News

13
Jul

Essential referrals for planners

Overview

The identification of relevant referrals has become easier over the years with better mapping, fewer referral triggers, greater clarification of the triggers and a reduction in the number of referral agencies. It is important, however, not to become complacent about referrals particularly given the complexities that remain.

Now that the Planning Act 2016 (Planning Act) and Planning Regulation 2017 (Regulation) are in effect, it is important to understand how the identification of referrals and the referral agency assessment process functions. While many of the referral triggers and associated assessment processes are consistent with the Sustainable Planning Act 2009 (SPA), small changes mean that additional caution needs to be had when providing advice on referrals and referral processes.

This article has been prepared to provide an overview of the referral identification and assessment process under the Planning Act and associated legislation. The article focuses on the primary parts to the system and is broken down into the following sections:

This article is intended to provide an overview of referrals and has been written in plain English. While legislative references have been used to assist readers find relevant sections, information contained within this article should not be read in isolation of the legislation on which it is based. The manner in which the legislation and development assessment rules have been written means that careful interpretation of provisions is required prior to the provision of advice.

Legislation

Planning Act 2016

Chapter 3, Part 3, Division 1 of the Planning Act sets out the requirements for referral agency assessment. Sections 54 – 56 guide the majority of processes, with section 57 relating to a response before application (pre-referral) and section 58 relating to the effect of no response from a referral agency.

Section 54 of the Planning states that an applicant must, within the period required under the development assessment rules (DA rules), give a copy of the application and the required fee, to each referral agency. Section 54 also defines a referral agency.

Section 55 states that a regulation may prescribe the matters the referral agency may, must, or must only assess a development application against; and may, must, or must only have regard to for the assessment. Section 55 also confirms the referral agency must assess against the instrument in effect when the application was properly made. Section 55(4) however confirms that a referral agency may give the weight that the referral agency considers is appropriate, to an amendment or replacement to the instrument or other document that came into effect after the application was properly made.

Planning Regulation 2017

Part 4, Division 3, sections 22 – 24 of the Regulation sets out the requirements for a referral agency’s assessment. Section 22 will guide the majority of processes, with section 23 relating to changes to referral agency’s assessment for particular development at Port of Brisbane and section 24 relating to a non-response from a referral agency for a development application for building work under the Building Act.

Section 22 sets out referral agency’s assessment generally, and importantly refers to schedules 9 and 10 of the Regulation. Schedules 9 and 10 prescribe the referral agency for a development application as well as the matters the referral agency may or must assess the development application against; and may or must assess the development application having regard to.

In addition to the prescribed requirements, section 22 states the referral agency must also assess the application against the laws administered by the referral agency and the policies that are reasonably identifiable as policies applied by the referral agency. Furthermore, section 22 states the referral agency must also assess the application having regard to the following:

  • if the referral agency is the chief executive:
    (i) the strategic outcomes for the local government area stated in the planning scheme; and
    (ii) the purpose statement stated in the planning scheme for the zone and any overlay applying to the premises under the planning scheme; and
    (iii) the strategic intent and desired regional outcomes stated in the regional plan for a region; and
    (iv) the State Planning Policy, Parts C and D; and
    (v) for premises designated by the Minister – the designation for the premises; and
  • if the referral agency is a person other than the chief executive:
    (i) a local planning instrument applying to the premises; and
    (ii) the regional plan for a region, to the extent the regional plan is not identified in the planning scheme as being appropriately integrated in the planning scheme; and
    (iii) the State Planning Policy, to the extent the State Planning Policy is not identified in the planning scheme as being appropriately integrated in the planning scheme; and
    (iv) for premises that are designated premises – the designation; and
  • any temporary State planning policy applying to the premises; and
  • any development approval applying to the premises; and
  • to the extent the referral agency’s powers involve assessing the cost impacts of supplying infrastructure for development under chapter 4, part 2, division 2, subdivision 3 or part 3 of the Act – any relevant charges resolution; and
  • material about the application received by the referral agency, including material received before the application was made.

While the above provides a wide scope for assessment, section 22(4) states a referral agency may consider a matter stated above only to the extent the referral agency considers the matter is relevant to the development. A referral agency’s powers for a development application are limited in the way stated for the application in schedule 9 or 10.

Schedules 9 & 10

For the majority of development applications, schedule 10 will be the tool to determine applicable referrals. Although schedule 9 serves a similar purpose to schedule 10, schedule 9 relates to Building work under the Building Act and will therefore not be applicable to many development applications lodged by planners.

While less likely to be used, schedule 9 can apply to applications proposing building work seaward of coastal building line, in a declared fish habitat area or if all or part of the premises are within 25m of a state transport corridor. The latter relates to building work not associated with a Material Change of Use (MCU) or Reconfiguration of a Lot (ROL) that is not for a residential purpose and involves the intensification of stormwater across the state transport corridor.

Schedule 10

Schedule 10 now includes the previous State Planning Regulatory Provisions (SPRP) for the South East Queensland Regional Plan and Koala Habitat Areas and brings together all relevant information relating to the referral triggers and the assessment of a referred development applications. As a result, schedule 10 is 131 pages in length (94 pages more than Schedule 7 of the Sustainable Planning Regulation 2009 (SPR)).

Schedule 10 is made up of 21 parts. Each Part relates to a specific form of development and is ordered alphabetically. A table of the relevant parts of Schedule 10 are below:

PartPurpose
1Airport land
2Brothels
3Clearing native vegetation
4Contaminated land
5Environmentally relevant activities
6Fisheries
7Hazardous chemical facilities
8Heritage places
9Infrastructure-related referrals
10Koala habitat area
11Noise sensitive place on noise attenuation land
12Operational work for reconfiguring a lot
13Ports
14Reconfiguring a lot under Land Title Act
15SEQ development area
16SEQ regional landscape and rural production area and SEQ rural living area
17Tidal works or work in a coastal management district
18Urban design
19Water-related development
20Wetland protection area
21Wind Farms

 

Schedule 10 Structure

Within each of the above Parts, the following information is identified:

  • Category of development (assessable or prohibited)
  • Requirements for assessment by assessment manager, including:
    • Category of assessment (code or impact);
    • Assessment benchmarks;
    • Matters code assessment must have regard to;
    • Matters impact assessment must have regard to; and
    • The fee for development application
  • Requirements for referral agency’s assessment, including:
    • Type of development application requiring referral;
    • The referral agency;
    • Limitations on referral agency’s powers;
    • Matters referral agency’s assessment must be against (i.e. State Development Assessment Provisions (SDAP) Codes);
    • Matters referral agency’s assessment must have regard to;
    • Matters referral agency’s assessment may be against;
    • Matters referral agency’s assessment may have regard to; and
    • The fee for development application.

Referral Triggers

While the structure of schedule 10 is easy to use, the scale of document can make determining referral agencies and their assessment requirements time consuming. While only relating to SARA referrals, a summary document of triggers and relevant codes is provided as Appendix 1 of SDAP 2.0.

While the information provides a quick 6 page summary, schedule 10 should always be used to determine referral triggers and requirements.

Trigger Review

In preparation for the new Regulation, a trigger review was undertaken. The principles of the review were to:

  • Provide clearer delineation between state and local matters;
  • Carry forward the existing policy intent, unless there is a reason to change;
  • Remove duplication of assessment;
  • Review fees to ensure the amount is equivalent to the level of assessment undertaken; and
  • Recognise sequencing of development when determining fees.

Key Changes

The majority of triggers within schedule 10 are consistent with schedule 7 of the SPR. Key changes that have been made are as follows:

Urban design trigger (Part 18)

A new trigger for urban design outcomes for significant projects has been included as part 18 of schedule 10. Development applications meeting the criteria of the trigger are referred to the SARA, who then seeks technical advice from the Office of the Queensland Government Architect (OQGA).

While other requirements exist, the trigger is intended to capture MCU applications that increase the gross floor area (GFA) on the premises by more than 50,000m2 in Brisbane City Council (BCC) or the Gold Coast City Council (GCCC) or 25,000m2 in other Council’s. The GFA of the trigger generally relates to 400 – 500 units in BCC & GCCC and 200+ units in other localities.

The purpose of the new code is to ensure that significant projects result in high quality urban design outcomes and provide guidance to applicants on how to demonstrate a robust urban design process has informed the design of the project. Given the scale of the development needed to trigger the referral, the trigger will not relate to the vast majority of development applications lodged. Where the trigger is applicable, it is likely that high quality urban design principles have been incorporated into the design of the development. As such, I do not believe the trigger will result in vastly different on the ground outcomes.

While a trigger is included in Part 18, there are two possible assessment pathways for the urban design aspect, with the state actively seeking early engagement to avoid referral. Where an applicant engages early and obtains written urban design advice from either the OQGA or a gazetted urban design review entity convened by a local government, referral is not required. While a $2,000 pre-lodgement fee applies, this is significantly less than the $15,000 fee applicable to the referral of the application.

While clarification in writing is not yet available, advice from Department of Infrastructure, Local Government and Planning (DILGP) is that the referral trigger is not applicable to variation requests. This is particularly important for master planned greenfield development applications where the cumulative GFA of future dwellings exceeds the stated thresholds.

Clearing native vegetation trigger (Part 3)

A new trigger has been added for MCU applications involving operational work for the clearing of vegetation under the Vegetation Management Act 1999 (VMA). Operational work must be for a relevant purpose under section 22a of the VMA, otherwise work is prohibited. It is understood that this change is to close out an existing loophole in the SPR triggers.

Amended / Improved Triggers

In addition to the above new triggers, some amendments have been made to existing triggers. Changes include:

Coastal development

  • Refinement of MCU and ROL triggers to reduce unnecessary referrals to the State.

State transport triggers

  • New triggers based on existing state transport corridor or future state transport corridor; and
  • In most instances reduced number of triggers and reduced fees.

Hazardous chemical facilities

  • New term and definition;
  • Replaces major hazard facilities; and
  • Threshold for state assessment lowered due to high risk development.

Referrals Process

Section 54(1) of the Planning Act requires an applicant, within the period required under the DA rules, to give a copy of the application to each referral agency. Part 2 of the DA Rules sets out how the referral is to occur and the specific timeframes in this section of the process.

While there are many variations and requirements to the process under Part 5, the following is a summary of what is intended:

ProcessTimeframeDA rules ref.
Applicant gives a copy of the application to a referral agency (including confirmation notice)10 days following the completion of Part 1s5.1 & s5.2
Applicant gives the assessment manager notice of the day the application was referred5 days after the day the applicant gives the application to each referral agencys5.3
Referral agency determines if the application is a properly referred application5 days after the day the referral agency receives the applications6.2
Referral agency issues information request10 days unless otherwise agreeds12.4
Applicant responds to information request3 months unless otherwise agreeds13.1
Referral agency gives a referral agency response to assessment manager25 days unless otherwise agreed minus time taken to issue information request to a maximum of 10 days unless other time period stated in Schedule 2 of DA ruless9.2, s9.3 & s9.4

 

Not properly referred applications

If during the referral confirmation period the referral agency does not believe the application is a properly referred application, the referral agency must, before the end of the referral confirmation period:

  • give the applicant an action notice; and
  • give a copy of the action notice to the assessment manager, at the same time the action notice is given to the applicant.

If the applicant complies with all of the actions in the action notice within 20 days after the day the applicant was given the action notice, or a further period agreed between the applicant and the referral agency the application is a properly referred application. The referral agency must then give a referral confirmation notice to the applicant and a copy to the assessment manager within 5 days of the applicant complying with the actions. If the applicant does not comply with all of the actions in the action notice the application is taken to have not been referred and the referral agency, must within 5 days give the assessment manager notice that the application is taken to have not been referred.

Lapsing

As with the SPA, lapsing provisions exist under the Planning Act in relation to the referral of an application. Not referring an application in accordance with section 54(1) of the Planning Act will result in the application lapsing, unless actions are taken to avoid this.

Within the DA rules, there are a number of actions that if not undertaken will result in the development application lapsing. Lapsing provisions relate to:

  • Not referring the application within 10 days (s5.1);
  • Not advising assessment manager of referral within 5 days (s5.4);
  • Not complying with all of the actions in the action notice within 20 days (s8.3); and
  • Not undertaking the above actions within timeframes for a change that is not a minor change (s27).

Where the above actions have not been undertaken, s31 of the DA rules allows the applicant to carry out actions to avoid the development application lapsing. For referrals, the applicant must give the referral agency material to each referral agency that is party to the application and advise the assessment manager when the referral agency material was given. s29 of the DA rules sets out the process for a missed referral agency and states that:

  • A party to the application (applicant, assessment manager or referral agency) may, by notice given to each other party to the application, advise the parties that the applicant has not referred the application in accordance with section 54(1) of the Planning Act;
  • Where notice has been given, the application does not lapse as a result of a missed referral agency;
  • The applicant must refer the application in accordance with s5.1, as if ‘the day after part 1 has ended’ is ‘after the day the applicant gave or received notice about a missed referral agency’ (10 days);
  • Referral and Information Request parts apply to the missed referral agency;
  • If a notice about a missed referral agency is given within the Decision part, then the Decision part cannot commence until the Referral part has been completed; and
  • A notice about a missed referral agency has no effect on any actions already undertaken during public notification.

If the applicant does not take the actions above within the required timeframes (s5.1), the application will lapse.

Importantly, s29 applies if, at any time before the application is decided, an applicant has not referred the application to a referral agency for all referral requirements in the time provided to refer the application. The reference to ‘all referral requirements’ suggests that a missed trigger to a referral agency will require a missed referral process to be undertaken, even if the referral agency was referred the development application as a result of another trigger. This element is important as current SARA practises in relation to a missed trigger are to advise the referral agency of the additional trigger and allow the assessment to continue. Given the wording of s29, I recommend using the missed referral process when a missed trigger has been identified as not doing so opens the assessment process to challenge.

Changes before a decision

Depending on the extent and type of the change to the development application, the roles and responsibilities of the applicant and assessment manager change:

Change Application

If an applicant gives a notice to the assessment manager under section 52(1) of the Planning Act to change the application before it is decided, the assessment manager must give a copy of the notice to each referral agency for the original application, and any other referral agency required to be referred the application as a result of the change. Additionally the assessment manager must advise each referral agency, with a copy to the applicant, of the effect of the change on the development assessment process (s25 of the DA rules).

Non Minor Change about a matter raised in a submission, information request or further advice

For a change that is not a minor change, if a change to the application results in additional referral requirements, the application including the change must be referred to the relevant referral agency for the additional referral requirements (s26.3 of the DA rules). Where this occurs, part 2 applies in its entirety except the period under s5.1 of the DA rules is taken to start the day after the assessment manager advises the applicant the change is about a matter raised in a submission, information request or further advice and a confirmation notice is not required.

Other Changes

For a change that is not a minor change, the development assessment process stops on the day a notice of a change is received by the assessment manager, and starts again at the beginning of the assessment manager’s confirmation period. Referral of the application is required in accordance with the requirements of s54(1) of the Planning Act.

Concurrence agency changes its response or gives a late response

Section 28 of the DA rules allows a concurrence agency to, after its referral agency assessment period, change its referral agency response or give a late referral agency response before the application is decided. A changed response can be made where:

  • the change is in response to a non-minor change about a matter raised in a submission, information request or further advice;
  • the Minister has given the concurrence agency a direction under section 99 of the Planning Act; or
  • the applicant has given written agreement to the change to the referral agency response.

In terms of the applicant’s written agreement, this can be in the form of representations about a referral agency response (s30 of the DA rules).

Response before application

Section 57 of the Planning Act allows an applicant to seek a referral agency response before a development application is made. The response is considered a referral agency response where the application:

  • is the same or is not substantially different from the proposed application; and
  • is made within the time, if any, stated in the response.

Where a response before application is requested, the referral agency can seek payment of a fee. Where a fee is paid, the fee does not have to be paid again for the application.

SARA Referrals

SARA Processes

To align with the Planning Act, SARA are reviewing practises and processes to achieve greater efficiencies and to make better decisions. Process changes are focused on 4 areas:

  • Pre-lodgements
  • Response before application (Pre-referrals)
  • Information Requests and Further advice

A summary of processes proposed by SARA under the Planning Act area as follows:

Pre-lodgements

SARA is openly encouraging pre-lodgement meetings and advices and are open to flexibility as to how pre-lodgement advice is provided (i.e. phone calls, emails). A key improvement is that SARA will provide advice that is reflective of the level of detail provided by an applicant. As such, should early advice be required in order to progress a development application, SARA will provide high level in principle advice and not require detailed reporting before advice is provided.

SARA is also looking to improve the pre-lodgement process by making sure the right SARA representatives participate in meetings and meeting minutes are available at the end of meetings. Supplementary advice is also able to be provided as necessary when additional detail is provided to SARA.

Pre-referrals

SARA do not encourage the use of the response before application process under the Act. Only where minimal assessment is required and the answer expected is either ‘no requirements’ or standard conditions will this process be supported.

SARA will be supportive of using the process for applications that are eligible for Fast Track assessment. SARA will also be supportive of this process for the new urban design trigger, which encourages the pre-referral process.

Information Requests and Further advice

SARA intend to use both information requests and further advice letters as part of the assessment of development applications. While clarity on exactly when the different documents will be used, the intent is as follows:

Information Requests

  • used to seek essential information only (i.e. traffic impact assessment); and
  • not used to seek amendments to proposals that can be conditioned or negotiated through other means.

Further advice

  • used to identify issues and concerns with development applications and empower changes;
  • will identify SDAP non-compliances;
  • will be set out in clear order of significance; and
  • is a key element of SARA’s desire to have no surprises for applicants.

Fast track applications

The SARA FastTrack5 has been carried over under the Planning Act. FastTrack5 is a streamlined referral and assessment process that allows for eligible triggers and aspects of development to be assessed and decided in 5 days. FastTrack5 qualifying criteria is generally consistent with the previous version, but now includes development application for private pontoons.

SDAP

As detailed in schedule 10 to the Regulation, development applications referred to SARA will need to be assessed against the relevant SDAP module. SDAP version 2.0 is applicable as of 3 July 2017 and can be found on the DILGP website: http://www.dilgp.qld.gov.au/planning/development-assessment/sdap-changes.html

SDAP version 2.0 is the result of a comprehensive review of the previous SDAP codes, in preparation for the new legislation and State Planning Policy. Structural changes to SDAP include:

  • improved code drafting with simplified and clarified provisions;
  • Modules removed and replaced with standalone state codes. These state codes are broadly grouped into locational, use-based or advice only;
  • Module 2: Regional plans, Module 6: Strategic cropping land and Module 15: Airports have been deleted; and
  • changes to FastTrack5 checklist.

A comparison of the previous and current version of SDAP codes and modules is provided below. Appendix 1 of SDAP version 2.0 also provides a good summary of applicable SDAP modules and can be found here: (http://www.dilgp.qld.gov.au/resources/policy/sdap/v2/appendices.pdf).

 

State CodeSDAP Module
State code 1: Development in a state-controlled road environmentState controlled road elements of Modules 1, 17, 18 and 19
State code 2: Development in a railway environmentRail elements of Modules 1, 17, 18 and 19
State code 3: Development in a busway environmentBusway elements of Modules 1, 17, 18 and 19
State code 4: Development in a light rail environmentLight rail elements of Modules 1, 17, 18 and 19
State code 5: Development in a state-controlled transport tunnel environmentState controlled transport tunnel elements of Modules 1, 18 and 19
State code 6: Protection of state transport networksModules 17, 18 and 19
State code 7: Maritime safetyModule 14
State code 8: Coastal development and tidal worksModule 10
State code 9: Great Barrier Reef wetland protection areasModule 11
State code 10: Taking or interfering with waterModule 7
State code 11: Removal, destruction or damage of marine plantsState code 5.3 of Modules 5
State code 12: Development in a declared fish habitat areaStates code 5.1 of Module 5
State code 13: Unexploded ordnanceModule 12 of SDAP
State code 14: Queensland heritageModule 9
State code 15: Removal of quarry materialModule 7
State code 16: Native vegetation clearingModule 8
State code 17: AquacultureModule 3
State code 18: Constructing or raising waterway barrier works in fish habitatsState code 5.2
State code 19: Category 3 leveesLevee elements of Module 7
State code 20: Referable damsModule 16
State code 21: Hazardous chemical facilitiesModule 13
State code 22: Environmentally relevant activitiesModule 4
State code 23: Wind farm developmentModule 20
State code 24: Urban design outcomes for significant projectsNew code

 

Non SARA referrals

While SARA has provided a much improved referral assessment process since its inception in 2013, many referral triggers identified in schedule 10 exist outside the SARA. Under schedule 10, the following are the key referral triggers which do not have the chief executive as referral agency:

Referral AgencyAspect of Development
Local Government

 

  • Certain building work
  • Development on airport land
  • A devolved environmentally relevant activity
The chief executive of the distribution

entity or transmission entity (i.e. Energex and Powerlink)

  • Development on a premises subject to an easement or near a substation site.
Brisbane City Council
  • Development on Brisbane core port land
Port operator
  • Development below high-water mark and within port limits if applicant is not port operator
Chief executive of the port authority
  • Prescribed assessable development within limits of a port
Minister responsible for administering the Transport Infrastructure Act for:
  • Development that is inconsistent with Brisbane port land use plan for transport reasons
  • material change of use on strategic port land that is inconsistent with the land use plan
Gold Coast Waterways Authority
  • Operational work that is tidal works or work in a coastal management district in Gold Coast waters
The Queensland Fire and Emergency Service
  • Operational work that is tidal works or work in a coastal management district involving a marina
An individual
  • Development on a premises subject to a pipeline easement where the individual is the holder of a pipeline licence under the Petroleum and Gas Act

 

Tricks and traps

While the identification of relevant referrals has become easier over the years, with the Planning Act and Regulation in effect, it is important to understand how the identification of referrals and the referral agency assessment process functions. While many of the referral triggers and associated assessment processes are consistent with the SPA, small changes mean that additional caution needs to be had when providing advice on referrals and referral processes.

The following summarises / outlines some tricks and traps that have been identified as part of a review of the legislative requirements:

  • When referring an application, make sure you notify the assessment manager of the referral within 5 days. Failure to do this could result in a lapsed application.
  • Section 29 of the DA rules states a development application needs to be referred for all referral requirements. As such, a missed trigger represents a missed referral and needs to be dealt with accordingly.
  • When rectifying a missed referral, it is important to undertake the process of re-referral correctly. If the process is not followed correctly, the application will lapse.
  • Make sure you understand the different obligations regarding referrals as a result of a change to the development application as these differ depending on the nature of the change.
  • When making a change application, the applicant must give notice of the proposal and the details of the change to each affected entity. As such, advice agencies must now be notified of a change application.
  • While schedule 10 includes a new trigger for urban design, this will be rarely used. Where applicable, use the pre-referral process as this is what is intended by the triggers and associated fees.
  • While SARA has made most referrals simpler, it is important to understand the referrals that are not covered by SARA. These are particularly relevant when works relate to tidal areas.
  • When dealing with land subject to a distribution or transition entity, spend the time to understand who the entity is so the referral is correct (dial before you dig can assist with this).
  • Referrals covered in this article relate only to referrals under the Planning Act and associated legislation. Depending on the development proposed, it is important to understand other Federal referral requirements as well as native title obligations.