Planning Act 2016: what you need to know
From 3 July 2017, Queensland will operate under the following new planning legislation:
- Planning Act 2016;
- Planning and Environmental Court Act 2016;
- Planning (Consequential) and Other Legislation Amendment Act 2016;
- Subordinate legislation (Planning Regulation 2017); and
- State Planning Policy.
The summary below provides an overview of what you need to know about the new legislation and State planning instruments with respect to the development application process. Information provided below is intended as a summary only. For more information, or answers to questions on any aspects summarised below, please contact the Town Planning team at Saunders Havill Group.
The key documents
While a raft of new documents come into effect on 3 July 2017, the following most influence the development assessment process and requirements:
- Planning Act 2016
- Subordinate legislation (Planning Regulation 2017); and
- the DA Rules.
There is some new terminology, including the following key changes:
|SPA||PA 2016 equivalent|
|A Regulation, Planning Scheme etc.||Categorising instrument|
|Exempt, Compliance Assessment & Self Assessable Development||Accepted Development|
|Code & Impact Assessable Development||Assessable Development|
|Integrated Development Assessment System (IDAS)||DA Rules|
|Acknowledgement Notice||Confirmation Notice|
|Assessment Criteria||Assessment Benchmarks|
|S.242 Preliminary Approval||Variation Request|
|Negotiated decision/written representations||Change representations|
|Request to change development approval/Request to Change or Cancel Conditions||Change applications – minor change or “other change”|
|Request to extend period||Extension application|
|Community infrastructure designation||Infrastructure designation|
The development assessment process has been removed from the Planning Act 2016 and is now contained in the DA Rules. Removing the process from the principal legislation is intended to create a DA system that can be more responsive to contemporary or emerging circumstances.
The development application process remains substantially similar to the previous IDAS process (see below), however there are a number of changes that need to be understood to avoid problems with your development application.
Overview of DA Rules
|Confirmation Notice (Council)||10 business days||10 business days|
|Confirmation Notice (Referral Agency)||N/A||5 business days|
|Information Request (Council)||10 + 10 business days||10 business days*|
|Information Request (Referral Agency)||10 + 10 business days||10 business days*|
|Information Request Response||6 months||3 months|
|Public Notification||15 – 30 business days||15 – 30 business days|
|Submission Review||N/A||10 business days|
|Referral Agency Assessment||30 + 20 business days||25 business days*, including time taken to issue information request|
|Decision (Council)||20 + 20 business days||35 business days* (including time to issue information request)|
|Stop Process||3 months to negotiate State conditions||130 business days (can be stopped multiple times)|
|Issuing of Decision||5 business days||5 business days|
|Change representations||N/A||20 business days*|
|Appeal Period||20 + 20 business days||20 + 20 business days|
|Change application (minor)||30 business days||20 business days to make a decision and 5 business days for issue of decision|
|Change applications (other change||N/A||As per new development application|
|*Whilst there are set timeframes for all actions within the DA Rules, most of the timeframes can be extended by mutual agreement between the applicant and the assessment manager|
Key changes / elements
Shorter assessment timeframes
Assessment Mangers have shorter assessment timeframes, for instance any time taken by the Assessment Manger to issue an information request is deducted from the decision-making timeframe. Automatic extensions for Assessment Mangers have been removed, with extensions requiring agreement. Applicants also have a shorter 3 month period to respond to information requests.
Information request ‘opt out’
Applicants can now ‘opt out’ of an Information Request at the time of lodgement of the application, however, must be very careful in doing so. Once an Applicant has requested to ‘opt out’, they cannot opt back in. Therefore, there are risks in ‘opting out’ if there are resulting issues with an application that require resolution by submission of further information.
If you have ‘opted out’, it is at the assessment manager’s discretion as to whether they accept/consider any further information provided. We would strongly recommend that unless an application is extremely simple and there are no surprises expected, applicants should not ‘opt out’ of an information request.
You can stop the clock
Applicants can now ‘stop the clock’ for up to 130 cumulative days at any stage during the assessment process (except during public notification). This may be a very useful provision, for instance, to resolve a particular matter or to allow more time to respond to an information request. It may also be very useful if, during the information request period, you become aware of an issue and wish to resolve it prior to issue of an information request, thereby potentially avoiding an information request.
There is now a formal ‘Further Advice’ provision available to Assessment Managers/Referral Agencies. An Assessment Manager or Concurrence Agency for the application may, at any time before the application is decided, give further advice about the application and may include advice about how the applicant may change the application. This can occur before or after an the issue of an ‘information request’.
Code assessment is now a bounded assessment only against applicable planning requirements (assessment benchmarks). The assessment manager must approve the DA to the extent it complies with assessment benchmarks and can condition compliance if required. A refusal is only intended to be allowed where the DA cannot be conditioned to meet the assessment benchmarks.
Statement of reasons in decisions
The Assessment Manager now must now give a ‘statement of reasons’ and, for impact assessable applications, include a description of the matters raised in submissions. If the development is approved, or approved with conditions, and the development did not comply with any of the assessment benchmarks, the Assessment Manager must give the reasons why the application was approved, despite the non-compliance.
In a key change, the Planning Act has removed the ‘roll over’ provisions that previously applied under the SPA. The following set currency periods will apply:
- Material Change of Use (MCU) – 6 years after the approval takes effect
- Reconfiguration of a Lot (ROL) – 4 years after the approval starts to have effect
- Other development – 2 years after the approval starts to take effect
The process for extending an approval remains largely the same and the Assessment Manager has 20 business days to consider an extension. Referral agencies are however not required to be involved or advised about the extension application before it is decided.
All existing lawful uses, development approvals and infrastructure agreements will continue to have effect. Any development applications or permissible change requests made by, but not decided at, 3 July 2017 will continue to be assessed under the existing provisions of the SPA. The same applies for any appeals commenced, but not decided, by 3 July.
The provisions relating to change representations are largely similar to the existing provisions for a negotiated decision request, however the Planning Act introduces a timeframe in which change representations must be decided and a decision issued.
If an applicant does not suspend their appeal period, the change representations must be made and decided before the end of the appeal period. This is critical as, if the appeal period is not suspended, the appeal period may lapse while Council is still considering the change representations. If the applicant does suspend the appeal period, the Assessment Manager has 20 business days to decide the change representations, otherwise the balance of the appeal period restarts.
Changes to approvals
Change applications can be either a ‘minor change’ or an ‘other change’.
A ‘minor change’ is the equivalent to a permissible change under the SPA and adopts largely the same tests and process for assessment. A ‘minor change’ must not be substantially different development, the definition of which is now lies within the DA Rules.
An ‘other change’ is a new change process and is intended for change applications that do not meet the ‘minor change’ test. An ‘other change’ is dealt with in much the same way as a new development application, however may involve a truncated assessment relevant only to the aspects that are being changed. Limitations on conditions an assessment manager can apply also provide additional certainty with this process.
Crucially, for a ‘minor change’ the Planning Act has removed the requirement for the Applicant/Assessment Manager to consider whether a change would be likely to cause a person to make a submission objecting to the change. We expect with this test removed, Assessment Managers will be more likely to direct applicants into an ‘other change’ where submissions were received on the original DA.
With the removal of Compliance Assessment under the Planning Act, plan sealing will now be undertaken by a process under the Planning Regulation 2016. Refer to Schedule 18 of the Planning Regulation for the process of applying to a local government for plan sealing.