Key Points:

Although not a radical overhaul of the concept, the Planning Bill does establish its own approach to changing a development approval.

The Planning and Development Bill 2014 was introduced into the Queensland Parliament on 25 November 2014 and will, on commencement, repeal and replace the Sustainable Planning Act 2009 (SPA).

In this article we take a look at the types of changes that can be made to development applications and approvals under the Planning Bill and the process for making such changes.

The ability to vary or amend a development application or approval is not a new concept, however it is one that has evolved with the passing of each new planning Act, the Planning Bill included.

Changing a development application

Like the SPA, the Planning Bill enables an applicant to make a change to, or withdraw, its development application at any time before it has been decided.

The Bill provides that a change which is a "minor change" does not affect the development assessment process. A minor change for a development application is a change that does not:

  • result in substantially different development;
  • cause the inclusion of prohibited development;
  • cause referral to a referral agency if there were no previous referral agencies, or cause referral to an additional referral agency if there were; or
  • cause public notification if not previously required for the application.

The term "substantially different development" is not defined, as in the SPA. However, the Minister is empowered to make development assessment rules and the Planning Bill provides some examples of the type of rules that may be made. Relevantly, these include:

  • matters to be considered in determining whether a change would result in substantially different development; and
  • the effect of different types of change on a development application. Consequently, development assessment rules will be needed to address how a change to a development application that is not a minor change will be assessed.

The development assessment rules are a statutory instrument under the Bill and intended to establish the parts of the development assessment system and process not sufficiently provided for in the Bill. Development assessment rules will not have effect until they are approved under regulation.

Changing an existing approval

Although not a radical overhaul of the concept, the Planning Bill does establish its own approach to changing a development approval, however it's one that will be recognisable to anyone familiar with the current process under the SPA.

Application process

The Planning Bill will enable any person to make an application to change a development approval which has taken effect (a change application) to the following applicableresponsible entity:

  • the Minister – for a change to a development conditions imposed under a Ministerial direction or if the application was decided under by call-in;
  • a referral agency – for a minor change to a condition imposed by that referral agency;
  • the P&E Court – if the approval was given because of a court order and there were properly made submissions for the application; or
  • otherwise – the assessment manager.

minor change to a development approval is a change that does not:

  • result in substantially different development;
  • if the change application were a fresh development application:
    • cause the inclusion of prohibited development;
    • cause referral to a referral agency if there were no previous referral agencies, or cause referral to an additional referral agency if there were; or
    • cause public notification if it was not previously required

A change application must be made to the applicable responsible entity:

  • in the approved form (if there is one) or otherwise by notice;
  • accompanied by:
    • the required fee
    • for a minor change, subject to certain exceptions, evidence that shows the applicant has notified affected entities as required by section 77 of the Planning Bill; and
    • owner's consent if the applicant is not the owner of the premises.

Assessing and deciding application

A responsible entity must assess and decide a change application in accordance with prescribed criteria. The Planning Bill prescribes separate criteria for assessing an application for a minor change, and an application for a change other than a minor change.

Unlike the SPA, which requires an applicant to submit a fresh development application if the change proposed to the approval is not a permissible change, the Planning Bill enables a responsible entity to assess and decide a change to an approval that is not a minor change.

Under the assessment criteria, this application will effectively be assessed as if it were a new development application with the change included. However public notification will not be required if the change is not a minor change only because it requires referral to a referral agency where previously there weren't any, or an additional referral agency where there were.

The responsible entity must provide the applicant with an information notice about its decision on the change application, and the applicant may appeal against that decision.

Cancellation and extensions

The Planning Bill also establishes a separate application and assessment process enabling:

  • a current development approval to be cancelled (a cancellation application); and
  • the currency period to be extended before the approval lapses (an extension application).

Court powers

Changes that are proposed to a development application or approval following the commencement of a Planning and Environment Court appeal are not unusual. The Planning and Environment Court Bill 2014 will continue the P&E Court and provides that the P&E Court has the power to:

  • consider a change to a development application the subject of an appeal, only if the change is a minor change under the Planning Bill; and
  • consider a change to a development approval the subject of an appeal only if the change is a minor change under the Planning Bill.