The principal piece of legislation that regulates planning and development in Queensland is the Planning Act 2016 (Qld) (PA).
The main objective of the PA is to achieve ecological sustainability which is facilitated through the establishment of an efficient, effective, transparent, integrated, coordinated, and accountable system of land use planning, development assessment and related matters.
The PA, amongst other things, manages how development occurs and regulates:
- the planning instruments against which Development Applications (DA) are assessed
- the assessment of DA’s
- appeals in the Planning and Environment Court (Court)
The PA allows relevant authorities to draft State and local planning instruments which give effect to the PA.
Planning instruments are documents which set out government (state or local) policies for planning or development assessment.
A key planning instrument is a planning scheme which is an important document used by Councils to identify strategic outcomes and regulate development within their local government area.
Importantly, they:
- determine whether a development application is required and whether it is code or impact assessable
- contain the criteria that development applications are to be assessed against
A development is either prohibited (for which no DA may be made); assessable (and requires a development approval) or acceptable (and does not require a development approval).
If a DA is assessable, it can be either code or impact assessable. Impact assessable DA’s are much more onerous because they are presumed to have a greater impact on the surrounding area. Impact assessable applications require public notification whereby submissions can be made by third parties expressing a view for or against a proposal. All DA’s go through a standard assessment process to make sure they are assessed equitably. The Development Assessment Rules explain how development applications in Queensland must be lodged, assessed and decided.
The development assessment process usually involves the following key stages:
- application stage: the applicant will need to lodge a properly made application with the assessment manager, usually the local government
- information and referral stage: the DA may be referred to other government departments or entities that have an interest in the development. These are called referral agencies
- referral agencies can either be a concurrence agency (which can direct refusal or approval) or an advice agency (which can only give non-binding advice). The Planning Regulation 2017 sets out when referral agencies are required
- the assessment manager and referral agencies may also request further information from the applicant. The applicant does not have to provide this information however the assessment manager and referral agency will base their decision on the information provided
- notification stage: as has been previously outlined, this is required for impact assessable applications. Properly made submissions received during this stage can be taken into consideration by the assessment manager when assessing the DA. Submitters can later initiate or become parties to an appeal
- decision stage: the assessment manager must decide whether to approve or refuse the DA and provide the applicant with a Decision Notice containing reasons for refusal or conditions of approval
An applicant may change an existing development approval or extend the timeframe of a development approval at any time prior to the development approval lapsing. If the change is a minor change, the change does not affect the development assessment process. If a change is not considered ‘minor’ then the whole development assessment process will need to start again at the application stage.
The PA also contains provisions that govern the process of appeals in the Planning and Environment Court (P&E Court). The P&E Court is a less formal, specialist court with its own set of rules and procedures. It sits at a District Court level.
An applicant may appeal against a decision to refuse a DA or against conditions of an approval. A submitter may also appeal against the assessment manager’s decision. Both kinds of appeal must be started within 20 business days after a Decision Notice is given.
In all appeals involving a DA (including submitter appeals), it is typically the applicant who bears the onus in the case.
Our team of experienced planning and development litigation lawyers can assist you with all aspects of the planning appeal process.
