INDUSTRIAL & COMMERCIAL REAL ESTATE BRISBANE QUEENSLAND AUSTRALIA

News

Planning Laws – An Overview

While there appears no end to new developments across the State, some regular and occasional developers and builders have limited understanding of Queensland planning laws.  But a basic understanding of planning laws and local government planning schemes can help to recognise possible delays and whether or not to buy land with development potential.   

Introduction

The primary planning law is the Integrated Planning Act 1997.  It requires each local government to establish a planning scheme.  Therefore, the approval of any development is subject to both state and local government requirements.  Assessment against those two sets of requirements is performed at the same time.  The Act calls this the Integrated Development Assessment System (IDAS). 

Development is Assessable, Self-Assessable or Exempt from assessment.  Generally, Exempt development and Self-Assessable development do not require a development permit.  Most development is Assessable. 

Assessable development is Code Assessable, Impact Assessable or a combination of both.  

In general terms, there are four stages that apply to Assessable development.  They are:

• Application;

• Information and referral;

• Notification;

• Decision. 
  

Application Stage

The first step is application to the Assessment Manager.  Normally, the Assessment Manager is the local government.  Depending on whether the application is Code Assessable or Impact Assessable, the Assessment Manager will give notice of receipt of the application within 10 business days.  The notice must state whether there are any departments or entities that are entitled to input on the application (Referral Agencies). 

Information and Referral Stage

A copy of the application must to be given to all Referral Agencies nominated by the Assessment Manager.   

The Assessment Manager and any Referral Agencies can request additional information from the applicant.  Generally, an information request must be given within 10 business days after the Assessment Manager has acknowledged receipt of the application. 

Upon receipt of an information request, the applicant can either provide all the information sought or provide some or none of the information sought and request that the decision making process proceed.   

Generally, Referral Agencies must consider an application within 30 business days of receiving it.  That 30 business days does not include the time spent waiting for additional information from the applicant.  The 30 business day period can also be extended by a further 20 business days. 

Notification Stage

In most cases public notification of an application is only required for impact assessable development.  It is carried out after the information and referral stage is complete.

Public notification involves newspaper advertisements, signs on the land and notices to adjoining land owners.  The notification period normally runs for 15 business days, but does not include business days from 20 December to 5 January inclusive. 

During the notification period, members of the public can make submissions to the Assessment Manager about the application.  These people are called Submitters.  The notification stage ends once the applicant establishes that all notification requirements have been satisfied. 

Decision Stage

The Assessment Manager must decide the application within 20 business days after completion of public notification.  However, the Assessment Manager can extend that period by up to a further 20 business days.  In addition, the applicant can stop the decision making period for up to 3 months so that it can make submissions to Referral Agencies and in other limited circumstances. 

Finally, the Assessment Manager must either refuse or approve all or part of the application subject to conditions.  Normally, a Code Assessable development must be approved if it complies with all applicable codes whereas Impact Assessable developments must not compromise or conflict with a planning scheme unless there are sufficient grounds to approve it.   

Once the decision has been made, the Assessment Manager must give notice of the decision within 5 business days to the applicant and Referral Agencies. 

Appeals

The applicant has a right of appeal.  Generally, the appeal is 20 business days from notification of the approval or refusal of the application.  An applicant can appeal either against the conditions of an approval or a refusal.   

In addition, the applicant can suspend the appeal period and make written submissions to the Assessment Manager within 20 business days to have the decision or conditions of approval changed.  The Assessment Manager considers those submissions and issues a Negotiated Decision Notice and the applicant’s appeal period resumes. 

Appeals are to the Planning and Environment Court.  Referral Agencies and Submitters must be notified of the appeal so that they can join the appeal and the court can deal with all issues at once. 

If the applicant does not appeal and after its 20 business day appeal period lapses, the Assessment Manager will give notice of the approval to all submitters.  If the application was for Impact Assessable development, the submitters have a 20 business day appeal period.  They can appeal against the approval or conditions of the approval.  The submitters can also give notice to the Assessment Manager that they do not wish to appeal, thereby terminating their appeal rights. 

A development permit does not become effective until appeal periods have expired or all submitters give notice that they do not wish to appeal. 

Conclusion

The Act seeks to integrate the application of State and local government planning requirements.  Where the development is not assessable under a code, the public is given an opportunity to consider the development application and make submissions.   

A prospective developer should consider the type of development approval required before purchasing land.  The development assessment required for such an approval has a significant bearing on the time it will take for a decision to issue and what Referral Agencies and submitters will have input and rights to appeal.  Advice should be sought from qualified advisors either prior to entering into a contract or during a due diligence period that allows the purchaser to consider development issues. 

A flowchart of the procedures under the Act can be downloaded from Wilson Lawyers’ website at www.wilsonlawyers.net.au 

About the Author:

Les Power is a Partner of Wilson Lawyers and an accredited specialist in commercial litigation. 

If you would like us to introduce you to Les or discuss any of your property matters with us please contact Joseph Grasso at Raine & Horne Commercial on 07 3216 6666.