If you are planning development applications, a decision will need to be made whether or not to lodge before or after the planned changes.
This article is the third in our series examining the key provisions of the new Planning Act 2016, which is set to commence on 3 July 2017.
Queensland is introducing a new development assessment system to replace the Integrated Development Assessment System (known as IDAS). The new development assessment process will be supported by the Planning Regulation and the Development Assessment Rules (DA Rules), with draft versions of both documents released for consultation but not yet finalised.
What is development under the Planning Act?
The Planning Act, like the Sustainable Planning Act 2009 (SPA), defines development as separately defined components which include:
- the carrying out of building work, plumbing or drainage work or operational work;
- reconfiguring a lot; or
- making a material change of use of premises.
Some adjustments have been made to the detail of the definitions. For example, making a material change of use of premises under the Planning Act does not include a "minor change of use".
What are the categories of development under the Planning Act?
There is a streamlining of the categories of development which have been reduced from five categories under SPA to three categories under the Planning Act which are:
- prohibited development: is development for which a development application may not be made;
- assessable development: is development for which a development approval is required; or
- accepted development: is development for which a development approval is not required.
The Planning Act introduces the concept of a categorising instrument which includes the Planning Regulation and a local categorising instrument (such as a local government's planning scheme). A categorising instrument can specify the categories of assessment that apply to development (and other matters, such as assessment benchmarks). Importantly, if no categorising instrument categorises particular development, the development is accepted development.
Categories of assessment
If development is assessable development it may be either code assessable development or impact assessable development.
Compliance assessment (which usually involves technical assessments for documents or works under SPA) will not exist under the Planning Act. Compliance permits issued under SPA will transition to development permits under the Planning Act, and compliance certificates for a subdivision plan under SPA will be taken to be an approval under the Planning Regulation for plans of subdivision for reconfiguring a lot.
A new concept introduced under the Planning Act is the introduction of assessment benchmarks, which are the matters that an assessment manager must assess assessable development against. These can be found in the Planning Regulation and a local categorising instrument. The Planning Regulation assessment benchmarks take precedence over those in a local categorising instrument (which includes a local government's planning scheme).
Assessing and deciding a development application
Assessment of a code assessable development application under the Planning Act is intended to be limited to the assessment benchmarks in a categorising instrument and any other matters prescribed by regulation.
However, impact assessment is not similarly constrained. An assessment manager has discretion to carry out an assessment against or have regard to any other relevant matter but excluding a person's personal circumstances, financial or otherwise. An example of a relevant matter stated in the Planning Act is planning need.
As with SPA, an impact assessable development application must be publicly notified and members of the public may make a properly made submission about the development.
Matters for a referral agency's assessment (except for a referral agency decided by the Minister) will be set by regulation.
In assessing and deciding a code assessable development application under the Planning Act an assessment manager:
- must approve development if it complies with all of the assessment benchmarks for the development;
- may approve development even if it does not comply with some of the assessment benchmarks, provided for example, a decision to approve resolves a conflict between the assessment benchmarks;
- may impose development conditions on a development approval;
- may only refuse development if compliance with some or all of the assessment benchmarks cannot be achieved by imposing development conditions.
Development assessment rules
Under the Planning Act the Minister must make rules for the development assessment process, which are referred to as the Development Assessment Rules (DA Rules).
The DA Rules support the Planning Act by stating matters such as the processes (including specific timeframes) for making, receiving, assessing and deciding development applications.
A draft version of the DA Rules was released for consultation in October 2016. Public submissions closed on 5 February 2017 and the Department of Infrastructure, Local Government and Planning is reviewing the submissions.
The Planning Act introduces the new concept of an exemption certificate which has the effect that development approval is not required. An exemption certificate may be given by a local government or the Chief Executive provided any referral agency has agreed in writing. Exemption certificates can be given where:
- the effects of the development would be minor or inconsequential;
- the development was categorised as assessable development only because of particular circumstances that no longer apply; or
- the development was categorised as assessable development because of an error.
An exemption certificate can have effect for up to two years (or a later day stated in the certificate).
Planning now for the new DA Rules
Given the expected commencement in July 2017, if you are planning development applications, a decision will need to be made whether or not to lodge before or after the planned changes. The new DA Rules will need to be factored into programs and development applications will need to be prepared using new terminology under the Planning Act. Other changes, such as exemption certificates, provide an opportunity to avoid the need to obtain development approval for anomalies.