand and gravel, earthworks for drainage purposes and
constructing free-standing advertising signs. The key aspect determining
the broad application of this definition is item 1(e) (undertaking work in,
on, over or under premises that materially affects the premises or their use).
This is a "catch all" aspect of the definition intended to imply the broadest
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Sustainable Planning Bill 2009
reasonable application of the term. The other aspects in item 1 of this
definition are included to clarify either the application of the definition to
particular activities (such as extractive activities or placing an advertising
device), or the application of the definition to activities progressively made
assessable under schedule 8 of the Integrated Planning Act 1997 (current
IPA) (such as carrying out tidal works or constructing waterway barrier
works) as part of integrating those activities into IDAS.
Reconfiguring a lot is development that involves the subdivision,
amalgamation or rearrangement of a lot, dividing land by agreement and
the creation of an access easement.
Subsection (2) provides that for the definition of building work in
subsection (1), item 1, paragraph (b), work includes a management
procedure or other activity relating to a building or structure even though
the activity does not involve a structural change to the building or structure.
This provision is intended to cover matters that are management
procedures under the fire safety standard relating to a budget
accommodation building.
Explanation of terms used in ecological sustainability
Clause 11 explains each of the three elements used in the definition of
ecological sustainability. Ecological sustainability is defined in clause 8,
and is a balance that integrates the protection of ecological processes,
economic development, and the maintenance of the wellbeing of people
and communities.
The protection of natural systems is achieved by protecting biological
diversity and the life supporting capacities of ecosystems.
Economic development is achieved by creating diverse, efficient, resilient
and strong economies to enable communities to meet their needs.
The cultural, economic, physical and social wellbeing of communities is
achieved by creating well serviced and healthy communities, conserving or
enhancing areas and places of built and cultural heritage, and providing
public areas. It is also maintained by seeking to reduce adverse impacts on
climate change, such as greenhouse gas emissions, through sustainable
development.
An important principle integrated into these elements is intergenerational
equity. The need to consider and provide for future generations is
explicitly addressed. Intergenerational equity is also implicitly addressed
by the need to protect, conserve or enhance over time the qualities which
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Sustainable Planning Bill 2009
constitute ecological sustainability. These requirements are consistent with
the national strategy for ecologically sustainable development.
Division 4 General matters
Meaning of words in Act prevail over planning instruments
Clause 12 establishes the precedence of the meaning of a word in the Act
over the meaning of the same word in a planning instrument where there is
an inconsistency.
References in Act to particular terms
Clause 13 states how terms used in the Bill are to be interpreted. This
clarifies their meaning in particular contexts and enables the use of less
complex wording throughout the main text of the Bill.
Part 4 Application of Act
Act binds all persons
Clause 14 states that to the extent that it is able, this Bill binds all persons
in Queensland and Australia.
This provision establishes that the Bill binds both State and local
government. For example, IDAS is designed to create a single
development assessment system that allows all existing development
approval systems to be integrated (such as planning, building,
environmental management, etc), and imposes duties and responsibilities
on State and local government under that system (such as requirements for
dealing with applications within time limits, etc). Consequently it is
essential that the Bill binds these entities so that the processes, time limits
and decision-making obligations are met.
Subclause (3) clarifies the relationship between the Bill and the State
Development and Public Works Organisation Act 1971. One of the
purposes of this subclause is to preserve the Coordinator-General's
statutory immunity from the Bill's approval requirements when the
Coordinator-General exercises the powers and performs the functions of
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Sustainable Planning Bill 2009
the Coordinator-General under the State Development and Public Works
Organisation Act 1971. The subclause has the effect that the
Coordinator-General is able to undertake development without having to
obtain a development permit or compliance permit where the development
is undertaken under a power or a function of the Coordinator-General
under the State Development and Public Works Organisation Act 1971.
Chapter 2 State planning instruments
This chapter provides for the following instruments to be made by the State
(State planning instruments):
· State planning regulatory provisions
· Regional plans
· State planning policies
· Standard planning scheme provisions.
State planning instruments are statutory instruments under the Statutory
Instruments Act 1992. State planning instruments prevail over local
planning instruments to the extent of any inconsistency.
Each State planning instrument plays a different role under the Bill, and is
intended to serve a different purpose. For example, regional plans relate to
specific regions and are intended as a high level integrated and spatial
expression of State strategic policy in those regions, whereas State
planning policies relate to specific State interests. It is intended that State
planning instruments should inform each other. For example, in preparing
a State planning policy, regard should be had to any State planning
regulatory provisions and regional plans which are in effect. However,
despite this, there may be situations where State planning instruments
conflict. For the purposes of both planning and development assessment,
the Bill therefore includes provisions to identify which instruments prevail
in the case of conflict. The "hierarchy" of State planning instruments is
reflected in the structure of chapter 2, in descending hierarchy.
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Sustainable Planning Bill 2009
Significant features of chapter 2
Chapter 2 contains the following significant features:
· introduces standard planning scheme provisions (SPSP's), as a new
State planning instrument;
· provides for State planning policies and State planning regulatory
provisions to be made by any Minister (jointly with the planning
Minister);
· identifies and establishes a temporary State planning policy, as a State
planning instrument that is made by the planning Minister (or jointly
by an eligible Minister and the planning Minister) for a limited period
of time (less than 12 months) and is not subject to public notification;
· introduces a single, streamlined and performance-based process for
making all State planning instruments.
Standard planning scheme provisions
Part 5 of this chapter provides for the Minister to prepare and make
standard planning scheme provisions to be progressively reflected in local
government planning schemes as they are made under the Bill. This is a
new type of State planning instrument which takes a prescriptive approach
to facilitate consistency across schemes and greater certainty for users who
interpret local planning schemes. The standard planning scheme
provisions may contain both mandatory and non-mandatory components,
such as a mandatory structure and format, standardised use and
administrative definitions, a suite of standard zones, limited prescribed
levels of assessment, a suite of standard overlays, standardised
infrastructure planning provisions, and standardised codes. The standard
planning scheme provisions can also be used to effectively integrate State
interests.
The standard planning scheme provisions may also include provision for
limited prohibitions. A local government may specify in its planning
scheme that development is prohibited development, but only to the extent
that the standard planning scheme provisions state that a planning scheme
may do so. In general terms, development may be specified as prohibited
development where it is clearly detrimental to the strategic objectives and
where the impact of such development cannot be mitigated. The use of
prohibitions will, however, remain limited to retain Queensland's
performance-based planning system. This will continue to allow for
innovation and improved technology to resolve potential impacts, whilst
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Sustainable Planning Bill 2009
providing more certainty of development outcomes. If a local government
wishes to propose other limited prohibitions, the local government may
approach the Minister and request that the standard planning scheme
provisions be amended. This is not a formal process provided for in the
Bill.
Joint making of State planning policies and State planning regulatory
provisions
Under the current IPA, State planning policies may only be made by the
Minister administering the Act, however in practice, other agencies have
usually taken the lead in developing and implementing State planning
policies. State planning regulatory provisions may be made by the
planning Minister or the regional planning Minister for a matter relating to
regional planning. Policy work leading to the introduction of this Bill
found that this is one reason why State agencies have tended not to use
State planning instruments as a planning tool, with only seven State
planning policies being made since 1992. Instead, other State agencies
have made other laws and policies which are able to be taken into account
under the current IPA.
To ensure State agencies continue to administer policies relevant to their
portfolios, the Bill provides for State planning policies and State planning
regulatory provisions to be made by any Minister, subject to certain
requirements. These requirements include, that any proposed State
planning policy or State planning regulatory provision requires the joint
endorsement of both the relevant Minister and the planning Minister. The
endorsement of the planning Minister is necessary at two points in the
process for plan making, namely prior to publicly notifying the proposed
State planning policy or State planning regulatory provision, and prior to
making the proposed State planning policy or State planning regulatory
provision. The intention of this requirement is to provide for a
collaborative and coordinated approach in developing State planning
policies and State planning regulatory provisions.
Temporary State planning polices
A temporary State planning policy may only be made where there is an
urgent need to protect or express a State interest, and may only have effect
for one year or less. While the current IPA does provide for a State
planning policy to be made in similar circumstances, this Bill strengthens
the current mechanism by defining temporary State planning policies in
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Sustainable Planning Bill 2009
their own right and enabling these to suspend or to otherwise affect the
operation of an existing State planning policy (see part 4, division 3).
Single process for making State planning instruments
The current IPA provides for three types of State planning instrument
State planning policies, regional plans and State planning regulatory
provisions. The processes for making these instruments under the current
IPA vary between prescriptive and more performance-based processes.
Chapter 2, part 6 of this Bill establishes a single process for the making of
all State planning instruments. In keeping with the performance-based
approach, the process for preparing State planning instruments under this
Bill seeks to limit the statutory process for the making of these instruments
to expressions of key performance outcomes including:
· minimum guaranteed public notification periods and consultation
requirements;
· public access to proposed State planning instruments; and
· arrangements for considering and reporting on submissions.
Role of State planning instruments in planning and development
assessment
State planning regulatory provisions
Because these instruments have a regulatory or prohibitive effect, to the
extent that there is any inconsistency between a State planning regulatory
provision and any other planning instrument made under the Bill, the Bill
provides that the State planning regulatory provision prevails to the extent
of the inconsistency (clause 19).
While there is no requirement to include the State planning regulatory
provisions in other planning instruments, regard should be had to the State
planning regulatory provisions in preparing any local or State planning
instrument. It is anticipated that State planning regulatory provisions will
generally be made to support a regional plan or master plan or to provide
for infrastructure charges. They may also be used where it is necessary to
protect planning scheme areas from adverse impacts, for instance, where
there is an urgent need to protect an area from serious environmental harm
(see clause 20(2) to (3)).
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Regional plans
State planning policies and regional plans will inform each other during the
preparation of planning instruments. For example, a new State planning
policy about a particular issue should be made in consideration of the
treatment of that issue in any relevant regional plan, and vice versa. If a
new State planning policy reflects a deliberative intent to change a previous
policy approach reflected in one or more regional plans, amendments to the
regional plans should be considered to coincide with the introduction of the
State planning policy.
For development assessment, regional plans prevail over State planning
policies and all local planning instruments to the extent of any
inconsistency (see clause 26). To the extent that a regional plan is reflected
in a planning scheme or a structure plan (in the case of an application for
approval of a master plan or an application in a master planned area), the
regional plan does not apply in assessing and deciding the application (see
clauses 173, 180, 313, 314 and 316).
State planning policies
Under this Bill, State planning policies prevail over local planning
instruments to the extent of any inconsistency. For planning instrument
preparation, when a local planning instrument is prepared, regard must be
had to a State planning policy unless it is reflected in a regional plan.
To the extent that a State planning policy is reflected in a planning scheme,
a structure plan (in the case of an application for approval of a master plan
or an application in a master planned area) or a regional plan, the State
planning policy does not apply in assessing and deciding the application
(see clauses 173, 180, 313, 314 and 316).
Standard planning scheme provisions
The Bill provides that a local planning instrument (except an amendment to
an existing local planning instrument made under the current IPA) may
only be made if the planning Minister is satisfied that the local planning
instrument is consistent with the standard planning scheme provisions. To
the extent a local planning instrument is inconsistent with the standard
planning scheme provisions, the local planning instrument will have no
effect and the standard planning scheme provisions will be deemed to
apply in its place. Structure plans and master plans made under this Bill
must also be consistent with the standard planning scheme provisions.
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Sustainable Planning Bill 2009
Under this Bill, the Minister has powers to direct the local government to
amend a local planning instrument to reflect the standard planning scheme
provisions. The process for making this direction and consequences of
failing to comply are the same as those that currently apply under the
Minister's direction powers in the current IPA. In addition to these powers
of direction, this Bill also includes provisions to enable the Minister to
directly alter one or more schemes to reflect the standard planning scheme
provisions or to urgently reflect a State interest. For example, if a change is
made to a definition in the standard planning scheme provisions, the
Minister may amend all of the planning schemes which have adopted the
standard planning scheme provisions at one time. This is a more efficient
process than requiring the local governments to make the changes.
Part 1 Preliminary
What are State planning instruments
Clause 15 lists four types of State planning instruments:
· a State planning regulatory provision;
· a regional plan;
· a State planning policy; and
· the standard planning scheme provisions.
As noted above, under this Bill, State planning instruments are statutory
instruments prepared by the State and are made by the process set out in
part 6.
Part 2 State planning regulatory
provisions
Division 1 Preliminary
What is a State planning regulatory provision
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Sustainable Planning Bill 2009
Clause 16 provides that a State planning regulatory provision is an
instrument made under division 2 and part 6 for an area to advance the
purpose of the Act. This clause goes on to state the ways this instrument
may be used to provide regulatory support for regional planning or
master planning; to provide for charges for infrastructure; or to protect
planning scheme areas from adverse impacts. This clause relates directly
to the power of the Minister to make a State planning regulatory provision
in clause 20, and is to be read in conjunction with clause 20.
Any existing State planning regulatory provisions (made under the current
IPA) will continue in force (see chapter 10).
Status of State planning regulatory provision
Clause 17 states that a State planning regulatory provision is a statutory
instrument under the Statutory Instruments Act 1992 and has the force of
law. A State planning regulatory provision is not subordinate legislation.
State interest
Clause 18 states that a State planning regulatory provision is taken to be a
State interest for the purposes of this Act.
Relationship with other instruments
Clause 19 provides for the relationship between State planning regulatory
provisions and other instruments, including instruments made under
another Act.
Subclause (1) states that to the extent of any inconsistency between a State
planning regulatory provision and any other planning instrument, or a plan,
policy or code under another Act, the State planning regulatory provision
prevails.
Subclause (2) allows for a State planning regulatory provision to suspend
or otherwise affect the operation of another planning instrument, but not to
amend the instrument. This is similar to a temporary local planning
instrument, which may suspend or otherwise affect a local planning
instrument. Not all State planning regulatory provisions will have this
effect. The instrument itself will indicate the effect it is intended to have
with respect to other planning instruments.
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Sustainable Planning Bill 2009
Division 2 General matters about State planning
regulatory provisions
Power to make State planning regulatory provision
Clause 20 provides the power for the Minister to make a State planning
regulatory provision. For the purposes of subclauses (1) and (2), Minister
means the Minister administering this Act and, in a designated region, the
regional planning Minister for the region.
Subclause (3) sets out the circumstances in which a State planning
regulatory provision may be jointly made by the Minister administering
this Act and another Minister (an eligible Minister). A State planning
regulatory provision may be made for the State or a part of the State.
This clause also sets out that a State planning regulatory provision may be
made about a range of matters relating to regional planning and structure
planning. The Minister (or the Minister jointly with an eligible Minister)
may also make a State planning regulatory provision for other areas and
situations subject to the Minister administering this Act being satisfied of
an adverse risk test.
Content of State planning regulatory provision
Clause 21 sets out the content of a State planning regulatory provision. A
State planning regulatory provision may:
· specify categories of development, including prohibited development;
· require code assessment or impact assessment or both;
· include a code for IDAS, or other development assessment criteria;
· otherwise regulate development by, for example, stating that
development may not occur until a master planning exercise has been
carried out;
· provide for matters mentioned in clause 20.
The current IPA effectively already includes prohibitions, but the Bill
specifically includes prohibitions as a category of development. The
inclusion of a specific reference to prohibited development in this clause
recognises the introduction of prohibitions as a category of development.
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Sustainable Planning Bill 2009
Part 3 Regional plans
Division 1 Preliminary
What is a designated region
Clause 22 defines a designated region.
Division 2 Regional plans for designated
regions
Subdivision 1 Preliminary
What is a regional plan
Clause 23 defines a regional plan for a designated region as an instrument
made under subdivision 2 and part 6 by the regional planning Minister for
the region and that advances the purpose of the Act by providing an
integrated planning policy for the region.
Regional plans made under the current IPA will continue in force when this
Bill commences (see chapter 10).
Status of regional plan
Clause 24 states a regional plan for a designated region is an instrument
under the Statutory Instruments Act 1992 that has the force of law.
State interest
Clause 25 states that a regional plan is a State interest for this Bill.
Relationship with other instruments
Clause 26 sets out the effect of regional plans in planning and development
assessment, and their relationships with other planning instruments, and
instruments made under another Act. It provides for regional plans to
prevail to the extent of any inconsistency with another instrument other
than State planning regulatory provisions.
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Sustainable Planning Bill 2009
Subdivision 2 Requirement to make, and key
elements of, regional plans
Requirement to make regional plan
Clause 27 provides that the regional planning Minister for a designated
region must, under part 6, make a regional plan for the region.
Key elements of regional plan
Clause 28 sets out the key elements of the regional plan.
Subdivision 3 Requirement to amend planning
schemes to reflect regional plans
Amending planning schemes to reflect regional plan
Clause 29 states that a local government within the designated region must
amend its planning scheme to reflect the regional plan for the designated
region, unless the regional planning Minister gives the local government a
written direction to the contrary. Subclause (2) states the local government
must amend its planning scheme in accordance with the process set out in
the guideline made under clause 117(1). This clause also provides the
power for the regional planning Minister to make the necessary
amendments to a local government planning scheme if the action is not
taken by the local government.
Division 3 Regional planning committees
What are regions
Clause 30 states that there are no fixed geographical areas of the State
constituting regions, other than a designated region (see clause 22).
Regions will vary according to the issues to be dealt with and the area
required to coordinate planning for that issue. A region may be the
combined area of all or parts of two or more local government areas and
may also include an area not in a local government area.
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Sustainable Planning Bill 2009
Establishment of regional planning committee
Clause 31 provides for the establishment of regional planning committees
for designated regions and regions that are not designated regions.
Subclause (1) provides that the Minister may create as many regional
planning committees as the Minister considers appropriate. These
committees may be established by creating a new group or recognising an
existing group. Accordingly, there is considerable flexibility in allowing
committees to be "purpose-built" to meet the requirements of specific
regional issues, or for advantage to be taken, where appropriate, of any
existing regional structures.
Subclause (2) requires the regional planning Minister for a designated
region to establish a regional planning committee for the region.
Subclauses (3) and (4) provide that existing regional planning committees
for a region that is not a designated region are taken to be regional planning
committees for the designated region if they cover the same or substantially
the same area as the designated region.
Subclause (5) specifies what the Minister must do before establishing a
regional planning committee for a region that is not a designated region:
· prepare draft terms of reference;
· identify the proposed region and local governments likely to be
affected; and
· consult with the local governments and relevant interest groups on the
draft terms of reference, the membership of the committee, and the
extent of local, State and Commonwealth government participation in,
and support for, the committee.
Explicit determination of these matters will ensure that the functions and
outcomes of a regional planning committee are focused on the regional
issue in question, and all participants are aware of and accept their
respective responsibilities. It is possible that an entity represented on more
than one committee may participate to a different extent on each and offer
varying support.
Subclause (6) requires the Minister to state the following for a committee
for a region that is not a designated region:
· the committee's name;
· the membership of the committee;
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Sustainable Planning Bill 2009
· the area covered by the region; and
· the terms of reference.
Functions of regional planning committee
Clause 32 states that the function of a designated region's regional
planning committee is to advise the regional planning Minister about the
development and implementation of the regional plan for the designated
region. The function of a regional planning committee for a region that is
not a designated region will be specified in the terms of reference.
Membership of regional planning committee
Clause 33 provides for the membership of a regional planning committee.
In the case of a regional planning committee for a designated region, the
membership is determined by the regional planning Minister and specified
in a gazette notice.
Subclause (2) limits the nature and qualifications of a committee member.
However, subclause (3) provides these limitations do not apply in the case
of a regional planning committee for a non-designated region taken to be a
regional planning committee for a designated region, once that region is
designated.
Subclause (4) and (5) relate to regional planning committees for regions
that are not designated regions. The membership of a regional planning
committee for a non-designated region is flexible, and may be identified in
general or specific terms. For example, the Minister may refer to an
individual or to an organisation, or to the relative proportions of
representation rather than specific numbers. However, it is stated that
membership must include representatives from local governments. This
last point affirms the importance of local government in regional planning.
This is also evident in clause 31(5) which requires the Minister to consult
with affected local governments before a committee is established.
However, a local government may choose not to be represented on the
committee.
Changing particular committee
Clause 34 applies to a regional planning committee, other than a
committee for a designated region. This clause states that after consulting
with the committee and any other entities the Minister considers
appropriate, the Minister may change any aspect of a committee its name,
the region, the terms of reference and membership are given as examples.
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Sustainable Planning Bill 2009
This clause ensures that committees can be tailored to meet the particular
requirements of specific regional issues. It may be that over time these
requirements change and aspects of the committee will need to change
accordingly. This clause also recognises the importance of consultation
before making any such significant changes to a committee.
Dissolution of regional planning committee
Clause 35 allows the Minister to dissolve a regional planning committee
for a non-designated region at any time. A regional planning committee for
a designated region can be dissolved by the regional planning Minister at
any time.
Quorum
Clause 36 provides for the quorum of a regional planning committee.
Presiding at meetings
Clause 37 provides for the regional planning Minister, or in the absence of
the regional planning Minister, a member nominated by the regional
planning Minister, to preside at all meetings of a regional planning
committee for a designated region.
Conduct of meetings
Clause 38 establishes the way in which meetings of a regional planning
committee for a designated region must be conducted.
Reports of particular committee
Clause 39 states that a regional planning committee for a region that is not
a designated region must report its findings under its terms of reference to
the Minister and the local governments of its region. This ensures that the
committee's findings may be considered as part of the planning framework
applicable to an area. It allows local governments to incorporate
recommendations in their local planning instruments so that they may
influence development assessment in the local government's area. It also
allows the State to incorporate any recommendations into its own policy
framework.
It needs to be emphasised that the reports of a committee are non-statutory
and do not have effect merely because they have resulted from a regional
process. It is envisaged that agreed outcomes from a regional process will
be picked up and incorporated into planning schemes by local governments
through the normal amendment and review process. Equally, it is envisaged
that the State will incorporate relevant agreed outcomes into its own State
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Sustainable Planning Bill 2009
planning instruments. Depending on the terms of reference or perhaps
assignment of new terms of reference, the committee may continue or
disband following completion of its report.
Part 4 State planning policies
Division 1 Preliminary
As noted in the introductory notes, this Bill provides the power for State
planning policies to be made by the Minister, or by another Minister with
the Minister's endorsement (refer to expanded definition of Minister and
new term `eligible Minister' in the dictionary).
What is a State planning policy
Clause 40 defines a State planning policy. Paragraph (a) states a State
planning policy may be made in one of two ways:
· as a temporary State planning policy under clause 47; or
· in the same way as for other State planning instruments under part 6
of this chapter.
Under the current IPA it has been possible to make a State planning policy
without first publicly consulting, if the policy has effect for no more than a
year. The reform agenda included a proposal to make temporary State
planning policies more `visible' by recognising them as a specific defined
instrument. This is reflected in clauses 46 to 49, which allow for the
making of a temporary State planning policy, and provide for its effect and
duration.
Clause 40 also states a State planning policy advances the purposes of the
Act by stating the State's policy about a matter of State interest.
Status of State planning policy
Clause 41 states a State planning policy is a statutory instrument and has
the force of law.
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Sustainable Planning Bill 2009
Area to which State planning policy applies
Clause 42 states a State planning policy has effect throughout the State
unless the policy states otherwise.
Relationship with local planning instruments
Clause 43 establishes the effect of State planning policies within the
hierarchy of planning instruments, and states a State planning policy
prevails over a local planning instrument to the extent of any inconsistency
with the local planning instrument.
Clauses 19 and 26 establish the hierarchical relationships between State
planning policies and State planning regulatory provisions and regional
plans. State planning regulatory provisions and regional plans prevail over
State planning policies to the extent of any inconsistency.
Division 2 General matters about State planning
policies
Power to make State planning policy--generally
Clause 44 provides the power for the Minister to make a State planning
policy under part 6. Subclause (2) provides that the Minister and an
eligible Minister may jointly make a State planning policy under part 6 if
the State interest addressed by the policy is a matter administered by the
eligible Minister.
Duration of State planning policy made under pt 6
Clause 45 provides that a State planning policy made under part 6 ceases to
have effect on the day the State planning policy is repealed or, if it is not
repealed, 10 years after the day the State planning policy had effect. This
10 year period aligns State planning policies with general legislative
standards about an appropriate "life" for a statutory instrument. It is
intended that a review of the relevant State planning policy be commenced
8 years after the day the State planning policy had effect.
Under subclauses (2) and (3), the life of a State planning policy may be
extended by a regulation, to a maximum period of 12 years after the day the
State planning policy had effect. This provision is intended to ensure that
the life of a State planning policy can be extended if, due to unforseen and
exceptional circumstances (such as a machinery of government change
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Sustainable Planning Bill 2009
which occurs when the State planning policy is 9 years old), it is not
possible to make a new State planning policy to replace the existing policy
prior to its expiry date.
It should be noted that a temporary State planning policy has effect for only
12 months, or less (see clause 49).
Division 3 Temporary State planning policies
This Bill provides for a temporary State planning policy to have effect for
one year or less, where there is an urgent need to protect or give effect to a
State interest. The consultation phase that normally applies to making a
State planning instrument does not apply to the preparation of a temporary
State planning policy.
The current IPA provides for the Minister to make a State planning policy
on an interim basis with effect for one year or less, without having to first
publicly notify the draft policy (see current IPA, schedule 4, section 6).
This is similar to a temporary local planning policy, but is less "visible" as
the current IPA does not actually characterise it as a temporary State
planning policy, and there is no separate process for making it. Division 3
of this part better identifies and strengthens this mechanism by providing
for the temporary State planning policy to have effect in its own right.
Power to make temporary State planning policy
Clause 46 provides that a temporary State planning policy may be made if
the Minister considers the policy is urgently required to protect or give
effect to a State interest. A temporary State planning policy may be made
by the Minister, or jointly by the Minister and an eligible Minister. The
process in chapter 2, part 6 for making a State planning instrument does not
apply to a temporary State planning policy. However, chapter 2, part 6,
divisions 4 and 5 about when a State planning instrument takes effect and
the process for repealing a State planning instrument, continue to apply.
Making temporary State planning policy
Clause 47 sets out the process for the Minister to make, or the Minister and
an eligible Minister to jointly make, a temporary State planning policy.
The proposed policy must be notified by publication in the gazette and a
newspaper circulating generally in the State or the part of the State to
which the policy is to apply.
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Sustainable Planning Bill 2009
Subclause (2) provides that where the temporary State planning policy is
jointly made, the policy is validly made if the eligible Minister complies
with subsection (1) and the policy is endorsed by both Ministers prior to the
policy being notified.
Effect of temporary State planning policy
Clause 48 provides that a temporary State planning policy may suspend or
otherwise affect the operation of a State planning policy, but does not
amend the State planning policy.
Duration of temporary State planning policy
Clause 49 provides that the temporary State planning policy has effect for
the period stated in the policy, of not more than one year.
Part 5 Standard planning scheme
provisions
The Bill gives the Minister a new power to make standard planning scheme
provisions.
Standard planning scheme provisions are a statutory instrument and have
the force of law. They will be progressively reflected in local government
planning schemes as new schemes are made under the Bill. Local
governments must amend planning schemes made under the Bill to reflect
standard planning scheme provisions, however existing IPA planning
schemes are not required to be consistent with the standard planning
scheme provisions.
Standard planning scheme provisions prevail over local planning
instruments, to the extent of any inconsistency. The standard planning
scheme provisions do not regulate or affect development in their own right.
Standard planning scheme provisions only have effect once they are
incorporated into a local planning instrument. However, if a local planning
instrument is inconsistent with the standard planning scheme provisions,
the standard planning scheme provisions take effect in place of the local
planning instrument to the extent of the inconsistency.
Standard planning scheme provisions will contain both mandatory and
non-mandatory parts, and will provide for mandatory structure and format,
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Sustainable Planning Bill 2009
standard use and administrative definitions, a suite of standard zones and
codes, limited prescribed levels of assessment and a suite of standard
overlays.
This change is intended to overcome the complexity, uncertainty and
inconsistency associated with many local planning schemes. There has
been an identified scope for greater standardisation of key elements of
planning schemes across the State. In a submission to the Productivity
Commission in 2003, the Local Government Association of Queensland
(LGAQ) estimated $25 million had been spent on planning scheme
preparation. The process of ensuring each local government has an IPA
compliant planning scheme has been extremely slow and in June 2007
(prior to the release of the reform agenda), there were still four outstanding
IPA compliant planning schemes in the State. The process of preparing
planning schemes has been too complex and time consuming.
Currently, local governments expend substantial resources on matters such
as the format, structure and definitions for their planning schemes, rather
than focusing on strategic analysis and planning outcomes. The current
approach also results in inconsistency across planning schemes and
complicates their interpretation.
Also, State interests are not always consistently reflected in planning
schemes and standard planning scheme provisions will assist in improving
consistency in this regard. It is anticipated that State agency reviews will
become simpler and faster with the introduction of standard planning
scheme provisions. Issues such as formatting and workability will be less
complicated and more consistent.
Currently, if the Minister wishes to affect the operation of a local planning
instrument to reflect a State interest urgently, the Minister must seek the
local government's representations before directing the local government to
make a temporary local planning instrument. This can cause delay and
frustrate the urgent protection of State interests. The standard planning
scheme provisions will give the Minister the power to affect the operation
of a local planning instrument more quickly and directly.
Division 1 Preliminary
What are standard planning scheme provisions
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Sustainable Planning Bill 2009
Clause 50 defines the standard planning scheme provisions as the
provisions made under division 2 and part 6 by the Minister (under this
part, the Minister that administers this Act) that advance the purpose of the
Act by providing for a consistent structure for planning schemes and
standard provisions for implementing integrated planning at the local level.
Local governments must adopt the mandatory components in their
planning schemes and ensure that their scheme appropriately reflects the
standard planning scheme provisions. Under chapter 3, part 6, the Minister
has powers to direct a local government to amend its planning scheme or
directly amend one or more local planning instruments to ensure the
scheme adequately reflects the standard planning scheme provisions. The
standard planning scheme provisions may include the following elements,
which may be mandatory or optional:
· standard planning scheme composition and structure (incorporating
the integration of strategic elements, local plans and State interests);
· standard use and administrative definitions;
· a suite of standard zones;
· a suite of standard overlays;
· limited prescribed levels of assessment, including prohibition;
· standard codes for a limited range of uses;
· standardised infrastructure planning provisions;
· mandatory and optional provisions to incorporate local content and
variation.
Status of standard planning scheme provisions
Clause 51 states that the instrument containing the standard planning
scheme provisions is a statutory instrument under the Statutory Instruments
Act 1992 and has the force of law.
Effect of standard planning scheme provisions
Clause 52 states that the standard planning scheme provisions do not
regulate or affect development in their own right. Standard planning
scheme provisions only have effect once they are incorporated into a local
planning instrument. However, clause 53 gives standard planning scheme
provisions limited effect in specific circumstances.
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Sustainable Planning Bill 2009
Relationship with local planning instruments
Clause 53 provides for circumstances where a local planning instrument is
inconsistent with the standard planning scheme provisions. The standard
planning scheme provisions will prevail to the extent of the inconsistency
and take effect in place of the local planning instrument, but only to the
extent of the inconsistency. For example, a planning scheme may include a
definition of gross floor area that is inconsistent with the definition of gross
floor area contained in the standard planning scheme provisions. In this
situation, the planning scheme would be read as if the definition of gross
floor area in the standard planning scheme provisions applied, instead of
the definition in the planning scheme.
Where there is an inconsistency with the local planning instrument, the
standard planning scheme provisions will also only apply to the extent the
local planning instrument applied to the planning scheme area. This
provision is intended to ensure that the standard planning scheme
provisions do not apply to areas that the planning scheme could not apply
to, such as strategic port land under the Transport Infrastructure Act 1994
or airport land under the Airport Assets (Restructuring and Disposal) Act
2008.
This clause does not apply to a local planning instrument made under the
current IPA (see chapter 10).
Division 2 General matters about standard
planning scheme provisions
Power to make standard planning scheme provisions
Clause 54 gives the Minister the power to make standard planning scheme
provisions.
Local governments to amend planning schemes to reflect standard
planning scheme provisions
Clause 55, subclause (1) states that a local government must ensure each of
its local planning instruments is consistent with the standard planning
scheme provisions.
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Sustainable Planning Bill 2009
Subclause (2) specifies the process a local government must follow to
ensure any amendments to the standard planning scheme provisions are
reflected in its planning scheme.
Subclause (3) provides the power for the Minister to make the necessary
amendments to a planning scheme if the action is not taken by the local
government.
Subclause (7) provides that the requirement in subclause (2) does not apply
if the Minister amends the local government's planning scheme under
clause 129.
Again, this clause does not apply to a local planning instrument made
under the current IPA (see chapter 10).
Part 6 Making, amending and repealing
State planning instruments
Under the current IPA, the processes for making State planning instruments
(State planning policies, regional plans and State planning regulatory
provisions) vary between prescriptive and more performance-based
processes. As noted above, this Bill introduces the standard planning
scheme provisions as an additional State planning instrument and includes
a single, streamlined and performance-based process for making, amending
and repealing all State planning instruments.
The process for making a State planning instrument may be summarised as
follows:
· preparation of a draft State planning instrument;
· notification and public consultation by the Minister who prepared the
draft State planning instrument (unless the draft State planning
instrument is a temporary State planning policy, or a minor or
administrative amendment of a State planning instrument);
· consideration of submissions;
· possible preparation of a modified instrument in response to
submissions;
· adoption of the State planning instrument, or decision not to proceed;
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Sustainable Planning Bill 2009
· notification of the adoption or decision not to proceed;
· copies of State planning instrument to be given to the relevant local
governments;
· particular State planning regulatory provisions to be tabled in the
legislative assembly.
The process for amending State planning instruments is similar to the
process above, however the consultation period is reduced in some cases.
If the amendment is a minor or administrative amendment, a shortened
process applies.
This change creates a streamlined process for making, amending and
repealing all State planning instruments. Under the current IPA, the process
for making State planning instruments vary between prescriptive and more
performance-based processes. The performance-based process leaves
more potential for innovative approaches to community engagement. It is
also simpler, because now there is just one process instead of three.
As stated above, the process also now enables Ministers other than the
planning Minister and the regional planning Minister to make State
planning policies and State planning regulatory provisions. However, the
eligible Minister must have the planning Minister's endorsement prior to
public notification of the draft instrument and prior to making the draft
instrument.
The process for repealing and replacing State planning instruments may be
summarised as follows:
· A decision is made by the Minister to repeal a State planning
instrument, other than a regional plan. If the State planning instrument
was made jointly by two Ministers, the decision to repeal the
instrument must be jointly made by both Ministers.
· Notification of the repeal in the gazette and a newspaper.
· Copies of the notice of repeal must be given to the relevant local
governments.
Division 1 Preliminary
Process for making, amending or repealing State planning instrument
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Sustainable Planning Bill 2009
Clause 56 states the process that must be followed for making, amending
or repealing a State planning instrument. Subclauses (2) and (3) provide
for a regulation to specify additional requirements that must also be
complied with.
Compliance with divs 2 and 3
Clause 57 states that a State planning instrument made or amended in
substantial compliance with the process in divisions 2 and 3 is valid,
provided any non-compliance has not adversely affected public awareness
or the opportunity of the public to make submissions.
Division 2 Process for making State planning
instruments
Division 2 sets out the process that must be used for making a State
planning instrument.
Preparation of draft instrument
Clause 58 states the requirement for the Minister to prepare a draft
proposed instrument.
Subclause (2) specifies a further requirement for the regional planning
Minister to consult with the region's regional planning committee about
preparing a draft regional plan.
Subclause (3) makes it clear that an eligible Minister is responsible for
preparing the draft instrument where the State instrument is proposed to be
made jointly by more than one Minister (this relates to the making of State
planning policies or specific State planning regulatory provisions).
Endorsing particular draft instrument
Clause 59 provides that if a draft State planning policy or State planning
regulatory provision is prepared by an eligible Minister, the Minister and
the eligible Minister must endorse the instrument before the eligible
Minister carries out notification of the draft instrument under clause 60.
Notice about draft instrument
Clause 60 requires the Minister who prepared the draft State planning
instrument to publish a notice in relation to the draft instrument in the
gazette and in a newspaper circulating generally in the State (if the draft
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Sustainable Planning Bill 2009
instrument is to have effect throughout or is made for the whole of the
State) or part of the State (if the draft instrument is to have effect only in
part of the State).
Subclause (2) sets out the details that must be included in the notice. This
sets the standard requirements for public notification for the purpose of
consultation on the draft instrument. The term available for inspection
and purchase is defined in clause 723.
Subclause (3) specifies the consultation period.
Subclause (4) provides that the Minister who prepares the draft State
planning instrument must give copies of the notice and the draft to certain
persons or entities. This depends on the type of State planning instrument
being proposed. If draft standard planning scheme provisions are proposed,
a copy of the draft provisions must be provided to all local governments.
For any other draft State planning instrument, the Minister must provide a
copy of the draft to each local government whose local government area
includes part of the State in which the draft instrument is to have effect. If
another person or entity is prescribed under a regulation, the Minister must
also provide a copy of the instrument to that person or entity.
Keeping draft instrument available for inspection and purchase
Clause 61 requires the Minister who prepared the State planning
instrument to maintain public access to the draft State planning instrument
during the consultation period, for the purposes of inspection and purchase.
Dealing with draft State planning regulatory provision
Clause 62 relates to the making of draft State planning regulatory
provisions and provides that the Minister who prepared a draft provision
may, during the consultation period, amend, replace or remove the draft
provision. However if the draft provision is prepared by an eligible
Minister, any amendment or replacement must be endorsed by both the
eligible Minister and the Minister.
Making State planning instruments
Clause 63 requires the Minister who prepared the draft instrument to
consider every properly made submission and, if the instrument is a
proposed regional plan for a designated region, to consult with the
designated region's regional planning committee about the making of the
regional plan.
Provided subclause (1) is complied with, the Minister may then:
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· make the State planning instrument; or
· make the instrument with any amendments the Minister considers
appropriate; or
· for a State planning instrument other than a regional plan, decide not
to make the State planning instrument.
Subclause (3) sets out the responsibilities for each Minister under
subclause (2) where a State planning instrument is prepared by an eligible
Minister. The eligible Minister and the planning Minister must jointly
make the instrument as provided for in subclause (2)(a) and (b) or jointly
decide not to make the instrument.
Subclause (4) clarifies when a State planning instrument is taken to be
jointly made namely, when the instrument is endorsed by both Ministers.
Notice about making State planning instrument
Clause 64 requires the Minister who prepared the draft State planning
instrument to publish a notice about its making in the gazette and in a
newspaper circulating generally in the State (if the instrument has effect
throughout the State or is made for the whole of the State) or in a
newspaper circulating generally in a part of the State (if the instrument is to
have effect only in that part).
Subclause (2) sets out the requirements for the notice.
Subclause (3) requires the Minister who prepared the draft State planning
instrument to give a copy to each local government (in the case of the
standard planning scheme provisions) or each local government whose
local government area includes a part of the State in which the instrument
has effect (in the case of all other State planning instruments).
Notice about decision not to make State planning instrument
Clause 65 requires the Minister who prepared a State planning instrument
to publish a notice in the gazette about any decision not to make the
instrument.
Particular State planning regulatory provisions to be ratified by
Parliament
Clause 66 provides for State planning regulatory provisions relating to
regional plans to be tabled and ratified by Parliament. This clause provides
for the Minister who made the State planning regulatory provision to table
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a copy of the provision in the Legislative Assembly within 14 sitting days
after it is made.
Subclause (3) provides that if the provision is not ratified by Parliament
within 14 sitting days after the copy is tabled, the provision ceases to have
effect.
State planning regulatory provisions that are subject to disallowance
Clause 67 provides for State planning regulatory provisions not related to
regional plans to be subject to disallowance as if they were subordinate
legislation.
Division 3 Amending State planning instruments
Subdivision 1 Administrative and minor
amendments, and particular
amendments to reflect documents
This Bill includes a simple process for making less significant amendments
of a State planning instrument. These may include administrative
amendments (for example, correcting spelling errors or to change the
format of the instrument), or in cases where the instrument is amended to
reflect another State planning instrument and the Minister or the regional
planning Minister (for an amendment to a regional plan or a State planning
regulatory provision made by the regional planning Minister) is satisfied
the subject of the proposed amendment has undergone adequate
consultation.
Amendments which constitute minor amendments under the current IPA
would now fall within the definition of administrative amendment in
schedule 3 (Dictionary). The term administrative amendment better
reflects the nature of these amendments. The definition is similar to the
definition of minor amendment in the current IPA, but contains additional
items for making corrections and changes to the instrument (i.e. spelling
errors, inconsistent numbering of provisions and incorrect
cross-references).
The Bill also contains a new category of minor amendments (see the
definition of minor amendment in schedule 3), which includes
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amendments made to a State planning instrument to reflect another State
planning instrument if the Minister is satisfied there has already been
adequate public consultation about the matter. An example of this might be
where the standard planning scheme provisions are being amended to
include a code which is currently contained in a State planning policy. As
the code will have already gone through public consultation during the
making of the State planning policy, it should not be necessary for public
consultation to be repeated where the code is simply being replicated in the
standard planning scheme provisions. The definition also includes
amendments of a minor nature that are prescribed under a regulation.
This change avoids duplication and enables State planning instruments to
be responsive to each other. For example, if a new regional plan
commences, it may be necessary to amend other State planning instruments
to ensure consistency with the regional plan. The changes implement a
simpler way to achieve this.
Administrative and minor amendment or amendment to reflect other
documents
Clause 68 provides that the Minister who made the State planning
instrument may make an administrative amendment or minor amendment
of the instrument. The terms administrative amendment and minor
amendment are defined in schedule 3 (Dictionary).
Subclause (2) clarifies that for these types of amendments, the Minister
who made the instrument must make the amendment and, in the case where
the instrument is made jointly by two Ministers, the amendment must be
made by those Ministers jointly, if the amendment is a minor amendment.
A minor amendment is taken to be jointly made when the amendment is
endorsed by both Ministers. An administrative amendment to an
instrument which was jointly made, can be made either by the Minister or
the eligible Minister that is, the amendment is not required to be endorsed
by both Ministers.
Subclause (3) provides for the regional planning Minister for a designated
region to amend the region's regional plan for the purpose of including
documents made by public sector entities. This is subject to the following:
the document must demonstrate how the regional plan will be
implemented; and the regional planning Minister must be satisfied the
document has undergone adequate public consultation.
Subclause (4) states that division 2 does not apply to the making of a minor
or administrative amendment. This ensures the normal process for
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amending State planning instruments (which includes public consultation)
will not apply.
Notice of amendment under s 68
Clause 69 sets out the requirements for notifying an amendment made
under this subdivision.
The Minister who made the amendment must publish a notice in the
gazette and in a newspaper circulating generally in the State (if the draft
instrument is to have effect throughout the State or is made for the whole of
the State) or part of the State (if the draft instrument is to have effect only
in part of the State). If the amendment was jointly made, the eligible
Minister must publish the notice.
The notice must state the day the amendment was made and where a copy
of the amended instrument may be inspected and purchased.
Subdivision 2 Other amendments
Other amendments
Clause 70 sets out the process for amending State planning instruments,
other than making a minor or administrative amendment.
Subclause (2) clarifies that if the State planning instrument being amended
was jointly made by two Ministers, the amendment must be jointly made
by both Ministers.
The process for amending a State planning instrument is similar to the
process for making a State planning instrument, with only small changes.
Decision not to proceed with amendment of regional plan
Clause 71 provides for a regional planning Minister who has prepared a
regional plan under division 2 to make a decision not to proceed with an
amendment of the regional plan. While it is mandatory for the regional
planning Minister of a designated region to prepare a regional plan, this
provision makes clear the Minister is not required to adopt an amendment
of the regional plan.
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Division 4 When State planning instrument or
amendment has effect
When State planning instrument or amendment has effect
Clause 72 provides that a State planning instrument or an amendment of a
State planning instrument has effect on the day the notice about the making
of the instrument or amendment is notified in the gazette, or a later day
stated in the instrument or amendment.
Effect of draft State planning regulatory provision and draft
amendments
Clause 73 gives the Minister the ability to specify that particular draft State
planning regulatory provisions or draft amendments to a State planning
regulatory provision take effect immediately on notification of the draft.
However, the Minister may only specify that a draft has effect immediately
if the Minister is satisfied that any delay in the commencement of the State
planning regulatory provision would increase the risk of:
· serious harm to the environment or serious adverse cultural, economic
or social conditions occurring in a planning scheme area;
· compromising the implementation of a regional plan, structure plan or
proposed regional plan or structure plan.
Subsection (3) sets out the effect of a draft State planning regulatory
provision or an amendment of a State planning regulatory provision which
the Minister has stated will have immediate effect. The draft provision has
effect as if it were a State planning regulatory provision and takes effect as
soon as the notice of the draft instrument or amendment is gazetted until
the earlier of the following happens:
· the Minister decides to make a State planning regulatory provision
relating to the draft provision and the State planning regulatory
provision takes effect;
· the Minister makes a decision not to make a State planning regulatory
provision relating to the draft provision, and notice of the decision is
gazetted;
· the day that is 12 months after the date of gazettal ends.
In other words, the draft provision is in operation and effective while public
consultation is carried out and submissions about the provision are
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considered. However, the 12 month time limit ensures that the draft State
planning regulatory provision does not continue to have effect indefinitely.
The explanatory notes attached to the Integrated Planning and Other
Legislation Amendment Bill 2004 which introduced the provisions covering
the SEQ regional plan regulatory provisions made the following comments
in relation to these provisions having immediate effect:
"The key reason for the regulatory provisions to have effect is to
ensure that the provisions can implement a "holding pattern" with
respect to key regional development outcomes pending the finalisation
of the regional plan, amendment or replacement."
The same reasons apply for provisions made to support regional plans in
this Bill. These reasons are also valid in relation to the preparation of
structure plans.
It is also to be noted that temporary local planning instruments and
temporary State planning policies (which are subject to this adverse risk
test) also have immediate effect (by virtue of not requiring public
notification before coming into effect).
Division 5 Repealing and replacing State
planning instruments
Notice of repeal
Clause 74 enables the Minister to make a decision to repeal a State
planning instrument, other than a regional plan, and sets out the
requirements for notification of the repeal.
Subclause (2) makes it clear that if the State planning instrument was made
jointly by two Ministers, the decision to repeal the instrument must be
made jointly by both Ministers.
Subclause (3) provides that a State planning instrument may only be
repealed by publishing a notice in the gazette and in a newspaper
circulating generally in the State (if the draft instrument is to have effect
throughout or is made for the whole of the State) or part of the State (if the
draft instrument is to have effect only in part of the State).
Subclauses (4) and (5) set out the details that must be included in the notice
and the entities that the Minister must give a copy of the notice to.
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Subclause (6) clarifies that if the State planning instrument being repealed
was jointly made by two Ministers, the eligible Minister must carry out the
actions under subclauses (3) and (5).
When repeal has effect
Clause 75 states the repeal of a State planning instrument has effect from
the day the notice of the repeal is gazetted.
Replacement of regional plans
Clause 76 provides for a regional plan replacing an existing regional plan
to replace the former plan from the day it has effect.
Chapter 3 Local planning instruments
A new chapter 3 has been created so that all provisions about local
planning instruments are located in the same chapter. This change has been
made to improve readability and to make the location of the provisions
more logical. This restructuring also reflects the hierarchy of instruments,
with State instruments prevailing over local planning instruments to the
extent of any inconsistency.
Part 1 Preliminary
Local planning instruments under Act
Clause 77 states that a local planning instrument is any of the following:
· a planning scheme;
· a temporary local planning instrument;
· a planning scheme policy.
This change has been made for the purposes of clarification and to ensure
that important concepts are set out clearly in the Bill.
Infrastructure intentions in local planning instruments not binding
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Clause 78 establishes that a local government or the State is not obligated
to provide infrastructure in accordance with the intentions shown on a local
planning instrument. These instruments are intended to express intentions
for some time in the future. They do not prescribe the future but identify
strategic outcomes and the measures for achieving those outcomes. In this
context, indications of intentions for the provision of infrastructure both
inform and respond to development decisions that are made. Accordingly,
it is not appropriate to bind local governments to such intentions but to
allow them the necessary flexibility to respond to changing circumstances.
The requirement for regular reviews of planning schemes should prevent
infrastructure intentions shown on schemes becoming significantly
outdated.
Part 2 Planning schemes
Division 1 Preliminary
What is a planning scheme
Clause 79 states that a planning scheme is an instrument made by a local
government under division 2 and part 5 that advances the purposes of the
Act by providing an integrated planning policy for the local government's
planning scheme area.
The Minister also has powers to make and amend a planning scheme under
part 6.
Status of planning scheme
Clause 80 states that a planning scheme is a statutory instrument and has
the force of law.
Under the Statutory Instruments Act 1992 a statutory instrument may both
regulate and prohibit. However, this Bill enables local governments to
adopt only limited prohibitions in their planning schemes and temporary
local planning instruments (see clauses 88(2)(d) and 106(1)(c)).
Effects of planning scheme
Clause 81 provides that a planning scheme made under part 5 becomes the
planning scheme for the area and replaces any existing planning scheme.
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Area to which planning scheme applies
Clause 82 requires that a planning scheme cover all of a local government
area (the planning scheme area).
Subclause (2) provides that the local government may apply its planning
scheme for assessing prescribed tidal work in its tidal area to the extent
stated in a code for prescribed tidal work. This provision was originally
inserted into the current IPA to facilitate the integration of approvals for
prescribed tidal works under the Coastal Protection and Management Act
1995 into IDAS, and the requirement for local government to be
assessment manager for prescribed tidal works. This subclause allows a
planning scheme to vary a code for prescribed tidal works, even though the
works may be outside the planning scheme area.
Relationship with planning scheme policies
Clause 83 states that if there is an inconsistency between a planning
scheme and a planning scheme policy for a planning scheme area, the
planning scheme prevails to the extent of the inconsistency. The note to
this clause contains a reference to the relevant provisions of chapter 2,
which state the relationship between planning schemes and State planning
instruments.
Division 2 General provisions about planning
schemes
Power to make planning scheme
Clause 84 gives local governments power to make a planning scheme for
their planning scheme area under part 5. As stated above, the Minister may
also make or amend a planning scheme (see part 6).
Documents planning scheme may adopt
Clause 85 refers to section 23 of the Statutory Instruments Act 1992 which
allows a statutory instrument to apply, adopt or incorporate the provisions
of an Act, statutory instrument, other law, or another document.
This clause limits the generality of section 23 of the Statutory Instruments
Act 1992 by stating that the only documents made by a local government
which can be applied, adopted or incorporated into a planning scheme, are
a planning scheme policy, a structure plan, a priority infrastructure plan or
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an infrastructure charges schedule. The purpose of this clause is to ensure
that a planning scheme can only "call up" local documents that have gone
through an appropriate public consultation process.
Subclause (2) clarifies that, for the purposes of this clause, documents does
not include a development approval (which includes a development
approval given under the Bill or the current IPA, or taken to be a
development approval under the current IPA), a master plan or certain types
of approvals given under the repealed Local Government (Planning and
Environment) Act 1990 and mentioned in section 6.1.26 of the current IPA.
Relationship between planning schemes and Building Act
Clause 86 provides that a planning scheme must not deal with building
work to the extent the work is regulated under the building assessment
provisions under the Building Act 1975 (Building Act) unless permitted
under the Building Act. The note to this section provides an example of
sections 32 and 33 of the Building Act.
The building assessment provisions are defined in section 30 of the
Building Act to include, among other things, chapters 3 and 4 of the
Building Act, the Building Code of Australia, the fire safety standard in the
Queensland Development Code and, subject to section 33, other parts of
the Queensland Development Code. Section 31 of the Building Act
provides that the building assessment provisions are codes for the purposes
of IDAS for the carrying out of building assessment work and
self-assessable building work.
The current version of section 31 of the Building Act was inserted in 2006
through the Building and Other Legislation Amendment Act 2006. The
intention of the section as expressed in the explanatory notes "A local
government can not make additional building assessment provisions either
through local laws, planning instruments or by resolution except as
provided in sections [32 or 33 of the Building Act]".
Sections 32 and 33 of the Building Act permit a local government to
include certain matters in their planning schemes. These currently include,
for example, designating land liable to flooding for floor level heights of
habitable rooms, designating bushfire prone areas, and requiring larger
water tanks and dual reticulation as additional water savings to those
provided in the Queensland Development Code MP 4.2 (Water Savings
Targets).
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However, sections 32 and 33 of the Building Act are intended to prevent a
local government from including matters already addressed by building
codes such as the Queensland Development Code and the Building Code of
Australia in their local laws, planning schemes or council resolutions,
unless this is specifically permitted by a regulation or a method is specified
in the Queensland Development Code. Building matters covered by the
codes include structural, safety and amenity standards; requirements for
buildings in flood prone areas; water and energy efficiency standards for all
building types; access for people with a disability, and other standards
addressed in the Queensland Development Code such as the functional
layout of child care centres.
The purpose of clause 86 is to make it clear that a planning scheme must
not be inconsistent with the requirements of the Building Act that is, it
must not address matters already addressed by the building assessment
provisions, unless permitted under the Building Act through provisions
such as sections 32 and 33 of the Building Act. To the extent that a
planning scheme deals with building work regulated under the building
assessment provisions, it is of no effect. This clause will apply to existing
and new planning schemes where there is inconsistency.
Covenants not to conflict with planning scheme
Clause 87 provides that certain covenants under the Land Act 1994 or the
Land Title Act 1994 will be of no effect to the extent they conflict with a
planning scheme. 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. This clause is subject to
clause 349.
The effect of this clause is 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 Bill therefore envisages that in
certain circumstances, justifiable on planning grounds, a condition may be
in conflict with a planning scheme.
Division 3 Key concepts for planning schemes
Key elements of planning scheme
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Clause 88 states six key elements which a local government and the
Minister must be satisfied that a planning scheme does or includes.
Subclause (1)(a) relates to the standard planning scheme provisions. Under
this Bill, a local planning instrument or an amendment to a local planning
instrument can only be made if the planning Minister is satisfied that the
local planning instrument or amendment appropriately reflects the standard
planning scheme provisions. If a planning scheme is made under the Bill,
the local government must also ensure any changes to the standard
planning scheme provisions are adopted by an amendment to the local
planning instrument. The standard planning scheme provisions will
contain both mandatory and non-mandatory parts. A planning scheme
must contain the mandatory parts. The requirement to reflect the standard
planning scheme provisions does not apply to a planning scheme made
under the current IPA, or an amendment of a planning scheme made under
the current IPA.
Subclause (1)(b) requires a planning scheme to identify the strategic
outcomes for the planning scheme area. Strategic outcomes should focus
on the environmental, social and economic outcomes which the local
government considers are desirable for the planning scheme area.
Subclause (1)(c) requires planning schemes to also include measures that
facilitate the achievement of these strategic outcomes. Subclause (2)
explains that such measures include the identification of categories of
development (self-assessable development, development requiring
compliance assessment, assessable development requiring code and/or
impact assessment, and limited prohibitions).
Subclause (1)(d) relates to an overall approach which arises directly from
the object of the Act: a planning scheme must coordinate and integrate all
the matters it deals with. These matters include the core matters (see clause
89) and may have State, regional or local dimensions as described in clause
90.
Subclause (1)(e) provides that a planning scheme must include a priority
infrastructure plan.
Subclause (1)(f) requires a planning scheme to include a structure plan for
any parts of the planning scheme area that are within a declared master
planned area.
Subclause (2) provides that measures facilitating the achievement of the
strategic outcomes include the identification of development as
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self-assessable development, development requiring compliance
assessment, assessable development and prohibited development.
However, a planning scheme may state that development is prohibited
development, only if the standard planning scheme provisions state the
development may be prohibited development. For example, the standard
planning scheme provisions may include a "suite" of development types
that a local government may choose to prohibit if the prohibition would
assist in achieving the strategic outcomes for the area. A local government
cannot include any other prohibitions in its planning scheme.
Core matters for planning scheme
Clause 89 states the three core matters for preparation of a planning
scheme:
· land use and development;
· infrastructure;
· valuable features.
Land use and development and valuable features are defined inclusively
in subclause (2). Infrastructure is defined in the dictionary in schedule 3.
Subclause (2) also sets out some particular matters that are included in this
term.
For the purposes of paragraph (e) of the definition of land use and
development, development constraints may include such matters as
identification of areas subject to flooding, areas containing acid sulphate
soils, etc.
Valuable features extends to both terrestrial and aquatic resources and
areas listed in paragraphs (a) to (d).
State, regional and local dimensions of planning scheme matters
Clause 90 provides that a matter, including a core matter, in a planning
scheme may have local, regional or State dimensions. The following table
provides an example of how the different dimensions may possibly be
identified with respect to clause 89(2), paragraph (a) of the core matter of
valuable features.
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Core matter Local Regional State
valuable dimension dimension dimension
features
Resources or A local creek A wildlife A protected area
areas that are of system corridor included in a
ecological containing an identified in a national park
significance e.g. area of scenic regional plan
an area of value in a
ecological coastal area
significance
within a wildlife
corridor
Division 4 Reviewing planning schemes
Local government must review planning scheme every 10 years
Clause 91 states the minimum time within which a local government must
review its planning scheme. Under the current IPA, local governments are
required to review their planning schemes at least every 8 years. This has
been changed to at least every 10 years. This change is intended to
promote forward planning and to more closely align with the period of
growth that a priority infrastructure plan must cover, and the planning
horizon of regional plans.
Subclause (2) requires the local government to, as part of the review, assess
the achievement of the strategic outcomes in the planning scheme. The
review should also consider the following:
· Does the planning scheme still achieve the purposes of the Act, i.e.
ecological sustainability?
· Is the planning scheme still contemporary? For example, have the
dynamics or circumstances of the planning scheme area changed, such
as through major population growth or industry development? Have
new social, economic or environmental issues arisen since the
planning scheme was introduced (e.g. significant economic growth or
decline)?
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· Are the underlying assumptions of the planning scheme still relevant
to the planning scheme area?
· Are the measures in the planning scheme for achieving the strategic
outcomes still effective?
· Does the planning scheme still adequately coordinate and integrate
State, regional and local dimensions?
· Does the planning scheme adequately reflect the regional plan, State
planning policies and the standard planning scheme provisions? It
should also be noted that local governments are required to amend
their planning schemes on an ongoing basis to reflect regional plans
(or amendments to regional plans) and amendments to the standard
planning scheme provisions (see clauses 29 and 55).
Action local government may take after review
Clause 92 sets out the three possible options for a local government after
reviewing its planning scheme. The local government must by resolution
propose to prepare a new scheme or amend the existing one, or decide that
the planning scheme is suitable as it is and to take no further action.
Report about review if decision is to take no action
Clause 93 specifies requirements for a report if the local government
decides to take no further action following review of its planning scheme.
Notice about report to be published
Clause 94 states that after preparing a report about the review, the local
government must publish and display a notice stating that the report is
available for inspection and purchase.
Division 5 Application of superseded planning
schemes
The Bill introduces a new process for an applicant to make a request to the
local government for a proposed development to be carried out under a
superseded planning scheme or for a development application or request
for compliance assessment to be assessed under a superseded planning
scheme. Under the current IPA, a person wishing to carry out development
under a superseded planning scheme or have a development application
assessed under a superseded planning scheme must make a development
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application to the local government, making the request. This process is
confusing and creates an artificial situation in the case of a request to carry
out development under a superseded planning scheme, by requiring a
development application for development that does not require a
development approval. The Bill simplifies this process by enabling a
person to make a direct request to the local government to determine
whether development may be undertaken or an application assessed under
a superseded planning scheme. The Bill also ensures that these provisions
apply to requests for compliance assessment.
These provisions relate to the right to compensation in chapter 9, part 3. In
this regard, it is important to note that the timeframe within which a request
to apply a superseded planning scheme can be made has been reduced from
2 years under the current IPA, to 1 year. Consultation prior to this Bill
resulted in a commitment by the State government to review the
mechanism for making a development application under a superseded
planning scheme and to consider the option of reducing the time period for
lodgement from two years to 12 months.
Throughout consultation, there was support from State and local
government stakeholders to reduce the timeframe to lodge a development
application proposed for assessment under a superseded planning scheme.
The reduced timeframe is intended to give the new planning scheme, which
reflects current planning standards, its full effect more quickly. The
reduced timeframe also ensures that the right to compensation is limited to
those persons with an immediate intention to realise their development
rights and reduces the amount of time the superseded planning scheme has
effect.
Request for application of superseded planning scheme
Clause 95 enables a person to ask the local government, by written notice,
to apply a superseded planning scheme to the carrying out of development
that, under the new or amended planning scheme, is assessable
development, prohibited development or development requiring
compliance assessment but which was exempt development or
self-assessable development under the superseded planning scheme. If the
local government agrees to the request, the person will be able to carry out
the development without having to apply for a development approval or
make a request for compliance assessment in the case of development that
is now assessable development or development requiring compliance
assessment under the new or amended planning scheme. In the case of
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development which is prohibited development, the person will be able to
carry out the development if the local government agrees to the request.
This clause also enables a person to ask a local government to assess and
decide a proposed development application under a superseded planning
scheme where the proposed development requires impact assessment under
the new or amended planning scheme, but required code assessment under
the superseded planning scheme. A person may also ask a local
government to accept, assess and decide a proposed development
application where the proposed development is prohibited under the new or
amended planning scheme, but was assessable development under the
superseded planning scheme.
This clause also applies to development requiring compliance assessment.
In particular, it applies where:
· Development requires compliance assessment under both the existing
planning scheme and the superseded planning scheme, but the matters
or things against which the request must be assessed have changed. In
this situation, the person may ask the local government if the request
for compliance assessment can be assessed and decided under the
superseded planning scheme.
· Development requires compliance assessment under the existing
planning scheme, but was self-assessable or exempt development
under the superseded planning scheme. The person may ask the local
government to apply the superseded planning scheme to the carrying
out of the development.
· Development is assessable development or prohibited development
under the existing planning scheme, but required compliance
assessment under the superseded planning scheme. The person may
ask the local government to accept a request for compliance
assessment for the development, and to assess and decide the request
under the superseded planning scheme.
Subclause (2) provides that the notice may be given to the local
government only within 1 year after the day the planning scheme, planning
scheme policy, or amendment of a scheme or policy creating the
superseded planning scheme took effect.
Subclause (3) sets out the requirements for the notice. In the case of a
request to assess an application or a request for compliance assessment
against a superseded planning scheme, it is intended that the applicant
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would generally attach a copy of the proposed development application or
request. However, in recognition of the reduced timeframe for making a
request, this may not always possible. In any event, the person making the
request must provide sufficient information about the proposed
development to enable the local government to properly consider the
request.
Decision on request
Clause 96 gives the local government the discretion to decide whether or
not to agree to the request.
The request must be decided within 30 business days after the request is
received by the local government, however this period can be extended (see
subclauses (2), (3) and (4)).
Subclause (5) provides that the local government is deemed to have agreed
to the request if the request is not decided within the 30 business day
period, or the extended period.
If the local government agrees to a request to assess an application under
the superseded planning scheme and the local government refuses the
application, the owner of the land is not entitled to claim compensation
from the local government. However, if the local government refuses the
request and the application is assessed against the new or amended
planning scheme and is either refused, approved in part, or approved
subject to conditions, the owner may make a claim for compensation.
If a request to assess and decide a request for compliance assessment under
a superseded planning scheme is refused, and the request is assessed
against the new or amended planning scheme and is approved subject to
conditions, the owner may make a claim for compensation.
In the case of development which is prohibited development under the new
or amended planning scheme but not prohibited development under the
superseded planning scheme, the right to claim compensation will arise as
soon as the request to carry out the development under the superseded
planning scheme, or to assess an application or request for compliance
assessment under the superseded planning scheme, is refused. Chapter 9,
part 3 describes how and under what circumstances compensation is
payable under the Bill.
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Notice of decision
Clause 97 requires the local government to give the person making the
request written notice of its decision within 5 business days after making
the decision.
When development under superseded planning scheme must start
Clause 98 applies where a request was made to carry out development
under a superseded planning scheme. If the local government agrees, or is
taken (under clause 96(5)) to have agreed to the request, the development
the subject of the request must be carried out:
· in the case of a material change of use - within 4 years after the person
was given, or was entitled to be given notice of the local government's
decision;
· in the case of reconfiguring a lot within 2 years after the person is
given, or was entitled to be given notice of the local government's
decision;
· in all other cases within 2 years after the person is given, or was
entitled to be given notice of the local government's decision.
Subclause (2) provides that a person may ask the local government to
extend the period above.
Subclause (3) provides that a request to extend the period must be made in
the form required by local government and must be accompanied by the
required fee. A request to extend the period may not be withdrawn.
Subclause (4) provides that the local government must decide the request
for extension within 30 business days after receiving the request.
Subclause (5) ensures that the timeframe for carrying out the development
does not lapse in the situation where a request for extension has been made,
but has not yet been decided, by the local government.
When development application (superseded planning scheme) can be
made
Clause 99 applies where a request was made to assess and decide, or
accept, assess and decide, an application against the superseded planning
scheme. If the local government agrees, or is taken to have agreed to the
request, the development application (superseded planning scheme) for the
development must be made to the assessment manager within 6 months
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after the day the person is given, or was entitled to be given, notice of the
decision.
Subclause (3) clarifies that a development application can be made for
development that is prohibited development under the new or amended
planning scheme despite clause 239 if the local government agrees to a
request to assess and decide a development application under the
superseded planning scheme. This only applies, however, if the proposed
development the subject of the application was not also prohibited under
the superseded planning scheme.
When request for compliance assessment under a superseded planning
scheme can be made
Clause 100 applies where a request was made to assess and decide, or
accept, assess and decide, a request for compliance assessment against the
superseded planning scheme. If the local government agrees, or is taken to
have agreed to the request, the request for the development must be made
within 6 months after the day the person is given, or was entitled to be
given, notice of the decision.
Subclause (3) clarifies that a request for compliance assessment can be
made for development that is prohibited development under the new or
amended planning scheme despite clause 239 if the local government
agrees to a request to accept, assess and decide a request under the
superseded planning scheme. This only applies, however, if the proposed
development the subject of the request was not also prohibited under the
superseded planning scheme.
Part 3 Temporary local planning
instruments
Division 1 Preliminary
What is a temporary local planning instrument
Clause 101 states that a temporary local planning instrument is an
instrument made by a local government under division 2 and part 5 that
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advances the purpose of this Act by protecting a planning scheme area
from adverse impacts.
The current IPA definition of temporary local planning instrument only
defines it by reference to the part under which it is made. This would not be
workable now that all local planning instruments are made under the same
provision, so a distinguishing feature was required to give meaning to the
definition.
This provision is to be read in conjunction with clause 105 of the Bill,
which provides that a temporary local planning instrument can only be
made if the Minister is satisfied of a number of things, such as the
requirement that there is a significant risk of serious environmental harm or
serious adverse cultural, economic or social conditions occurring in the
planning scheme area and the delay in amending the planning scheme
would increase this risk.
The Minister also has powers to make a temporary local planning
instrument under part 6.
Status of temporary local planning instrument
Clause 102 states that a temporary local planning instrument is a statutory
instrument and has the force of law.
Under the Statutory Instruments Act 1992 a statutory instrument may both
regulate and prohibit. However, this Bill enables local governments to
adopt only limited prohibitions in their planning schemes and temporary
local planning instruments (see clauses 88(2)(d) and 106(1)(c)).
Area to which temporary local planning instrument applies
Clause 103 states that unlike a planning scheme, a temporary local
planning instrument may apply to either all or part of the planning scheme
area.
This reflects the different role of the temporary local planning instrument
which is to address a specific issue rather than to be a comprehensive
planning instrument.
Relationship with planning scheme
Clause 104 states that a temporary local planning instrument may suspend
or otherwise affect the operation of a planning scheme for up to 1 year.
However, the temporary local planning instrument does not amend the
planning scheme, and is not a change to a planning scheme under clause
703.
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The note to this clause contains a reference to the relevant provisions of
chapter 2, which state the relationship between planning schemes and State
planning instruments.
Division 2 General matters about temporary
local planning instruments
Power to make temporary local planning instrument
Clause 105 gives local governments the power to make a temporary local
planning instrument for all or part of a planning scheme area in certain
circumstances. Before a temporary local planning instrument can be made
under part 5, the Minister must be satisfied:
· there is a significant risk of serious environmental harm, or serious
adverse cultural, economic or social conditions occurring in the
planning scheme area;
· the risk would increase if the process in the statutory guideline for
amending a planning scheme was used to amend the planning scheme
due to the delay involved;
· State interests would not be adversely affected by the proposed
temporary local planning instrument; and
· the proposed instrument appropriately reflects the standard planning
scheme provisions.
Content of temporary local planning instrument
Clause 106, subclause (1), states that a temporary local planning
instrument may declare development to be self-assessable development,
development requiring compliance assessment, or assessable development
requiring impact and/or code assessment. The instrument may also state
that development is prohibited development, provided the standard
planning scheme provisions state the development may be prohibited
development. The purpose of subclause (1) is to make it clear that a
temporary local planning instrument can state categories of development.
Subclause (2) is intended merely to recognise that a temporary local
planning instrument may do other things besides specifying categories of
development (e.g. identify a code for development).
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Documents temporary local planning instrument may adopt
Clause 107 refers to section 23 of the Statutory Instruments Act 1992
which allows a statutory instrument to apply, adopt or incorporate the
provisions of an Act, statutory instrument, other law, or another document.
This clause limits the generality of section 23 of the Statutory Instruments
Act 1992 by stating that the only documents made by a local government
which can be applied, adopted or incorporated into a temporary local
planning instrument, are a planning scheme policy or a structure plan. The
purpose of this clause is to ensure that temporary local planning
instruments can only "call up" local documents that have gone through an
appropriate public consultation process.
Subclause (2) clarifies that, for the purposes of this clause, documents does
not include a development approval (which includes a development
approval given under the Bill or the current IPA, or taken to be a
development approval under the current IPA), a master plan or certain types
of approvals given under the repealed Local Government (Planning and
Environment) Act 1990 and mentioned in section 6.1.26 of the current IPA.
Part 4 Planning scheme policies
Division 1 Preliminary
What is a planning scheme policy
Clause 108 states that a planning scheme policy is an instrument made by a
local government under division 2 and part 5 that:
· supports the local dimension of a planning scheme;
· supports local government actions under this Bill for IDAS and for
making or amending its planning scheme.
Planning scheme policies are intended to merely support the scheme.
Substantive planning policies are intended to be contained within the
planning scheme itself.
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Status of planning scheme policy
Clause 109 states that a planning scheme policy is a statutory instrument
and has the force of law. Despite this, the Bill provides that planning
scheme policies may only deal with limited matters (see clause 114).
Effect of planning scheme policy
Clause 110 states what it means for a planning scheme policy to be made
for the planning scheme area--it becomes a policy for the area and replaces
any existing policy, if that is the intention.
Area to which planning scheme policy applies
Clause 111 states that a planning scheme policy may apply to all or only
part of a planning scheme area. This reflects the flexible nature of planning
scheme policies and their role in reflecting only the local dimensions of
matters dealt with by schemes, which may or may not apply across the
entire scheme area.
Relationship with other planning instruments
Clause 112 provides that where a planning scheme policy and any other
planning instrument deal with the same matter in an inconsistent way, the
other planning instrument will prevail over the planning scheme policy to
the extent of the inconsistency.
Division 2 General matters about planning
scheme policies
Power to make planning scheme policy
Clause 113 gives local governments the power to make, under part 5, a
planning scheme policy for all or part of its planning scheme area.
Content of planning scheme policy
Clause 114 states the matters that a planning scheme policy may deal with.
A planning scheme policy cannot deal with any other matters, other than
those specified in this clause, despite the fact that it is a statutory
instrument.
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Planning scheme policy can not adopt particular documents
Clause 115 provides that a planning scheme policy must not apply, adopt
or incorporate another document made by the local government.
Subclause (2) clarifies that, for the purposes of this clause, document does
not include a development approval (which includes a development
approval given under the Bill or the current IPA, or taken to be a
development approval under the current IPA), a master plan or certain types
of approvals given under the repealed Local Government (Planning and
Environment) Act 1990 and mentioned in section 6.1.26 of the current IPA.
Part 5 Making, amending or repealing
local planning instruments
Division 1 Preliminary
Under the current IPA, the process for making or amending local planning
instruments is included in the Act (schedules 1, 2 and 3). Under this Bill,
the process for making and amending a local planning instrument will be
included in a statutory guideline made by the Minister, however the Bill
identifies some basic guarantees for effective consultation and notification
of the local planning instrument (where applicable). It also specifies
minimum guarantees to ensure the approval of the Minister for new
planning schemes. The movement of the process for making planning
schemes to a statutory guideline will enable more flexibility in changing
the process, to ensure that plan-making is continuously improved. It is
consistent with current drafting standards to include detailed processes in a
regulation or statutory guideline, rather than in the Act.
Application of pt 5
Clause 116 states that part 5 does not apply to amendments of a local
government's planning scheme to include a structure plan. The process for
amending a planning scheme to include a structure plan applies to declared
master planned areas and is provided for in a separate part of the Bill
relating to declared master planned areas (see chapter 4).
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Division 2 Making or amending local planning
instruments
Process for making or amending local planning instruments
Clause 117, subclause (1) states that for making or amending a planning
scheme or a planning scheme policy, a local government must follow the
process set out in a guideline made by the Minister and prescribed under a
regulation.
Subclause (2) states that for making a temporary local planning instrument,
a local government must follow the process set out in a guideline made by
the Minister and prescribed under a regulation.
This clause has been structured in this way, to make it clear that a
temporary local planning instrument cannot be amended.
Content of guideline for making or amending local planning
instrument
Clause 118 sets out the minimum requirements to be included in the
statutory guideline. Some of these requirements are minimum guarantees
to ensure effective public consultation and notification, whereas other
requirements are needed to ensure that certain administrative or process
steps are undertaken (e.g. notification of the making of the instrument in
the gazette or newspaper, as the commencement of these instruments is
linked to these steps). This clause refers mainly to consultation
requirements in respect of making planning schemes and planning scheme
policies. This is not to say that public consultation will not be required in
respect of certain types of amendments to planning schemes and planning
scheme policies. These requirements (if any) will be set out in the statutory
guideline.
As with the current IPA, public consultation will not be required in respect
of temporary local planning instruments.
This clause also requires the local government to provide the Minister with
a summary of the issues raised during public consultation and how the
issues have been dealt with by the local government.
Compliance with guideline
Clause 119 states the requirement for validity of a planning scheme, a
planning scheme policy, a temporary local planning instrument, or an
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amendment of a scheme or policy--substantial compliance with the
process stated in the guideline mentioned in clause 117.
A planning scheme or planning scheme policy or an amendment of these
instruments is still valid so long as non-compliance has not:
· adversely affected the public's awareness of the existence and nature
of the proposed instrument or amendment;
· restricted the opportunity of the public to make properly made
submissions under the guideline about the proposed instrument or
amendment; or
· for a planning scheme or amendment of a planning scheme
restricted the opportunity of the Minister to consider whether State
interests would be adversely affected.
It is recognised that in following detailed processes there is potential for
procedural mistakes to be made. Therefore, a "public effects" test has been
included to avoid the potential for unproductive and expensive litigation
about process detail. Subject to any non-compliances satisfying this test, a
local planning instrument is still valid even if there have been some
procedural non-compliances.
When planning scheme, temporary local planning instrument and
amendments have effect
Clause 120, subclauses (1) and (2) provide that a planning scheme or
temporary local planning instrument made under this part has effect on and
from the day the making of the planning scheme or temporary local
planning instrument is notified in the gazette or, if a later day is stated in
the planning scheme or temporary local planning instrument, the later day.
Subclause (2) states that a planning scheme amendment has effect on and
from the day the making of the amendment is notified in the gazette or, if a
later day is stated in the amendment, the later day.
Subclause (3) states that a temporary local planning instrument has effect
until the instrument expires or is repealed.
When planning scheme policy and amendments have effect
Clause 121 specifies the day on and from which a planning scheme policy
or an amendment of a policy takes effect (either the day the adoption is first
notified in a local newspaper or a later day if stated in the policy or
amendment).
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Consolidating planning schemes
Clause 122 states that a planning scheme may be consolidated by a local
government. Under clause 127, the Minister may also direct a local
government to prepare a consolidated planning scheme. A definition of a
consolidated planning scheme is provided in the dictionary (schedule 3).
Essentially this is a combination of all scheme amendments without
changing a person's existing rights and obligations. As there is no change
to the substance of the current scheme, the clause also states that the
guideline mentioned in clause 117, which prescribes the process for
making a scheme, does not apply.
The purpose of this clause is to ensure that local governments are able to
prepare up to date planning scheme documents as a service to users with a
minimum of procedural fuss. A consolidated scheme is a bit like a reprint
of an Act. It includes all amendments made to the instrument since it was
first made.
Division 3 Repealing local planning instruments
This division deals only with repealing temporary local planning
instruments and planning scheme policies. Planning schemes cannot be
repealed they can only be replaced by making a new scheme.
Repealing temporary local planning instruments
Clause 123 states that there are two ways in which temporary local
planning instruments may be repealed. The first way provides for the local
government to repeal it by resolution, followed by publication of a notice in
a local newspaper and in the gazette, with a copy of the notice going to the
chief executive. If the instrument was made by the local government
following a direction of the Minister under clause 126, made by the
Minister under clause 128, or made by the Minister under clause 129, the
Minister's written approval is required to make a resolution to repeal.
The second way to repeal a temporary local planning instrument is by
adoption of a planning scheme or an amendment of a planning scheme that
specifically repeals the instrument. This last course provides a permanent
way of dealing with the matters originally dealt with by the temporary local
planning instrument. The repeal takes effect from the day the resolution is
notified in the gazette or, if the temporary local planning instrument is
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repealed by the making of a planning scheme or a planning scheme
amendment, the day the planning scheme or amendment takes effect.
Repealing planning scheme policies
Clause 124 states that a local government may repeal a planning scheme
policy (other than one replaced by another) by resolution. This must be
followed by providing the Minister with a copy of the resolution, placing a
public notice in a local newspaper and giving the chief executive a copy of
the notice.
The repeal takes effect on the day the notice is published in the newspaper
or, if the notice states a later day, on the later day.
This clause also states that when a new planning scheme (other than an
amendment of a planning scheme) is made, all existing planning scheme
policies are cancelled from the day the planning scheme takes effect. The
purpose of this is to ensure that planning scheme policies are always
directly relevant to and supportive of the scheme they are attached to.
Where it is appropriate for an existing planning scheme policy to roll over
to a new planning scheme, it may be remade as part of the process for
making the new planning scheme.
Part 6 Powers of State in relation to
local planning instruments
Division 1 Direction to take action about local
planning instruments
Under the current IPA, the Minister can direct local governments to make
or amend a local planning instrument, however the Minister must first give
written notice to the local government of his or her intention to exercise the
power. The local government can then make representations about the
proposed direction. If the local government does not comply with the
direction, the Minister can make or amend the local planning instrument
himself or herself.
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Under the new Bill, this power has been expanded to enable the Minister to
direct a local government to amend a local planning instrument to make it
consistent with the standard planning scheme provisions.
In addition, the Bill now enables the Minister to make or amend a local
planning instrument where urgent action is necessary to protect or give
effect to a State interest, without first giving a direction to the local
government.
The Bill also enables the Minister to amend a local planning instrument, or
multiple local planning instruments, to reflect the standard planning
scheme provisions without first giving a direction to the local government.
Procedures before exercising particular power
Clause 125 applies in relation to a power exercised by the Minister under
clause 126 or 127. Before exercising the power in these clauses, the
Minister must first give written notice to the local government to be
affected by the exercise of the power. A notice is not needed if the local
government has requested the Minister to exercise the power.
The notice is required to state the reasons for the proposed exercise of
power and the time within which the local government may make a
submission. The Minister must consider any submission made within the
stated time and decide whether or not to exercise the power. If the power is
exercised, the local government must be advised and provided with the
reasons.
Power of Minister to direct local government to take particular action
about local planning instrument
Clause 126 states that if the Minister is satisfied that it is necessary to
protect or give effect to a State interest, or to ensure a local planning
instrument or a proposed local planning instrument is consistent with the
standard planning scheme provisions, a local government may be directed
to take action about its local planning instruments or a proposed local
planning instrument. This action varies according to the type of instrument
and may be as general or specific as the Minister considers
appropriate--planning scheme (review, make anew or amend), temporary
local planning instrument (make anew or repeal), planning scheme policy
(make anew, amend or repeal). The provision also allows a direction to be
made about a proposed local planning instrument, not merely a local
planning instrument already in effect. The direction must also state the
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reasonable time by which the local government must comply with the
direction.
Power of Minister to direct local government to prepare a consolidated
planning scheme
Clause 127 states that the Minister has the power to direct a local
government to prepare a consolidated scheme.
Power of Minister if local government does not comply with direction
Clause 128 states that the Minister may take the action a local government
was directed to take if the local government does not comply within the
reasonable time stated in the direction. If the Minister takes the action it has
the same effect as if it were done by the local government. The Minister
may also recover the cost of taking the action from the local government.
This clause, together with equivalent clauses elsewhere, ensures that there
are sanctions for non-compliance with the Bill or with directions arising
from application of the Bill.
Division 2 Making or amending local planning
instrument without direction
Power of Minister to take action about local planning instrument
without direction to local government
Clause 129 provides that if the Minister is satisfied urgent action is
necessary to protect or give effect to a State interest, the Minister may
make or amend a local planning instrument without first having to give the
local government a direction under clause 126. This new power has been
included in the Bill as a result of feedback received during consultation
carried out as part of the planning reform improvement project. The
consultation indicated public support for the Minister taking a more
proactive role in developing and delivering good planning and development
outcomes. This change will facilitate more effective protection and
promotion of State interests through local planning instruments. In
particular, it will ensure that the Minister can act to urgently protect State
interests. Where urgent action is not required, the Minister should use the
powers in clause 126.
Clause 129 also enables the Minister to amend a local planning instrument
without first giving a direction under clause 126, where the Minister is
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satisfied a local planning instrument does not appropriately reflect the
standard planning scheme provisions. The power in clause 129 will
generally be the appropriate power to use where multiple local planning
instruments need to be amended. For example, this power could be used
where there is a change to a definition in the standard planning scheme
provisions, which affects all local government planning schemes. In this
situation, it is more efficient for the Minister to amend the local planning
instruments, instead of requiring or directing each local government to
separately amend its planning scheme.
Division 3 Process for dealing with local
planning instruments under part 6
Process for Minister to take action under pt 6
Clause 130 provides that the statutory guideline for making or amending a
local planning instrument must state the process the Minister must follow if
he or she takes the action the Minister directed the local government to take
under division 1, or makes or amends a local planning instrument under
division 2. The Minister is required to follow this process in taking these
actions.
Chapter 4 Planning partnerships
Part 1 Master planning for particular
areas of State interest
Division 1 Preliminary
Chapter 4 contains the substance of provisions previously contained in
chapter 2, part 5B of the current IPA, dealing with master planning
arrangements through the preparation of structure plans and master plans.
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Under this Bill, these arrangements are included in a chapter entitled
"Planning partnerships", reflecting the intent that structure plans and
master plans are planning documents developed in a collaborative way and
involving State and local government and private individuals.
The introduction of master planning arrangements under the Urban Land
Development Authority Act 2007 was a key component of the
Government's housing affordability strategy, and brings the substantial
resources and expertise of the private sector to the planning of key urban
development areas in order to improve the quality and timeliness of
planning outcomes in these areas. By involving State and local
governments and the private sector in the planning for these areas,
significant time and cost savings can be made "downstream" in the
development assessment process.
Structure plans are characterised as a key component of planning schemes,
however they can also affect matters related to assessable development
normally dealt with under the Bill and regulation.
Master plans are essentially a planning document, but one in which there is
significant private sector involvement, and for which an approval process
involving both State and local government is established.
Purpose of ch 4
Clause 131 provides a purpose statement for this part. It provides a
summary of the process required to identify and designate master planned
areas, the process for making structure plans, and the process for preparing
and approving master plans.
Division 2 Master planned areas
Identification of master planned areas
Clause 132 sets out the process and options for identifying master planned
areas. It provides options for identification in planning schemes, regional
plans, State planning regulatory provisions and Ministerial declarations.
Master planned area declarations
Clause 133 states how a master planned area declaration is made and the
matters a master planned area declaration must include. In particular,
subclause (2)(c) requires the declaration to state the IDAS jurisdictions of
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participating agencies. This is essential as it links to the new schedule in
the regulation (previously schedule 8 of the current IPA), which affects
how certain development is assessed.
The current IPA includes a separate provision which provides that certain
triggers may not apply in declared master plan areas (current IPA, section
2.5B.63). An equivalent clause has not been included in this Bill, as the
exceptions that were included in section 2.5B.63 of the current IPA are
integrated into the schedule under the regulation to this Bill identifying
assessable development. As under the current IPA, entities that would
otherwise be referral agencies under IDAS may be nominated as
coordinating agencies or participating agencies for structure planning. If
so, they cease to become IDAS referral agencies.
Restriction on particular development applications in master planned
area
Clause 134 restricts the making of applications for preliminary approval to
which clause 242 applies in master planned areas to certain circumstances.
Applications for preliminary approval to which clause 242 apply are
restricted so they do not vary the effect of a structure plan for the master
planned area.
Notation of master planned areas on planning scheme
Clause 135 requires local governments to note any master planned area on
their planning schemes.
Part 2 Structure plans for master
planned areas declared by the
Minister or regional planning
Minister
Division 1 Preliminary
Application of pt 2
Clause 136 states that this part only applies to master planned areas that
have been declared by the Minister. While a master planned area may be
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identified in a way described under clause 132, the majority of
arrangements in this chapter apply only in master planned areas the subject
of a declaration under clause 133.
What is a structure plan
Clause 137 defines a structure plan for a declared master planned area as
the structure plan for the area made under division 4.
Relationship with regulation under s 232
Clause 138 requires a structure plan to be consistent with a regulation
made under clause 232(1) or (2) establishing categories of development.
Relationship with State planning instruments
Clause 139 provides that if there is an inconsistency between a structure
plan and a State planning instrument, the State planning instrument prevails
to the extent of the inconsistency.
This provision has been inserted to establish a clear hierarchy of
instruments under the Bill, and will assist referral agencies and assessment
managers in resolving conflicts between structure plans and State planning
instruments
Division 2 General matters about structure plans
Local government's obligation to have structure plan
Clause 140 establishes the obligation for a structure plan to be prepared by
a local government for a declared master planned area.
Content of structure plan
Clause 141 reinforces that a structure plan is part of a planning scheme and
sets out the requirements for a structure plan. In addition to setting out the
overall planning intent for the area, a structure plan must also establish
each participating agency's jurisdiction as stated in the master planned area
declaration. It also sets out the requirements for any future master plans.
As the structure plan forms part of the planning scheme, the structure plan
must appropriately reflect the standard planning scheme provisions.
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Prohibited development under structure plan
Clause 142 states that the structure plan may only state development is
prohibited development if the standard planning scheme provisions state
the development may be prohibited development. This is consistent with
provisions for planning schemes and temporary local planning instruments
in the Bill. This change accounts for the introduction of limited
prohibitions as a new category of development.
Division 3 Funding for structure plans
Agreement to fund structure plan
Clause 143 allows a local government to enter an agreement with owners
or occupiers of land in a declared master planned area to fund the
preparation of a structure plan. Any agreement must be in accordance with
a policy of the local government that prescribes the basis on which the
funding is provided.
Special charge for making a structure plan
Clause 144 provides a power for a local government, by resolution, to
make and levy on the owner or occupier of land in a declared master
planned area, a special charge to fund the cost of preparing the structure
plan for the area. The carrying out of integrated planning under this chapter
will be expected to generally have significant beneficial financial effects
for land owners in the declared area. The detailed and comprehensive
nature of the planning and the likely beneficial financial effects for land
owners distinguishes structure planning under this chapter from other more
general land use planning undertaken elsewhere in a local government's
area. Accordingly, it is considered appropriate to allow the cost of the
planning to be recouped from land owners, even though this is not allowed
for other plan making under the Bill.
Subclause (9) provides that section 1035A of the Local Government Act
1993 applies to a special charge under this clause. Section 1035A of the
Local Government Act 1993 enables local governments to grant
concessions to classes of land owners, such as pensioners and not-for-profit
organisations.
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Division 4 Making structure plans
Making structure plan
Clause 145 establishes that structure plans must be prepared as required by
guidelines made by the Minister and prescribed under a regulation.
Content of guideline for making structure plan
Clause 146 sets out the minimum requirements to be included in the
statutory guideline. Some of these requirements are minimum guarantees
to ensure effective public consultation and notification, whereas other
requirements are needed to ensure that certain administrative or process
steps are undertaken (e.g. notification of the making of the structure plan in
the gazette, as the commencement of structure plans is linked to these
steps).
Compliance with guideline
Clause 147 is a "substantial compliance" provision stating that a structure
plan is valid if it is made in substantial compliance with the guideline, so
long as any non-compliance has not adversely affected public awareness or
the opportunity to make submissions.
When structure plan takes effect
Clause 148 states that a structure plan comes into effect the day the plan is
notified in the gazette or the commencement date stated in the plan,
whichever is the later day.
Provisions for new planning schemes
Clause 149 provides for situations where a local government introduces a
new planning scheme before a structure plan being prepared under the old
planning scheme is completed. The clause provides the Minister with
power to approve the inclusion of the structure plan in the new planning
scheme without requiring the local government to repeat the process for
making the structure plan.
This clause also deals with the situation where a structure plan exists under
a planning scheme and the local government proposes to make a new
planning scheme. Subclause (4) allows the Minister to approve the
inclusion of the structure plan in the new planning scheme if the Minister
agrees the new plan is substantially consistent with the existing plan.
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Part 3 Master plans
Division 1 Preliminary
Application of pt 3
Clause 150 provides that this part applies if the structure plan for a
declared master planned area requires a master plan.
What is a master plan
Clause 151 defines master plan as a plan approved under clause 181 that is
still in effect. A master plan includes any conditions included in the plan.
Relationship with regulation under s 232
Clause 152 provides that a master plan must be consistent with any
regulation made under clause 232(1) or (2) establishing categories of
development.
Relationship with other planning instruments
Clause 153 sets out the relationship between a master plan and other
planning instruments. If there is an inconsistency between a master plan
and a State planning instrument, the State planning instrument will prevail
to the extent of the inconsistency. However, this clause is subject to clause
154.
If a master plan is different to a local planning instrument to the extent that
it provides for categories of development or codes for development, the
master plan will prevail.
New planning instruments can not affect approved master plan
Clause 154 states that once a master plan has been approved, a new
planning instrument or any amendment to a planning instrument can not
change or affect a master plan.
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Division 2 General matters about master plans
Content of master plan
Clause 155 sets out the matters a master plan must include as well as
matters a master plan may deal with. In summary, the master plan must:
· include a master plan area code;
· appropriately reflect the standard planning scheme provisions;
· state categories of development;
· state codes for development and when development must be
completed.
Subclauses (2), (3) and (4) establish the circumstances in which a master
plan may vary the structure plan.
Subclause (5) provides that the master plan may require later master plans.
Master plan attaches to land in master planning unit
Clause 156 clarifies that a master plan attaches to all land in the master
planning unit.
Local government approval required
Clause 157 provides that all master plans prepared under a structure plan
require local government approval under division 3.
When master plan ceases to have effect
Clause 158 establishes that, as development is completed in a master
planning unit, the master plan for the unit progressively "dissolves". This
concept ensures that master plans do not exist in perpetuity. When their
task is completed (i.e. when development is completed) the master plan
ceases to have effect. However, if the master plan states a time within
which the development must be completed, the master plan will cease to
have effect at this time, even though the development may not yet be
completed.
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Division 3 Applying for and obtaining approval
of proposed master plan
Subdivision 1 Application stage for proposed
master plan
Who may apply
Clause 159 enables any person to apply to a local government for approval
of a master plan for a declared master plan area.
Requirements for application
Clause 160 sets out the requirements for making a master plan application.
Subdivision 2 Information and response stage
Local government gives application to coordinating agency
Clause 161 establishes arrangements for the local government to give a
copy of a properly made master plan application to the coordinating agency
for the application, and for the coordinating agency to give a copy of the
application to participating agencies.
Request for information from applicant
Clause 162 provides for the local government, the participating agencies
and the coordinating agency to make information requests of the applicant.
The coordinating agency coordinates the requests from the State and
provides the coordinated request to the local government. The local
government must give any information request to the applicant within the
times indicated in subclause (5).
Applicant responds to any request for information
Clause 163 establishes the arrangements for applicants providing a
response to a request under clause 162. The applicant has three options in
responding to the information request:
· option 1 give all of the information requested;
· option 2 give part of the information requested;
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· option 3 not give any of the information requested.
Under the current IPA, the timeframe for responding to the request for
information is 12 months. Under the Bill, this is reduced to 6 months. This
is consistent with the changes to the timeframe for responding to an
information request in the IDAS.
Lapsing of application if applicant does not respond
Clause 164 provides a master plan application lapses if the applicant does
not respond under clause 163 within the times provided under that clause.
If the application is revived under clause 165, the application will again
lapse if the applicant does not comply with clause 165(2) (i.e. if the
applicant does not give the response mentioned in clause 163) within the
timeframe specified in clause 165(2). In this circumstance, the application
cannot be further revived (see clause 165).
When application taken not to have lapsed
Clause 165 provides that a lapsed master plan application may be
"revived" upon request by the applicant within 5 business days of the
application lapsing. In this situation, the applicant must undertake the
required action within 5 business days or the further period agreed between
the local government and the applicant.
If an application had previously lapsed under clause 164 and then been
revived under this clause, the application will again lapse if the applicant
still fails to respond to the information request within the timeframe
specified in clause 165. In this circumstance, the application cannot be
further revived. This supports the intention of this provision, namely to
prevent accidental lapses due to administrative oversights.
Subdivision 3 Consultation stage
When consultation is required
Clause 166 provides for circumstances when public notification is required
for the master plan application, and requires the applicant to undertake the
notification, and give a copy of the public notice to the local government.
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Content requirements for public notice
Clause 167 sets out the requirements for the content of a public notice
under clause 166, and establishes the consultation period for the master
plan application.
When public notice must be given
Clause 168 establishes when the public notice must be given under clause
166. The time for the notice to be given is linked to the end of the period
for requesting information under clause 162.
Notice to comply with public notice requirement
Clause 169 provides for the local government to give the applicant a notice
requiring the applicant to give public notice of the master plan application,
if the applicant has failed to do so.
Lapsing of application if notice not complied with
Clause 170 provides for the lapsing of a master plan application if the
applicant does not comply with a notice under clause 169.
Making submissions
Clause 171 provides for any person to make a submission about a master
plan application during the consultation period for the application. The
submission requirements are similar to those for development applications
under chapter 6, part 4.
Distribution of submissions
Clause 172 provides for a coordinating agency to request a local
government to give it copies of submissions, and for the coordinating
agency to distribute the copies among participating agencies. This clause
also contains arrangements for local governments and coordinating
agencies to advise of any submissions that are withdrawn.
Subdivision 4 State government decision stage
Assessment by participating agency and coordinating agency
Clause 173 provides for the matters against which the coordinating agency
and any participating agencies must assess the master plan application.
Subclause (2) provides for an agency to give weight to documents that
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come into effect after the application was made, but before its response is
given.
When participating agency's response must be given
Clause 174 establishes the time (the required period) within which a
participating agency's response about a master plan application must be
given. This time is dependent on whether the agency made a request for
information.
Participating agency's response powers
Clause 175 establishes a participating agency's response powers. Any
conditional response is subject to clause 183, which establishes the
agency's jurisdiction to impose conditions.
Coordinating agency's assessment
Clause 176 establishes the responsibilities of the coordinating agency upon
receipt of participating agency responses. The coordinating agency must
identify any conflicts in the participating agency responses and its own
assessment and seek to resolve any conflicts it identifies with the relevant
participating agencies.
Resolution of conflict by Minister
Clause 177 provides for the coordinating agency to refer any unresolved
issues arising from the process under clause 176 to the Minister. In
resolving conflicts, the Minister must either establish a committee to report
on the matter or decide the matter having regard to the written views of the
parties. However the Minister's decision cannot be contrary to any law.
Coordinating agency's decision
Clause 178 establishes timeframes for the coordinating agency to advise
the local government of its decision, and the form the decision may take.
Subdivision 5 Local government decision stage
Decision-making period
Clause 179 establishes the period within which a local government must
make a decision about a master plan application. The period depends upon
whether there was a coordinating agency for the master plan application.
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Assessment by local government
Clause 180 establishes the matters against which the local government
must assess the master plan application.
The local government may give weight to documents approved after the
master plan application was made but before it makes its decision.
Local government's decision generally
Clause 181 establishes the parameters within which the local government's
decision about the master plan application must be made.
If the coordinating agency directs an action within the defined scope of
their powers (e.g. to attach stated conditions) the local government must
comply with the direction.
Restrictions on giving approval
Clause 182 prevents a local government from giving an approval to a
master plan application if it conflicts with specified State planning
instruments, the strategic outcomes for the local government's planning
scheme, the structure plan under which the application has been made, or
any other master plan applying for the master plan unit.
Also, the local government must not approve the master plan before
another master plan the structure plan requires to be approved first, is
approved. If the application for the other master plan is refused, so must the
application for the master plan.
The current IPA provides that a local government cannot approve a
proposed master plan if it conflicts with a State planning policy not
appropriately reflected in the structure plan. The Bill includes this, with
the additional proviso that a local government cannot approve a proposed
master plan if it conflicts with a regional plan. This amendment recognises
that State planning policies can be reflected in a regional plan, in which
case they do not apply in assessing a master plan.
Conditions
Clause 183 establishes limits on the conditioning powers for master plan
approvals, and indicates the type of conditions that may be imposed.
Notice of decision
Clause 184 requires the local government to give written notice of its
decision to the applicant and coordinating agency, and states requirements
for the notice. A coordinating agency must give a copy of any notice it
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receives under this clause to each participating agency for the master plan
application.
Representations about conditions and other matters
Clause 185 provides for an applicant to make representations about a
decision about a master plan application to the local government or
coordinating agency, and for a new decision in the form of a negotiated
notice to be given.
Applicant may suspend applicant's appeal period
Clause 186 allows for an applicant to suspend the applicant's appeal period
in order to make representations under clause 185.
When approval takes effect
Clause 187 establishes when a master plan approval takes effect. This is
dependent upon whether or not the applicant chooses to appeal.
The provisions in the Bill about when an approval takes effect have been
changed to account for the situation where an appeal is withdrawn, since
there is some uncertainty about this under the current IPA.
Effect on decision stage if action taken under Native Title Act (Cwlth)
Clause 188 extends the decision stage for a master plan application if
notification of a future act under the Commonwealth Native Title Act 1993
is undertaken.
Subdivision 6 Ministerial directions about
application
Ministerial directions to local government
Clause 189 provides for the Minister to make directions to a local
government about actions taken in connection with a master plan
application.
Ministerial directions to applicant
Clause 190 provides for the Minister to make directions to an applicant
about actions taken in connection with a master plan application.
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Subdivision 7 Changing or withdrawing
applications
Changing application
Clause 191 allows for an applicant to change a master plan application at
any time before it is decided by giving the local government notice of the
change. The local government must give a copy of the notice to any
coordinating agency for the application. If the applicant changes the
application, the assessment steps already completed must be repeated,
unless the change is one or more of the types of change stated in subclause
(5).
Withdrawing application
Clause 192 allows an applicant to withdraw a master plan application.
Subdivision 8 Miscellaneous provisions
Agreements about master plan
Clause 193 provides for an applicant for a master plan to enter into
agreements with an entity, including a local government, coordinating
agency or participating agency to secure performance or establish
obligations under an approval for the plan.
Substantial compliance
Clause 194 states that a master plan made in substantial compliance with
the process set out in this division is valid so long as any non-compliance
has not affected public awareness of the proposed plan, the capacity for any
individual to make submissions, or the capacity of a coordinating agency,
participating agency or local government to perform their functions in
relation to the application.
Additional third party advice or comment
Clause 195 clarifies that a local government may seek additional third
party advice or comment about a master plan application at any time before
it is decided.
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Modified application of provisions about infrastructure for master
plan
Clause 196 states that the infrastructure charging and conditioning
arrangements in chapter 8, parts 1 and 3 apply as if the master plan
application were a development application (subject to certain stated
modifications).
Master plan applications are applicant-driven planning processes that have
similarities to development assessment. Accordingly, it is appropriate the
infrastructure regime applying to development also apply to these plans.
Notation of master plan on planning scheme
Clause 197 requires a local government to notate an approved master plan
on its planning scheme and give the chief executive notice of the notation.
Subclause (2) provides the note is not an amendment to the local
government's planning scheme.
Division 4 Amending or cancelling master plans
Application to amend master plan
Clause 198 provides for amendments to master plans using the process
under division 3, as if the amendment were an application for approval of
the plan.
Subclause (3) provides that the written consent of the owner of the land is
not required if, in the local government's opinion, the amendment does not
materially affect the land.
Cancellation of master plan by local government
Clause 199 allows a local government to cancel a master plan in limited
circumstances. All affected owners must agree to the cancellation, and
development under the plan must not have started.
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Chapter 5 Designation of land for
community infrastructure
The provisions about designation of land for community infrastructure
have been included in a separate chapter because community infrastructure
designations are a distinct and unique planning tool.
Part 1 Preliminary
Who may designate land
Clause 200 states that a Minister (in this chapter any Minister of the State)
or a local government may be a designator i.e. they may designate land for
community infrastructure. What constitutes community infrastructure will
be listed in a regulation to the Bill. The Minister may designate land for
community infrastructure that exists or that the State or another entity
intends supplying. Similarly, local governments also may designate land
for infrastructure that exists or that the local government or another entity
intends supplying.
The key feature of designation is that the infrastructure must be for
community infrastructure. It is not necessary that the infrastructure be
publicly owned.
Matters to be considered when designating land
Clause 201 establishes four public benefit criteria, at least one of which
must be satisfied in order for land to be designated for community
infrastructure.
These criteria are concerned with:
· environmental protection or ecological sustainability;
· efficient allocation of resources;
· satisfying statutory requirements or budgetary commitments of the
State or local government;
· the community's expectations for the efficient and timely supply of
infrastructure.
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What designations may include
Clause 202 gives guidance on the requirements, plans, programs or the
like, that may be incorporated into a designation of land for community
infrastructure. For example, if land were designated for a hospital, plans
may accompany the designation showing what the building would look like
and the proposed site layout including vehicular access and circulation, the
size and location of car parks, landscaping, and the location of emergency
service areas. Another designation, perhaps for a community centre, may
include written details describing the floor area of the building and the
nature of activities for which the building will be used. In another case,
perhaps for a sewage treatment plant, a specific environmental
management plan may be included in the designation to ensure that
impacts of the infrastructure are reduced.
Such details on the design and operation of proposed community
infrastructure may be necessary for determining the suitability of a site for
the intended use and ensuring that the infrastructure when finally built is
compatible with its surroundings. The need to impose design requirements,
an operational program or similar, may arise in response to consideration
by a designator about whether a designation should proceed.
Clause 582 includes an offence for carrying out development for
designated purpose other than in accordance with a designation. This
ensures any requirements in relation to the development included in a
designation under this clause are enforceable.
How IDAS applies to designated land
Clause 203 states that development under a designation is, to the extent the
development is self-assessable development, development requiring
compliance assessment or assessable development under a planning
scheme, exempt development. This means the planning scheme does not
apply to designated land. This is because the designation of land involves a
public consultation process and also requires major environmental effects
to be taken into account.
However, despite that, if development is self-assessable, development
requiring compliance assessment or assessable development under a
regulation made under clause 232(1), these provisions still apply. For
example, if the regulation provides that a material change of use for
carrying out an environmentally relevant activity is assessable
development, then clause 203 will not apply to make the development
exempt.
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The only exception is for reconfiguring a lot (paragraph (b)). Designation
of network infrastructure may involve the reconfiguration of substantial
numbers of lots, sometimes in several local government areas. Applying for
reconfiguration in these circumstances would be onerous. For this reason
reconfiguration for a designated purpose is exempt development in all
circumstances under this clause.
Relationship of designation to State Development and Public Works
Organisation Act 1971
Clause 204 provides that this clause applies if a designation is made for
land included within a State development area declared under the State
Development and Public Works Organisation Act 1971.
Subclause (2) states that despite section 84 of the State Development and
Public Works Organisation Act 1971, use of the designated land for
purposes consistent with the designation is taken to be a use consistent with
the intent of the development scheme for the State development area, and is
not a use that contravenes section 84 of that Act (particularly in terms of
subsections (2) and (4)).
This means development for the designated purpose does not require
approval under the development scheme for the State development area.
How infrastructure charges apply to designated land
Clause 205 states that infrastructure charges do not apply to public sector
designated development. This is consistent with current government policy
which does not subject public entity proposals to council charges.
Presently, government policy is for the costs of infrastructure to be shared
equally between local and State governments.
How designations must be shown in planning schemes
Clause 206 specifies how a designation by the local government or a
Minister must be shown in a planning scheme.
The following must be shown:
· the land affected;
· the type of community infrastructure;
· the day the designation was made;
· a reference to any matters included in the designation about the design
and operation of the community infrastructure (under clause 202);
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· that the planning scheme provisions which apply to the land remain
effective if the designation is repealed or ceases to have effect.
This ensures that all essential information about a designation is shown on
planning schemes enabling those inspecting a scheme to be aware of their
existence and nature.
A statement is included in the clause to remove any doubt that:
· A local government's designation is part of a scheme, that is, it has the
same status and significance as any other part of the scheme (for
example, it is a relevant consideration in development assessment).
· Designation is not the only way community infrastructure may be
identified in a planning scheme. For example, land may be shown in a
scheme as having a preferred use for particular infrastructure and
certain provisions of the scheme would apply in accordance with that
preferred use.
· The planning scheme provisions which apply to the land affected
remain if the designation is repealed or ceases to have effect. This
makes it clear that designations operate like an overlay within a
scheme, and should they cease or be repealed, do not leave a "hole" in
the scheme. It also emphasises the need to consider an alternative use
of designated land if designations are being introduced into a new
scheme.
Part 2 Ministerial designations
Matters the Minister must consider before designating land
Clause 207 states the process which must be followed by a Minister when
designating land. Before designating land, the Minister must be satisfied
adequate environmental assessment and consultation has been completed
for the development the subject of the proposed designation. The current
IPA provides that there has been adequate environmental assessment and
public consultation if, among other things, public notification has been
carried out for a planning scheme or structure plan under schedules 1 or
1A. Schedules 1 and 1A have not been included in the new Bill. Instead
the Minister will have the power to make statutory guidelines about making
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and amending planning schemes, and amending planning schemes to
include a structure plan.
Subclause (3) sets out the conditions that constitute adequate
environmental assessment and public consultation for carrying out an
environmental assessment. In general, this depends on whether the subject
of the proposed development has already undergone an environmental
assessment or been publicly notified. For example, this may apply to a
development application that includes the community infrastructure and
has been publicly notified in accordance with the IDAS process in chapter
6.
Subclause (3) is not an exhaustive list of the ways a Minister may carry out
environmental assessment and consultation in the course of designation.
Ultimately the adequacy of environmental assessment and public
consultation is a matter for the Minister under subclause (1). Subclause (3)
merely lists seven ways of carrying out consultation and environmental
assessment that would be adequate for subclause (1). It does not limit the
ways in which the Minister may be satisfied under subclause (1).
Subclause (2) states additional matters the Minister must consider before
making the designation. These include any relevant State or local planning
instruments or master plans (for land in a declared master planned area)
that may apply to the land that is the subject of the proposed designation.
The Minister must also consider every properly made submission made
under subclause (4). This requires the Minister to give written notice of the
proposed designation to any local government the Minister is satisfied is
affected by the designation or to an owner of any land to which the
designation applies, if the entity or owner has not been given written notice
under subclause (3). The notice must invite submissions about the
proposed designation and provide at least 15 business days for the entity or
land owner to make a submission.
Procedures after designation
Clause 208 requires a Minister who designates land to advise each owner,
each relevant local government and the chief executive of the designation.
Subclause (2) states the content of the notice advising the above entities of
the designation, including any particular requirements for the development
of the land included in the designation under clause 202. This ensures that
the entities receiving the notice can form an accurate impression of the
nature and impacts of the designation, particularly as any requirements
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under clause 202 may have been included in the designation in response to
consultation or environmental assessment, and may not have been part of
the proposal originally consulted upon.
Subclause (3) requires the designating Minister to publish a notice in the
gazette stating the matters listed in subclause (2)(a) to (c).
Procedures if designation does not proceed
Clause 209 provides the process to be followed if designation is proposed
but does not proceed. The relevant Minister must notify each owner of the
land and each relevant local government of the Minister's decision not to
proceed.
Effects of ministerial designations
Clause 210 states that a designation replaces any existing designation, if
the designation contains a statement to that effect. It also specifies the day
on and from which the designation takes effect (either the day the
designation is first notified in the gazette or a later day if stated in the
designation). Such statements are necessary to settle any query as to the
applicability of a designation at a particular time.
When local government must include designation in planning scheme
Clause 211 requires a local government to note a designation by a Minister
on its planning scheme (whether the designation is in or near the planning
scheme area), and on any new scheme it makes before the designation
ceases to have effect. Subclause (2) establishes that, unlike a designation
made by a local government, the notation of a designation on a planning
scheme under this clause is not a planning scheme amendment.
This amendment has been made for the purpose of clarification and
consistency with other provisions in the legislation, which specifically state
that certain notations made on a planning scheme are not amendments to
the planning scheme.
Part 3 Local government designations
Designation of land by local governments
Clause 212 states that a local government may only designate land by
including the designation as a substantive provision of its planning scheme,
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i.e. by either making or amending the planning scheme. This ensures a
means of introduction which is accountable and consistent with how a local
government incorporates other significant provisions affecting planning
and development in its local area. The same process applies whether or not
the land is owned by the local government.
Designating land the local government does not own
Clause 213 requires a local government to give written notice of its
intentions to designate land if it is not the owner of the land. As the
designation is achieved through the scheme making or amending process,
the clause specifies that the notice be given before the start of the
consultation period. This ensures that the owner is aware of the proposed
designation, and of the opportunity to make a submission during the
consultation period.
This clause specifies what the notice must state:
· the description of the land to be designated, including a plan;
· the type of community infrastructure proposed;
· the reasons for the designation; and
· that submissions may be given to the local government during the
consultation period.
Part 4 Duration and reconfirmation of
designations
Duration of designations
Clause 214 states that a designation ceases to have effect after six years.
The last day is referred to as the designation cessation day. If a new
planning scheme is made, a current designation included in the new
scheme continues to have effect until its designation cessation day. As the
designation already exists and requirements to notify the owner have
previously been completed, clause 213 does not apply again when the new
scheme is being made.
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When designations do not cease
Clause 215 identifies five circumstances when a designation does not cease
to have effect on the designation cessation day:
· the land is not owned by the State or local government and
construction of the community infrastructure has started;
· the land is owned on the day by the State or a local government;
· a notice has been given by the relevant public sector entity to resume
the land under section 7 of the Acquisition of Land Act 1967 (ALA);
· an agreement has been signed to take the land under the ALA or to
otherwise buy it; or
· it is a designation by the Minister which has been reconfirmed.
However subclause (2) states that, should proceedings to resume the
designated land discontinue, then the designation ceases to have effect. The
purpose of this clause is to ensure that if the designation of privately owned
land has not been acted upon after a reasonable period then it does not
continue to influence the use of the land for other purposes.
Subclause (3) is included to remove any doubt that designation or a notice
of designation does not constitute a notice of intention to resume under the
ALA. Actions under the ALA arising from a designation will occur
separately and follow the procedures specified by that Act.
Reconfirming designation
Clause 216 specifies the procedure for reconfirming a designation so that a
designation does not cease after 6 years. This clause:
· relates to a designation by the Minister;
· makes the designation effective for another 6 years;
· requires the Minister to:
-- give a copy of the notice reconfirming the designation to the
owner of the land;
-- publish the notice in the gazette;
· requires the local government to again note the designation on its
planning scheme and on any new scheme it makes before the
designation ceases to have effect; and
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· is subject to the duration and cessation provisions for a designation
under clauses 214 and 215.
Subclause (3) makes it clear that this note on a planning scheme regarding
the designation, is not an amendment of the planning scheme. This
amendment has been made for the purpose of clarification and consistency
with other provisions in the legislation, which specifically state that certain
notations made on a planning scheme are not amendments to the planning
scheme.
Part 5 Repealing designations
Who may repeal designations
Clause 217 provides that designations may be repealed by the entity that
created them.
Notice of repeal
Clause 218 requires the repeal of a designation to be notified by publishing
a notice in the gazette and a newspaper circulating generally in the locality
of the designation.
Subclause (2) contains requirements about the content of the notice.
Minister or local government to give notice of repeal to particular
entities
Clause 219 contains requirements for the giving of notice of the repeal of a
designation.
Subclause (1) deals with the repeal of a designation made by the Minister,
and requires a copy of the notice of the repeal to be given to:
· each local government notified about the making of the designation;
· the owner (unless the land is owned by the State or a local
government); and
· the chief executive.
Subclause (2) deals with the repeal of a designation made by a local
government, and requires a copy of the notice of the repeal to be given to
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the owner, if the land is owned by an entity other than the local
government.
When designation ceases to have effect
Clause 220 provides that a repealed designation ceases to have effect from
the day the notice of the repeal is notified in the gazette.
The opportunity to remove a designation quickly allows a Minister or local
government to act as soon as practicable once it has been determined that a
designation is no longer appropriate, rather than wait for the designation to
lapse or for a local government to review its scheme. This prevents a
designation being a relevant consideration in planning and development
assessment when it has been determined that certain proposed
infrastructure will definitely not be proceeding.
Local government to note repeal on planning scheme
Clause 221 requires a local government to note the repeal of a designation
made by the local government or a Ministerial designation on its planning
scheme. Again, the notation is not an amendment to the planning scheme.
Subclause (2) makes it clear that this note on a planning scheme of the
repeal of a designation, is not an amendment of the planning scheme. This
amendment has been made for the purpose of clarification and consistency
with other provisions in the legislation, which specifically state that certain
notations made on a planning scheme are not amendments to the planning
scheme.
Part 6 Acquiring designated land
Request to acquire designated land under hardship
Clause 222 states that an owner of an interest in designated land may
request the designator to buy the interest. This clause makes it clear that a
land owner affected by a designation is entitled to seek action from the
relevant government authority to clear themselves of property which has
limited potential for new private development.
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Decision about request
Clause 223 specifies a decision-making period of 40 business days and
certain matters about the owner's circumstances to consider in making a
decision. The designator must decide to:
· grant the request;
· take other action under clause 226 (exchange the interest for property
held by the designator, remove the designation or investigate removal
of the designation); or
· refuse the request.
Notice about grant of request
Clause 224 applies if the designator decides to grant the request and buy
the interest. It requires the designator to give the owner a notice of its
intention within 5 business days of making the decision.
Notice about refusal of request
Clause 225 applies if the designator decides to refuse the request. It
requires the designator to give the owner a notice, within 5 business days of
making the decision, advising that the request has been refused and that the
owner may appeal against the decision.
Clause 477 allows a person to appeal to the court against a decision to
refuse a request. A failure to decide the request within the specified time is
also appealable on the basis of a deemed refusal. Because the request to
purchase the interest arises out of hardship on the part of the owner, it is
appropriate that court costs associated with any appeal be treated
sympathetically. Accordingly, clause 457 states that costs must be paid by
the relevant Minister or local government if the appeal is against a deemed
refusal or an appeal against a decision is upheld.
Alternative action designator may take
Clause 226 specifies alternative decisions to either granting or refusing the
request to buy the interest:
· exchange the interest for property held by the designator;
· repeal the designation or remove the designation from the interest; or
· investigate removal of the designation from the interest.
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Consistent with the requirements for other possible decisions on the
request, the designator must give the owner a notice of its intention within
5 business days of making the decision.
If the designator does not act under the notice
Clause 227 requires the designator to give a notice of intention to resume
an interest in designated land under section 7 of the Acquisition of Land Act
1967, if within 25 business days the designator has not:
· signed an agreement with the owner to buy or exchange the interest;
or
· repealed the designation or removed the designation from the interest;
as stipulated in the notice given under clause 224 or 226.
How value of interest is decided
Clause 228 deals with the value of an interest in designated land if the land
is taken under the Acquisition of Land Act 1967. This clause states that the
effect of designation must be disregarded in deciding the value of the
interest taken.
Part 7 Delegation of Minister's
functions
Ministers may delegate particular administrative functions about
designations
Clause 229 provides that some functions of a Minister with respect to
designation may be delegated to the chief executive or a senior executive of
any Department for which the Minister has responsibility, or the chief
executive officer of a public sector entity. These functions are in clauses
208, 209 and 224 to 227.
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Chapter 6 Integrated development
assessment system (IDAS)
Part 1 Preliminary
Chapter 6 establishes the integrated development assessment system, or
IDAS. IDAS has been a key feature of Queensland's planning and
development assessment system since 1998. Like the current IPA, the Bill
seeks integration in three broad areas:
· integrated planning;
· integrated development assessment;
· integrated dispute resolution and enforcement.
IDAS is in many senses the centrepiece of this integrated system. It links
integrated policies expressed through a range of instruments established
under chapters 2, 3 and 4 with real outcomes "on the ground" through a
flexible, responsive and accountable performance-based development
assessment system.
Key characteristics of IDAS are:
· Comprehensive: IDAS covers approvals for almost all development
in Queensland (including Queensland waters). Exceptions include
approvals for mining and petroleum-related activities (which are given
under the Environmental Protection Act 1994), and development in
certain locations, such as urban land development areas under the
Urban Land Development Authority Act 2007. The broad scope of the
definition of development (see clauses 7 and 10) means that IDAS
covers the broadest possible range of development. This approach is
necessary if a truly integrated approach to development assessment is
to be achieved.
· Scalable: IDAS is capable of applying at any scale of development
from minor works (for example a vehicle crossing or pergola) to
complex, major staged proposals such as master planned
communities.
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· Modular: IDAS consists of four basic stages which are modular in
character i.e. not all stages apply to all development applications. A
simple application may involve only two stages (application and
decision), whereas a more complex proposal may involve 4 stages
(application, information and referral, notification and decision).
IDAS also involves the compliance stage. For development requiring
compliance assessment only, this will be the only stage that applies to
the development.
· Performance-based: IDAS is a performance-based development
assessment system. It effectively establishes a right for a person to
bring forward any proposal and have it tested against the policy
benchmarks set under the planning instruments established in chapters
2 and 3, structure plans and master plans made under chapter 4 and
other policy benchmarks. Proposals that comply or "perform" will
generally be approved. However, the Bill does introduce limited
prohibitions and prevents applications from being made in respect of
this prohibited development.
· Balanced: IDAS balances the need for effective and timely approvals
with the rights of the community to be informed and to comment on
key proposals. IDAS includes checks and balances to ensure any
obligations imposed on participants are balanced with rights of
redress. For example, the capacity for an assessment manager to seek
further information in support of an application is balanced with the
right of applicants to provide some or none of the information, and
seek a final decision, so that any disputes about the adequacy of the
information can be independently arbitrated through an appeal or
review process.
· Accountable: IDAS includes accountabilities on all participants to
ensure the process is timely, transparent and fair. All processes under
the Bill have clear end points specified with a right of appeal or review
attached.
Since IDAS was first introduced in 1998, over 60 amendments were made
to the current IPA to progressively integrate into IDAS approvals
previously given under separate processes in a range of primary and
subordinate legislation. Upon commencement of the current IPA, approvals
under planning schemes and about reconfiguring a lot were already
integrated. Early integrations included the building approvals system under
the Building Act 1975 and a range of approvals under the Environmental
Protection Act 1994. Other approvals include coastal development, heritage
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approvals, development related to water resources, vegetation
management, fisheries resources, port land, contaminated land, rail
infrastructure, State roads and public passenger transport.
Integration of development approvals into IDAS has involved the
amendment of other legislation to remove stand-alone processes.
Removing stand-alone processes from other legislation has meant the
removal of substantial amounts of legislated process. It has also involved
other legislative changes to separate and rationalise development
assessment processes from other processes under other legislation,
including resource allocation and personal licensing processes.
Development assessment and resource allocation
Resource allocation decisions are concerned with establishing rights of
access to resources owned or managed by another party, be they a private
resource holder or the State government. Such resources include land,
water, forest products and extractive materials. Ownership of, and access to
State resources, and proprietorship generally are not considerations under
IDAS.
However the allocation of a State resource is most often followed by its
development, so resource allocation often precedes and intersects with
development assessment under IDAS in several key respects. For example,
a development application for development of a State resource must often
be accompanied by evidence of an entitlement to the resource.
Matters considered in resource allocation are also different to those for
development assessment. Allocation of a State resource involves
consideration of the highest and best use of the resource in the
community's interests, and is essentially a policy decision of government.
Development assessment is an administrative process aimed at determining
the suitability of a particular proposal in light of a policy framework.
Development assessment and personal licensing
Personal licensing systems are concerned with evaluating the skills,
competencies, or record of individuals for the carrying out of certain
activities. Examples include liquor licensing under the Liquor Act 1992 or
environmental authorities under the Environmental Protection Act 1994.
IDAS is not concerned with the personal qualities of the applicant, and a
development approval under IDAS does not attach to a person, but to
premises. However many development approvals are followed by personal
licensing processes to establish the competencies of operators.
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Consultation and the reform agenda
Consultation carried out in the course of developing the reform agenda
established that there was strong support for the fundamentals of the
current IPA and IDAS, and their underpinning philosophies are sound.
However difficulties with IDAS were identified in the following areas:
· Difficulties in correctly determining referral agencies.
· Lodgement of poor quality or incomplete development applications.
· Non-compliance with IDAS timeframes.
· A focus on process and timeframes rather than good development
outcomes.
· Issues associated with procedural actions, such as changing
development applications or conditions of approvals.
The reform agenda responded with 24 specific recommendations for
legislative improvements to IDAS, most of which are reflected in this Bill.
Key among these are:
· Streamlining and simplifying assessment and referral triggers, and
locating them all in the regulation.
· Simplifying the application stage and making the responsibilities of
the assessment manager and applicant clearer.
· Re-ordering the current arrangements for the lapsing of development
applications to make them easier to find and understand. The Bill also
enables a small "window of opportunity" for applications to be
revived, in order to prevent applications being "thrown out" of the
system due to a minor, administrative error or oversight.
· Requiring the submission of identified supporting information as part
of a properly made application for assessable development and
preventing the acceptance of incomplete applications. This reform
action is intended to "raise the bar" for the quality and content of
development applications. The greater onus on applicants for
submitting properly made applications is balanced with a requirement
for assessment managers to inform applicants if their applications
cannot be accepted, and the necessary remedies. Applicants are
afforded additional time to remedy deficiencies in their applications
without further fees. The jurisdiction of the Building and
Development Dispute Resolution Committee (previously called the
Building and Development Tribunal) under chapter 7, part 2 of this
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Bill has been expanded to deal with certain declaratory matters about
development applications.
· Reducing the default time for an applicant to respond to an
information request from 12 months to 6 months (except for
applications required as the result of an enforcement notice, which
will continue to have a prescribed timeframe of 3 months).
· Greater clarity and improved flexibility about changing development
applications before they are determined.
· Specific arrangements for dealing with missed referrals identified
prior to an application being decided.
· Consolidation and simplification of assessment and decision rules.
· Reforms to preliminary approvals that override a planning scheme to
ensure they are used in appropriate circumstances, and that the rights
they confer are exercised within a reasonable time after approval.
· Consolidating, simplifying and allowing more flexible arrangements
for changing development approvals, including addressing
inconsistencies between changing conditions and other aspects of an
approval, and introducing the concept of a "permissible change".
· Expansion of the current compliance assessment process to create a
technical assessment stream, including incorporation of current
processes for approving plans of subdivision within the compliance
assessment process.
· Introduction of limited prohibitions. Prohibitions which are currently
set out in other legislation have been consolidated into schedule 1 of
the Bill. The Bill also provides for limited prohibitions at a local
level.
· Introduction of deemed approvals for certain types of code assessable
applications, if they are not decided within the IDAS timeframes.
· Numerous other improvements, and restructuring of chapter 6 to
create a clearer and more logical sequence.
The reforms to IDAS also respond to evolving practice in the broader
planning and development assessment environment, particularly the advent
of electronic development assessment and document management systems
such as e-IDAS.
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Division 1 Introduction
What is IDAS
Clause 230 states IDAS is the system detailed in this chapter for
integrating State and local government assessment and approval processes
for development.
Categories of development under Act
Clause 231 states the five categories of development under this Bill.
Categories (a), (b) and (d) (exempt, self-assessable and assessable
development) are the same as under the current IPA. Categories (c)
(development requiring compliance assessment) and (e) (prohibited
development) are new categories under this Bill.
Subclause (2) establishes that the "default" category is exempt
development. Consequently, any other category of development must be
declared under one or more of several instruments under the Bill.
While many development activities are captured within the concept of
development, it does not mean that these activities are automatically
regulated. Development is only regulated if it is made self-assessable
development, development requiring compliance assessment, assessable
development or prohibited development under a regulation, planning
instrument or master plan.
Regulation may prescribe categories of development or require code or
impact assessment
Clause 232 provides that a regulation may prescribe:
· the category of development (self-assessable development,
development requiring compliance assessment or assessable
development);
· development a planning scheme, temporary local planning instrument,
preliminary approval to which clause 242 applies, or a master plan,
cannot make self-assessable development, development requiring
compliance assessment, assessable development or prohibited
development;
· the type of assessment for assessable development (code or impact
assessment, or both code and impact assessment).
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Subclause (2) provides that a regulation may prescribe development that a
planning scheme, a temporary local planning instrument, a preliminary
approval to which section 242 applies or a master plan can not declare to be
self-assessable development, development requiring compliance
assessment, assessable development or prohibited development. This has
the effect that the relevant development is effectively exempted from
assessment against the local planning instrument or other instrument.
A regulation is not the only instrument that may prescribe the category of
development or type of assessment for development. The note to subclause
(3) sets out other instruments which the Bill enables to specify categories
of development.
Relationship between regulation and planning scheme, temporary
local planning instrument or local law
Clause 233 states that a regulation mentioned in clause 232(1) or (2)
prevails over a planning scheme or a temporary local planning instrument
to the extent of any inconsistency.
Subclause (2) provides that in the case of an inconsistency between a
regulation made under clause 232(1) and a planning scheme or temporary
local planning instrument arising because the regulation prescribes
development as assessable, but the planning scheme or temporary local
planning instrument prescribes the development as self-assessable, the
self-assessable codes in the planning scheme or temporary local planning
instrument are not taken to be applicable codes, but must be complied with.
This provision ensures that any codes in the planning scheme or temporary
local planning instrument continue to be binding, however they will not be
relevant to the assessment of the application (unless specifically called up
by the regulation).
Subclauses (3) to (5) state a planning scheme or temporary local planning
instrument cannot require impact assessment instead of code assessment
for an aspect of development a code is about, if the regulation requires code
assessment, whether or not the planning scheme or temporary local
planning instrument is made before or after the regulation.
Subclauses (6) and (7) allow for a regulation under this Bill or another Act
to nominate a code as a complete code i.e. a code that cannot be changed
by a local planning instrument or local law.
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Relationship between sch 1 and planning instruments
Clause 234 states that if a planning instrument provides for any matter with
regard to development that is prohibited development under schedule 1
then, to that extent, the planning instrument has no effect. For example, if a
planning scheme states that a development specified in schedule 1 is
self-assessable development and requires compliance with specific codes in
the planning scheme, these provisions of the planning scheme would have
no effect. It is an offence to carry out development which is prohibited
development (see chapter 7, part 3).
Division 2 Particular provisions about
categories of development
Exempt development
Clause 235 deals with exempt development. Subclauses (1) and (2)
establish the effect of exempt development.
Subclause (1) establishes a development permit is not required for exempt
development.
Subclause (2) establishes that the only instrument under the Bill that can
directly affect exempt development is a State planning regulatory provision
(for example by imposing direct requirements on the way the development
is to be carried out).
Subclause (3) establishes that subclauses (1) and (2) do not stop a planning
instrument, a master plan for a declared master planned area, a
development approval or a compliance permit affecting exempt
development indirectly if the exempt development is the natural and
ordinary consequence of other development which is self-assessable
development, development requiring compliance assessment or assessable
development, and the effect is concerned with mitigating the effects of the
development.
An example is provided of the effect of subclause (3).
Self-assessable development
Clause 236 provides that a development permit is not necessary for
self-assessable development, but this development must comply with the
applicable codes.
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Development requiring compliance assessment
Clause 237 makes it clear that where development requires compliance
assessment, a development permit is not necessary, but a compliance
permit is required.
Assessable development
Clause 238 states a development permit is necessary for assessable
development.
Prohibited development
Clause 239 states a development application or a request for compliance
assessment cannot be made for prohibited development.
It also confirms that if any part of a development application or request for
compliance assessment involves prohibited development, then the
application or request is taken not to have been made, and IDAS does not
apply to it.
Division 3 Approvals for IDAS
Subdivision 1 Preliminary
Types of approval
Clause 240 identifies the types of approval obtainable under IDAS - a
preliminary approval, a development permit, a compliance permit and a
compliance certificate. The reason there are four types of approvals is to
ensure IDAS may operate with the flexibility needed to deal with the wide
range of potential application scenarios that will be encountered. These
will range from straightforward house extension applications to complex,
large-scale mixed use proposals. Some points to note about preliminary
approvals and development permits include:
· both are legally binding approvals;
· a development permit authorises assessable development to occur;
· a preliminary approval approves assessable development but does not
authorise the development to occur;
· a preliminary approval is optional;
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· the IDAS process is the same regardless of whether a preliminary
approval or development permit is sought;
· if development is assessable, a development permit must be obtained
prior to the development being carried out;
· both preliminary approvals and development permits can condition
development.
Explanatory notes about compliance permits and compliance certificates
are set out below (see the notes for chapter 6, part 10).
Subdivision 2 Preliminary approvals
Preliminary approvals
Clause 241 establishes the concept of a preliminary approval. Key aspects
of preliminary approvals are:
· They approve development (not merely assessable development as for
a development permit). The reference to development rather than
assessable development reflects the fact that preliminary approvals are
often conceptual in nature, and are not for development that is
identifiably assessable.
Example - A preliminary approval may seek a conceptual approval for
a "residential precinct" or an "industrial precinct". Concepts like
these may encompass a range of assessable, self-assessable or exempt
development under various planning instruments.
· They approve development to the extent, and subject to the conditions,
stated in the approval. However, they do not authorise assessable
development to occur. A conceptual or general application for a
preliminary approval would result in a conceptual or general approval.
The more specific the proposal in the development application, the
greater specificity any resulting approval is likely to have.
Example - A preliminary approval may approve a "residential
precinct" as described in the previous example, but may not state the
nature or density of the development. In other words, the approval
only goes so far as to approve the concept of a residential use for the
premises, but does not authorise the nature, scale or density. These
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aspects of the development would be the subject of further preliminary
approvals or development permits.
· There is no requirement to obtain a preliminary approval. It is a matter
entirely for the applicant to decide.
Preliminary approval may affect a local planning instrument
Clause 242 allows a preliminary approval to vary the effect of a planning
scheme on land the subject of the approval, and substitute different
provisions on that land for the life of the approval or until the approved
development is completed. This is in addition to the basic provisions
mentioned in clause 241.
This form of preliminary approval has several potential applications under
IDAS. If a large master-planned housing estate is proposed on land
currently zoned for future urban purposes, this clause allows a preliminary
approval to be given providing detail about how the particular development
will be carried out.
Example The preliminary approval may identify different development
precincts, broad land use intentions for each of the precincts and the major
infrastructure networks for the estate. Also, under this clause, the approval
may establish a different regime of exempt development, self-assessable
development, development requiring compliance assessment and
assessable development on the land. For example, in a non-urban zone,
certain agricultural or animal husbandry activities may be exempt
development. If the land is to be used for residential purposes those
activities would probably be unacceptable. By altering the nature of
assessable development, development requiring compliance assessment,
self-assessable development and exempt development on the land, the
preliminary approval can bring the development potential of the land into
line with the nature of development intended.
Subclauses (2) and (3) provide that if an application is for a material
change of use and the preliminary approval approves the application, the
preliminary approval may state that the material change of use is exempt
development, self-assessable development, development requiring
compliance assessment, or assessable development requiring code or
impact assessment, or both code and impact assessment. The preliminary
approval may also identify codes (for example, by referring to a code in a
planning scheme) or include new codes for the development. The
preliminary approval may also do these things for development relating to
the material change of use.
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Subclauses (4) and (5) provide that if an application is for development
other than a material change of use and the preliminary approval approves
the development, the preliminary approval may state that the development
is exempt development, self-assessable development, development
requiring compliance assessment, or assessable development requiring
code or impact assessment, or both code and impact assessment. The
preliminary approval may also identify codes (for example, by referring to
a code in a planning scheme) or include new codes for the development.
Subclause (6) provides that to the extent the preliminary approval does
either of the things mentioned in subclauses (3) or (5), it will prevail to the
extent of any inconsistency with a local planning instrument.
However, subclauses (3) and (5) no longer apply once the development is
completed or the time limit for completing the development ends
(subclause (7)).
Subclause (8) provides that a preliminary approval will have no effect to
the extent it is inconsistent with a regulation made under clause 232 (1), (2)
or (3).
Subdivision 3 Development permits
Development permits
Clause 243 provides that development permits authorise assessable
development to take place to the extent stated in the permit, subject to any
conditions in the permit and any preliminary approval for the development.
Some points to note about development permits:
· they are legally binding approvals;
· a development permit authorises assessable development to occur
(whereas a preliminary approval approves assessable development,
but does not authorise development to occur);
· the IDAS process is the same regardless of whether a preliminary
approval or development permit is sought;
· if development is assessable, a development permit must be obtained
prior to the development being carried out;
· a development permit can impose conditions on development.
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Subdivision 4 Other matters about development
approvals
Development approval includes conditions
Clause 244 provides that a development approval includes:
· the conditions imposed by the assessment manager;
· the conditions contained in any concurrence agency's response for the
application;
· any conditions that the Minister has directed the assessment manager
to attach to any development approval under clause 419;
· any conditions that, under another Act, must be imposed on the
approval. An example of this is the conditions taken to be imposed
under the Building Act 1975, chapter 4, part 5, division 1.
Development approval attaches to land
Clause 245 states that a development approval attaches to the land and
binds the owner, the owner's successors in title and any occupier of the
land. This approach makes it clear that changes of ownership do not affect
the validity of a development approval. Also, by stating that the approval is
binding both on the owner and the occupier it makes it clear that if
someone other than the owner of the land is exercising the rights conferred
by the approval, they are responsible for complying with the conditions of
the approval.
Example - An inner city building contains a cinema complex leased and
operated by a national cinema chain. The building is owned by an
investment company. The development approval that authorised the
establishment of the cinema complex contains operating conditions. These
conditions are binding on the cinema chain as the operator. Because the
owner also is bound, there is a clear responsibility for the owner to make
each operator aware of the operating conditions attached to the land. If
another operator subsequently takes over the operation of the cinemas, the
conditions are binding on the new operator. Also, if the investment
company sells the property to another person, the approval is still valid as
it remains attached to the land.
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Division 4 Assessment managers and referral
agencies
Subdivision 1 Assessment managers
Who is the assessment manager
Clause 246 defines the assessment manager as the entity prescribed under a
regulation.
Subclause (2) provides that the regulation can require the assessment
manager to be determined by the Minister. This may happen when
proposed development involves complex jurisdictions, or is not wholly
within a local government area.
Subclause (3) provides that if the assessment manager is decided by the
Minister, the Minister can determine the matter by directing the
development application be split into two or more applications. For
example, it would be possible under IDAS for a commercial operation with
numerous franchises to apply for development for a number of outlets in
different local government areas in one development application. In this
case the regulation would prescribe no particular assessment manager and
the assessment manager would need to be determined by the Minister.
Role of assessment manager
Clause 247 makes it clear that, while the assessment manager administers
and decides an application, the assessment manager may not always assess
all aspects of development for an application. Where part of an application,
had it been lodged as a separate development application, would have
required a different assessment manager, then that part of the application
must not be assessed by the assessment manager (see clause 312). This
reflects the fact that the jurisdiction for assessing different aspects of a
development application may rest with several entities.
Example - A development application may involve several industrial
activities, some of which are assessable under the relevant local
government's planning scheme, and some of which are exempt under the
scheme. However one of the exempt industrial activities may be an
environmentally relevant activity under the Environmental Protection
Regulation 2008, and consequently assessable development under the
regulation to this Bill. The assessment manager will be the relevant local
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government on account of some of the activities being assessable under the
planning scheme. However, the Department of Environment and Resource
Management will exercise a concurrence jurisdiction over the
environmentally relevant activity, and the assessment manager will not
assess the part of the application relating to that activity, but will include
any conditions of the Department of Environment and Resource
Management in the final development approval.
Jurisdiction of local government as assessment manager for particular
development
Clause 248 provides for the circumstance where the local government is
the assessment manager in respect of development which is not completely
within the local government's planning scheme area. This clause makes it
clear that the local government is the assessment manager for the
development, notwithstanding any provision in the Local Government Act
1993.
When assessment manager also has jurisdiction as concurrence agency
Clause 249 clarifies that if an entity is the assessment manager, and could
also have been a concurrence agency, then the entity is not a concurrence
agency for the development, but is the assessment manager in respect of
each jurisdiction that the entity would have had as a concurrence agency.
This prevents procedural duplication in cases where an entity is prescribed
as both an assessment manager and has one or more referral jurisdictions.
Subdivision 2 Referral agencies
Who is an advice agency
Clause 250 provides for advice agencies to be prescribed under a
regulation for particular development applications. Paragraph (b)
recognises that it is possible to devolve or delegate the functions of an
advice agency to another entity, and provides for the other entity to be an
advice agency under those circumstances.
Who is a concurrence agency
Clause 251 provides for concurrence agencies to be prescribed under a
regulation for particular development applications. Paragraph (b)
recognises that it is possible to devolve or delegate the functions of a
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concurrence agency to another entity, and provides for the other entity to be
a concurrence agency under those circumstances.
Example - Under the Environmental Protection Act 1994, some of the
functions of the "administering authority" are devolved to local
governments. For referrals in relation to these devolved functions, the local
government, acting as the "administering authority" is the concurrence
agency.
Who is a referral agency
Clause 252 explains a referral agency is the generic term for an advice
agency or a concurrence agency.
Exclusion of particular entities as referral agency for a master planned
area
Clause 253 provides for varied arrangements for referral agencies in
declared master planned areas. This clause provides that, if an agency that
would otherwise be a referral agency, has been a participating agency or
coordinating agency for the structure plan or master plan for the area, the
agency is not a referral agency for development in the area unless a
regulation provides otherwise.
Jurisdiction of referral agencies for applications--generally
Clause 254 establishes the jurisdiction of referral agencies.
Concurrence agencies if Minister decides assessment manager
Clause 255 applies if the Minister decides an assessment manager for an
application. This clause allows the Minister to determine that an entity that
could have been assessment manager for the application is a concurrence
agency for that application.
The most likely example of the Minister exercising this option would be for
a development application for premises extending over two or more local
government areas. The Minister may decide one of the local governments
is the assessment manager on the basis of the area of the premises in that
local government's area, its capacity to administer the application, or on
other grounds. This clause would allow the Minister to nominate the other
local government or local governments as concurrence agencies for the
application, reflecting the assessment jurisdiction those local governments
would have had as an assessment manager.
Subclause (1) establishes the circumstances in which the Minister may
exercise the option of nominating a concurrence agency under this clause.
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Subparagraph (b) requires the Minister to form an opinion about the
likelihood that another entity than the one chosen as assessment manager
could also have been chosen. This reflects the intention that this clause
should be limited in its application to entities that were potential
assessment managers, and not be a basis for the Minister to identify any
entity as a concurrence agency for such an application.
Factors the Minister might consider in identifying whether an entity is a
"candidate" assessment manager under this clause include:
· the total number of candidates;
· the extent of the premises located within the candidate's jurisdiction;
· the nature and extent of the candidate's jurisdiction for the application
compared to that of the entity chosen as assessment manager; and
· the capacity of each candidate to administer the application as
assessment manager.
Subclause (2) provides for the Minister to identify the candidate as a
concurrence agency.
Subclause (3) confirms a concurrence agency identified under this clause
has the jurisdiction it would have had as assessment manager. The
jurisdiction of a concurrence agency chosen in this way would not be stated
in the regulation.
Subdivision 3 Additional third party advice or
comment about applications
Assessment manager or concurrence agency may seek advice or
comment about application
Clause 256 deals with an assessment manager or a concurrence agency
being able to seek advice or comment about an application from any
person, so long as it does not extend any stage. This clause is intended to
put beyond doubt that an assessment manager or concurrence agency may
seek advice or comment from any person as a means of assisting them in
their assessment of an application. However, including this clause is not
intended to imply that anything not explicitly provided for in the Bill is
prohibited.
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It is normal practice for assessing authorities to seek advice from persons
who have particular knowledge about or interest in an application. For
example, local governments will often seek advice from local officers in
the Department of Employment, Economic Development and Innovation
when dealing with applications for proposals that may impact on existing
farming practices in an area. Also, local governments may seek input from
neighbours. These are not formal statutory referrals. IDAS does not prevent
assessing authorities from seeking advice from any person the authority
believes can assist them in their assessment of the application. Any advice
received in this way is characterised as common material for assessing the
development application, and may be had regard to in the assessment
process (see clauses 313, 314 and 316).
Subclause (2) states that a request for advice or comment may be made by
publicly notifying the application.
Subclause (3)(b) makes it clear that public notification under this clause is
not notification under part 4, division 2 which gives submitters rights of
appeal.
Division 5 Stages of IDAS
Stages of IDAS
Clause 257 states that IDAS involves the following possible stages:
· application stage
· information and referral stage
· notification stage
· decision stage
· compliance stage
A compliance stage has been included as a further stage after the decision
stage, but may also apply independently of the other stages.
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Division 6 Application of IDAS in declared
master planned areas
Exclusion of particular provisions about making application for
declared master planned area
Clause 258 describes the provisions of this Bill and other legislation that
do not apply to a development application in a master planned area where
there is a structure plan in effect. This clause prevails despite any other Act
and prevails to the extent of any inconsistency with another provision of
chapter 6.
Division 7 Giving notices electronically
Giving notices using e-IDAS
Clause 259 provides for applications made using e-IDAS. If an application
is made using e-IDAS, this clause clarifies that any subsequent notices
(such as, for example, information requests, requests to extend the
information request period, or notices of compliance under clause 301) can
be given using e-IDAS, despite the requirement for the notice to be given in
writing.
Part 2 Application stage
Division 1 Application process
Subdivision 1 Applying for development approvals
Applying for development approval
Clause 260 describes the process for applying for development approval.
Subclause (1) states that applications must be made to the assessment
manager in the approved form or electronically. The chief executive may
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approve forms for use under the Bill. Subclause (1) also sets out other
matters and things that must be included in or must accompany an
application, namely:
· any mandatory supporting information required by the approved
forms;
· the relevant fee;
· the owner's written consent or a declaration that the owner consents to
the application being made, if required under clause 263;
· the evidence mentioned in clause 264(1), if required under clause
264(1).
Subclause (2) states that the approved form:
· must contain a mandatory requirements part; and
· may make provision for mandatory supporting information for the
application.
These provisions are not to be interpreted as limiting the ability of the
assessing authorities to ask for further information. The IDAS process
makes specific provision for this. Also, it is recognised that it is good
practice for assessment managers and referral agencies to encourage
applicants to have pre-lodgement discussions with them in order to assist
them to properly conceptualise and prepare their applications.
To the extent that an application relates to prohibited development, it is
taken not to have been made (see clause 239(2)).
When application is a properly made application
Clause 261 identifies the circumstances under which a development
application is properly made.
Special provision about electronic applications
Clause 262 makes it clear that an application can be made using e-IDAS
where access to e-IDAS is available, that is, where an assessment manager
has adopted e-IDAS.
Where an application is made using e-IDAS, electronic communications
for carrying out actions involved in IDAS can also be made using e-IDAS.
This clause also provides for situations where the e-IDAS system fails and
therefore becomes unavailable. The effect of this clause is that any system
failure of e-IDAS will not have any adverse consequences. If an action
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under IDAS has not yet been carried out on the last day for taking that
action and e-IDAS fails to operate on that day, the person required to take
the action may take the action up to 2 business days after e-IDAS begins to
operate again. At the same time as taking the action, the person must give
a written notice to all other parties (the applicant, the assessment manager
and any referral agencies to whom the action relates) advising that the
timeframe for taking the action has been extended. This written notice has
the effect of automatically extending the period for taking the action until
the time that the action is taken and the notice is received.
To clarify, the period for taking the action can only be extended by a
maximum of 2 business days after the end of the day on which e-IDAS
begins to operate again.
Example An application is made using e-IDAS. Under clause 272, the
applicant is required to give a copy of the application material to each
referral agency within 20 business days after receiving the
acknowledgement notice. On day 20, e-IDAS suffers a system failure and
the applicant is therefore not able to send the application material to the
referral agencies using e-IDAS. e-IDAS continues to be unavailable for a
further 3 days, and does not become available until 3pm on a Monday. The
applicant then has until the end of the following Wednesday (2 business
days later) to give the material under clause 272. If the applicant takes the
action on the Tuesday and, at the same time, gives a notice to the
assessment manager and all referral agencies for the application, the
period for taking the action is extended until the time the action was taken
on the Tuesday.
When owner's consent is required for application
Clause 263 establishes when an owner's consent is required for a
development application. An owner for the purposes of this clause is
defined in the dictionary. Broadly, owner's consent is not required for
development applications for building work, plumbing and drainage work,
or operational work, however subclause (1)(b) and (c) contains two
exceptions involving certain work below high-water mark and certain work
on rail corridor land.
Also, owner's consent is not required:
· for any part of the premises subject to an easement, where the
development the subject of the application is not inconsistent with the
terms of the easement. This is to ensure that the proprietors of land the
subject of, say, an access easement cannot unreasonably prevent the
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submission of a development application over premises including the
easement;
· to the extent the development application requires a "resource
manager's" consent under either clause 264 or another Act;
· to the extent the land is acquisition land and the application relates to
the purpose for which the land is to be taken or acquired.
Development involving a State resource
Clause 264 provides for the equivalent of an "owner's consent" to a
development application to the extent the application involves a State
resource. This clause requires that, for a State resource prescribed under a
regulation, the application must be supported by one or more of three types
of evidence prescribed for that resource under the regulation.
This requirement effectively replaces owner's consent for the part of an
application involving a State resource. The types of evidence required are
specified in this clause to ensure there is guidance about the sorts of
grounds upon which the consent may or may not be given.
Subclause (2) allows for the document containing the evidence to also
specify a time of at least 6 months after which the evidence referred to in
this clause may not be used with a development application. To clarify, this
subclause is only requiring that the application is made prior to this date. It
does not require that the application must be decided before this date. This
subclause accommodates possible changing circumstances in relation to
the resource to which the consent applies.
Approved material change of use required for particular developments
Clause 265 only applies if a material change of use of the premises is
assessable development in a particular case. This clause establishes that
development for a material change of use that is assessable development,
must be dealt with in the same application as other development for the use
proposed to be made of the premises, unless the change of use has already
been approved. If this requirement were not in the Bill, it could mean that
work (e.g. building work), could be approved and carried out without the
use of the work having been approved. A person could therefore lawfully
erect a building (and in doing so spend a considerable amount of money)
and then find that they have no right to use the building. If use approval
were not ever given, the building would remain empty. This is clearly
unacceptable. It is considered that establishing a right to use premises is a
fundamental prerequisite of the development assessment system. The
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environmental impacts and amenity considerations related to a proposed
use are usually more fundamental and far reaching than those associated
with other aspects of development associated with the use, such as the
building work. It is important to ensure these use considerations are dealt
with at the outset.
Subdivision 2 Notices about receipt of applications
Notice about application that is not a properly made application
Clause 266 provides that in the event a development application is not
properly made, the assessment manager must give the applicant a notice
within 10 business days of the application being made advising of the
action necessary for the application to be properly made. The application
lapses if the applicant does not take the action within 20 business days of
receiving the notice. However the applicant and the assessment manager
can agree to extend this period.
A key part of the reform agenda involves "raising the bar" in terms of the
quality and content of development applications received by assessment
managers. The current IPA sets a deliberately low bar for a properly made
application, in order to allow for applications to be further conceptualised
and worked up in an iterative process during the first two stages of IDAS.
However consultation in the course of developing the reform agenda
elicited strong stakeholder support for more rigorous requirements for
properly made applications, and a move towards more responsibility on the
applicant for ensuring applications are well conceptualised before they are
made.
This clause responds to these more rigorous requirements by requiring
assessment managers to tell applicants if their applications are not properly
made, and the actions necessary to correct the deficiencies. This provides
for a more structured, yet simple way of dealing with applications that do
not meet the requirements for being properly made.
Notice about properly made application
Clause 267 relates only to a properly made application. If the application
is a properly made application, the assessment manager must give the
applicant an acknowledgement notice, unless the application relates to
development which requires code assessment only and there are no referral
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agencies or all referral agencies have stated that they do not require the
application to be referred to them.
The acknowledgement notice serves a number of purposes including:
· providing an applicant with a formal acknowledgement that their
application has been received;
· providing the applicant with some basic information about the
application, including confirmation of the development applied for,
and whether the application will be assessed as requiring code
assessment or impact assessment (or both);
· providing useful information about the application for the
consideration of any referral agencies (as a copy of the
acknowledgement notice must be given to each referral agency by the
applicant under clause 272).
One item of information not included in the acknowledgement notice is
whether the application is for preliminary approval or a development
permit. This is because this basic information is to be provided by the
applicant on the application form. It is for the applicant to choose whether
they seek a preliminary approval or a development permit. However, under
clause 324(6) an assessment manager may give a preliminary approval
even though a development permit was applied for.
Subclause (2) states that an acknowledgement notice does not need to be
issued if each of two circumstances apply. The effect of this is to exempt
relatively straightforward applications from requiring acknowledgement
notices. This reduces the administrative load for the assessment manager
and time delays for the applicant. For applications involving referrals
and/or public notification the acknowledgement notice provides
information necessary for the applicant to take the next steps in the IDAS
process. However, for other applications there are no further actions the
applicant need take. The information simply confirms basic information
about the application. While this may be useful, the costs for the applicant
and the assessment manager are considered to outweigh the benefits.
Subclause (3) sets out the timeframes for issuing an acknowledgement
notice. The day on which the assessment manager receives the properly
made application should be interpreted as the last day on which the
assessment manager receives all parts of the application making it a
properly made application. For example, if an application is made using
e-IDAS, but the applicant later hand-delivers a cheque for the relevant fee
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to the assessment manager (because, for example, e-IDAS did not support
the payment of the fee), the properly made application would be taken to
have been received on the day the cheque was delivered.
Content of acknowledgement notice
Clause 268 sets out the content of an acknowledgement notice. It should
be noted that while the assessment manager is required to state in the
acknowledgement notice the names of all referral agencies for the
application, it is the applicant's responsibility to ensure that the application
is referred to all referral agencies for the application.
Division 2 End of application stage
When does application stage end
Clause 269 sets out when the application stage ends. It is necessary to
establish the end of this stage as other stages of IDAS, principally the
decision stage, cannot start until this stage has ended.
Part 3 Information and referral stage
Division 1 Preliminary
Purpose of information and referral stage
Clause 270 outlines the two purposes of the part:
· It provides an opportunity for the assessment manager and any
concurrence agencies to ask the applicant for more information.
· It provides for referral agencies (both concurrence and advice
agencies) to be involved in the assessment of a development
application.
The referral process is an important part of IDAS as it allows entities that
otherwise would have administered a separate assessment and approval
process to instead be part of the IDAS process.
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Summary of referral process
The normal IDAS referral process requires the applicant to give a copy of
the application and other specified material to each referral agency. Each
agency then has a period of time (the referral agency's assessment period)
within which to respond to the assessment manager (and give a copy to the
applicant). However, a concurrence agency may, before responding to the
assessment manager, request further information from the applicant if this
is needed to assess the application. An information request must be made
within the first 10 days of the referral agency's assessment period (although
provision exists for the information request period to be extended under
clause 277). The assessment period stops when the agency requests the
information. It restarts when the applicant responds to the request.
The concurrence agency then must assess the application in the context of
its jurisdiction and respond to the assessment manager (and give a copy to
the applicant) within the time remaining in the referral agency's assessment
period. As with the information request phase, provision is made under
clause 284 for the referral agency's assessment period to be extended in
certain situations.
Example - If the assessment period is the normal 30 business days and the
information request was given after 8 business days had elapsed, the
concurrence agency has 22 business days to respond to the assessment
manager once it receives the applicant's response to the information
request.
Referral agencies will be identified in the regulation. The regulation will
also prescribe the jurisdiction of each agency and the triggers for referral.
It is important to note that a referral to a referral agency is only required if
an application activates the referral trigger.
Example - An application to carry out building work on a Queensland
heritage place under the Queensland Heritage Act 1992 may activate a
referral to the Department of Environment and Resource Management. The
assessment function of each referral agency will relate to its jurisdiction. In
this case for example, the jurisdiction will relate to the conservation of
Queensland's cultural heritage.
Referral agency responses before application is made
Clause 271 states that nothing in this Bill stops a referral agency from
giving a referral agency's response on a matter within its jurisdiction about
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a development before an application for the development is made to the
assessment manager.
This clause allows for a person to approach a referral agency seeking its
response to a proposal before a formal application is made.
Subclause (3) makes it clear that, if a concurrence agency gives a referral
agency's response before an application for the development is made, then
the applicant must, if asked by the concurrence agency, give to that agency
its application fee as required under clause 272.
Division 2 Giving material to referral agencies
Applicant gives material to referral agency
Clause 272 requires the applicant to give specified information (the
referral agency material) to each referral agency. Subclause (2) requires
the information to be given to each agency within a specified timeframe.
This is to ensure referral assessments occur expeditiously.
One of the benefits of an integrated assessment system is a comprehensive
assessment process, which avoids a system of assessments being made in a
vacuum, and a separate series of approvals. While a referral agency must
operate within the limits of its jurisdiction, it must do so in the context of
the overall application and the extent of the assessment being carried out.
In this context it is important that the respective referral assessments occur
expeditiously.
Subclause (3) provides for the situation where an agency has given its
response and stated that it does not wish to see the application.
It should be noted that while the assessment manager is required to state in
the acknowledgement notice the names of all referral agencies for the
application, it is the applicant's responsibility to ensure that the application
is referred to all referral agencies for the application.
Lapsing of application if material not given
Clause 273 provides for the lapsing of an application if the applicant does
not give the specified information to each referral agency in accordance
with clause 272.
The purpose of the lapsing provisions is to ensure that the applicant
undertakes required actions within the IDAS process in a timely way, in
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order to minimise unnecessary delays. However, this needs to be balanced
with minimising the occurrence of "accidental" lapses due to minor
administrative oversights. Applications should only lapse when inaction
affects the proper and timely assessment of the application.
The new provisions require assessment managers and referral agencies to
include information about when an application will lapse in
acknowledgement notices and information requests, so that applicants are
aware of their obligations.
If an application lapses due to a minor administrative oversight which did
not affect the proper and timely assessment of the application, the Bill
allows for the assessment manager to "revive" the application within a
reasonable timeframe (see clause 274). However, subclause (2) makes it
clear that if the application is revived and the applicant still fails to carry
out the action in clause 272 within the timeframe specified in clause 274,
the application will again lapse. In this circumstance, the application
cannot be further revived (see clause 274).
When application taken not to have lapsed
Clause 274 provides for circumstances under which a lapsed application is
revived.
The lapsing provisions ensure that the applicant undertakes required
actions within the IDAS process, in order to minimise unnecessary delays.
However, this needs to be balanced with minimising the occurrence of
"accidental" lapses due to minor administrative oversights. Applications
should only lapse when inaction affects the proper and timely assessment
of the application.
The new provisions will require the assessment manager to include
information about when an application will lapse in acknowledgement
notices, so that applicants are aware of their obligations.
If an application lapses due to a minor administrative oversight which did
not affect the proper and timely assessment of the application, clause 274
allows for an application to be "revived" at the request of the applicant
within a reasonable timeframe.
A lapsed application may be revived upon request by the applicant within 5
business days of the application lapsing. In this situation, the applicant
must undertake the required action within 5 business days or the further
period agreed between the assessment manager and the applicant, and the
application will continue through the IDAS process.
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If an application had previously lapsed under clause 273 and then been
revived under this clause, the application will again lapse if the applicant
still fails to carry out the action in clause 272 within the timeframe
specified in clause 274. In this circumstance, the application cannot be
further revived. This supports the intention of this provision, namely to
prevent accidental lapses due to administrative oversights.
Applicant to advise assessment manager when material given
Clause 275 requires the applicant to notify the assessment manager of the
day it gave each referral agency the referral agency material mentioned in
clause 272. Under IDAS, referral agencies must respond within the referral
agency's assessment period and the agency's referral day is critical in
deciding when the period starts. If an agency does not respond within this
period:
· the information and referral stage ends (see clause 293); and
· the assessment manager must decide the application on the basis that
the agency had no requirements or advice (see clause 286).
Division 3 Information requests
Information request to applicant
Clause 276 sets out the requirements for the assessment manager or a
concurrence agency to make an information request. For a concurrence
agency, the 10 business day period within which an information request
may be made is part of (not additional to) the overall time allocated to the
agency to assess the application (i.e. the referral agency's assessment
period defined in clause 283).
Subclause (6) makes it clear that an assessment manager or concurrence
agency may, in the information request, include advice to the applicant
about how the applicant can change the application.
Extending information request period
Clause 277 states the information request period may be extended by
another 10 days, without the applicant's agreement. The information
request period may, with the applicant's agreement, be further extended.
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Applicant responds to any information request
Clause 278 outlines the applicant's responsibilities if an information
request is given.
The applicant may provide all information requested, or alternatively part
or none of the information requested accompanied by a notice asking the
assessing authority to proceed with the assessment.
If the information request is made by a concurrence agency, subclause (2)
requires the applicant to give a copy of the response to the assessment
manager. The reason for this is to ensure the assessment manager has a
complete package of information available for inspection. (Under IDAS,
the assessment manager is the keeper of all relevant information about an
application). The assessment manager must keep the application and any
supporting material (including responses to information requests) available
for inspection and purchase. For applications requiring impact assessment,
the availability of this information is particularly important to ensure the
public has access to the relevant information submitted to the assessing
authorities.
Lapsing of application if no response to information request
Clause 279: An information request must include a notice to the applicant
outlining the requirement to respond to an information request and
advising that, should this not be done, the application will lapse (see
subclause (1)).
The applicant must respond to the information request within 3 months
after receiving the information request if the development application is in
response to an enforcement notice or a show cause notice, or 6 months in
any other circumstance. An extension to these timeframes may be obtained
by agreement.
Subclause (2) makes it clear that if the application is revived under clause
280 and the applicant still fails to respond to the information request within
the timeframe specified in clause 280(2), the application will again lapse.
In this circumstance, the application cannot be further revived (see clause
280).
When application taken not to have lapsed
Clause 280 provides that a lapsed application may be "revived" upon the
applicant giving a written notice to the assessment manager and the
concurrence agency that made the information request within 5 business
days of the application lapsing. In this situation, the applicant must
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undertake the required action within 5 business days or the further period
agreed between the assessment manager and the applicant, and the
application will continue through the IDAS process.
If an application had previously lapsed under clause 279 and then been
revived under this clause, the application will again lapse if the applicant
still fails to respond to the information request within the timeframe
specified in clause 280. In this circumstance, the application cannot be
further revived. This supports the intention of this provision, namely to
prevent accidental lapses due to administrative oversights.
Referral agency to advise assessment manager of response
Clause 281 requires each referral agency to advise the assessment manager
of the day it received the response from the applicant. This is necessary to
ensure the assessment manager knows when a referral agency's assessment
period recommences (under clause 283 the agency's assessment period
stops during the period the agency is waiting for a response to its
information request), as it can affect when the assessment manager's
decision period starts.
Division 4 Referral agency assessment
Subdivision 1 Assessment generally
Referral agency assesses application
Clause 282 outlines the requirements for referral agencies when assessing
applications.
Subclause (1) requires the referral agency to assess the application against
the regional plan (if it is not reflected in the planning scheme) and other
State planning instruments applied by the referral agency. State planning
policies are only relevant to the extent they are not identified in a planning
scheme or the regional plan as being appropriately reflected in these
instruments. Subclause (1) also requires a concurrence agency to assess
the application against any applicable concurrence agency codes that are
identified as a code for IDAS in this Bill or another Act, and the relevant
laws and policies administered by the referral agency. This is a generic way
of describing the matters that the agency has responsibility for
administering within its referral jurisdiction.
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Subclause (2) also requires referral agencies to have regard to other State
planning instruments not applied by the referral agency, structure plans,
master plans, temporary local planning instruments and planning schemes.
The relationship between each of the instruments listed in subclauses (1)
and (2) is set out in chapters 2, 3 and 4. Generally, subclauses (1) and (2)
reflect this relationship between the instruments, with an instrument higher
in the list prevailing over an instrument lower in the list to the extent of any
inconsistency. However, details of the relationship between these
instruments must be obtained from chapters 2, 3 and 4. The exception to
this general rule is applicable codes that are identified under this or another
Act as a code for IDAS and the laws and policies applied by the referral
agency. To determine the weight and precedence to be given to these
instruments, it is necessary to have regard to the relevant instrument, or the
Act under which the instrument is made. Having said this, it is also
necessary to consider clauses 19 and 26 which provide that State planning
regulatory provisions and regional plans prevail over plans, policies and
codes under another Act to the extent of any inconsistency.
IDAS is concerned with achieving integrated assessment. Planning
schemes are intended to reflect local and State planning intentions, and
referral agencies will have contributed to its preparation. Accordingly, it is
important that referral agencies have regard to this instrument when
carrying out their own assessments. Subclause (2) ensures that referral
agencies have regard to the broader planning context.
Referral agency's assessment period
Clause 283 sets out the period within which a referral agency must respond
with its requirements and/or advice (if a concurrence agency), or advice (if
an advice agency). This is the referral agency's assessment
period--normally 30 business days.
Subclause (1)(a) states that a different assessment period may be prescribed
under a regulation. It is recognised that not all referrals are going to be
identical. Some will deal with technical code assessment issues. Others
will deal with broad impact assessment issues. For technical code
assessment, 30 business days is likely to be unnecessary. Accordingly,
provision is made for shorter periods to be prescribed.
The referral agency's assessment period does not include the time the
agency is waiting for a response from the applicant (subclause (4)(b)).
However, the assessment period does include the information request
period (subclause (2)). However, as is prescribed in subclause (4)(a), if an
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extension of time is given during the information request phase this does
not impact on the number of days remaining in the assessment period.
Example - If a concurrence agency has not given an information request
after the initial 10 business day request period has elapsed, but instead has
given notice that it has extended the information request period by 10
business days (under clause 284), these extra 10 business days (and any
further extensions agreed to by the applicant) do not affect the period
remaining for the agency to assess the application once the applicant
responds to the request.
Extending referral agency's assessment period
Clause 284 makes it clear that the referral agency's assessment period may
be extended by up to 20 days (or a lesser period prescribed under a
regulation), without the applicant's agreement. The referral agency's
assessment period may, with the applicant's agreement, be further
extended. The referral agency's assessment period can only be extended
before the period ends. Subclause (4) requires the concurrence agency to
advise the assessment manager of any extension of the referral agency's
assessment period.
Subdivision 2 Concurrence agency responses
When concurrence agency must give response for particular matters
Clause 285 deals with responses by concurrence agencies. If a concurrence
agency wants its requirements to be followed and/or imposed by the
assessment manager, the agency must give its response before the end of
the referral agency's assessment period (see clause 283), including any
extension of that period. This clause is intended to ensure that all
concurrence agency requirements are given in a timely way.
A note has been included at the end of this clause to clarify that if a
concurrence agency provides a response under clause 271 (before the
application is made), its response is still binding. Without the note, it could
be interpreted that the concurrence agency must give its response to the
assessment manager during the referral agency's assessment period in
order for its response to be binding.
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Effect if concurrence agency does not give response
Clause 286 provides if a concurrence agency does not respond within time,
the assessment manager must decide the application on the basis that the
agency had assessed the application and had no concurrence agency
requirements.
However, subclause (2) provides for a deemed refusal for certain types of
building development applications where the local government is the
concurrence agency.
Despite this clause, it is possible for a concurrence agency to give a late
response (see clause 290).
Concurrence agency's response powers
Clause 287 sets out the response powers of a concurrence agency. A
concurrence agency may, within the limits of its jurisdiction, tell the
assessment manager:
· its requirements for any approval, being one or more of the following:
-- the conditions to be attached;
-- that the approval must be for part only of the development;
-- that the approval must be for a preliminary approval only;
-- a different period for lapsing of the approval if development is
not started; or
· it has no concurrence requirements; or
· to refuse the application.
If the application is for a preliminary approval mentioned in clause 242 that
states the way in which the applicant seeks approval to vary the effect of
any applicable local planning instrument, the concurrence agency may,
within the limits of its jurisdiction, tell the assessment manager to refuse
the variations sought or, if an approval is given, to approve only some of
the variations sought or approve different variations from those sought.
Also, a concurrence agency may offer advice about the application. While
a concurrence agency has powers to impose requirements for any approval
or to refuse an application, it does not have the ability to direct approval.
The decision to approve an application is a matter for the assessment
manager alone.
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Limitation on concurrence agency's power to refuse application
Clause 288 states that the concurrence agency, when assessing the effects
of development on designated land, may only tell the assessment manager
to refuse the application if:
· the concurrence agency is satisfied the development would
compromise the intent of the designation; and
· the intent of the designation could not be achieved by imposing
conditions on the development approval.
Subclause (2) states that a local government exercising a concurrence
jurisdiction about the amenity and aesthetics of a building or structure (i.e.
under the Building Act 1975) may only direct refusal of a development
application in circumstances of extremely adverse effects on amenity or
character.
Concurrence agency's response to include reasons for refusal or
conditions
Clause 289 provides that a concurrence agency must give reasons for its
responses where:
· the concurrence agency tells the assessment manager to refuse the
application (other than a deemed refusal under clause 286(2)), or
impose conditions on a development approval; or
· the concurrence agency tells the assessment manager to refuse the
variations sought, approve only some of the variations sought or
approve different variations to those sought.
How a concurrence agency may change its response or give late
response
Clause 290 states a concurrence agency may give or amend its response
after the end of the referral agency's assessment period, but before the
application is decided, if the applicant agrees.
IDAS is designed to be a flexible system able to respond to changing needs
and circumstances. For example, clause 320 provides applicants with the
ability to stop the assessment manager's decision-making period to make
representations to a referral agency about its response. If the process under
clause 320 is to be able to result in a meaningful outcome (e.g. a change to
a concurrence agency condition), then there needs to be a head of power for
the agency to change its response. Because the time for giving a response
has expired, it is reasonable for any proposed change to be subject to the
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applicant's agreement. If the applicant's agreement was not needed, the
time limits imposed on referral agencies would be meaningless and the
efficiency of the assessment system would be compromised.
Despite this, this clause also enables a concurrence agency to give a
response or change its response without the applicant's agreement in
limited circumstances, namely:
· where the Minister has given the concurrence agency a direction
under clause 420; or
· where the applicant has changed its application in response to a
properly made submission or a request for information.
In relation to the second dot point, it should be noted that this only applies
to a change to a concurrence agency's response. Once the concurrence
agency has received notice of the change under clause 352, the concurrence
agency has 5 business days within which to consider the change and notify
the applicant and the assessment manager of its intention to change its
response. The concurrence agency then has a further 10 business days to
give the changed response. The changed response must relate directly to
the changes made to the application. If the changed response is not given
within the 10 business day period, the assessment manager can proceed
with deciding the application.
Subdivision 3 Advice agency responses
When advice agency must give response for particular matters
Clause 291 states that in order for an advice agency's response to be
considered by the assessment manager, the response must be given before
the end of the advice agency's assessment period.
A note has been added to this clause to clarify that if an advice agency
provides a response under clause 271 (before the application is made), its
response must still be considered by the assessment manager. Without the
note, it could be interpreted that the advice agency must give its response to
the assessment manager during the referral agency's assessment period
otherwise the assessment manager is not required to consider the response
in assessing an application.
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Advice agency's response powers
Clause 292 sets out the response powers of an advice agency. Consistent
with the role of this type of agency, the powers of an advice agency are
limited to offering advice and recommendations. An advice agency is
unable to direct an outcome as a concurrence agency can.
Division 5 End of information and referral stage
When does information and referral stage end
Clause 293 outlines when the referral stage ends. It is necessary to
establish the end of the stage as other stages of IDAS, principally the
decision stage, cannot start until this stage has ended.
Part 4 Notification stage
Division 1 Preliminary
Purpose of notification stage
Clause 294 describes the purpose of the notification stage. Public
notification under this part gives a person the opportunity to make
submissions about a development application, and also secures for that
person the right of appeal to the court about the assessment manager's
decision.
Public involvement in the planning and development assessment system is
an essential component of the system.
The Bill provides many opportunities for public involvement in the overall
system. For example, the processes for making planning instruments
include opportunities for public involvement in framing these policy and
regulatory instruments.
This part sets out the requirements for formal public notification in relation
to development applications. IDAS has been designed to reflect this high
level of public involvement in planning and development assessment.
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Applications that are specified to require assessment of the environmental
effects of the development (i.e. impact assessments) require public
notification.
When notification stage applies
Clause 295 describes when the notification stage applies. Public
notification under this part only applies to an application:
· requiring impact assessment; or
· to which clause 242 applies, unless a preceding development approval
for an application under clause 242 makes provision for development
on the premises in a way stated in this clause.
Also, particular arrangements are made for public notification of certain
aquaculture proposals under chapter 9, part 7. Consequently public
notification under this part is not required for such proposals.
Subclause (2) goes on to state that public notification is still required even
if code assessment is required for part of the application, or a concurrence
agency has directed the assessment manager to refuse the application. This
provision ensures that an application is subject to full scrutiny and
assessment. For example, a concurrence agency may direct refusal based
on a technical ground alone. Members of the public may have wider
concerns that, in the event of any appeal by the applicant, should also be
considered by the court. Of course, an applicant is not compelled to
continue with an application if a refusal is directed. The applicant may, at
any time, withdraw the application and terminate the assessment process
(see clause 356).
When notification stage can start
Clause 296 states when notification under this part may be carried out. The
applicant has the obligation to carry out the public notification. This is
consistent with the shared responsibilities approach adopted for IDAS.
However, this service may be provided by local governments (see clause
297).
If an information request is made, the applicant needs to wait until all
information request responses have been given prior to commencing public
notification.
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Division 2 Public notification
Applicant or assessment manager to give public notice of application
Clause 297 describes the requirements for public notification. In the
interests of consistency and certainty, the requirements are prescriptive.
Provision is made for the assessment manager to carry out the notification
on behalf of the applicant. For the purposes of subclause (1)(c) (giving
notices to adjoining owners), the term owner is defined. It is a more
specific definition that overcomes potential uncertainties regarding who is
an adjoining owner in certain situations, particularly situations where there
are complex titling and ownership arrangements in place.
The applicant or, with the applicant's agreement, the assessment manager,
must carry out the notification. If the assessment manager carries out the
notification for the applicant, the assessment manager may require the
applicant to pay a fee.
Notification period for applications
Clause 298 specifies the notification period. Generally, it must be at least
15 business days. However, the notification period must be at least 30
business days if any of the following apply:
· there are 3 or more concurrence agencies;
· all or part of the development is assessable under a planning scheme
and is prescribed under a regulation;
· all or part of the development is the subject of an application for a
preliminary approval mentioned in clause 242.
The notification period does not include the period immediately before and
after Christmas to overcome any reduced effectiveness which may result
from notification over this significant holiday period.
Requirements for particular notices
Clause 299 has two purposes:
· First, it sets out requirements for the various components of the
notification process.
· Second, subclause (4) makes provision for a regulation to prescribe
different notification requirements for applications on land outside a
local government area (e.g. this could involve development over
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water) or within a local government area where compliance would be
unduly onerous or would not give effective public notice.
Applicant to give assessment manager notice about particular matters
Clause 300 provides the applicant must give written notice to the
assessment manager stating the day the last of the actions mentioned in
clause 297 was carried out. This must be done within 5 business days after
the last of the actions outlined in clause 297(1) is carried out. This will
enable the assessment manager to remain informed of the progress of the
application and to calculate when the notification period commenced. This
information is also necessary for the purposes of determining when an
application will lapse (see clause 302).
Notice of compliance to be given to assessment manager
Clause 301 requires the applicant, if carrying out the notification, to give a
notice to the assessment manager that the applicant has complied with the
requirements of this division. This is to allow the process of assessment to
proceed on the basis that this essential element, the responsibility of the
applicant, has been properly completed. Under clause 587, giving a false or
misleading notice is an offence attracting a maximum penalty of 1665
penalty units.
For applications requiring notification, the timeframe for giving the
assessment manager a written notice of compliance has been reduced from
3 months after the notification period ends under the current IPA to 20
business days. This new time limit will ensure the application is finalised
within a reasonable timeframe following public notification. The current 3
month timeframe is excessive, given that this is a simple, procedural step.
Application lapses if notification not carried out or notice of
compliance not given
Clause 302 provides that, for an application requiring public notification,
the application will lapse if the last action under clause 297(1) is not
carried out within 20 business days after the applicant was entitled to start
the notification stage.
This timeframe of 20 business days may be extended if the assessment
manager agrees to the extension.
An application will also lapse if the applicant has not complied with clause
301.
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The purpose of the lapsing provisions is to ensure that the applicant
undertakes required actions within the IDAS process, in order to minimise
unnecessary delays. However, this needs to be balanced with minimising
the occurrence of "accidental" lapses due to minor administrative
oversights. Applications should only lapse when inaction affects the
proper and timely assessment of the application. Therefore, the Bill
includes an opportunity for applications to be revived (see clause 303
below). However, subclause (2) makes it clear that if the application is
revived under clause 303 and the applicant still fails to carry out the
relevant actions within the timeframe specified in clause 303(2) or (3), the
application will again lapse. In this circumstance, the application cannot
be further revived (see clause 303).
When application taken not to have lapsed
Clause 303 provides for a lapsed application to be "revived" upon request
by the applicant within 5 business days of the application lapsing. In this
situation, the applicant must undertake the required action within 5 to 10
business days (depending on which clause resulted in the lapsing of the
application) or the further period agreed between the assessment manager
and the applicant. The application will then continue through the IDAS
process.
If an application had previously lapsed under clause 302 and then been
revived under this clause, the application will again lapse if the applicant
still fails to carry out the relevant actions within the timeframe specified in
clause 303(2) or (3). In this circumstance, the application cannot be further
revived. This supports the intention of this provision, namely to prevent
accidental lapses due to administrative oversights.
Assessment manager may assess and decide application if some
requirements not complied with
Clause 304 provides discretion for an assessment manager to assess and
decide a development application even if there has not been full
compliance with the requirements of this division. The assessment
manager may only exercise that discretion if the assessment manager
considers the non-compliance has not:
· adversely affected the awareness of the public of the existence and
nature of the application; or
· restricted the opportunity of the public to make submissions during
the notification period.
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The notification requirements are detailed and prescriptive. It is considered
that unnecessary and costly litigation could result from technical
non-compliances even though no one has been adversely affected by the
non-compliance.
Example - The notices published in the newspaper and sent to adjoining
owners correctly showed the property description of the land, but the notice
placed on the land contained an error in the description. In this case, the
assessment manager might consider exercising the given discretion
because the sign was located on the correct land, all other notices were
correct and the application clearly applied to the land on which the notice
was erected.
Subclause (2) makes it clear that, unless a lapsed application is revived, the
assessment manager cannot assess and decide that application.
Division 3 Submissions about applications
Making submissions
Clause 305 outlines matters about making a submission.
Subclause (2) states that a submission must be accepted if it is a properly
made submission. The term properly made submission is defined in the
dictionary.
Subclause (3) allows an assessment manager to accept a submission even if
it is not a properly made submission. However, while the assessment
manager may have regard to such a submission when assessing and
deciding the application, the person making the submission has no right of
appeal to the court--this right is only extended to properly made
submissions.
Subclause (4) makes provision for a person to withdraw their submission.
For example, if the person who made the submission is subsequently
satisfied that a particular matter will be dealt with to their satisfaction they
may wish to withdraw their submission. This may have such benefits as
allowing an approved development to commence without waiting for the
appeal period to pass. This subclause also provides that the person who
makes a submission may amend the submission during the notification.
Subclauses (3) and (4) make it clear that all submissions, withdrawals and
amendments of submissions, must be in writing. To be accepted by the
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assessment manager a submission must meet this requirement even if it
does not meet the other requirements of a properly made submission.
Submissions made during notification period effective for later
notification period
Clause 306 provides for submissions lodged during the notification period
for an application to be carried over and recognised as properly made
submissions if that application for any reason has to be re-notified.
Subclause (2) goes on to allow a person to amend their submission during
the later notification period, or at any time before the decision is made to
withdraw the submission.
Subclause (3) provides for a submission that is not properly made to
continue to be part of the common material for the application
notwithstanding its re-notification, and for the submission to be withdrawn
before a decision is made.
Division 4 End of notification stage
When does notification stage end
Clause 307 outlines when the notification stage ends. This is necessary to
establish as the decision stage cannot start until the notification stage has
ended.
Part 5 Decision stage
Division 1 Preliminary
Assessment necessary even if concurrence agency refuses application
Clause 308 requires the assessment manager to assess and decide an
application even if the outcome (i.e. refusal) has been directed by a
concurrence agency.
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When does decision stage start
Clause 309 relates the start of the decision stage to whether or not an
acknowledgement notice has been given.
Subclause (1) states that if an acknowledgement notice is required, the
decision stage for the application starts the day after all of the other stages
applying for the application (other than the compliance stage) have ended.
Subclause (2) deals with the situation where an acknowledgement notice is
not required (because the application requires only code assessment and
there are no referral agencies).
Subclause (3) states that the assessment manager may start assessing an
application before the decision stage has formally started. It is important to
ensure that the staged nature of the IDAS process does not imply that
assessment cannot start until other stages have been completed.
Effect on decision stage if action taken under Native Title Act (Cwlth)
Clause 310 recognises and accommodates disparities between the IDAS
process and processes for notifying native title parties under the
Commonwealth Native Title Act 1993 (NTA). The clause enables
procedural rights to be provided to native title parties (under section 24HA
management or regulation of water and air space, and section 24KA
construction of infrastructure facilities for the public, 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.
Most native title notifications under the NTA are likely to occur during the
process of granting tenure or other access to a State resource, prior to any
development application affecting the resource. As these processes may
result in indigenous land use agreements which map out arrangements
about the form and impacts of subsequent development, notification of the
"future act" of development assessment is likely to be unnecessary, and is
hence unlikely to affect IDAS. However, because sections 24HA and 24KA
of the NTA deal with notification for "future acts" which may affect native
title interests other than on the premises proposed for development, they
may not be preceded by a resource allocation process, and hence may affect
the IDAS process.
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Division 2 Assessment process
References in div 2 to planning instrument, code, law or policy
Clause 311 states that in this division a reference to a planning instrument,
code, law or policy is a reference to a planning instrument, code, law or
policy in effect at the time the application was properly made.
It is a basic requirement of IDAS that assessment managers and referral
agencies assess applications on the basis of the law in place when an
application is properly made, but may give weight to planning instruments,
codes, laws or policies that came into effect after the application was made,
but before it was decided (see clause 317).
When assessment manager must not assess part of an application
Clause 312 clarifies the extent of an assessment manager's jurisdiction for
assessing a development application. Subclause (1) states the clause applies
to any part of a development application for which, were it the subject of a
separate application, there would be a different assessment manager. This
part of an application is called the "coordinated part" because it will be the
subject of a concurrence agency's response for a matter that is not within
the assessment manager's assessment jurisdiction. The response will
therefore be included in the assessment manager's decision, but the
assessment manager will not be required to tailor its consideration to
achieve an integrated outcome.
Subclause (2) confirms the assessment manager has no jurisdiction to
assess the coordinated part. This is consistent with clause 247 which states
the assessment manager "administers and decides the application, but may
not always assess all aspects of development for the application".
Code assessment--generally
Clause 313 describes the way code assessment must be carried out.
It is important to note that under IDAS, an application may be subject to
both code and impact assessment. This is because different assessments
may be integrated into the one application.
Under the current IPA, code assessment was originally limited to
assessment against applicable codes only. However additional instruments
have been introduced since the current IPA commenced that are required to
be taken into account in code assessment. Generally these are a range of
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State instruments which prevail over the relevant code to the extent of any
inconsistency.
Under the current IPA, the effect of other instruments in code assessment is
not apparent, as the relevant provisions are distributed throughout the Act.
This clause consolidates all of the relevant considerations in code
assessment into a single provision.
Subclause (2) lists each of the matters or things that an application
requiring code assessment must be assessed against. The relationship
between each of the instruments listed in subclause (2) is set out in chapters
2, 3 and 4. Generally, subclause (2) reflects this relationship between the
instruments, with an instrument higher in the list prevailing over an
instrument lower in the list to the extent of any inconsistency. However,
details of the relationship between these instruments must be obtained from
chapters 2, 3 and 4. The exception to this general rule is applicable codes
that are identified under this or another Act as a code for IDAS. To
determine the weight and precedence to be given to these codes, it is
necessary to have regard to the instrument containing the code, or the Act
under which the code is made. Having said this, it is also necessary to
consider clauses 19 and 26 which provide that State planning regulatory
provisions and regional plans prevail over plans, policies and codes under
another Act to the extent of any inconsistency.
A regional plan cannot be considered in assessing an application requiring
code assessment if it is identified in the planning scheme as being
appropriately reflected in the planning scheme.
Also, a State planning policy cannot be considered if it is identified in the
planning scheme or a regional plan as being appropriately reflected in the
scheme or plan.
The assessment manager can only have regard to applicable codes in a
structure plan, master plan, temporary local planning instrument,
preliminary approval to which clause 242 applies and a planning scheme.
In this respect, code assessment is still "bounded" because it does not
enable the assessment manager to consider the whole of the instrument.
In addition to the matters set out in subclause (2), the assessment manager
must also carry out the assessment having regard to:
· the common material;
· any development approval for, and any lawful use of, premises the
subject of the development application or adjacent premises;
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· any referral agency's response for the application;
· the purposes of any instrument containing an applicable code.
The assessment manager is required to assess the application against the
matters stated in subclause (2), but having regard to the matters stated in
subclause (3). This reflects the fact that the matters under subclause (2) are
the criteria against which the development the subject of the application is
measured to determine its level of performance, whereas the matters stated
in subclause (3) are contextual in character in other words they provide
the context within which the performance assessment under subclause (2)
can be carried out.
Subclause (4) provides that if the assessment manager is not a local
government (generally this will apply to a State agency) its codes are the
laws and policies it administers.
Subclause (5) requires that the assessment must not be carried out against
or having regard to any matter other than a matter under this clause. This
underscores that, despite the addition of various State instruments to code
assessment over time, it is still essentially a "bounded" assessment.
Subclause (6) provides that an application involving assessment against the
Building Act 1975 will not require assessment against State planning
instruments.
Impact assessment--generally
Clause 314 describes the way impact assessment must be carried out.
Subclause (2) sets out the matters or things against which the part of the
application requiring impact assessment must be assessed. As for code
assessment, the instruments in subclause (2) are generally listed in order of
hierarchy, however details of the relationship between each of the
instruments must be obtained from chapters 2, 3 and 4. The exceptions to
this general rule are the laws that are administered by and policies applied
by the assessment manager that are relevant to the application. To
determine the weight and precedence to be given to these instruments, it is
necessary to have regard to the Act under which the instrument is made.
Having said this, it is also necessary to consider clauses 19 and 26 which
provide that State planning regulatory provisions and regional plans prevail
over plans, policies and codes under another Act to the extent of any
inconsistency.
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A regional plan cannot be considered in assessing an application requiring
impact assessment if it is identified in the planning scheme as being
appropriately reflected in the planning scheme.
Also, a State planning policy cannot be considered if it is identified in the
planning scheme or a regional plan as being appropriately reflected in the
scheme or plan.
In addition to the matters set out in subclause (2), the assessment manager
must also carry out the assessment having regard to:
· the common material;
· any development approval for, and any lawful use of, premises the
subject of the development application or adjacent premises;
· any referral agency's response for the application.
In code assessment there is no special provision for assessment of
development which is not in a planning scheme area, whereas the
provisions relating to impact assessment make allowance for this
circumstance.
Code and impact assessment--superseded planning scheme
Clause 315 provides for the assessment of a development application
(superseded planning scheme) against the superseded planning scheme
instead of the planning scheme in effect when the development application
was made. However the clause provides for the calculation of any
infrastructure charges or contributions as if the current planning scheme
was in effect.
Subclause (2) states this clause applies despite clauses 81, 120 and 121.
Clause 81 provides that a planning scheme comes into effect and replaces
any former planning scheme. Clause 315 effectively acts as an exception to
this arrangement by providing for superseded planning schemes to be
considered in development assessment.
Assessment for s 242 preliminary approvals that affect a local planning
instrument
Clause 316 establishes criteria for assessment of the part of an application
under clause 242 that seeks to vary the operation of a local planning
instrument.
Although clauses 313 and 314 establish criteria for the assessment of all
development (including development the subject of an application under
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clause 242), this clause provides guidance about assessing the part of such
an application that seeks to vary the local planning instrument.
Subclauses (1) to (3) establish the context for assessment of the different
parts of an application for a preliminary approval under clause 242. In
particular, subclause (3) states that subclause (4) establishes the matters to
consider for the part of an application that seeks to vary the effect of a local
planning instrument.
Subclause (4) states the criteria for consideration for the part. These are:
· The common material.
· The result of the assessment manager's assessment of the
development under clauses 313 or 314. Any variation to the scheme
approved will depend initially upon the approval of the development
for which the variation is sought.
· State planning instruments that are relevant to the application.
· The consistency of the proposed variations with aspects of the
planning scheme other than those sought to be varied. The proposed
variations must be legible and consistent with the existing framework
of the planning scheme.
· The effect of the variation on potential future submission rights,
particularly with regard to the supporting material available to
submitters for the current application. An assessment manager may
decide not to approve a variation if the information available to
submitters for the current application was insufficient for submitters
to form a reasoned opinion of the proposal as a whole.
· Any referral agency's response for the application.
The location and substance of this clause in relation to clauses 313 and 314
is intended to clarify that the development the subject of the application
must be assessed under the code or impact assessment rules in clauses 313
and 314 before the assessment for the part of the application dealt with
under this clause is carried out. In other words, the assessment of the
proposed development is not carried out against the planning instruments
as they are proposed to be varied, but as they are at the time the application
is made. Only if the development is to be approved are the proposed
variations considered under this clause.
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Assessment manager may give weight to later planning instrument,
code, law or policy
Clause 317 relates to clause 311, which states that in this division a
reference to an instrument is a reference to an instrument in effect at the
time the application was made. It is a basic requirement of IDAS that
assessment managers and referral agencies assess applications on the basis
of the law in place when an application is made, but may give weight to
planning instruments, codes, laws or policies that came into effect after the
application was made, but before the decision stage is started (or re-started,
if it is stopped at some point).
Subclause (2) makes it clear that in the case of a development application
(superseded planning scheme), the existing local planning instruments
cannot be considered in assessing the application (i.e. the assessment
manager can only consider the superseded planning scheme). The only
exception to this is the infrastructure provisions of the existing planning
scheme or a planning scheme policy about infrastructure. If infrastructure
provisions or a planning scheme policy come into effect after the
development application (superseded planning scheme) is made, but before
the decision stage starts (or re-starts), they may be given weight in
assessing the application.
Division 3 Decision
Subdivision 1 Decision-making period
Decision-making period generally
Clause 318 requires the assessment manager to decide an application
within 20 business days of the decision stage starting. As for other stages,
an assessment manager may extend the decision-making period once
without the applicant's consent, and further with the agreement of the
applicant. The only exception to this is the situation where the Minister has
directed the assessment manager to decide the application within the 20
business day period under clause 418(1)(c). In this situation, the
assessment manager cannot extend the decision-making period under
subclauses (2) or (4).
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Subclause (5) applies to applications involving concurrence agencies. It
states that the decision must not be made before 10 business days after the
day the information and referral stage ends, unless the applicant gives the
assessment manager written notice that it does not intend to take action
under clause 320 or 321. This is to allow an applicant to make
representations to a concurrence agency about its response before the
application is decided, or to the chief executive if the applicant considers 2
or more concurrence agency's responses contain inconsistent conditions.
Decision-making period - changed circumstances
Clause 319 states that the decision-making period starts again from the
beginning in certain situations. IDAS is designed to be a flexible process
and care has been taken to provide applicants with opportunities to resolve
disputes about referral agency's responses and assessment manager
conditions without having to go to appeal. This clause deals with the
situations involving referral agency's responses.
Paragraph (a) refers to the situation where, under clause 290, a concurrence
agency gives a response or an amended response after the end of the
referral agency's assessment period.
Paragraph (b) refers to the situation where the applicant stops the
decision-making period under clause 320 to make representations to a
referral agency.
Paragraph (c) refers to the situation where the applicant stops the
decision-making period under clause 321 to request the chief executive's
assistance to resolve inconsistent concurrence agency's responses.
The reason matters under clauses 290, 320 and 321 are dealt with before
rather than after the assessment manager decides the application, is to
ensure the assessment manager has the benefit of each concurrence
agency's final response when assessing and deciding the application.
Applicant may stop decision-making period to make representations
Clause 320 allows an applicant to stop the decision-making period to make
representations to a referral agency about its response. If the dispute can be
resolved by the parties, and a change to the response is agreed, a referral
agency may use powers under clause 290 to change its response. The
assessment manager's decision-making period starts again the day after the
changed response is received by the assessment manager (see clause 319).
Example - For an application for approval of an extractive industry, a
concurrence agency with an environmental management jurisdiction may
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impose a requirement that the proposed crushing plant be located a
specified distance from the site boundary to minimise noise impacts on
adjacent properties. The applicant may consider the specified location to
be undesirable for operational reasons and may propose a location closer
to the boundary with attenuation works to ensure noise levels at the
boundary meet the necessary standards. If this alternative is acceptable,
the concurrence agency may change its response using clause 290.
Applicant may stop decision-making period to request chief
executive's assistance
Clause 321 provides for an applicant to seek assistance from the chief
executive of the Department of Infrastructure and Planning to resolve 2 or
more concurrence agencies' responses containing conditions the applicant
considers to be inconsistent. The power of the chief executive to alter
concurrence agencies' responses is limited to the situation where responses
are inconsistent. It is not possible for an applicant to seek the assistance of
the chief executive to resolve concurrence responses the applicant
considers unreasonable.
Example - Adapting the extractive industry/crushing plant example used in
the previous clause, it may be that 2 concurrence agencies have imposed
conditions about the location of the plant. One agency may have required it
be located on a specified part of the site to minimise the potential for
environmental harm. Another agency with a different jurisdiction may have
required it to be located on another part of the site. The conditions are
clearly inconsistent as both conditions cannot be complied with at the same
time. If the chief executive did not have this power to resolve the difficulty
and decide the matter from a whole-of-government perspective, the matter
would have to be decided by the court.
Decision-making period suspended until approval of master plan
Clause 322 suspends the decision-making period for a development
application in a declared master planned area where the structure plan
requires a master plan. Until the master plan is approved, the assessment
manager cannot decide the application and the decision-making period is
suspended.
It is possible under the master planning arrangements in chapter 4 to
submit both a master planning application and one or more development
applications at the same time. This clause ensures any such development
applications are consistent with master planning approvals to which they
relate.
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Subdivision 2 Decision rules--generally
Application of sdiv 2
Clause 323 states that subdivision 2 does not apply to the part of an
application for a preliminary approval mentioned in clause 242 which
states the way the applicant seeks approval to vary the effect of any local
planning instrument for the land.
Decision generally
Clause 324 establishes basic rules for deciding development applications.
A development application must either be approved in whole or in part or it
must be refused. At the same time the assessment manager may approve
the application subject to conditions decided by the assessment manager.
However, the assessment manager's decision must not be inconsistent with
a State planning regulatory provision.
Subclauses (4) and (5) clarify that a development application which
requires a master plan must be refused if the master plan application is
refused.
Subclause (6) is included to remove any doubt about certain matters. It
states that an assessment manager may give a preliminary approval (other
than a preliminary approval to which clause 242 applies) even though a
development permit was applied for. Preliminary approvals are one of the
tools provided in IDAS. They can be used in a range of situations. One
potential use is outlined in the example below. If the mechanism was not
available, an applicant would need to provide, at the outset, the full scope
of information needed to grant a permit for the particular development
(which may be unduly onerous and unnecessary in some situations), or
alternatively, the assessment manager would have to refuse the application.
If a preliminary approval is given, it is a binding, tradeable approval. A
further application is needed to deal with the aspects of the development
not finalised by the preliminary approval (see also clause 243 which
describes development permits).
Example - An application is made for a development permit for
reconfiguring a lot to create lots for a large residential housing estate. The
assessment manager, after assessing the application, may consider that
there is sufficient information to approve the overall concept (e.g. lot size,
maximum lot yield, etc) but the subdivision design submitted is not suitable
to authorise reconfiguration (e.g. the detailed lot design and road layout
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may be considered to have deficiencies). While the assessment manager
could ask for more detailed plans during the information request phase,
another option would be for the assessment manager to give a preliminary
approval covering the aspects of the proposal considered suitable. The
preliminary approval is binding and tradeable. However, a follow-up
application covering the outstanding aspects of the original application
(e.g. a detailed lot design in accordance with the yield and lot size
measures approved in the preliminary approval) would be needed before a
development permit could be given authorising the reconfiguration. Before
the site works associated with the reconfiguration could begin, a further
development permit for those works would be necessary.
Subclause (6) also makes it clear that if the assessment manager approves
only part of an application, then the balance of the application is refused.
Effect of concurrence agency's response
Clause 325 states the obligations of the assessment manager with respect
to concurrence agencies' responses. This clause only applies where the
concurrence agency's response is given before the end of the referral
agency's assessment period or under clause 290 (which allows a late
response, or amended response to be given in certain circumstances).
Subclause (1) clarifies that conditions imposed by a concurrence agency
must be attached to the assessment manager's decision notice in the form
provided by the agency and that the assessment manager must not retype,
reformat or amend the conditions in any way.
Subclause (4) clarifies that, if a concurrence agency directs the refusal of an
application, the assessment manager must refuse the application. This
clause makes it clear that an assessment manager must comply with the
direction of a concurrence agency to refuse a development application.
Subclauses (2) and (3) relate to other requirements of the concurrence
agency, such as a requirement to give only a preliminary approval or a part
approval, or to impose a different period for the approval. Again, the
assessment manager must comply with the concurrence agency's
requirements.
If an application is deemed to have been approved under clause 331 and the
assessment manager fails to issue a decision notice, any requirements of
the concurrence agency will automatically apply to the deemed approval
(see clauses 331 and 332(5)).
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Other decision rules
Clause 326 establishes that an assessment manager's decision must not
conflict with a relevant instrument unless certain circumstances exist.
Relevant instrument is defined in subclause (2) for this clause as a matter
or thing under clauses 313 or 314 (other than a State planning regulatory
provision) against which code assessment or impact assessment is carried
out.
Experience with implementing the current IPA and consultation during
development of the reform agenda identified several issues with the current
decision rules, particularly for code assessment:
· Code assessment was originally designed as a "bounded assessment"
against only applicable codes. However since the commencement of
the current IPA, there have been numerous amendments which have
introduced additional considerations into code assessment. In
particular, code assessment now includes assessment against State
planning regulatory provisions, regional plans and State planning
policies. State planning regulatory provisions and regional plans
currently prevail over codes to the extent of any inconsistency. Also, a
decision cannot be made if it is contrary to the State planning
regulatory provisions. Structure plans and master plans may also
prevail over codes. In this sense, code assessment is no longer a
"bounded assessment" under the current IPA.
· The decision rules for code assessment under the current IPA were
designed in the expectation that code assessment would be used
predominantly for "technical" assessments for which there would
generally always be a "correct" solution. This is reflected particularly
in the rule requiring applications to be approved if they comply with
applicable codes, even where the assessment manager may need to
"find" conditions to achieve compliance. In practice, code assessment
has been used for both technical and broader planning assessments,
involving the exercise of broad discretion.
· There have been continuing issues with assessment managers
departing from relevant instruments, and particularly codes, in
instances where departure is not warranted.
· There has been insufficient guidance about departing from relevant
instruments in cases where such instruments conflict.
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The decision rules in this clause are designed to address these issues. In
particular:
· Code and impact assessment decision and departure rules have been
combined into a single set of rules. This recognises the evolution of
assessment rules under the current IPA has resulted in a narrowing of
the differences between code and impact assessment decision and
departure rules.
· Subclause (1) states that the assessment manager's decision must not
conflict with a relevant instrument unless paragraphs (a), (b) or (c)
apply. This clause is intended to reflect the existing position under the
current IPA that departures from relevant instruments should be on a
"by exception" basis.
· The requirement to approve complying applications for code
assessment has been removed, however this must be seen in the
context of several other reforms in the Bill, in particular the
introduction of compliance assessment, which has been designed as a
true bounded "technical" assessment for which there is no capacity to
refuse an application. Many existing code assessments can potentially
be moved into compliance assessment. In addition progressive
standardisation of code requirements, in particular through the
standard planning scheme provisions, will allow for codes themselves
to more clearly establish the circumstances in which approval can be
expected. The current requirement to approve complying applications
should also be considered in light of the impact that State planning
instruments currently have on this requirement, particularly in the case
of State planning regulatory provisions where an assessment
manager's decision cannot be contrary to a State planning regulatory
provision.
· Specific departure rules have been included to accommodate conflicts
within and between instruments.
Clause 326 should be interpreted as a presumption in favour of policy
that is, the assessment manager's decision must, as a general rule, be
consistent with a relevant instrument. As stated above, departures from
these relevant instruments should only be by exception. The only
circumstances in which an assessment manager's decision may conflict
with a relevant instrument are where:
· the conflict is necessary to ensure compliance with the State planning
regulatory provisions;
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· there are sufficient grounds to justify the decision, despite the conflict;
or
· the conflict arises because of a conflict between 2 or more relevant
instruments of the same type and the decision best achieves the
purpose of the instruments (for example, a conflict between two State
planning policies), or because of a conflict between 2 or more aspects
of any 1 relevant instrument, and the decision best achieves the
purposes of the instrument (for example, a conflict between two codes
within a planning scheme).
Under clause 759, the Minister has the power to make a statutory guideline
about what constitutes sufficient grounds for the purposes of the second dot
point above.
The decision rules in the Bill are drafted to reflect the position that
planning instruments should "speak for themselves". This means that
planning instruments are intended to state how they are to be considered in
assessing an application and the weight to be given to those applicable
parts of the instrument. For example, planning instruments should state
which parts are relevant to the assessment of the application. The planning
instruments should also state whether a particular part of the instrument
must be complied with, and whether particular provisions are intended to
prevail over other provisions, in the case of inconsistency. If a planning
instrument required mandatory compliance with particular provisions of
the planning instrument, then it would be very difficult to establish
sufficient grounds for departing from the instrument.
Subdivision 3 Decision rules--application under
section 242
Decision if application under s 242 requires assessment
Clause 327 provides particular rules for assessing the part of an application
for a preliminary approval that seeks to vary the effect of a planning
scheme. The development the subject of such an application is assessed
first, using the assessment and decision rules in clauses 313, 314 and 324 to
326. The outcome of that assessment then informs assessment and deciding
of the part of the application seeking to vary local planning instruments
under clauses 316 and 327 to 329. If the development applied for under
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other parts of the application is refused, any variation relating to the
development must also be refused (see subclause (4)).
Effect of concurrence agency's response
Clause 328 makes it clear that if a concurrence agency requires that an
action be taken, or that variations be refused, then the assessment manager
must either take that action, or refuse the application. The actions that a
concurrence agency may require are set out in clause 287(5)(b).
Other decision rules
Clause 329 establishes that an assessment manager's decision must not
conflict with a relevant instrument unless certain circumstances exist.
Relevant instrument is defined in subclause (2) for this clause as a matter
or thing under clause 316 (other than a State planning regulatory provision)
the assessment manager must have regard to in assessing the part of the
application.
Subclause (1) states that the assessment manager's decision must not
conflict with a relevant instrument unless paragraphs (a), (b) or (c) apply.
As with clause 326, the decision rules should be interpreted as a
presumption in favour of policy that is, the assessment manager's
decision must, as a general rule, be consistent with a relevant instrument.
This clause is intended to emphasise that departures from relevant
instruments should only be on a "by exception" basis. The only
circumstances in which an assessment manager's decision may conflict
with a relevant instrument are where:
· the conflict is necessary to ensure compliance with the State planning
regulatory provisions;
· there are sufficient grounds to justify the decision, despite the conflict;
or
· the conflict arises because of a conflict between 2 or more relevant
instruments of the same type and the decision best achieves the
purpose of the instruments (for example, a conflict between two State
planning policies), or because of a conflict between 2 or more aspects
of any 1 relevant instrument, and the decision best achieves the
purposes of the instrument (for example, a conflict between two codes
within a State planning policy).
Under clause 759, the Minister has the power to make a statutory guideline
about what constitutes sufficient grounds for the purposes of the second dot
point above.
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Subdivision 4 Deemed decisions for particular
applications
Application of sdiv 4
Clause 330 provides that the deemed approval provisions apply to
applications requiring code assessment only that is, they do not apply in
the situation where an application involves both code and impact
assessment. These provisions also do not apply to the types of code
assessable applications listed, or applications for preliminary approval to
which clause 242 applies.
Deemed approval of particular applications
Clause 331 provides that applications to which this subdivision apply will
be deemed to have been approved if they are not decided within the
decision-making period. To determine exactly what has been approved, it
is necessary to look at the application (including any changes made to the
application). The approval will be for the development as applied for in the
application.
The deemed approval is not automatic. Under subclause (1), if the
applicant wants the development application to be treated as having been
approved by the assessment manager, the applicant must give the
assessment manager a deemed approval notice. A deemed approval notice
can only be given after the decision-making period (or extended
decision-making period) ends. However, it must be given before the
assessment manager decides the application.
Example The decision-making period for an application ends. The
assessment manager does not decide the application within the
decision-making period. However, the assessment manager decides the
application after the decision-making period ends, but has not yet given the
applicant a decision notice. The applicant cannot give the assessment
manager a deemed approval notice.
Subclause (2) provides that the deemed approval notice must be in the
approved form.
Subclause (3) provides that the applicant must also give a copy of this
notice to any other party to whom a copy of any decision notice would be
given.
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The remainder of the subclauses apply if the applicant gives the assessment
manager a deemed approval notice for the application.
Subclause (5) provides that if the applicant gives a deemed approval notice,
the assessment manager will be taken to have decided to approve the
application. The decision to approve will be taken to have been made on
the day that the deemed approval notice is received by the assessment
manager.
If the assessment manager receives a deemed approval notice, the
assessment manager is required to issue a decision notice (subclause (6)).
This is the assessment manager's opportunity to impose conditions on the
approval, despite the fact that it has been deemed to have been approved.
However, the decision notice must be given to the applicant within 10
business days of receiving the deemed approval notice (this 10 day
timeframe applies despite the normal 5 day requirement under clause
334(2)).
If the assessment manager fails to issue a decision notice, standard
conditions will automatically apply (see clause 332 below).
If a decision notice is given, the decision notice must be a development
permit, a preliminary approval or a combined preliminary approval and
development permit, depending on what the applicant applied for.
Similarly, if no decision notice is given, the deemed approval itself will be
taken to be a development permit, a preliminary approval or a combined
preliminary approval and development permit, depending on what the
applicant applied for. The effect of this is that, in the case of a deemed
approval, the assessment manager loses its ability to issue a preliminary
approval even though the applicant applied for a development permit. The
only exception to this is the situation where a concurrence agency has
directed the assessment manager to give a preliminary approval only. In
this situation, the deemed approval must be a preliminary approval, to give
effect to the concurrence agency's response.
If a concurrence agency's response tells an assessment manager a different
period for section 341(1)(b), (2)(c) or (3)(b), this different period will apply
to the deemed approval (subclause (9)). Again, this ensures that the
concurrence agency's response is given effect despite the deemed approval.
Standard conditions for deemed approvals
Clause 332 provides that if the assessment manager does not issue a
decision notice within the relevant timeframe, standard conditions will
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apply to the deemed approval. The standard conditions will be taken to be
conditions imposed by the assessment manager.
The standard conditions will be made by the Minister in the process
outlined in subclauses (2) and (3).
If a concurrence agency has required that conditions be imposed on any
approval, or the Minister has directed the assessment manager to attach
conditions, these will also apply to the deemed approval, in addition to the
standard conditions. See also clause 244 which lists other types of
conditions which a development approval includes.
Limitation on giving deemed approval notice
Clause 333 sets out limitations on the ability of an applicant to give a
deemed approval notice.
Subclause (1) prevents an applicant from giving a deemed approval notice
(despite the fact that the decision-making period has lapsed) if another Act
provides that the assessment manager cannot decide the application until an
action or event occurs. For example, a provision of another Act may
provide that the assessment manager cannot decide an application until the
applicant gives evidence that building insurance has been paid. It is
important to prevent the applicant from seeking a deemed approval in these
situations, as a way of ensuring that these other requirements continue to
apply.
Subclause (2) prevents an applicant from giving a deemed approval notice
where the Minister has given a direction to an assessment manager to
decide an application within a prescribed timeframe. The applicant cannot
seek a deemed approval, until this period has ended.
Division 4 Notice of decision
Assessment manager to give notice of decision
Clause 334 requires the assessment manager to give written notice of the
decision on the application to the applicant, each referral agency and other
parties specified in subclause (1) within 5 business days of the decision
being made.
Content of decision notice
Clause 335 establishes the content of a decision notice.
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Subclause (1) sets out information that must be included in the decision
notice. The information required to be included is intended to be sufficient
to allow the applicant, referral agencies and submitters to understand the
effect of the decision.
Subclause (1)(l) provides for applicants to be notified of the names and
addresses of any submitters for the application.
Subclause (3) requires approved drawings to be included in the decision
notice if it is for a building development application.
Subclause (4) clarifies that if the application is taken to have been approved
under clause 331, the decision notice need not include the matters
mentioned in subclause (1)(m) or (n). It is intended that, where an
application has been approved under clause 331, the assessment manager
should not be required to state in the decision notice whether the decision
conflicts with a relevant instrument.
Material to be given with decision notice
Clause 336 sets out material which must be given with a decision notice.
Paragraph (a) clarifies that the assessment manager must give, with the
decision notice, a copy of any relevant appeal provisions in relation to the
decision notice.
Paragraph (b) requires the assessment manager to give a copy of approved
plans and specifications with the decision notice.
Assessment manager to give copy of decision notice to principal
submitter
Clause 337 establishes circumstances where an assessment manager must
give copies of a decision notice to principal submitters.
Under subclause (1), because provision is made under clause 361 for the
applicant to make representations to the assessment manager during the
applicant's appeal period about conditions imposed by the assessment
manager, the notices to submitters do not get sent until 5 business days
after:
· the applicant gives a notice saying no representations will be made;
· the applicant appeals; or
· the applicant's appeal period ends.
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Subclause (2) states that, if the application is refused, then the assessment
manager must give a copy of the decision notice to each principal submitter
at about the same time as the decision notice is given to the applicant.
Subclause (3) clarifies that the relevant appeal provisions must be given
with each copy of the decision notice.
Decision notice given by private certifier
Clause 338 provides that a decision notice given by a private certifier, is
given subject to the Building Act 1975, chapter 4, part 6 (Regulation of
building assessment work and the issuing of building development
approvals by private certifiers).
Division 5 Approvals
When approval takes effect
Clause 339 states when a development approval takes effect. As the clause
describes, this varies depending on the circumstances. In summary, the
requirements are:
· if there is no submitter and the applicant does not appeal the
decision--from the time the decision notice (or, if relevant, the
negotiated decision notice) is given;
· if there is a submitter and the applicant does not appeal the
decision--either when the submitter's appeal period expires or the day
the last submitter gives the assessment manager written notice that the
submitter will not be appealing the decision (whichever is the earlier);
· if an appeal is made--when the decision of the court or building and
development committee is made (if an approval results) or the appeal
is withdrawn.
Subclause (1)(b) allows a submitter to advise the assessment manager that
the submitter will not be appealing the decision. The ability for a submitter
to advise that the submitter will not be appealing is linked to decision
notice and appeal arrangements designed to streamline post-approval
processes in cases where submitters do not wish to appeal.
Subclause (1)(c) clarifies that if an appeal is made to the court or a building
and development committee, the decision regarding approval of the
development application takes effect from the date that the decision is
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made by the court or building and development committee. If the appeal is
withdrawn, the approval will take effect from the date it is withdrawn.
Subclause (2) sets out particular rules for approvals relating to land that
was acquisition land to which clause 263(2)(d) applied when the
application was made.
Subclause (3) provides for the circumstance where a decision notice or a
negotiated decision notice is not given for an application to which a
deemed approval relates, and clarifies when the deemed approval has
effect.
Subclause (4) requires the assessment manager to notify the applicant if a
submitter advises the submitter will not be appealing.
Subclause (5) defines submitter for this clause.
When development may start
Clause 340 provides that development may start when a development
permit for the development takes effect, but notes that there is an additional
restriction on the starting of development in relation to development in a
declared master planned area.
Subclause (1)(b) clarifies that, where an application for a development
permit is taken to have been approved under section 331 and the
assessment manager does not give a decision notice, development may start
when the deemed approval for the application has effect.
When approval lapses if development not started
Clause 341 establishes default time limits for approvals.
While the clause outlines the default time limits for approvals, provision is
made for the development approval to vary those times. This flexibility is
important. As an example, a large, complex residential project may have
one or more preliminary approvals covering conceptual aspects about the
use and reconfiguring of the land. It is important that these overarching
approvals remain in place for the life of the construction phase of the
project, which could be planned to occur over a 15 - 20 year period. A
different default time period is allowed for a material change of use and
reconfiguring a lot requiring operational works (4 years) compared with
other development (2 years). If a material change of use is assessable
development, clause 265 requires the change of use to be dealt with in the
same application as, or approved before, the other development is
approved. Because the establishment of a new use in most cases will also
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involve the carrying out of works (e.g. erecting a building etc) it is
necessary for the currency period of the change of use approval to be long
enough to cover:
· the necessary works approvals being obtained after the change of use
is approved; and
· the construction phase involved in the erection of a building or the
carrying out of other works.
Also, while this clause only deals with time limits for development starting,
clause 346(1)(e) allows conditions to be imposed on development
approvals requiring development to be completed within a particular time.
This clause is intended to clarify that an approval is preserved if the first
use or the first plan under a staged approval starts or is submitted.
Although the start of the first use or lodging of the first plan preserves the
approval under these subclauses, the lapsing of staged approvals in these
circumstances may also be influenced by any conditions about completion
times, provided for under clause 346.
Clauses 341, 342 and 343 are grouped together to provide all of the
arrangements in the Bill for the lapsing of approvals. This is intended to
provide a more complete picture of the range of tools available to
assessment managers to manage the currency and lapsing of approvals.
The beginning of the relevant periods for approvals for material changes of
use and reconfiguring a lot will "roll forward" in some circumstances to
align with the beginning of those for related approvals. A related approval
is defined for both material change of use and reconfiguring a lot approvals
at the end of the clause, and contains the following key elements:
· It is an approval for an application made to a local government or
private certifier, or a compliance permit for a request for compliance
assessment made to a local government or entity nominated by a local
government. Approvals given by other assessment managers or
compliance assessors (e.g. State entities) are not related approvals.
Although other assessment managers are required to give relevant
local governments copies of development approvals, an effective
requirement for local governments to track the course of such
approvals for a given project may create administrative difficulties, if
the local government does not for example link such approvals to
particular premises or approvals given by the local government itself.
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· The application for the approval must be made within two years of a
previous related approval taking effect. This is intended to ensure the
"rolling forward" arrangements apply only for projects which
continue to progress towards completion. Approvals for which there
is no related approval will effectively default to the arrangements in
subclauses (1) and (2), which are essentially the same as the previous
arrangements. Similarly, if the chain of related approvals is broken
(i.e. if a further application is not made within 2 years of the last
related approval taking effect) the lapsing of the earlier approval will
stay linked to the last related approval, and any necessary extensions
will need to be sought under clause 383.
· The definitions of related approval each consist of three parts. The
first part relates to the first related approval for a given approval, while
the second and third parts relate to successive related approvals. This
structure reflects the relationship between preliminary approvals for
material changes of use and reconfiguring a lot, and the first
development permits or compliance permits for this development. A
preliminary approval for a material change of use or reconfiguring a
lot will "roll forward" to align with the first development permit or
compliance permit for the development. Both the preliminary
approval and its related development will then "roll forward" together
to align with successive related works permits. A development permit
for a material change of use or reconfiguring a lot will "roll forward"
to align with the first related works approval and subsequently with
any further works approvals. Paragraph (a)(ii) of the definition of
related approval also makes particular provision for preliminary
approvals given under clause 242(3)(a)(i) or (ii). These are
preliminary approvals with provisions overriding the effect of a
planning scheme by making otherwise assessable material changes of
use self-assessable or exempt. As there will be no further
development permit or compliance permit for these material changes
of use, the preliminary approval will "roll forward" directly to align
with the first related works permit.
· Assessment managers can still vary the currency period as part of the
approval, and condition for the completion of projects within a
reasonable time. Where the assessment manager varies the currency
period as part of the approval, it is the varied period and not the
default period that will "roll forward" to align with a related approval
under the limited circumstances described above.
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When approval lapses if development started but not completed--
general
Clause 342 provides that if a development approval establishes a
completion time for assessable development and the development is not
completed within the time, the approval lapses to the extent it relates to the
assessable development.
Subclause (3) confirms that security paid in respect of a development
approval that lapses through a condition mentioned in this clause may still
be applied to complete the development. Clause 578 ensures that, if
security is applied to completing development in this way, a development
offence is not committed. These arrangements for applying security to
complete the development contrast with clause 341(5) which requires
security to be released if an approval lapses before development under the
approval starts.
Subclause (4) clarifies that this clause does not apply to a preliminary
approval under clause 242.
When approval lapses if development started but not completed--
preliminary approval
Clause 343 introduces lapsing arrangements for preliminary approvals that
vary the effect of local planning instruments where development under the
approval has started but is not completed within the period nominated by
the applicant in their development application. If the applicant does not
nominate a time, a condition of the approval may state a period within
which the development must be completed. The assessment manager can
also override the period specified by the applicant in the application by
imposing a condition on the approval that states a period different to that
specified in the application.
In the event there is no period nominated by the applicant or stated in a
condition of the approval, a "default" lapsing period of 5 years after the day
the preliminary approval or any related approvals took effect, will apply.
The current IPA provides for conditions to establish completion and
lapsing arrangements for development approvals, however in many cases
these arrangements were not used by assessment managers with the result
that many development approvals have indefinite effect once development
under the approval substantially starts. This is particularly problematic in
the case of preliminary approvals which affect planning schemes, as these
approvals often authorise large, multi-stage proposals with very long time
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horizons. If these proposals are not subject to completion and lapsing
arrangements, the form of development may ultimately not conform with
contemporary community expectations about the nature and standard of
development.
Consequently, this clause establishes arrangements designed to ensure the
applicant and assessment manager both contribute to establishing a
reasonable lapsing period for such development. It provides for applicants
to nominate a period as part of their application, and the default lapsing
period will provide an incentive for doing so. If an assessment manager
disagrees with the nominated period, it can condition any approval for the
application with an alternative time. Any such condition is appealable by
the applicant.
These arrangements provide a strong incentive for both the applicant and
assessment manager to become engaged in establishing a reasonable
lapsing period for staged proposals through what effectively becomes a
negotiation process. However in the event neither of them act to establish
lapsing arrangements, a default arrangement will apply. This default
period of 5 years is relatively short, and is intended in itself to provide an
incentive for applicants to nominate an alternative period in their
application if they do not believe it suits the needs of their proposal.
Division 6 Conditions
Application of div 6
Clause 344 states that division 6 deals with the powers provided under
IDAS to impose conditions on development approvals. This division
covers conditions:
· imposed by the assessment manager under the direction of a
concurrence agency;
· decided by the assessment manager; or
· attached to the approval under the direction of the Minister.
Conditions must be relevant or reasonable
Clause 345 requires conditions to be relevant, and not an unreasonable
imposition, or to be reasonably required.
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Subclause (1) refers to conditions relating to both development and the
subsequent use of premises.
The inclusion of a reference to use makes it clear that operating conditions
relevant to the use resulting from approved development must also be
relevant or reasonable as required by the clause. Such conditions may be
about, for example, operating hours, how access is to be used, etc.
Subclause (2) clarifies that the test in subclause (1) applies even if the laws
and policies applied by the assessment manager or concurrence agency
require a particular condition to be imposed on an approval. Despite the
law or policy, if the condition does not meet the test in subclause (1), it
cannot be imposed.
Conditions generally
Clause 346 states that conditions may be imposed regarding:
· the continuance of a use or works;
· the starting time and completion dates for a development;
· compliance with an infrastructure agreement;
· compliance assessment of a document or work; or
· the payment of security.
Conditions that can not be imposed
Clause 347 deals with the converse of the previous clause--conditions that
can not be imposed.
Subclause (1)(a) prevents a condition being imposed that is inconsistent
with a condition of an earlier development approval or compliance permit.
Example - A preliminary approval is given for a change of use from rural to
residential and a condition is imposed that specifies the maximum dwelling
density for the land. The preliminary approval dealt with the broad
conceptual aspects of the change of use and contemplated a range of
dwelling types and densities up to the maximum density specified. A
subsequent application is required to allocate those different dwelling types
and densities around the site. Any subsequent application could not be
conditioned to set a different maximum dwelling density. That has already
been set and any conditioning on a subsequent application purporting to
set a new limit would be inconsistent with the earlier approval.
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Subclause (1)(b) prevents conditions being imposed to require monetary
contributions or works for community infrastructure other than as provided
under the clause. This is because community infrastructure is intended to
be funded only in the ways provided for in the Bill (see subclause (2)(a),
and chapter 8, parts 1 and 2 for details).
Subclause (1) also provides that conditions cannot be imposed:
· requiring works to be carried out by an entity other than the applicant;
· requiring an access restriction strip;
· limiting the time a development approval has effect for a use or work
formatting part of a network of community infrastructure, other than
State owned or State controlled transport infrastructure.
Agreements
Clause 348 deals with agreements about conditions of development
approvals. An applicant can enter into an agreement with an assessment
manager, a concurrence agency or another entity (e.g. an adjoining local
government) about the obligations or performance of a party to the
agreement about a condition of a development approval.
Covenants not to be inconsistent with development approvals
Clause 349 provides that a covenant entered into in relation to a
development approval is of no effect unless it is entered into as a
requirement of a condition of the approval or under an infrastructure
agreement. This is intended to prevent covenants being entered into in
anticipation of an approval, and provides applicants with rights of appeal if
they consider a requirement for a covenant is unwarranted.
Part 6 Changing or withdrawing
development applications
Part 6 sets out a simpler, clearer and more flexible process for changing
development applications than the process in the current IPA. This new
process allows a broader category of minor changes to be made, without
having to stop the IDAS process. It also provides for changes to be made in
response to submissions and information requests without significantly
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delaying the IDAS process, and allows a single process for making all other
changes.
Division 1 Preliminary
Meaning of minor change
Clause 350 defines a minor change. A change is a minor change if it
involves:
· a change that merely corrects a mistake about the name or address of
the applicant or owner;
· a change of applicant, if the change would not adversely affect the
ability of a person to assess the changed application;
· a change that merely corrects a spelling or grammatical error.
Further, subclause (1)(d) provides a change is a minor change if the change
does not:
· result in a substantially different development;
· require referral to any additional referral agencies;
· alter the type of development approval sought; and
· if the original application did not require impact assessment, involve
impact assessment for the changed application.
In order to assist an assessment manager in deciding whether a change
results in a substantially different development, the Minister has the power
to prepare a statutory guideline on this issue (see clause 759). In general
terms, it is considered that this term should be given its ordinary,
common-sense meaning and will need to be considered on the facts of each
case. It is difficult to establish black-and-white criteria, otherwise the test
for whether an application can be changed becomes arbitrary and
inflexible. However, changes which may result in a development being
substantially different include:
· changes which involve a new use (for example, an application for a
material change of use for a cinema which is changed to include a
residential component);
· changes which involve a significant increase in gross floor area;
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· changes which involve a significant increase in the number of lots or
storeys above ground level proposed.
Subclause (2) provides that, for determining a minor change under
subclause (1)(d) the planning instruments or law in effect at the time the
time the change was made apply. That is, in determining whether, if the
application were remade including the change, it would trigger any new
referral agencies or require impact assessment, the planning instruments
that existed at the time the change is made, or the legislation or law in force
at the time the change is made (the applicable law) must be considered.
However, subclause (3) seeks to clarify that what is relevant is whether it is
the change itself which causes the need for referral to additional referral
agencies or impact assessment. It is not the intention to prevent a change
being made simply because, since the original application was made, there
has been a change to the legislation or a planning instrument, which has the
effect that the application as originally made would now trigger additional
referral agencies or require impact assessment it is only intended to
prevent changes being made if the change itself is the reason why the new
referral agency is triggered or impact assessment is required.
Division 2 Procedure for changing applications
Changing application
Clause 351 sets out the process for changing an application.
Subclause (1) provides that the applicant may change the application at any
time before the application is decided by giving the assessment manager
written notice of the change. For the sake of certainty, it should be noted
that an assessment manager or a concurrence agency may request that an
application be changed (see the note to subclause (1)). For example, this
could be done as part of an information request. However, the applicant is
not obliged to make the change.
Subclause (2) makes it clear that a change cannot be made if:
· the change would have the effect that, if the application were re-made
including the change, it would not be a properly made application; or
· it results in the application involving prohibited development.
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However, despite subclause (2)(a), subclause (3) makes it clear that if the
change has the effect of making the application not properly made, the
applicant can take whatever action is necessary to make it a properly made
application. For example, if the change has the effect that a higher fee
would have been required, the applicant is able to make the change if they
pay the difference in fees.
Subclause (4) clarifies that a change to an application that involves a
change to the name of the applicant must be accompanied by the consent of
the original applicant.
Assessment manager to advise referral agencies about changed
applications
Clause 352 states that when the assessment manager receives notice of the
change, the assessment manager must advise any referral agencies for the
original application and any referral agencies which are triggered by the
change, of the change and the effect of the change on IDAS. The effect of
the change on IDAS is set out in division 3.
Division 3 Changed applications--effect on
IDAS
Effect on IDAS--minor change
Clause 353 establishes that the IDAS process does not stop if the change is
a minor change.
Where a minor change is made to an application which originally required
public notification and the change was made during the notification stage
or after the notification stage had ended, the public notification stage does
not have to be repeated or restarted.
Effect on IDAS--changes about matters relating to submissions or
information requests
Clause 354 applies to changes which are not minor changes but which the
assessment manager is satisfied are made in response to a properly made
submission or an information request. In this situation, IDAS does not
stop. However, if the application (prior to the change) had already required
public notification and the change is made during the notification stage or
after the notification stage had ended, the default rule is that the application
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will need to be renotified. The only exception to this is if the assessment
manager is satisfied that the change would not be likely to attract a
submission objecting to the thing comprising the change if the notification
stage were to apply to the change. The application cannot be decided until
the renotification has been carried out.
Effect on IDAS--other changes
Clause 355 makes provision for other changes to an application, not
covered by clauses 353 and 354. If the change is not a minor change, and
the assessment manager is satisfied that the change does not deal only with
a matter raised in a properly made submission or is not in response to an
information request, then the IDAS process stops on the day the notice of
the change is received by the assessment manager and starts again from the
start of the acknowledgement period.
If the application (prior to the change) had already required public
notification and the change is made during the notification stage or after the
notification stage had ended, the default rule is that the application will
need to be renotified unless the assessment manager is satisfied that the
change would not be likely to attract a submission objecting to the thing
comprising the change if the notification stage were to apply to the change.
Division 4 Withdrawing applications
Withdrawing an application
Clause 356 states that an applicant may withdraw their application at any
time before the application is decided by the assessment manager.
This clause also allows submissions on an earlier application, which has
been withdrawn and is not substantially different, to carry over to the later
application.
Part 7 Missed referral agencies
Under the current IPA, a change to an application to include a missed
referral requires the IDAS process to stop and start again from the start of
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the acknowledgement period. A missed referral also usually has the effect
of making an application lapse.
The reform agenda proposes reforming IDAS to provide a simpler process
for changing an application to include a missed referral. In particular, it is
intended that the entire application should not have to return to an earlier
stage (acknowledgement stage). Once a missed referral has been
identified, it is proposed that the IDAS process continue while allowing for
the missed referral to "catch up". However the application cannot be
decided by the assessment manager until the missed referral agency has
had an opportunity to assess the application. The Bill also makes it clear
that an application will not lapse as a result of a missed referral, where
action is taken using this process to pick up the missed referral.
For the purposes of part 7, it is intended that the term missed referral
agency would include the situation where the referral jurisdiction of a
referral agency has been missed for example, the application may have
been referred to the Department of Environment and Resource
Management's coastal protection division, but not its contaminated lands
division.
Notice of missed referral agency
Clause 357 applies where an applicant fails to refer an application to a
referral agency as required under clause 272. Any party to the application
(i.e. the applicant, assessment manager or a referral agency, including the
missed referral agency) can identify that the applicant did not refer the
application to the missed referral agency. The entity identifies the missed
referral by giving written notice to all other parties to the application
(including the missed referral agency) of the missed referral.
Effect of missed referral agency on information and referral stage and
notification stage
Clause 358 provides that if the missed referral is identified during either
the information and referral stage or the notification stage:
· the application does not lapse as a result of clause 273;
· the IDAS process does not stop and is able to continue up until the
start of the decision stage.
The decision stage will not start until:
· the information and referral stage is carried out in relation to the
missed referral agency;
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· all referral agencies' responses (including the response of the missed
referral agency) have been received, or all referral agencies'
assessment periods (including the assessment period of the missed
referral agency) have ended; and
· the notification stage has ended.
Public notification does not have to be repeated if the missed referral is
identified during the notification stage or after public notification has been
carried out.
Effect of missed referral agency on decision stage
Clause 359 provides that if a missed referral is identified after the decision
stage starts, but before a decision is made, the application does not lapse as
a result of clause 273. However, the decision cannot be made until the
information and referral stage is carried out in respect of the missed referral
agency.
The applicant is not required to repeat the notification stage.
The decision stage must re-start from the start of the decision stage it
restarts on the day that the referral agency's response of the missed referral
agency has been received by the assessment manager or, if the missed
referral agency does not give a response, the referral agency's assessment
period of the missed referral agency has ended.
If a missed referral is only identified after a decision is made, there is no
ability to include the missed referral using this process.
If the development application is the subject of an appeal before the Court
when the missed referral is identified, the Court is empowered to make
orders requiring the applicant to deal with the missed referral before the
matter is heard and determined.
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Part 8 Dealing with decision notices
and approvals
Division 1 Changing decision notices and
approvals during applicant's appeal
period
Application of div 1
Clause 360 states that the provisions in the division only apply during the
applicant's appeal period. The purpose of the division is to provide the
applicant with the opportunity to make representations about the matters
decided by the assessment manager or the standard conditions applying to a
deemed approval (concurrence agency conditions are dealt with under
clauses 319 to 321). The assessment manager has the ability to issue a new
decision notice if it agrees with the representations. This mechanism
potentially avoids the need for disputes about conditions to be resolved
through the formal appeal process.
Applicant may make representations about decision
Clause 361 gives applicants the ability to make written representations to
the assessment manager about a matter stated in the decision notice. For
example, an applicant may make representations about:
· the currency period for the approval;
· an aspect of a code or type of assessment, stated in a preliminary
approval;
· a decision of the assessment manager to give a preliminary approval
instead of a development permit.
Subclause (1)(b) clarifies that an applicant can also make written
representations to the assessment manager about the standard conditions
imposed on a deemed approval in the situation where the assessment
manager does not give a decision notice. This ensures that applicants are
able to negotiate with the assessment manager about standard conditions
which apply automatically if the assessment manager does not issue a
decision notice.
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Applicants may not make representations to the assessment manager about
a refusal of an application. It is more appropriate that a dispute about
refusal is resolved through the appeal processes in chapter 7 of the Bill. An
applicant may also not make representations to the assessment manager
about matters a concurrence agency has directed to be included in a
decision notice. Applicants may make representations to a concurrence
agency about the agency's response under clauses 319 to 321.
Further, under subclause (2), applicants cannot make representations to the
assessment manager about conditions required to be imposed under a
direction of the Minister.
Assessment manager to consider representations
Clause 362 states that the assessment manager must consider any
representations made to the assessment manager under clause 361.
Decision about representations
Clause 363 sets out the assessment manager's powers following the receipt
of representations from the applicant. A new decision notice called a
negotiated decision notice must be given to the applicant if the assessment
manager agrees with any of the representations. In relation to a deemed
approval for which no decision notice was given, the assessment manager
can still issue a negotiated decision notice.
In addition to the applicant, the assessment manager must give the
negotiated decision notice to each principal submitter and each referral
agency and, if the assessment manager is not the local government, to the
local government.
If the assessment manager does not agree with the representations made,
subclause (5) allows the assessment manager to respond to the applicant by
written notice that it does not agree with the representations.
Giving new infrastructure charges notice or regulated infrastructure
charges notice
Clause 364 allows a local government to issue a new infrastructure charges
notice or regulated infrastructure charges notice if the development
approved by a negotiated decision notice is different from the development
approved in the decision notice or deemed approval in a way that affects
the amount of the infrastructure charge or regulated infrastructure charge
for the development.
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Giving new regulated State infrastructure charges notice
Clause 365 is similar to clause 364 and enables a new regulated State
infrastructure charges notice to be given.
Applicant may suspend applicant's appeal period
Clause 366 provides the applicant with the ability to suspend the
applicant's appeal period to make representations. The purpose of the
division is to provide a mechanism for applicants and assessment managers
to resolve disputes about conditions and other matters through a negotiated
decision notice outside the formal appeal system.
However, it is not intended that the making of representations under this
division should deny an applicant the right to appeal the decision.
Sufficient time needs to be provided to allow discussions to take place and
for the assessment manager to consider any representations made. This is
achieved by allowing the applicant to suspend the appeal period.
To ensure efficiency of process, a 20 business day time limit is included for
the making of representations after the appeal period has been suspended.
If representations are not made in this period, the appeal period restarts.
If representations are made within time, subclause (4) provides for the
balance of the appeal period to restart when the representation process has
been completed by:
· the applicant withdrawing the notice to make representations; or
· the assessment manager either giving a new negotiated decision notice
or a notice stating that it does not agree with the representations.
Subclause (4)(c) provides that if the assessment manager gives the
applicant a negotiated decision notice the applicant's appeal period starts
again the day after the applicant receives the notice.
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Division 2 Changing approvals -- request for
change after applicant's appeal
period ends
Subdivision 1 Preliminary
Under the current IPA, there are separate processes for changing a
development approval and changing a condition of an approval (sections
3.5.24, 3.5.25 and 3.5.33).
Representations received in the course of developing the reform agenda
indicate that the rules for changing development approvals are too complex
and restrictive. Several decisions of the Planning and Environment Court
have also limited the scope to change approvals under the current IPA.
Consequently this Bill consolidates, simplifies and allows more flexible
arrangements for changing development approvals, including conditions.
A change can only be made to an approval if it is a permissible change. If a
change is a permissible change, then a specific process follows as outlined
in subdivisions 2 and 3.
What is a permissible change for a development approval
Clause 367 provides that a permissible change for a development approval
is defined as a change to the approval that would not:
· result in a substantially different development;
· if the application were re-made including the change:
-- require referral to additional concurrence agencies; or
-- cause assessable development previously not requiring impact
assessment to require impact assessment; or
· for assessable development that previously required impact
assessment-- be likely, in the responsible entity's opinion, to cause a
person to make a properly made submission objecting to the proposed
change, if the circumstances allowed; or
· cause development to be prohibited development.
Subclause (2) provides that, for determining a permissible change under
subclause (1)(b) or (d), the planning instruments or law in effect at the time
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the time the change was made, apply. That is, in determining whether, if
the application were remade including the change, it would trigger any new
concurrence agencies or require impact assessment, the legislation or law
in force at the time the change is made (the applicable law) must be
considered.
However, subclause (3) seeks to clarify that what is relevant is whether it is
the change itself which causes the need for referral to additional
concurrence agencies or impact assessment. It is not the intention to
prevent a change being made simply because, since the original application
was made, there has been a change to the applicable law, which has the
effect that the application as originally made would now trigger additional
concurrence agencies or require impact assessment it is only intended to
prevent changes being made if the change itself is the reason why the new
concurrence agency is triggered or impact assessment is required.
Notice about proposed change before request is made
Clause 368 provides that if a person proposes to make a request for a
permitted change to be made to the approval, the person may advise any
relevant entity about the proposal.
Subclause (3) provides the relevant entity may give the person a notice
stating whether or not the entity objects to the proposed change.
Subclause (4) defines relevant entity for the purposes of this clause.
This provision is intended to give the holder of the approval the opportunity
to seek the agreement of other parties to the change, prior to actually
making the request, as a way of making the process quicker.
Subdivision 2 Procedure for changing approvals
Request to change development approval
Clause 369 provides that if a person wants to make a permissible change to
an approval, the person must by written notice ask the responsible entity to
make the change. The responsible entity could be the Minister, the
concurrence agency, the court or the assessment manager, depending on
who gave the approval or whether the change relates to a concurrence
agency condition only.
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Subclauses (2) and (3) enable the Minister to refer a request to change an
approval, given by the Minister as a result of a Ministerial call-in, to the
original assessment manager if the Minister is satisfied that the change
does not affect a State interest. The original assessment manager is then
taken to be the responsible entity for the approval.
Generally, any person can make the request (subject to the owner's consent
see clause 371). However, if the development approval is for building
work or operational work for the supply of community infrastructure on
land designated for the community infrastructure, only the person who
intends to supply, or is supplying, the infrastructure can make the request.
Notice of request
Clause 370 provides that if the responsible entity has a form for the
request, the request must be in the form. The request must also be
accompanied by the relevant fee, a copy of any pre-request response notice
relevant to the request, and evidence to show the person making the request
has complied with clause 372.
Subclauses (3) and (4) provide that the request must be accompanied by the
written agreement of the chief executive from whom evidence would need
to be obtained under clause 264(1) if this evidence would be required to
support the application if it were re-made.
Subclause (5) provides that the request may be accompanied by any other
information the person making the request considers relevant.
When owner's consent required for request
Clause 371 provides that if the person is not the owner of the land to which
the approval attaches, the request must be accompanied by the owner's
consent. Paragraphs (a) to (e) provide several exceptions to the need for
owner's consent, including where it would not be practicable because the
premises has been subdivided and is now in multiple ownerships or the
owner has unreasonably refused to give his or her consent.
Copy of request to be given to particular entities
Clause 372 provides that, at the same time as making the request, the
person must give a copy of the request to other relevant parties.
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Subdivision 3 Assessing and deciding request for
change
Particular entities to assess request for change
Clause 373 provides that an entity identified in clause 372 must assess the
request for change and send a response to the responsible entity advising
that it has no objection to the change being made, or that it objects to the
change. If the entity objects to the change, it must give reasons. If the
entity does not provide a response within 20 business days after receiving
the copy of the request, the responsible entity must decide the request as if
the other entity had no objection.
Responsible entity to assess request
Clause 374 provides that the responsible entity must have regard to the
information provided with the request, and assess the request as if it were a
development application. The responsible entity must also have regard to
any submissions made about the original application and any pre-request
response notice or notice given under clause 373. The assessment should
be carried out against the planning instruments, plans, codes, laws or
policies in effect at the time the original application was approved.
However, the responsible entity may consider and give weight to planning
instruments, plans, codes, laws or policies in effect at the time the request
was made.
Responsible entity to decide request
Clause 375 provides that the responsible entity must decide to approve the
request (with or without conditions) or refuse the request. If conditions are
imposed, the conditions must relate to the changes. For example, the
responsible entity cannot use the request to impose conditions that they
omitted to impose the first time around. Also, the conditions must meet the
tests in clause 345.
This clause also sets out the timeframe for deciding a request. The
timeframe does not apply if the responsible entity is the court.
Notice of decision
Clause 376 provides that the responsible entity must give written notice of
its decision to the various parties. If the request is refused, the notice must
state the reasons for the refusal, and advise the person who made the
request of the rights of appeal or an entity that gave a notice under clause
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373 or a pre-request response notice (if the responsible entity is the
assessment manager) of any appeal rights.
When decision has effect
Clause 377 provides that the change takes effect from the day the written
notice of the decision is given to the person who made the request or, if the
decision is appealed to the court or building and development committee,
the day the appeal is decided or withdrawn.
Division 3 Changing or cancelling particular
conditions--other than on request
When condition may be changed or cancelled by assessment manager
or concurrence agency
Clause 378 provides a limited capacity for entities to change or cancel
conditions of development approvals unilaterally (without the consent of
the persons with the benefit of the approval).
Subclause (1) limits the application of the clause to development
conditions under another Act if, under the other Act development condition
is defined with reference to a development approval.
Subclause (2) provides that if, under the other Act, the entity is authorised
to change or cancel conditions of a development approval in a different
way, the other Act prevails to the extent of any inconsistency.
Subclause (3) provides that an entity can only change or cancel a
development condition imposed by that entity on a development approval
(e.g. a concurrence agency may only change a condition imposed by the
concurrence agency), or if the entity did not impose the condition, the
entity with jurisdiction for the condition. In the case of the latter, an
example may be the Planning and Environment Court.
Subclause (4) states that the condition may be changed or cancelled on a
ground mentioned in the other Act. For example, see section 73C of the
Environmental Protection Act 1994.
Subclause (5) provides that the consent of the owner and any occupier of
the land are not required for the change or cancellation.
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Subclause (6) requires that the changed condition must, like all other
conditions, satisfy the tests of reasonableness and relevance under clause
345.
Subclauses (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 and any 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 and the occupier.
Subclause (10) provides for the assessment manager for the development
application to be notified.
Subclause (11) provides for when the changed condition or cancellation
takes effect.
Division 4 Cancelling approvals
Request to cancel development approval
Clause 379 provides for a development approval to be cancelled upon
application being made to the assessment manager by the owner (or
another person with the owner's consent). The request must be
accompanied by the appropriate fee.
Subclause (3) limits when an owner of land, the subject of a designation for
community infrastructure, can cancel a development approval. The owner
must be the entity who intends, or intended, to supply the community
infrastructure. Consequently, in circumstances where the entity supplying
the community infrastructure is not yet the owner of the land, the current
owner of the land is not able to cancel a development approval obtained by
the entity for the purpose of giving effect to the designated purpose.
Restriction on making request
Clause 380 makes it clear that a cancellation cannot be requested if the
development has already started. Further, the cancellation cannot be
requested in certain circumstances, unless the consent is given by the
relevant person.
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Example - If the land is in the process of being sold, the purchaser must
give written consent to the cancellation.
Assessment manager to cancel approval
Clause 381 states that, after receiving the request for cancellation, the
assessment manager must cancel the approval and give notice of this
cancellation to the person who applied for it, and to each concurrence
agency.
Release of monetary security
Clause 382 clarifies the situation regarding any monetary security given in
relation to the approval - if the approval is cancelled, the security must be
released.
Division 5 Extending period of approvals
Request to extend period in s 341
Clause 383 establishes a process for the extension of the period of an
approval. Because the application will be made some years after the
application was originally approved, this clause does not refer to the
applicant, rather it refers to a person (who may or may not be the owner).
If they are not the owner, they must obtain the consent of the owner unless
the owner's consent was not required for the original application. The
owner's consent is also not required if the assessment manager is satisfied
that it is not practicable to obtain the owner's consent (e.g. where the land
has been subdivided and is now owned by multiple persons).
If the application for the approval were remade at the time the request is
made and evidence under clause 264(1) would be required to support the
application, the request must be accompanied by the written agreement of
the chief executive from whom evidence would need to be obtained or,
alternatively, evidence showing that the person has asked the chief
executive for their written agreement. As the time within which a request
to extend the period of an approval can be made is limited (i.e. it must be
made before the approval lapses under clause 341), it is appropriate that the
person should not be prevented from making a request as a result of any
delay on the part of the chief executive in providing the relevant written
agreement. If, after the request is made, the chief executive states that they
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do not agree to the request, the assessment manager must refuse the request
(see clause 386).
The person making the request must also give notice to any concurrence
agency consulted on the original application. This ensures the views of the
concurrence agency are considered in the assessment of the request.
Request can not be withdrawn
Clause 384 clarifies that a request under this division cannot be withdrawn.
Concurrence agency may advise assessment manager about request
Clause 385 clarifies that, where a concurrence agency is given a notice
about a request to extend an approval, the concurrence agency may notify
the assessment manager that it has no objection to the extension, or that it
does object to the extension, and give reasons for the objection.
Deciding particular requests
Clause 386 requires the assessment manager to refuse the request for
extension if the request was accompanied by evidence the person seeking
the request asked a chief executive to agree to the request, and the chief
executive gives the assessment manager written notice the chief executive
does not agree with the request. If the chief executive agrees to the
extension, the assessment manager must decide the request within 30
business days after receiving the written agreement. This timeframe
overrides the timeframe specified in clause 387.
Assessment manager to decide request
Clause 387 establishes the process and timeframes for deciding a request.
This clause provides that the assessment manager must approve or refuse
the request for an extension of the period of an approval within 30 business
days of receiving the request, or a longer time agreed by the assessment
manager and the person making the request.
However under subclause (2), a concurrence agency has 20 business days
within which it may advise whether or not it objects to the period being
extended. The assessment manager must not approve or refuse the request
for extension until this period has elapsed.
Subclause (4) provides that the assessment manager may decide the request
even if the development approval was given by the court. This contrasts
with changing other aspects of a development approval under clause 369.
Clause 369 requires requests to change other aspects of development
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approvals to be made to the responsible entity (including for example, the
court). For the court, this protects the integrity of the court's decision, and
recognises that other entities, such as referral agencies or assessment
managers, may not have agreed with the court's original decision.
However, extending the period of a development approval generally will
not affect the content and integrity of the approval itself. It is more efficient
for such requests to be considered by the original assessment manager and
concurrence agencies. The court has declaratory powers available to it in
cases where a party considers such an extension would be unlawful or
contrary to the court's original decision.
Deciding request
Clause 388 states the following matters that the assessment manager must
consider in deciding the request for extension:
· The consistency of the approval with current laws and policies, and
with any infrastructure contributions or charges currently payable.
The older a development approval becomes, the less it is likely to
conform with current community expectations, reflected in the
relevant laws and policies applying for assessment of such
development. Equally, infrastructure contributions or charges
previously payable may not reflect the scope or quantum of charges
now payable.
· The community's current awareness of the development approval. In
some localities, population changes may mean that a significant
proportion of the current community may not originally have had an
opportunity to comment or make submissions about the development,
and may be unaware of the development and its likely impact on its
neighbourhood. This is particularly important if the development was
inconsistent with the relevant planning scheme and other laws and
policies at the time of approval, or has since become inconsistent.
· Whether, if the request was refused, the community would acquire
further rights to make submissions about the development, and the
extent to which those rights might be exercised. This criteria is closely
related to the previous point, as it may be more likely that the
community would exercise available rights to make a submission if a
significant proportion of the current community did not live in the
area when the original application was considered and consequently
did not previously exercise rights to make a submission.
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· The views of any concurrence agency for the approval. As for the first
point above, the development may no longer conform with current
laws and policies upon which a concurrence agency would base its
decision if an application for the development were made now.
Subclause (2) makes it clear that if the assessment manager does not
receive a notice from a concurrence agency within 20 business days after
the day the request was received by the assessment manager, the
assessment manager must decide the request as if the concurrence agency
had no objection to the request.
However, subclause (3) clarifies that this is not the case if the development
approval is subject to a concurrence agency condition about the period
mentioned in clause 341.
Subclause (4) states that if the assessment manager receives a notice under
clause 385 from a concurrence agency within the relevant timeframe, the
assessment manager must take the concurrence agency advice into account
when deciding the request.
Assessment manager to give notice of decision
Clause 389 provides that, after deciding the request the assessment
manager must give written notice of the decision to the person asking for
the extension, and to any concurrence agency that gave the assessment
manager a notice under clause 385.
Approval does not lapse until request is decided
Clause 390: If a request is undecided when the period expires, this clause
protects the approval during the period the request is being processed and
decided.
Division 6 Recording approvals on planning
scheme
Particular approvals to be recorded on planning scheme
Clause 391 provides for an approval, other than a deemed approval, to be
recorded on the planning scheme if it is given by a local government as
assessment manager, and the local government considers the approval to be
inconsistent with the planning scheme. This ensures that the public is
aware of approvals that are at variance with the planning scheme.
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The local government must also note on its planning scheme:
· any preliminary approvals given by it that vary the effect of a planning
scheme under clause 242;
· a decision to agree to a request for a superseded planning scheme to
apply for a particular development, including a deemed approval of
such a request.
The local government must also give the chief executive written notice of
the notation. This ensures that the chief executive can keep up-to-date
copies of scheme information available for public scrutiny.
Subclause (3) confirms a notation is not an amendment of the planning
scheme.
Subclause (4) confirms the approval or decision is still valid if the
requirements of subclause (2) are not met.
Part 9 Applying IDAS to mobile and
temporary environmentally
relevant activities
Mobile and temporary environmentally relevant activities
Clause 392 relates specifically to applying IDAS to mobile and temporary
environmentally relevant activities (ERA's). This clause ensures that
mobile and temporary ERA's are taken to be development for the purpose
of using IDAS to assess and condition proposed ERA's of this type.
Mobile and temporary ERA's are taken to be development to enable the
IDAS process to be used but are only development for the purpose of
assessing and conditioning the ERA. Mobile and temporary ERA's are not
development for any other purposes in the Bill and therefore would still
need relevant approvals for any other development undertaken by the
activity - for example a requirement under a planning scheme or for
operational works relating to vegetation clearing.
Subclause (2) provides that in applying IDAS to assessable development
for mobile and temporary ERA's some changes to IDAS apply:
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· A description of the land is not a mandatory part of the approved
form.
· Clause 263, which requires that the application must be accompanied
or supported by the consent of the owner of the land, does not apply.
· The development approval will not attach to land as with other
development approvals for ERA's (clause 245), rather the
development approval would attach to the registered operator/ plant
/equipment.
· The development approval applies for the activity wherever it is
carried out. As the activity may be carried out at a number of
premises the development approval must cover the carrying out of the
activity at any premises. This removes the need for a mobile and
temporary ERA to apply for a development approval every time the
activity moves to new premises. This requirement would be
unworkable for mobile activities. The development approval may
however limit the scope of the operation of the activity, by allowing
the ERA to be carried out only in certain local government areas, road
networks, regional areas etc.
· The development approval applies to and binds any person carrying
out the activity under the approval.
· The written consent of the applicant is required for any one who
carries out the activity under the approval, other than in the case of
agents or employees of the applicant. This clause clarifies that a
person can apply for the development approval for other persons who
wish to carry out the activity under the approval. Applicants, their
employees and agents are entitled to operate under the development
approval. This is to ensure that, as development approvals for mobile
and temporary ERA's do not attach to the land, unrelated persons
cannot operate under a non site-based development approval without
first getting the consent of the person who applied for the
development approval in the first instance.
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Part 10 Compliance stage
Division 1 Preliminary
The reform agenda contains a reform action to expand the current
compliance assessment process to apply to a wider range of compliance
matters (not merely compliance with some conditions as at present).
A new compliance assessment process and a compliance stage have been
included in the Bill. The application of the compliance stage will mean that
certain development, documents or work will need to be approved for
compliance with certain criteria.
The intended outcome of these proposed changes is to ensure that the Bill
contains a new compliance stage to enable certain development to be dealt
with under IDAS more simply and effectively without compromising the
benefits of integrated development assessment.
Currently, the only assessment processes available under IDAS are impact
and code assessment for assessable development, and self-assessment.
Assessable development differs from self-assessable development in that
assessment (and approval) of one or more aspects of that development is
required by the relevant assessment manager. Self-assessable development
is not approved as it is the proponent's responsibility to ensure compliance
with the relevant codes. Self-assessment is appropriate only for
non-technical matters. Even though the processes in IDAS are streamlined,
with clear timeframes and outcomes, they still do not suit some simple or
purely technical proposals. This is particularly relevant where the only
assessment would be compliance against certain provisions in planning
instruments. Based on this, a far simpler assessment process would be
more suitable for certain types of development. Compliance assessment
will provide a quick process for purely technical issues. The expansion of
compliance assessment in this way is consistent with the development
assessment forum's leading practice model for development assessment.
There are also certain actions arising from previous approvals that require
compliance assessment, and which are not adequately covered in the IDAS
process. These include conditions of development approvals (i.e.
completed works or management plans) and development consequential to
preliminary approvals.
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Compliance assessment would be suitable for development for which:
· clear technical standards are available;
· the exercise of broad discretion in determining compliance is
unnecessary;
· integrated referral arrangements are unnecessary.
Purpose of compliance stage
Clause 393 provides that the compliance stage allows for development, a
document or work relating to development to be assessed for compliance
(compliance assessment) against a matter or thing prescribed under a
regulation, a planning instrument, a master plan or a condition of a
development approval.
Compliance permit
Clause 394 defines compliance permit. A compliance permit authorises
development to the extent stated in the permit and subject to the conditions
stated in the permit. If a request for compliance assessment of
development is approved, the compliance assessor must give a compliance
permit. A compliance permit can only be given in respect of development.
Compliance certificate
Clause 395 defines compliance certificate. A compliance certificate
approves the documents or work to the extent stated in the certificate, and
subject to the conditions stated in the certificate. If a request for
compliance assessment of documents or work is approved, the compliance
assessor must give a compliance certificate. A compliance certificate can
only be given in respect of documents and works.
What does compliance stage apply to
Clause 396 states that the compliance stage applies for development,
documents or work nominated as requiring compliance assessment.
Nominating a document or work for compliance
assessment--generally
Clause 397 provides that the following can nominate documents or work as
requiring compliance assessment:
· a regulation;
· a State planning regulatory provision;
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· a structure plan or a master plan;
· a preliminary approval under clause 242;
· a temporary local planning instrument; or
· a planning scheme.
A regulation made under clause 232(1) can state that development requires
compliance assessment.
The regulation made under clause 232(1) or 397, or the instrument
mentioned in subclause (2) must also state the matters or things against
which the development, document or work must be assessed, and the entity
to whom the request must be made (the compliance assessor).
The regulation or other instrument may also state, for document and work,
when the request for compliance assessment must be made. For example,
in the case of work, the regulation or instrument may require the request for
compliance assessment to be made within 2 weeks of the work being
completed, or within 3 months of a development approval or compliance
permit being given.
Nominating document or work for compliance assessment--condition
of development approval
Clause 398 provides that a condition of a development approval can
nominate documents or work only as requiring compliance assessment.
That is, a condition of a development approval cannot state that
development requires compliance assessment.
The condition must state the matters or things against which the document
or work must be assessed. However, the matters or things that the
development must be assessed for compliance against must be contained or
referenced in a regulation or another instrument specified in clause 397(2).
This is to provide applicants with certainty as to the codes and standards
against which the documents or work can be assessed within the relevant
planning scheme area.
The condition must also state the compliance assessor for the request and
when the request for compliance assessment must be made (for example,
within 2 months of the development approval being given).
Who may carry out compliance assessment
Clause 399 requires compliance assessment to be carried out by a local
government, an entity nominated by a local government or a State entity.
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The decision whether or not to nominate an entity as a compliance assessor
is at the discretion of the local government that is, it is not something that
can be imposed on local governments by the State through a regulation, a
State planning regulatory provision or the standard planning scheme
provisions. However, allowing local governments to nominate entities to
carry out compliance assessment will enable local governments to utilise
external resources in assessing development, documents and work.
When compliance stage starts
Clause 400 provides that the compliance stage starts on the day a request
for compliance assessment is made.
Division 2 Compliance assessment
Subdivision 1 Request for compliance assessment
Request for compliance assessment
Clause 401 requires a request for compliance assessment to be made to the
compliance assessor. The request must be in the approved form. It must
also be supported by the appropriate fee and, for works yet to be
completed, any relevant document that must be assessed for compliance.
Where a local government is the compliance assessor, the fee is that fixed
by resolution of the local government. If the compliance assessor is a
public sector entity, the fee is that prescribed under a regulation. Where the
compliance assessor is a nominated entity of a local government, the fee is
that agreed between the person making the request and the nominated
entity.
Subdivision 2 Referring request to local government
Aspects of development requiring compliance assessment to be
referred to local government
Clause 402 establishes a referral process to local governments in cases
where the compliance assessor is a nominated entity of the local
government. This is intended to allow local governments to use nominated
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entities in the broadest possible range of contexts, including where there
may be aspects of the development the local government wishes to assess
itself. However, it is intended that these referrals be established by local
governments in only limited circumstances, more as an exception to the
rule, as compliance assessment is intended to provide a quicker, more
efficient process.
Importantly, this referral process is only available for development
requiring compliance assessment. It cannot be used for documents or work
requiring compliance assessment.
Under clause 399 a relevant instrument of a local government may identify
a nominated entity to carry out compliance assessment. This clause also
provides for the relevant instrument to identify any aspects of the
development which must be referred to the local government.
Subclauses (1) and (2) establish the circumstances in which a referral must
take place.
Subclause (3) limits the local government's jurisdiction to an assessment of
the aspect of development referred to the local government. This makes it
clear that the local government is not able to assess all of the proposed
development.
Subclause (4) confirms the local government must assess the aspect of
development only against the matters or things stated for the request in
clause 403. These matters or things are stated in the relevant instrument.
Subclause (5) establishes a 10 business day time limit for the local
government's response.
Subclause (6) states the local government's options for the types of
response it may give.
Subclause (7) states the local government must give reasons if the response
states the development does not achieve compliance, and must also state
the action required for the development to comply.
Subclause (8) states the consequences if the local government does not give
its response in 10 business days.
Subclause (9) enables the local government to charge a fee for its
assessment under this clause.
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Subdivision 3 Compliance assessor to assess and
decide request
Assessment of request
Clause 403 requires the compliance assessor to assess the development,
document or work only against the matters or things specified in the
instrument or approval.
Assessment of request under a superseded planning scheme
Clause 404 provides that where a local government has agreed to a request
to assess and decide a request for compliance assessment under a
superseded planning scheme, the request must be assessed against the
superseded planning scheme instead of the planning scheme in effect when
the request was made. However this clause provides for the calculation of
any infrastructure charges as if the current planning scheme was in effect.
Subclause (2) states this clause applies despite clauses 81,120 and 121.
Clause 81 provides that a planning scheme comes into effect and replaces
any former planning scheme. Clause 404 effectively acts as an exception to
this arrangement by providing for superseded planning schemes to be
considered in assessment.
Deciding request
Clause 405: Subclauses (1) and (2) provide that if the compliance assessor
is satisfied the development, document or work achieves compliance or
would achieve compliance if particular conditions were complied with, the
compliance assessor must approve the request, unless a local government
has (under section 402) told the compliance assessor that it considers the
development does not achieve compliance. The request can be approved
with or without conditions (subclause (3)).
However, the compliance assessor cannot approve the request where:
· the compliance assessor is a nominated entity;
· the request was required to be referred to the local government under
clause 402; and
· the local government told the compliance assessor that it considers the
development does not achieve compliance assessment.
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In this situation, the compliance assessor must issue an action notice
(subclause (5)).
Also, if the compliance assessor is satisfied the development, document or
work does not achieve compliance, the compliance assessor must issue an
action notice.
Subclause (5) sets out the requirements for an action notice. In particular,
the action notice must state:
· the reasons why the development, document or work does not achieve
compliance;
· the action required for the development, document or work to comply;
· the reasonable period within which the person may take the action and
then again make a request for compliance assessment.
If the person takes the action and again makes a request for compliance
assessment, no additional fee will be payable (subclause (7)).
A compliance request cannot be refused.
Conditions must be relevant and reasonable
Clause 406 establishes parameters for the conditions a compliance assessor
may impose on a compliance permit or certificate.
Subclause (1) applies to development or work, and requires that conditions
be relevant to, or reasonably required by the development or work. These
tests are essentially the same as for development approvals under clause
345.
For a document subject to compliance assessment, subclause (2) requires a
condition be relevant to the matters dealt with in the document. This differs
from the test in subclause (1) as a document will not of itself have impacts
in the physical environment that reasonably require mitigation. Also, the
requirement for a document to require compliance assessment is most
likely to be the subject of a condition of a development approval which is
itself the subject of the "reasonableness and relevance" test under clause
345.
Subclause (3) establishes that conditions of a compliance permit or
certificate must meet the test of reasonableness and relevance despite the
"laws and policies" administered by the compliance assessor.
Compliance assessor to give compliance permit or certificate on
approval of request
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Clause 407 requires that, in the event the assessor approves the request, the
assessor must give the person making the request:
· if the request was for approval of development - a compliance permit;
or
· if the request was for approval of a document, or work carried out - a
compliance certificate.
The compliance permit or compliance certificate must state the conditions,
if any, imposed on the permit or certificate. In the case of a compliance
permit, the permit must also include any conditions that a local government
has required be imposed on the approval under clause 402.
When notice about decision must be given
Clause 408 sets out the timeframes for deciding a request for compliance
assessment and either issuing a compliance permit or compliance
certificate (if the request is approved), or issuing an action notice (if the
development, document or work does not achieve compliance).
If the compliance assessor gives a written notice of the action required for
the development, document or work to comply, the written notice must be
given within the timeframe prescribed under a regulation.
If the compliance assessor approves the development, document or work,
the compliance assessor must issue the compliance permit or compliance
certificate within the timeframe prescribed under a regulation.
If the compliance assessor is a nominated entity of a local government and
the request was referred to the local government under clause 402, the
compliance assessor must not decide the request until at least 15 business
days after giving the request to the local government. This ensures that the
local government has time within which to provide a response, before the
request is decided.
If the compliance assessor does not comply with the above timeframes, it
will be deemed to have approved the request without conditions. The
compliance assessor is still required to issue a compliance permit or
compliance certificate so that the person making the request for compliance
assessment has evidence of the approval.
Duration and effect of compliance permit
Clause 409 states that a compliance permit has effect from the day it is
given, unless the person who requested the permit appeals to the court or
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the building and development committee. In this case, the compliance
permit will take effect when the appeal is finally decided or withdrawn.
The compliance permit has effect for the period stated in a condition of the
permit or, if no period is stated in a condition of the permit, for the period
prescribed under a regulation.
A compliance permit attaches to the land, the subject of the request, and
binds the owner, the owner's successors in title, and any occupier of the
land.
A compliance permit has effect for:
· the period prescribed under a regulation; or
· if no period is prescribed under a regulation, 2 years from the day the
compliance permit or compliance certificate is given.
If the development starts while the compliance permit has effect, the permit
continues to have effect.
There is no equivalent provision for compliance certificates, because they
are approving something which has already occurred (i.e. a document that
has been prepared or works carried out), rather than authorising an activity.
When development may start
Clause 410 provides that development requiring compliance assessment
may start when a compliance permit for the development takes effect.
Subdivision 4 Lapsing of request
When request for compliance assessment lapses
Clause 411 provides for a request for compliance assessment to lapse if the
person requesting compliance assessment does not take an action in
response to an action notice and again apply for compliance assessment
within the period stated in the notice. This clause also takes into account
the situation where the person may make written representations about the
action notice. If, as a result of the representations, the person is given a
new action notice, the request will lapse if the person does not again apply
for compliance assessment within the time stated in the new action notice.
If the compliance assessor does not agree with the representations, the
notice advising of this disagreement must state a new period within which
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the person must again make a request for compliance assessment. If the
request is not made within this time, the request will lapse.
Division 3 Changing notices, compliance
permits and certificates
Changing and withdrawing action notice
Clause 412 sets out the method and process of changing and withdrawing
an action notice.
Subclause (2) provides that the person given the action notice may make
written representations to the compliance assessor about the following
matters stated in the notice:
· the reasons the development, document or work does not achieve
compliance;
· the action required for the development, document or work to comply;
· the reasonable period within which the person may again make a
request for compliance assessment.
If the compliance assessor agrees with the person that the development,
document or work achieves compliance, the compliance assessor must
withdraw the action notice and decide the request. In this circumstance, the
compliance assessor would then give a compliance permit or compliance
certificate (i.e. the compliance assessor could not issue a new action
notice).
If the compliance assessor agrees with some, but not all, of the
representations made by the person about whether the development,
document or work achieves compliance, the compliance assessor must give
a new action notice.
If the compliance assessor agrees with representations about the action
required for compliance or the reasonable period within which the person
may again make a request for compliance assessment, the compliance
assessor must give a new action notice.
Where the compliance assessor is a nominated entity of a local
government, the compliance assessor cannot withdraw the action notice or
give a new action notice if the representations relate to the response of a
local government under clause 402.
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Only one new action notice may be given. The new action notice replaces
the original action notice.
If the compliance assessor does not agree with all of the representations
and therefore decides to take no action (i.e. it does not withdraw the action
notice or issue a new action notice), it must give the person written notice
of its decision.
Changing compliance permit or compliance certificate
Clause 413 allows a person to request that a compliance permit or
compliance certificate be changed. The request must generally be made to
the compliance assessor for the original request for compliance assessment.
However, if the original compliance assessor was a nominated entity of a
local government and that entity is no longer a nominated entity (because
for example, the nominated entity no longer exists or the local government
has removed the entity from its list of nominated entities), the request for
change can be made to the local government.
The request for change must be made in writing to the compliance assessor.
The compliance assessor must, as soon as practicable after receiving the
request, make a decision as to whether to change or refuse to change the
compliance permit or compliance certificate. If the compliance assessor
agrees to make the change, it must issue a new compliance permit or
compliance certificate. If the compliance assessor does not agree to make
the change, it must issue a written notice to the person requesting the
change, stating that it does not agree to make the change. This notice must
state the reasons for the decision for refusing to change the compliance
permit or compliance certificate, and must also set out the rights of appeal
for the person seeking the change.
If the compliance assessor is a nominated entity of a local government and
the change is to a condition imposed by a local government through the
referral process, the compliance assessor cannot change the condition
without the written agreement of the local government.
When decision about change has effect
Clause 414 provides that the change to a compliance permit or compliance
certificate has effect on the day the new compliance permit or compliance
certificate is given or, if an appeal is made to a court or building and
development committee about the decision, the day the appeal is decided or
withdrawn.
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Division 4 Other matters
Regulation may prescribe additional requirements and actions
Clause 415 states that a regulation may prescribe things that are mandatory
or discretionary in carrying out the compliance assessment. This might
include the form for documents, scale of plans and paper size. A regulation
may also prescribe additional actions to be taken by the compliance
assessor, such as the need to give approved documents to another entity.
Finally, a regulation may require the compliance permit or compliance
certificate to be given in a particular form (for example, in the case of a
plan of subdivision, the compliance certificate may be required to be in a
form approved under the Land Title Act 1994 to enable registration of the
plan).
Effect on deciding request if action taken under Native Title Act
(Cwlth)
Clause 416 recognises and accommodates disparities between the IDAS
process and processes for notifying native title parties under the
Commonwealth Native Title Act 1993 (NTA). The clause enables
procedural rights to be provided to native title parties (under section 24HA
management or regulation of water and air space, and section 24KA
construction of infrastructure facilities for the public, of the NTA) within
the IDAS process by, in effect, stopping the clock of the compliance
assessment until the procedural rights have been provided.
Most native title notifications under the NTA are likely to occur during the
process of granting tenure or other access to a State resource, prior to any
development application affecting the resource. As these processes may
result in indigenous land use agreements which map out arrangements
about the form and impacts of subsequent development, notification of the
"future act" of development assessment is likely to be unnecessary, and is
hence unlikely to affect IDAS. However, because sections 24HA and 24KA
of the NTA deal with notification for "future acts" which may affect native
title interests other than on the premises proposed for development, they
may not be preceded by a resource allocation process, and hence may affect
the IDAS process.
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Part 11 Ministerial IDAS powers
Division 1 Ministerial directions
Ministerial directions to assessment managers future applications
Clause 417 enables the Minister to make a direction requiring copies of all
future applications (i.e. all applications made after the date of the direction)
of a specified type, to be given to the Minister. For example, the direction
may require that copies of all applications for developments of a particular
type or for development in a particular area, be given to the Minister. A
direction of this type may only be made where the type of application
specified in the direction involves a State interest.
The direction must specify the point in the IDAS process when the
application must be referred to the Minister for example, after the
application is made, or before the application is decided.
The direction must state the reasons for deciding to give the direction and
the State interest giving rise to the direction.
The direction must be notified in the gazette and a newspaper generally
circulating within the State.
The Minister must give a copy of the direction to any entity the Minister
considers is likely to be an assessment manager or referral agency for the
type of application.
The purpose of this power is to enable the Minister to consider whether
further action is needed in relation to the application. For example, the
Minister may consider whether to call in the application, or issue a further
direction.
Ministerial directions to assessment managers--particular
applications
Clause 418 sets out the types of directions the Minister can give to an
assessment manager in relation to a particular application.
Subclause (1) provides that the Minister may give a direction:
· to not decide the application for a stated period;
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· to decide the application within a stated period if the assessment
manager has not decided the application within the IDAS timeframes;
· to decide the application within the decision-making period (without
any extensions to that period), if the proposed development involves a
State interest;
· to decide whether to give a negotiated decision notice within a stated
period;
· to take an action under IDAS within a reasonable period if the
assessment manager has not taken the action within the IDAS
timeframes;
· to take an action under IDAS if the proposed development involves a
State interest.
A direction under subclause (1)(a) to not decide the application for a stated
period can only be given where the assessment manager has not yet
decided the application and the development involves, or may involve, a
State interest. This direction power may be used where, for example, the
Minister wishes to stop the IDAS clock in order to give the Minister time to
decide whether to call in the application. Under subclause (5), the
direction has the effect of stopping the IDAS clock. However, the
maximum period for which the direction may stop the IDAS clock is 20
business days. Before the end of this period, the Minister must either issue
a new direction or call in the application. If the Minister does not issue a
new direction or call in the application, the IDAS clock re-starts and the
assessment manager may continue towards deciding the application. The
Minister must not call in the application after the period stated in the
direction ends. This ensures that the rights of the applicant are protected,
by limiting the number of times the Minister can intervene.
Subclause (1)(b), (c), (d), (e) and (f) enable the Minister to direct
assessment managers to undertake any action in IDAS that is their
responsibility and has not been done.
Subclause (1)(b) enables the Minister to direct an assessment manager to
decide an application within a specified timeframe, if the assessment
manager fails to decide the application within the decision-making period.
Subclause (1)(c) enables the Minister to direct an assessment manager to
decide an application within the decision-making period (i.e. 20 business
days from the start of the decision stage) if the development involves a
State interest. If a direction is given under this provision, the assessment
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manager cannot seek to extend the decision-making period, even with the
applicant's agreement (see clause 318(6)). Unlike the direction power in
subclause (1)(b), this direction can be given at any time prior to the
application being decided.
Subclause (1)(d) enables the Minister to direct an assessment manager to
make a decision about representations made by the applicant under clause
361.
Subclause (1)(e) gives the Minister a general power to be able to direct
assessment managers to take any actions under IDAS within a specified
period, if the assessment manager has failed to comply with timeframes
under the Bill.
Subclause (1)(f) gives the Minister a broad power to be able to direct
assessment managers to take any actions under IDAS within a specified
period, if the development involves a State interest. It is intended that if the
Minister gives a direction under this provision, the assessment manager
cannot seek to extend the relevant period for taking the action, even with
the applicant's agreement. Unlike the direction power in subclause (1)(e),
this direction can be given at any time prior to the application being
decided.
Subclause (2) provides that the direction must state the reasons for deciding
to give the direction. If the direction is given under subclause (1)(a), the
direction must also state the State interest giving rise to the direction and
that the Minister may call in the application or give a further direction. If
the direction is given under subclause (1)(c) or (f), the direction must state
the State interest giving rise to the direction.
Subclause (3) provides that the Minister must give a copy of the direction
to the assessment manager and any referral agency for the application.
Subclause (4) provides that the assessment manager must comply with the
direction.
Ministerial directions to assessment managers - conditions
Clause 419 enables the Minister to give a direction to an assessment
manager requiring the assessment manager to attach a condition to any
development approval given by the assessment manager, including a
deemed approval. This direction power can only be exercised where the
development involves a State interest and the assessment manager has not
yet decided the application, or a deemed approval has not yet taken effect
under clause 339. Also, to avoid any potential for conflict with
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concurrence agencies, the direction power is limited to matters outside the
jurisdiction of any concurrence agency involved in the application.
In relation to deemed approvals, this provision is intended to enable the
Minister to impose conditions on the approval, even after an applicant has
given a deemed approval notice to the assessment manager.
Ministerial directions to concurrence agencies
Clause 420 enables the Minister to provide a direction to a concurrence
agency if:
· there are inconsistencies in two or more concurrence agencies'
responses;
· a concurrence agency's response is beyond its jurisdiction or contains
a condition that does not meet the test of reasonableness or relevance
in clause 345 or comply with clause 347;
· the concurrence agency has not properly assessed the application;
· an action under IDAS has not been done within the timeframes
prescribed under the Bill; or
· the development involves a State interest.
The direction may require a concurrence agency to reissue their response or
take action. The process for providing the direction is also set out.
Subclause (6) clarifies that if the Minister gives a direction under this
section, the assessment manager must not decide an application until the
concurrence agency's response is reissued or the action is taken.
Ministerial directions to applicants
Clause 421 enables the Minister to give a direction to an applicant if they
have not complied with a stage of IDAS, or an aspect of a stage of IDAS.
This clause sets out the process for giving the direction and states the effect
of a direction. In particular, the notice may state the point in the IDAS
process from which the process must restart. If the applicant complies with
the direction, then the IDAS process will restart from that point.
Report about decision
Clause 422 provides that a report about the Minister's decision to give a
direction under clause 419 must be prepared and tabled in Parliament
within 14 sitting days after the Minister's decision is made. This provision
is based on the equivalent provision for Ministerial call in powers (clause
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432). This provision has been included to provide some accountability for
the Minister's decision to impose conditions on any approval, as the
exercise of this power is not able to be appealed (see chapter 7).
Division 2 Ministerial call in powers
Definitions for div 2
Clause 423 defines Minister for the purposes of the division. The effect is
to allow the call-in powers to be exercised by the Minister administering
the State Development and Public Works Organisation Act 1971 in addition
to the Minister administering this Bill and the regional planning Minister.
This is in recognition of the wide coordinating role already available under
the State Development and Public Works Organisation Act 1971.
This clause also defines assessment and decision provisions for the
purposes of this division.
When a development application may be called in
Clause 424 sets out the requirements for the call in power to be exercised.
It is to be noted that the call in power may be exercised either before or
after an application has been decided by an assessment manager or is taken
to have been approved under clause 331. It must be stressed this is a reserve
power of the State. It is not intended to be used routinely or often.
However, occasions may arise where a State interest (such as an important
environmental value) could be severely affected by the implementation of a
development approval. In these situations, exercising the reserve power to
call the application in and assess and decide, or reassess and re-decide, the
application provides the Minister with an ability to redress what otherwise
could become a serious problem for the community as a whole.
The Minister may only call in an application if it involves a State interest.
State interest is defined in schedule 3.
With regard to timeframes, the Minister may call in a development
application at any time between when it was made and the later of the
following:
· 15 business days after the day the chief executive receives notice of an
appeal against the application;
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· if there are submitters 50 business days after the decision notice or
negotiated decision notice is given to the applicant;
· if there are no submitters 25 business days after the decision notice
or negotiated decision notice is given to the applicant.
· if the application is taken to have been approved under clause 331, and
a decision notice or negotiated decision notice is not given 25
business days after the day the decision notice was required to be
given to the applicant under clause 331(6).
The proposed time limits of 50 and 25 days correspond to the aggregate
time limits for giving the applicant and submitters copies of the decision
notice or negotiated decision notice, and their respective 20 day appeal
periods.
Notice of call in
Clause 425 gives the Minister the power to call in an application and sets
out the process for calling in an application.
The call in must be by written notice given to the assessment manager.
Subclause (2) sets out the matters the call in notice must state. In
particular, if the Minister intends to assess and decide the application
having regard to State interests only, the notice must state this.
If the application is called in after the assessment manager makes a
decision on the application, the notice must state the point in the process
from which IDAS must restart.
If the application is called in before the assessment manager makes a
decision on the application, the Minister may also, as part of the call in
notice, direct the assessment manager to assess or continue to assess the
application on behalf of the Minister and then refer the application to the
Minister, along with its recommendations, so that the Minister can decide
the application. However, this option is not open to the Minister if the
Minister indicates in the call in notice his or her intention to assess and
decide the application on the basis of State interests only.
The call in notice must be given to the assessment manager and copies
must be given to the applicant, any concurrence agency, and any submitter.
Minister's action on calling in application
Clause 426 gives the Minister the power to:
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· if the application is called in before it is decided by the assessment
manager assess and decide the application in the place of the
assessment manager, or direct the assessment manager to assess or
continue to assess the application, with the Minister having the
ultimate power to decide the application;
· if the application is called in after it is decided by the assessment
manager re-assess and re-decide the application in the place of the
assessment manager.
Under the current IPA, the Minister had the power to call in the application
and either assess and decide the application (if it had not already been
decided by the assessment manager) or re-assess and re-decide the
application (if it had already been decided by the assessment manager).
This clause has been changed to provide for a third scenario i.e. the
Minister now also has the power to, if the application has not already been
decided by the assessment manager:
· require the assessment manager to assess the application (once the
decision stage of the IDAS process starts); or
· if the assessment manager has already started assessing the
application at the time the application is called-in, to continue
assessing the application.
However, the Minister reserves for himself or herself the power to decide
the application. In this situation, the IDAS process will continue, and so
the timeframes for assessing the application will continue to apply to the
original assessment manager (including the ability to extend the
decision-making period). After assessing the application, the assessment
manager must forward its assessment to the Minister (including its
recommendations e.g. whether the application should be refused and the
reasons for the refusal, approved in whole or part and any conditions that
should be attached to the approval). The Minister then decides the
application. However, the Minister cannot exercise this power if the
Minister intends to assess and decide the application on the basis of State
interests only.
The Minister also has the power to assess and decide, or re-assess and
re-decide the application having regard only to the State interest for which
the application was called in, rather than having to assess and decide the
application in accordance with the assessment and decision provisions.
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Effect of call in
Clause 427 establishes that the Minister is the assessment manager from
the time an application is called in. This means the Minister must follow
the IDAS process in assessing and deciding the application (other than the
assessment and decision provisions, if the call in notice states that the
application will be assessed and decided on the basis of State interests only
see subclause (8)).
This ensures called in applications are subject to the same process as
normal development applications. However, as stated in subclause (5),
there is no right of appeal against the Minister's decision. Also, any
appeals made before the application was called in are of no further effect
(subclause (6)).
The IDAS process continues from the point at which the application was
called in if the application had not been decided prior to the call in, or at a
point decided by the Minister (but before or at the start of the decision
stage) if the application was called in after a decision by the assessment
manager.
Any concurrence agencies for the application are taken to be advice
agencies for the call in, until the application is decided by the Minister.
Subclause (7) clarifies that the deemed approval provisions in part 5,
division 3, subdivision 4 do not apply in the case of a Ministerial call-in.
This ensures that an application is not deemed to be approved if the
Minister does not decide the application within time.
If the Minister assesses and decides, or re-assesses and re-decides the
application having regard to State interests only, the assessment and
decision provisions do not apply, however the Minister may still have
regard to the common material and any other matter the Minister considers
is relevant to the State interest that provided the reason for calling in the
application.
Original assessment manager to assist Minister
Clause 428: The entity that was the original assessment manager must give
the Minister all reasonable assistance including giving the Minister all
available material about the application.
Minister's decision notice
Clause 429 requires the Minister to give the original assessment manager a
copy of the decision notice given to the applicant.
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Subclauses (2) and (3) clarify that the decision notice given by the Minister
does not have to state some of the matters usually included in a decision
notice, as these matters are not relevant in the case of a call in.
Provision for application called in by regional planning Minister
Clause 430 includes additional provisions for a development application
called in by the regional planning Minister, which allow the regional
planning Minister to call in and "hold" a development application during
the process of making a regional plan. These powers are intended to
prevent approval of development applications made before a regional plan
comes into effect that may compromise the outcomes of a plan.
Subclauses (1) to (4) establish the arrangements for suspending the IDAS
process for, and ultimately determining a development application called in
by the regional planning Minister.
Subclause (5) provides that, for assessing the development application, the
normal requirements for using the regional plan, or planning scheme
provisions reflecting the regional plan, in effect at the time the application
was made do not apply. This means that the development application can
be assessed against the regional plan or corresponding planning scheme
requirements, whereas using the normal rules of development assessment,
the regional plan could not be considered.
Process if call in decision does not deal with all aspects of the
application
Clause 431 allows the Minister to refer aspects of an application that has
been called in back to the assessment manager for decision. For example,
an application that is called in may deal with two aspects of development
(e.g. change of use and building work) as they relate to the requirements of
the planning scheme. After deciding those aspects, the Minister may refer
the remaining aspects back to the assessment manager, i.e. those aspects
requiring assessment of the building work for its compliance with the
Building Act 1975. The Minister must specify where in the IDAS process
the undecided aspects of the application must restart from.
Report about decision
Clause 432 requires that, after deciding the application, the Minister must
prepare a report about the decision on the called in application, and must
include in this report a copy of the application, an analysis of any
submissions made about the application, a copy of the decision notice and
the Minister's reasons for decision. The Minister must then table a copy of
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the report in the Legislative Assembly within 14 sitting days after having
made the decision.
Report about compliance with development approval
Clause 433 provides that the Minister may require a report from the
assessment manager about a person's compliance with a development
approval given by the Minister for those aspects of the application which
were decided by the Minister. The assessment manager must comply with
this request from the Minister.
This ensures that the Minister has the power to direct a local government to
report to the Minister about compliance with an approval granted by the
Minister pursuant to a Ministerial call in.
The purpose of this change is to provide a feedback loop to the Minister in
respect of approvals granted by the Minister, to ensure that they are being
complied with and to give the Minister the necessary information to decide
whether to commence enforcement action in the case of non-compliance.
Part 12 Miscellaneous provision
Refunding fees
Clause 434 is intended to put beyond doubt that an assessment manager or
concurrence agency may refund all or part of any fee paid to it to assess an
application. However, there is no obligation on assessment managers or
concurrence agencies to do so.
Chapter 7 Appeals, offences and
enforcement
This chapter sets out provisions dealing with jurisdiction, procedures and
appeal matters of the Planning and Environment Court and Building and
Development Dispute Resolution Committee (building and development
committee).
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This chapter also contains provisions dealing with development offences
and the enforcement mechanisms available to address them.
Many of the provisions mirror those contained in chapter 4 of the current
IPA. However, this Bill also:
· expands the discretionary powers of the court to award costs against
commercial competitors and to determine whether a matter of
procedural non-compliance can be excused;
· changes the name of the Building and Development Tribunal to the
"Building and Development Dispute Resolution Committee";
· expands the jurisdiction of the building and development committee;
· allows for appeals, offences and enforcement to facilitate the
introduction of compliance assessment; and
· gives assessing authorities a broader discretion to proceed directly to
issuing an enforcement notice, without first issuing a show cause
notice.
Part 1 Planning and Environment Court
Division 1 Establishment and jurisdiction of
court
Continuance of Planning and Environment Court
Clause 435 states the continuance of the existing Planning and
Environment Court.
Jurisdiction of court
Clause 436 establishes the jurisdiction of the court. This clause allows for
other Acts as well as this Bill to confer jurisdiction on the court.
The jurisdiction of the court under this Bill is exclusive. However, there are
two exceptions. One exception is set forth in division 14 of this part, and
allows for an appeal to the Court of Appeal about an error of law, or the
jurisdiction of the Planning and Environment Court in making a decision.
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The second exception, set out in clause 508, establishes the jurisdiction of a
building and development committee, and allows the committee to hear a
range of technical matters. For these matters, both the Planning and
Environment Court and a building and development committee will have
jurisdiction. However an appellant, having made a choice of jurisdiction for
an appeal, is unable to also appeal in the alternative jurisdiction, unless the
appeal is about a matter of law or jurisdiction from a building and
development committee to the Planning and Environment Court (see clause
479).
Proceedings open to public
Clause 437 requires that all matters be heard and decisions given in open
court, unless the rules of court provide otherwise.
Division 2 Powers of court
Subpoenas
Clause 438 describes the manner in which the court can obtain evidence.
The court can gather evidence by ordering the production of documents or
by examining witnesses. The court also has powers to punish for
non-compliance with a summons. The powers of a judge of the Planning
and Environment Court are the same as those of a District Court Judge
under the District Courts Act 1967 for the purposes of this clause.
Contempt and contravention of orders
Clause 439 states that a judge of the court has the same powers to punish
for contempt as in the District Court. The contempt powers in section 129
of the District Courts Act 1967 apply in the Planning and Environment
Court the same way they apply to the District Court.
This clause also establishes that a failure to comply with an order of the
court is a contempt of the court. This is intended to clarify that the court
has the power to enforce its own orders.
How court may deal with matters involving non-compliance
Clause 440 provides the court with broad discretionary powers to relieve
against any non-compliance, partial non-compliance or non-fulfilment of
any provision of the Bill.
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This clause enables the court to give relief in response to proceedings
commenced for that purpose or in the context of other proceedings; and to
give that relief notwithstanding any other provision of the Bill, including
provisions which would otherwise provide that an application had lapsed.
The purpose of this clause is to ensure a person's rights to hearings are not
compromised on the basis of technicalities concerning processes. The term
"provision" is intended to be interpreted broadly and is not limited to
circumstances where there is a positive obligation to take a particular
action.
The court's power is not restricted to proceedings before it. This allows
access to the court for declarations and orders about procedural disputes
which do not form part of wider proceedings.
Subclause (3) makes it clear that the clause applies in relation to a
development application which has lapsed or is not a properly made
application.
Terms of orders etc.
Clause 441 states that if the court is authorised to make an order, give leave
or do anything else, it may do so on the terms and conditions it considers
appropriate.
Taking and recording evidence etc.
Clause 442 establishes the ways in which the court must take evidence, and
requires the court to record the evidence.
Division 3 Constituting court
Constituting court
Clause 443 describes the notification process and manner in which the
Governor in Council commissions the court, with one or more District
Court Judges.
Jurisdiction of judges not impaired
Clause 444 provides that the judge serving on the court is not prevented
from continuing to hear matters in the District Court.
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Division 4 Rules and orders or directions about
proceedings
Rules of court
Clause 445 provides that matters relating to court procedure will be set
forth in the Planning and Environment Court Rules. The rules are
subordinate legislation made by the Governor in Council under this Bill,
and with the concurrence of the Chief Justice of the Supreme Court and
one or more other Supreme Court judges.
This clause allows the Planning and Environment Court Rules to apply the
Uniform Civil Procedure Rules for matters not otherwise provided for in
the Planning and Environment Court Rules.
Orders or directions
Clause 446 sets out the court's broad power to make orders or directions
about the conduct of a proceeding.
Division 5 Parties to proceedings and court
sittings
Where court may sit
Clause 447 states that a court may convene at any place.
Appearance
Clause 448 provides that a party may appear personally before the court or
be represented by a lawyer or agent. It will be presumed that the
representative has the authority to bind the party.
Adjournments
Clause 449 provides that the court may close or postpone proceedings to
another time and venue.
What happens if judge dies or is incapacitated
Clause 450 describes what will occur if the presiding judge dies or cannot
continue with a proceeding for any reason. This clause applies where the
judge is unable to continue with a proceeding for any reason, including
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leave of absence. This provision is intentionally broad to cover a broad
range of circumstances that may lead to a judge being unable to continue
with a proceeding.
Another judge, in consultation with the parties, can postpone the
proceedings until the original judge can continue, or order the matter to be
heard again. This clause also allows for the second judge, with the consent
of the parties, to make an order about a decision, or about completing the
hearing and the decision. A decision issued in this manner will be
considered as a decision of the court.
Stating case for Court of Appeal's opinion
Clause 451 describes the manner in which a judge may submit an issue of
law, which has arisen during a proceeding, to the Court of Appeal.
The issue may only be stated during a proceeding, and the court must not
make a decision about the matter while the question is pending, or proceed
in a way, or make a decision inconsistent with the Court of Appeal's
opinion on the question.
Division 6 Registry and other court officers
Registrars and other court officers
Clause 452 establishes that the registrars, deputy registrars and officials of
the District Court will be the registrars, deputy registrars and officials for
the Planning and Environment Court.
Registries
Clause 453 states that the each District Court registry is the registry of this
court. This clause also allows for the establishment of a principal registry
which will be under the control of the senior deputy registrar. It also allows
the senior deputy registrar to give directions to other deputy registrars and
other officers of the court, other than the registrar.
Court records
Clause 454 requires the registrar to keep minutes of proceedings and
records of decisions which must be kept in the custody of the registrar.
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Judicial notice
Clause 455 requires that judicial notice be taken of the appointments and
signatures of the registrars and court officials acting under this part.
Division 7 Other court matters
Court may make declarations and orders
Clause 456 describes the power of the court to hear and decide declaratory
matters under this Bill or to make orders about a declaration made by the
court. This clause allows for any person to initiate a proceeding for a
declaration. The court has jurisdiction to hear and decide a proceeding
about the following matters:
· a matter done, or to be done, or that should have been done under this
Bill (other than a matter relating to a direction by the Minister or a
Ministerial call in under chapter 6, part 11 of the Bill);
· the construction of the Bill and the planning instruments and master
plans under the Bill;
· the construction of a land use plan under the Airport Assets and
(Restructuring and Disposal) Act 2008, and chapter 3, part 1 of that
Act; and
· the lawfulness of land use or development.
Subclause (2) provides for an assessment manager to bring a proceeding
about a matter done, to be done, or that should have been done in relation to
an application that has been called in by the Minister under chapter 6, part
11, division 2. However, this clause only applies if, at the time the
application was called in, the assessment manager had refused the
application or not made a decision on the application.
A proceeding may be brought in a representative capacity with the consent
of the person on whose behalf the proceeding is brought.
Subclause (5) provides that a person on whose behalf the proceeding is
brought may contribute to or pay the legal costs incurred by the person
bringing the proceeding.
Subclause (7) states that the court may also make an order about a
declaration made by the court.
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Subclause (8) requires the person who starts the proceeding to give written
notice of the proceeding to the chief executive the day the person starts the
proceeding.
Subclause (9) provides that the Minister may elect to be a party to the
proceeding if the Minister is satisfied the proceeding involves a State
interest. The Minister may elect to be a party by filing a notice of election
in the approved form in the court.
Costs
Clause 457 requires parties to an appeal or proceeding to bear their own
costs. However the court may order costs against a party in specified
circumstances. These include:
· If the court considers a proceeding was instituted, or continued by the
party bringing the proceeding, primarily to delay or obstruct. This
allows the court to consider the motivations behind the initial
proceeding or the continuance of the proceeding in determining
whether costs should be awarded. For example, in the case of an
application for a commercial development, costs might be awarded
against a submitter who owned a competing commercial interest, and
who appealed, if the court considered that despite the grounds stated
in the appeal, the primary purpose of the appeal was to obstruct or
delay the proposed development.
· If the court considers the proceeding to have been frivolous or
vexatious. In contrast to the ground of obstruction or delay, this
ground allows the court to consider the merits of the substance of the
proceeding itself.
· If an assessment manager, referral agency, coordinating agency for a
master plan application, compliance assessor or local government has
a responsibility to take an active part in a proceeding but does not do
so.
· If an applicant, submitter, referral agency, assessment manager,
coordinating agency for a master plan application, a compliance
assessor, a person requesting compliance assessment or a local
government fails to properly discharge their responsibilities in a
proceeding. This ground applies to a wider variety of participants than
the previous ground, and goes beyond the requirement to take an
active part in proceedings. For example, an assessment manager may
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take an active part in a proceeding, but present evidence that is poorly
researched or not relevant to the issue at appeal.
In addition to setting out circumstances in which the court has discretion to
award costs, subclauses (3) to (7) detail certain situations in which the
court must award costs.
The Bill provides ways in which persons adversely affected by the
decisions of government entities (or in some cases the lack of a decision)
can seek relief from the court. In some situations it is considered unfair to
require the costs of those actions to be met by the aggrieved party. These
clauses ensure that costs must be awarded in favour of the aggrieved party
in stated situations (e.g. the failure of a designator under chapter 5, part 6 to
decide a request for the acquisition of designated land on hardship
grounds).
Subclause (7) also prevents the court awarding costs against an assessment
manager or compliance assessor that has successfully applied to the court
to withdraw from the appeal because the appeal exclusively concerns a
concurrence agency's response or a local government response under
clause 402.
It is also provided that an order of costs may be made an order of the
District Court and therefore enforced in that court (subclause (10)).
Privileges, protection and immunity
Clause 458 is derived from the District Courts Act 1967 and provides the
judge, lawyer, agent or witness to a proceeding the same protection and
immunity as granted by the District Court.
Payment of witnesses
Clause 459 provides for the payment of reasonable expenses to witnesses.
Evidence of local planning instruments or master plans
Clause 460 allows for the evidentiary certification of a document
purporting to be a true copy of a local planning instrument or a master plan.
Such a certified document is then admissible as if it were the original
instrument or plan.
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Division 8 Appeals to court relating to
development applications and
approvals
This division outlines what matters in relation to development applications
and approvals may be appealed to the court. Each clause also outlines the
period within which appeals must be started.
Non-determinative decisions made in the course of assessing a
development application are not appealable under this division. However,
the declaratory powers of the court under division 7 of this part are
available to applicants in respect of non-determinative decisions.
Appeals by applicants
Clause 461 lists the matters about which an applicant for a development
approval may appeal to the court. These are appeals about determinative
decisions made about development applications under the IDAS process.
Appeals by submitters--general
Clause 462 describes the appeal rights of submitters concerning the impact
assessable part of a development approval. This clause affords appeal
rights to submitters who made a properly made submission during the
IDAS notification period, provided that the submission was not withdrawn.
Additional and extended appeal rights for submitters for particular
development applications
Clause 463 provides a right of appeal to the Planning and Environment
Court for a submitter to either impact assessable or code assessable special
GBRMP aquaculture development under the notification stage pursuant to
chapter 9, part 7. The applicant's right to appeal is confined to the
concurrence agency's response of:
· the chief executive administering the Environmental Protection Act
1994 if the development is for an aquaculture ERA;
· the chief executive administering the Fisheries Act 1994 if the
development is for making a material change of use of premises for
aquaculture or operational works that is marine plant disturbance.
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Appeals by advice agency submitters
Clause 464 describes the right of an advice agency to appeal only if the
application involves impact assessment and the advice agency previously
informed the assessment manager to treat its response as a properly made
submission.
Appeals about decisions relating to extensions for approvals
Clause 465 gives appeal rights to a person given a notice under clause 389
(except a notice for a decision under clause 386(2)).
Notices under clause 389 must be given to the person asking for the
extension and any concurrence agency that gave the assessment manager a
notice under clause 385.
Under clause 383, a request to extend the period of an approval may be
accompanied by evidence showing that the person asking for the extension
has asked the chief executive from whom evidence would need to be
obtained under clause 264(1), for the chief executive's written agreement.
This is instead of attaching the actual written agreement of the chief
executive. If the chief executive then does not agree to the extension, the
assessment manager must refuse the request for extension. There is no
appeal right in this situation.
Appeals about decisions relating to permissible changes
Clause 466 is gives appeal rights in relation to decisions about permissible
changes to the person who made the request for change or, if the
responsible entity for making the change is the assessment manager, an
entity that gave a notice under clause 373 or a pre-request response notice
about the request. This clause also includes a right of appeal for the person
who made the request for change against a deemed refusal of the request.
Appeals about changing or cancelling conditions imposed by
assessment manager or concurrence agency
Clause 467 gives appeal rights to a person who is given notice that the
conditions of an approval have been changed or cancelled unilaterally by
an assessment manager or concurrence agency.
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Division 9 Appeals to court about compliance
assessment
Appeals against decision on request for compliance assessment
Clause 468 gives appeal rights to a person given an action notice under
clause 405(5) about a request for compliance assessment.
Appeals against condition imposed on compliance permit or certificate
Clause 469 gives appeal rights to a person given a compliance permit or
compliance certificate, subject to conditions. The provision allows the
person to appeal against the decision to impose the condition.
Appeals against particular decisions about compliance assessment
Clause 470 gives appeal rights to a person given a notice of a decision on