ENVIRONMENTAL DEFENDERS
OFFICE (QLD) INC.
Development
Approvals
Factsheet 6 This factsheet
describes the development assessment process under the Integrated Planning
Act 1997 (“IPA”). Factsheets in
this series: 1 An introduction to the Integrated
Planning Act 1997 (“IPA”) 2 Ecological sustainability: the
purpose of IPA 3 Planning schemes and other
planning instruments 4 The South 5 Making effective submissions on
planning schemes 6 Development approvals 7 Making submissions on development
applications 8 Public access to information on
planning and development applications 9 The Planning & 10 Appealing and enforcing development
approvals 11 Environmental impact assessment 12 The structure and operations of
local government
SUMMARY
Development is defined under the IPA to
include virtually all new or changed activities on land, including building and
use.
Development can include building, plumbing, drainage or
operational work, reconfiguring a lot or a material change in use.
Development is only regulated by a public authority if it
is made assessable or self assessable under Schedule 8 of IPA or a planning
scheme.
Much development will be permissible on the basis that it complies with
a code. The building code is one example of a code, but others can be
introduced as part of a planning scheme or by a State government body.
The IPA establishes four levels of assessment for development (Figure
1).
- Exempt
development is specified in the IPA or planning schemes. It
does not require a development permit and need not comply with the codes
or planning scheme. Some development activities are automatically exempt
from assessment under IPA including mining, forestry and some agricultural
activities (other laws control these types of development)
- Self
assessable development, as specified in Schedule 8 of IPA or a planning
scheme, does not require a development permit but must comply with applicable
codes.
- Assessable
development – code
assessment: the development is assessed against applicable codes by a
public authority or an assessor. A development permit is required but
applications do not have to be notified publicly and members of the public
generally cannot object (make formal submissions) on the development
application and have these considered.
- Assessable
development - Impact
assessment: the development is assessed against the planning scheme
and its broader environmental effects considered. A development permit is
required. The public must be notified of the development application and
rights of submission (objection) and third party appeal are specified
(Figure 1).
How do I know what category a development comes under?
IPA defines certain types of development as assessable but does not
specify whether it is code or impact assessable. A regulation to IPA specifies
that some types of development are code or impact assessable. The planning
scheme for the area in question should specify which developments are impact
assessable. REMEMBER, you can be involved in the process for the preparation of
planning schemes (see factsheet 5).
Preliminary approvals can over-ride planning scheme requirements on
the level of assessment or the applicable codes in some circumstances.
The IPA establishes an Integrated Development Assessment System
(IDAS) in which applications are received by assessment managers (usually
the local Council) and referred if necessary to other interested agencies.
Concurrence agencies can offer advice, request further information
from an applicant and direct refusal or conditional approval of a development
application. Advice agencies may only provide advice.
Certain matters must be considered by an assessment manager when
assessing a development under transitional and IPA planning schemes.
Applications subject to code assessment can be refused only if
proposed developments do not comply with applicable codes and compliance can
not be achieved by imposing conditions.
Developments subject to impact assessment can not be approved if
a concurrence agency has directed a refusal, or the development compromises the
achievement of the desired environmental outcomes set out in the planning
scheme. Developments that conflict with the planning scheme can be approved if
there are sufficient planning grounds to do so.
The Minister can be involved with development applications that
involve a State Interest.
Applicants do not have to supply information requested by the assessment
manager or concurrence agencies.
Decision makers under IPA must "seek to achieve ecological
sustainability" in making decisions on impact assessable development
applications (see factsheet 2).
Development permits attach to the land and bind later owners.
Development Approvals
FULL TEXT
This Factsheet is for general
information purposes and is not legal advice. Important legal details have been
omitted to provide a brief overview of this area of the law. If you require
legal advice relating to your particular circumstances you should contact the
EDO or your solicitor.
New development assessment system
This Factsheet provides a general discussion of the development assessment
process under the Integrated Planning Act 1997. The IPA development
assessment system described in this factsheet applies to development
applications lodged after
What is development?
Development is any of the following:
- carrying out building
work;
- carrying out plumbing or
drainage work;
- carrying out operational
work;
- reconfiguring a lot
(subdivision); and
- making a material change
of use of premises (e.g. starting a new use or recommencing an abandoned
use or a material change in the intensity or scale of the use).
The definition of development (s1.3.2 of IPA) has been left wide to
enable the IPA system to integrate the many existing regulatory systems
covering the use of land.
How is development assessed
Development under the Integrated Planning Act 1997 is either:
- exempt;
- self assessable; or
- assessable
This means that while many development activities are caught by the
concept of development only some will be regulated by an outside authority. No
consent of a council or other regulator is required for development (including
building work) which is exempt or classified as self-assessable under Schedule
8 of IPA or a planning scheme.
Only development specifically set out as assessable under Schedule 8 of IPA or
a planning scheme requires the formal approval of a council. Assessable
development is further classified as subject to either:
- Code Assessment, with no
public notification (generally) and no third party appeal rights; and/or
- Impact Assessment, with public
notification and third party appeal rights.
An application requiring code assessment is assessed for compliance
against relevant codes. For example, an application for building work requiring
code assessment would be assessed against the Standard Building Regulation, an
IDAS code.
The assessment process for an application requiring impact assessment is
generally more rigorous. Impact assessment means the assessment of the
environmental effects of development and the ways of dealing with the effects.
The application is assessed having regard to a range of matters such as the
planning scheme and relevant planning scheme policies. The application must
also be publicly notified, and submissions (giving rise to appeal rights) may
be made on the application.
Figure 5.1 - Development Assessment under the Integrated Planning Act 1997
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Assessment
& Compliance Requirements |
Where do
I look to find out what category a particular development is in? |
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Exempt
Development |
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Self-assessable
Development |
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Assessable
Development: Code Assessment |
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§
Regulation
under IPA. §
Planning
scheme for the area in issue. |
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Assessable
Development: Impact Assessment |
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Development approvals
A development permit is a type of development approval. A development
permit approves assessable development and allows it to proceed. It an offence to
start assessable development without a development permit (s4.3.1 IPA).
A development permit is not necessary for self assessable development or
exempt development. However, self assessable development must comply with any
codes applying to the development.
|
Example - Requirements
to obtain a permit An application is made to
convert a house to a restaurant. The application involves a material change
of use of premises and involves building work. The planning scheme makes the
material change of use assessable development. Accordingly, the applicant
must obtain a development permit. Schedule 8 of IPA specifies that the
building work is assessable development so a development permit for the
building work (assessed against the Standard Building Regulation) is also
required. |
All development is deemed to be exempt development unless the Act or a planning
scheme makes it assessable or self assessable development.
A preliminary approval is also a type of development approval. A
preliminary approval approves assessable development but does not authorise it
to start. Final detailed design of the development or other details and
assessments are still outstanding, which would need to be submitted for any
development permit to be issued. A preliminary approval will often be used to
assist in the staging of approval, for example, a concept plan for a
subdivision layout.
|
Examples of the use of
preliminary approvals A preliminary approval could
be sought for a large mixed use development. The preliminary approval could
specify development precincts, broad land use intentions and specify that
future development be assessable, self-assessable or exempt development. The
developer would then have certainty that the development would ultimately be
approved once the detailed design was completed, and all assessing
authorities were satisfied with the proposals. |
It is important to be aware that preliminary approvals can override
planning scheme requirements about the level of assessment or the applicable
codes in some circumstances. They can also impose conditions that will apply to
the subsequent development permit. If the proposal involves a material change
of use (e.g. a material increase in the intensity or scale of the use) a
preliminary approval can set parameters for the subsequent development of the
land. These parameters determine how subsequent proposals may proceed.
It could (subject only to limited restrictions) categorise the development or
parts of it as code or impact assessable, self-assessable or exempt development
or a combination of these. This could override the need for public notification
or any form of assessment when the applicant is ready to proceed with the
development. It could also identify any codes applying to the development,
which need not be planning scheme codes and which may compromise the
achievement of the Desired Environmental Outcomes (DEOs) contained in a
Planning Scheme.
REMEMBER, you should be careful to treat an application for a preliminary
approval in the same way as a normal application, including (where applicable)
making submissions and exercising your right of appeal to the Planning &
What are existing uses?
If the use of premises was lawful immediately prior to:
- the commencement of the Integrated
Planning Act;
- the commencement of a
planning instrument; or
- the amendment of a
planning instrument;
and
there has been no material change of use, then in that case the Integrated
Planning Act or the commencement or amendment of a planning instrument
under the IPA cannot:
- stop the use from
continuing;
- further regulate the
use; or
- require the use to be
changed.
|
Example A car wrecking yard
established prior to the introduction of planning controls in an area will
remain lawful if a planning instrument is introduced which attempts to
restrict that type of use. |
Do subdivisions need a
development approval?
Some reconfigurations of lots, e.g. amalgamation of lots, are exempt
development and do not require development approval. However, most
reconfigurations, e.g. subdivisions, are assessable development and require
development approval (Schedule 8, IPA).
The Integrated Development Assessment System (IDAS)
One of the much trumpeted reforms introduced under the IPA was the replacement
of the need to obtain numerous approvals from diverse agencies with one Integrated Development Assessment System
(IDAS).
Under the IDAS all development applications are made to one assessment manager,
which in most cases will be the local Council. The assessment manager
may, or in some cases must, seek the advice or approval of other agencies when
assessing particular types of development applications. The IDAS system is designed to replace the
need for the applicant to approach numerous agencies for separate permits,
licences or other approvals. Those other agencies, in some cases, may require
the development application be refused or conditions attached to any approval.
Stages in the assessment process
The IDAS is for a four stage assessment process, although not all stages apply
to all development applications. Note that IDAS applies to assessable
development only.
For development applications subject to code assessment, the IDAS stages are
- the application stage;
- the information and
referral stage; and
- the decision stage.
For development applications subject to impact assessment, the IDAS
stages are
- the application stage;
- the information and
referral stage;
- the notification stage;
and
- the decision stage.
Further information on each of these stages is
set out below.
IDAS: The application stage
Who can lodge an application?
An application can only be made by the owner of the land to which an
application relates or a person who has the land owner's written consent.
What information must a development application contain?
Every development application must be made in the approved form. The
approved form :
- must include the written
consent of the owner of the land to the making of the application;
- must require an accurate
description of the land, the subject of the application;
- may contain a supporting
information part;
The Department of Local Government and Planning has approved forms for
development applications and supporting information. Copies of the forms can be
found at their web site at www.ipa.qld.gov.au.
How much does a development application cost?
Development applications vary in cost depending on:
- the type and complexity
of the application; and
- to whom the application
is made.
Local governments set their own fees by resolution.
Who must be informed when a development application is lodged?
The public is only notified of the lodgement of development applications for impact
assessable development. Sometimes public submissions are sought on code assessable
development but no appeal rights follow. However, all applications must be kept
available for inspection and purchase (s3.2.8 IPA).
Who can inspect a development application?
The application and any supporting information (other than sensitive security
information) must be kept open for inspection by any person from the time the
assessment manager receives the properly made application until the application
is withdrawn, lapses or until the end of the last period when appeals may be
made (s3.2.8 Integrated Planning Act 1997).
IDAS : The information and referral stage
Once an application has been received the assessment manager may need to refer
the application to various referral agencies prescribed by regulation. These
referral agencies fall into 2 categories - advice agencies who may:
- recommend conditions; or
- recommend that the
application be refused.
and concurrence agencies who may:
- offer advice about the
application;
- request further
information from the applicant;
- require that any
approval be for only part of the development;
- require that any approval
must be a preliminary approval only;
- require a different time
period for lapse of the approval;
- require that the
application be refused; and/or
- specify conditions that
must attach to any development approval (see s3.3.18 IPA for more
information).
Referral coordination
Until recently, IPA provided for a system of referral coordination when there were three of more concurrence
agencies involved in assessing the development.
Referral coordination required the chief executive of the Department of
Local Government, Planning, Sport and Recreation (DLGPSR) to coordinate the
information request and referral stage of IDAS.
In March 2006, IPA was amended to remove the system of referral
coordination (Integrated Planning and
Other Legislation Amendment Act 2006).
How does the removal or referral coordination affect the public?
§
There will no longer be one document incorporating the
information requests of different agencies.
When you inspect the council’s file, you will need to check for
each separate information request and response.
§
Where a development would have been subject to
referral coordination, you will still have 30 business days in which to lodge a
written submission (s 6.7.1A IPA)
Information Requests
If the assessment manager, any concurrence agencies or the chief executive of
the Department of Local Government and Planning believe additional information
is required to assess the application they can ask the developer to provide
that information.
On receiving a request for further information the applicant may give:
- all of the information;
or
- part or none of the
information and ask that the assessment of the application continue
(s3.3.8 IPA).
There
is no requirement that a developer must provide the information.
IDAS: The notification stage
For impact assessable development applications the IPA requires that the public
be notified of the development application, that a period ('notification
period') be set aside for public submissions and that the submissions be
considered before any decision is made on the development application.
How does a development application have to be advertised?
Development applications are advertised by a notice being:
- published at least once
in a newspaper circulating within the locality of the land;
- placed on the land in
the way prescribed by regulation – the requirements include a sign
on each road frontage that is visible from the road (see section 18 of the
Integrated Planning Regulation 1998); and
- given to the owners of
land adjoining the land.
A development application has to be publicly notified for:
- 15 business days
(minimum) if there is no referral coordination (see explanation above);
and
- 30 business days
(minimum) if there are 3 or more concurrence agencies.
The public notification period:
- starts on the day after
the last of the notice requirements have been completed; and
- must not include any
business day between 20 December and 5 January.
Public advertisement of a preliminary approval can replace public
advertisement of a later development application
A preliminary approval may approve assessable development and may make the
approved development:
- assessable (requiring
code or impact assessment);
- self assessable;
- exempt development; or
- a combination of
assessable, self-assessable or exempt development.
In these instances, the preliminary approval has overridden the planning
scheme.
Factsheet 7 sets out how to make effective submissions on development
applications
IDAS: The decision stage
The assessment manager (usually the local Council) can decide whether to
approve or refuse a development application. If a concurrence agency requires
that the application be refused or conditions attached the assessment manager
must refuse it or attach the conditions (see discussion above).
The criteria applied to assess applications under a transitional planning
scheme are different to the criteria for assessing applications under an Integrated
Planning Act planning scheme.
What must the assessment manager consider when deciding a development
application? (Integrated Planning Act 1997 planning scheme)
In deciding a development application requiring code assessment an assessment manager must consider:
- the common material (see
earlier definition); and
- applicable codes.
If the assessment manager is not a local government, its relevant laws
and policies are applicable codes.
In deciding a development application requiring impact assessment the assessment manager’s decision must
advance ecological sustainability (see Factsheet 2) and the assessment
manager must consider:
- the common material;
- the planning scheme and
any other relevant local planning instruments;
- State planning policies
not already included in the planning scheme;
- The South East
Queensland Regional Plan (if within South East Queensland – see factsheet 3);
- any development approval
for, and any lawful use of, premises the subject of the application or
adjacent premises;
- if the assessment
manager is not a local government, the laws and policies the assessment
manager has responsibility for administering; and
- matters prescribed under
a regulation.
An assessment manager when deciding a development application may also
give weight to a code, planning instrument or policy that came into effect
after the application was made but before the decision stage started.
What can an assessment manager decide? (Integrated Planning Act 1997
planning scheme)
This section applies only if your council has adopted an IPA compliant planning
scheme. An assessment manager may refuse an application for code assessment
only if it is satisfied that:
- the development does not
comply with the applicable codes; and
- compliance with the code
cannot be achieved by imposing conditions.
The assessment manager's decision may conflict with a code only if there
are sufficient grounds to justify the decision despite the conflict. The
decision however must not compromise the achievement of the desired
environmental outcomes for the planning scheme area (See Factsheet 3).
This applies only to the extent the decision is consistent with any State planning
policies not identified in the scheme as appropriately reflected in the scheme.
An assessment manager's decision for an application requiring impact assessment
must not:
- compromise the
achievement of the desired environmental outcomes for the planning scheme
area – unless the compromise is necessary to further the outcomes of
a State planning policy or the SEQ Regional Plan; or
- conflict with the
planning scheme, unless there are sufficient grounds to justify the
decision despite the conflict. The
‘grounds’ must be in the public interest.
An application may be refused. If an application is approved, it is
usually approved subject to conditions. All conditions attaching to a
development approval must be:
- relevant to, but not an
unreasonable imposition on, the development; or
- reasonably required in
respect of the development.
Conditions may be imposed that:
- place a limit on how
long a lawful use may continue or works may remain in place; or
- state that a development
may not start until other development permits, for development on the same
premises, have been given or other development on the same premises has
been substantially started or completed; or
- require development, or
an aspect of development, to be completed within a particular time and
require the payment of security.
What must the assessment manager consider when deciding a development
application under a transitional planning scheme?
Your council may have been operating under an old style transitional planning
scheme at the time the development application was lodged. The criteria applied
to assess applications under a transitional planning scheme are different to
the criteria for assessing applications under an Integrated Planning Act
planning scheme. However, the process
for handling the application is the same.
When a development application is assessed under a transitional planning
scheme, the assessment manager must consider:
- The common material. This is the material about the application
which the assessment manager has reviewed in the first 3 stages of the
development assessment process including:
-
Any concurrence agency requirements;
-
Advice agency recommendations;
-
Submissions received; and
- If a development approval has not lapsed, the approval;
- The transitional planning scheme;
- The transitional planning scheme policies;
- Any planning scheme policy made after
- All State planning
policies (see Factsheet 3); and
- Any interim development
control provision in force in the local government area; and
- Any other matter (e.g.
deleterious effect on the environment) to which regard would have been
given if the application had been made under the repealed Act (the
Local Government (Planning & Environment) Act 1990. You may need
to get a copy of that Act.
Special criteria may apply for specific types of applications.
What can an assessment
manager decide under a transitional planning scheme?
The assessment manager is required to:
- approve the application;
- approve the application
subject to conditions; or
- refuse to approve the
application.
The assessment manager must
refuse the application if:
- the application conflicts with any relevant strategic plan or
development control plan; and
- there are not sufficient
grounds to justify approving the application despite the conflict.
(Whether sufficient grounds exist to justify approving a development
application is for the assessment manager to decide in the first instance.
These issues can be tested on appeal if the application is impact
assessable and a submission on the development application has been made (see
Factsheets 9 and 10)).
Ministerial Direction and Call In Powers
If a development involves a State interest and the assessment manager has not
decided the application the Minister may direct the assessment manager to:
- refuse the application;
- attach conditions to the
approval;
- approve only part of the
development; or
- give a preliminary
approval only.
The
Minister’s direction is taken to be a concurrence agency response.
If a
development involves a State interest, the Minister also has the power to
‘call in’ a development application. The Minister has this power from the time the
development application is lodged to within 10 days after the Chief Executive
has received notice of an appeal regarding the application (ie when the council
has already decided the application and someone has appealed that
decision).
When
a development application is ‘called in’ the Minister may:
- decide; or
- re-decide the
application.
There is no appeal to the Planning & Environment Court on a decision
made by the Minister.
How long does it take for a development permit to be issued?
The length of time taken is dependent on the nature of the application. A
development permit can be issued almost immediately for very simple proposals
but may take months for complex applications. Each IDAS stage has its own
timeframes. The applicant may take up to 12 months to respond to a request for
information before an application lapses. An appeal to the Planning and
Environment Court can extend the period for the final decision further.
What if the decision is not made within time?
The assessment manager must decide the application within 20 business days from
the start of the decision making period. The assessment manager may extend the
period by up to 20 business days by written notice. The period can be further
extended with the applicant's written agreement. If a decision is not made
within time the applicant can appeal on the grounds of a deemed refusal.
Who must be notified that a development permit has been given?
The assessment manager must give written notice of an approval within 5
business days to:
- the applicant;
- each referral agency;
and
- if the assessment
manager is not a local government and the development is in a local
government area, the local government.
The assessment manager must notify the submitters (by sending a decision
notice) of an approval within 5 business days after the earliest occurrence of
the following:
- the applicant advises
the assessment manager that it will not be seeking to make representations
to alter the approval; or
- the applicant appeals;
or
- when the applicant's
appeal period (20 business days) ends.
If an application is refused an assessment manager must notify the
submitters at about the same time as the applicant (within 5 business days).
Negotiated Decisions
The applicant (but not submitters) may suspend its appeal period once to have
negotiations with the assessment manager about conditions attached to an
approval.
If the assessment manager agrees with any of the applicant's representations
about a matter contained in the decision notice other than a refusal or a
concurrence agency requirement it must issue a new decision notice (the
negotiated decision notice) within 5 business days. Submitters have no rights to
be included in this negotiation process. However, submitter appeal rights on
the decision still apply to the negotiated decision.
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Example A council decides to approve
a material change of use for a shopping centre subject to conditions. The
applicant and referral agencies would be notified. The applicant could seek
to negotiate changes to certain conditions with the assessment manager. Some
submitters might not even know these negotiations were occurring until they
were concluded as the applicant's appeal period had not ended. The lesson for
submitters is - be vigilant! Keep talking to the council even after a
decision has been made to see if the developer is trying to negotiate
conditions. Try to be involved in those negotiations so that you can avoid the
trouble of appealing to the Planning and |
How do I get a copy of a development permit?
If you are a submitter the assessment manager will give you a copy of the
decision notice or negotiated decision notice.
If you did not make a submission or if the application was for code assessment
(no public notification) you are entitled to inspect and purchase a copy of the
decision notice or negotiated decision notice at the assessment manager's
office.
Can a development permit be modified?
Minor changes can be made to a development approval and conditions can be
changed or cancelled.
When does a development permit lapse?
A development approval lapses at the end of the currency period. The currency
period is:
- material change of use -
4 years;
- other development
approvals - 2 years,
unless the approval specifies a different period. The currency period can be extended.
What if a development permit is breached?
(see Factsheet 10)
The most common remedies if a development permit is breached are:
- declarations; and
- enforcement orders.
Appeal rights
(see Factsheet 9)
Further information and references
Environmental
Defenders Office (Qld) Inc
Ph: (07)
3211 4466
Fax: (07) 3211 4655
Email: edoqld@edo.org.au
Web: www.edo.org.au/edoqld
Environmental Defenders Office of Northern
Queensland Inc
Ph: (07)
4031 4766
Fax: (07)
4041 4535
Email: edonq@edo.org.au
Web: www.edo.org.au/edonq
Department of Local Government and Planning
Ph: (07)
3234 1870
Fax: (07)
3247 4172
Email: enquiries@dlgpsr.qld.gov.au
Web: http://www.lgp.qld.gov.au/
Web: http://www.ipa.qld.gov.au
Your local government
Your local non-government environment council
Relevant Laws
Integrated Planning Act 1997 (Qld)
Local Government (Planning and Environment) Act 1990 (Qld)
Figure 5.2 - Development Application Process Example
An application for a major housing development that:
- is publicly notified as
it is impact assessable development
- involves one concurrence
agency and one advice agency
- is not for a transitional planning scheme
- assumes no State interest
