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 East Queensland Regional Plan and the new planning regime

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 & Environment Court

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 developmentcode 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
30 March 1998. However, different matters are considered in assessing a development application, depending on whether your council has adopted an IPA planning scheme or still works under an old transitional planning scheme. The process however is identical, irrespective of the scheme. Factsheet 7 describes how to make an effective submission on a development application.

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

 

Assessment & Compliance Requirements

Where do I look to find out what category a particular development is in?

Exempt Development

  • A development permit is not required.
  • It need not comply with the codes or planning scheme.
  • If it is not included in IPA or planning scheme as another category of development, it is exempt.
  • IPA specifies some developments that will always be exempt under IPA (these developments are subject to other types of regulation):
    • Mining & petroleum;
    • Some agricultural activities;
    • Forestry;
    • Works permitted under specified Acts.

Self-assessable Development

  • A development permit is not required.
  • The development must comply with applicable codes. It is an offence if the development does not.
  • Schedule 8 of IPA.
  • Planning scheme for the area in issue.

Assessable Development: Code Assessment

  • A development permit is required.  The application must proceed through the Integrated Development Assessment System ('IDAS'), but no requirement for public notification.
  • The development is assessed only against the applicable codes, not against the whole of the planning scheme.
  • The development decision can conflict with an applicable code if there are sufficient grounds to justify the decision given the purpose of the code.
  • The development decision must not compromise the achievement of the desired environmental outcomes ('DEOs').
  • The application can only be refused if it does not comply with the applicable code and compliance with the code cannot be achieved by imposing conditions on the development . If a concurrence agency has directed refusal, it must be refused.
  • IPA defines certain types of development as assessable development but does not specify whether it is code assessment or impact assessment.

§         Regulation under IPA.

§         Planning scheme for the area in issue.

Assessable Development: Impact Assessment

  • A development permit is required.· The application must proceed through the Integrated Development Assessment System ('IDAS'), including public notification.
  • The development is assessed against the whole planning scheme.
  • The development decision must not compromise the achievement of the desired environmental outcomes ('DEOs').
  • The development decision can conflict with the planning scheme only if there are sufficient grounds (matters of public interest) to justify the decision. 
  • Must be refused if a concurrence agency directs refusal.
  • IPA defines certain types of development as assessable development but does not specify whether it is code assessment or impact assessment.
  • Regulation under IPA.
  • Planning scheme for the area in issue.

 

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 &
Environment Court.



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 preli