The principal piece of legislation that regulates planning and development in Queensland is the Sustainable Planning Act 2009 (Qld) (SPA).
The main objective of the SPA is to achieve ecological sustainability by:
- managing the effects of development on the environment
- managing the process by which development takes place
- continuing the coordination and integration of planning at local, regional and state levels
The SPA, amongst other things, manages how development occurs and regulates:
- the planning instruments against which Development Applications (DA) are assessed
- the assessment of DA’s
- appeals in the Planning and Environment Court (Court)
The SPA allows relevant authorities to draft State and local planning instruments which give effect to the SPA.
Planning instruments are documents which set out government (state or local) objectives for an area and how these objectives will be achieved.
A key planning instrument is a planning scheme which is an important document used by Councils to regulate development within their local government area.
Importantly, they:
- determine whether a development application is required and whether it is code or impact assessable
- contain the criteria that development applications are to be assessed against
DA’s are either assessable (and require a development approval) or non-assessable (and do not require a development approval).
If a DA is assessable, it can be either code or impact assessable. Impact assessable DA’s are much more onerous because they are presumed to have a greater impact on the surrounding area. Impact assessable applications require public notification whereby submissions can be made by third parties expressing a view for or against a proposal.
The development assessment process usually involves the following stages (known as the Integrated Development Assessment System (IDAS)):
- application stage: the applicant will need to lodge a properly made application with the assessment manager, usually the local government
- information and referral stage: the DA may be referred to other government departments or entities that have an interest in the development. These are called referral agencies
- referral agencies can either be a concurrence agency (which can direct refusal or approval) or an advice agency (which can only give non-binding advice)
- the assessment manager and referral agencies may also request further information from the applicant. The applicant does not have to provide this information however the assessment manager and referral agency will base their decision on the information provided
- note, as of 1 July 2013, the Department of State Development, Infrastructure and Planning (DSDIP) will be the single assessment manager or referral agency for all DAs. This means that DSDIP will be the single referral point for DAs and will coordinate all assessment with other departments
- notification stage: as has been previously outlined, this is required for impact assessable applications. Properly made submissions received during this stage can be taken into consideration by the assessment manager when assessing the DA. Submitters can later initiate or become parties to an appeal
- decision stage: the assessment manager must decide whether to approve or refuse the DA and provide the applicant with a Decision Notice containing reasons for refusal or conditions of approval
An application may be amended after it has been lodged but only if the changes are considered ‘minor changes’. If a change is not considered ‘minor’ then the whole IDAS process will need to start again at the application stage.
The SPA also contains provisions that govern the process of appeals in the Planning and Environment Court (P&E Court). The P&E Court is a less formal, specialist court with its own set of rules and procedures. It sits at a District Court level.
An applicant may appeal against a decision to refuse a DA or against conditions of an approval. A submitter may also appeal against the assessment manager’s decision. Both kinds of appeal must be started within 20 business days after a Decision Notice is given.
In all appeals involving a DA (including submitter appeals), it is typically the applicant who bears the onus in the case.
Our team of experienced planning and development litigation lawyers can assist you with all aspects of the planning appeal process.