Queensland has adopted the new Planning Act 2016 (Planning Act) – repealing the Sustainable Planning Act 2009 (SPA) – with the change taking effect on July 3, 2017.
Under the Planning Act, development categories are now determined to be Accepted, Assessable and Prohibited development. The Planning Act introduces new criteria and rules for the assessment and determination of development applications.
Accepted development replaces the former Exempt and Self-assessable development categories under the SPA. ‘Accepted development is subject to requirements’ is a category identified similar to the SPA Self-assessable development requirements. Accepted development does not require an application be made to the council. If the planning scheme states requirements for Accepted development, those requirements must be complied with. Compliance assessment under the SPA is now effectively removed.
Assessable development is comprised of two categories – Code assessment and Impact assessment. Code assessable development applications under the Planning Act are now subject to a bounded assessment, where development is required to only be carried out against the assessment benchmarks stated in a categorising instrument (e.g. planning scheme), and any matters prescribed by the regulation.
The assessment manager must approve a code assessable development application to the extent that it complies with the assessment benchmarks, or if compliance with assessment benchmarks can be achieved by imposing development conditions. Impact assessable development applications under the Planning Act must be carried out against:
- The assessment benchmarks stated in a categorising instrument (e.g. planning scheme)
- Any matters prescribed by the regulation; and
- ‘Any other relevant matter’ (e.g. planning need).
Under the decision rules in the Planning Act, the assessment manager has the ability to approve all or part of the application, with the opportunity to impose conditions or refuse the application. Under the Planning Act, there are now only two “statutory” forms to be completed and lodged as part of the development application process, reduced from 30 forms under Integrated Development Assessment System of SPA 2009. The state government has prepared templates for the two forms that are required only for particular development applications. The application forms identify mandatory supporting information required for a development application – defined as ‘Properly Made Applications.’
Mandatory information for a Properly Made Application is set out in the Planning Act. An application must meet the mandatory requirements to be considered properly made. All Properly Made Applications that require referral or public notification will be issued a confirmation notice to confirm development details and particular statutory requirements.
Where a development application does not satisfy the mandatory requirements, an action notice will be issued, stating the actions the applicant must take to be properly made. A confirmation notice will be issued upon the applicant satisfying the outstanding requirements. As was the case under the SPA 2009, the assessment manager has discretion to accept an application that is not made in the approved form and does not meet the mandatory requirements.
The written consent of the land owner(s) is still required where the applicant is not the owner and the application is for a material change of use and/or reconfiguring of lot. The Planning Act generally retains the deemed approval and deemed refusal provisions that existed in the previous legislation.
Deemed approvals continue to be able to be applied to applications that require code assessment where the assessment manager does not decide the application within the statutory period or an extended period available under the Development Assessment Rules (DA Rules). The DA Rules include the standard conditions that will apply to a deemed approval.
Deemed refusals continue to apply to impact assessable development applications as well as change applications, extension applications and conversion applications. A raft of new provisions have been implemented under the Planning Act in the management of changing applications, application extension requests, requests to pause the development application process, and determining what constitute minor and major changes.
The Planning Act enforces the need for assessment managers to publish the notice of decision (formerly the decision notice). The notice of decision must include, amongst other things:
- To the extent that the development required impact assessment, where matters raised in the submissions and how the assessment manager dealt with these in reaching a decision are presented;
- The reasons for the assessment manager’s decision; and
- If the development application was approved and the development did not comply with any of the assessment benchmarks, the reasons why the application was approved, despite the non-compliance.
The Queensland Government has published an extensive range of supporting documentation to assist the development community (developers, planners and associated professionals) in understanding and navigating through the process of making development applications under the Planning Act. These can be found at the Department of Infrastructure Local Government and Planning website.