by Wendy Evans
The Sustainable Planning Act 2009 (the Act) was passed on 16 September 2009 and assented to on 22 September 2009, being Act number 36 of 2009. However, the substantive provisions have not commenced yet – and, will only do so on a date still to be proclaimed.
Various amendments were made to the Bill before it was passed (these can be viewed here (54 KB pdf)).
The purpose of this article is not to examine the Sustainable Planning Act 2009 (SPA) in great detail, nor is it to analyse the amendments to the Bill. Rather, this article will summarise some of the key features of the SPA that concern the processing of typical development applications pursuant to the Integrated Development Assessment System. It is submitted that these features are some of the key provisions a development assessment planner, in local government particularly, should be aware of once the SPA commences (perhaps later this year).
This article does not address the changing of development applications or the changing of development approvals, as the intricacies associated with these processes are sufficient to warrant a stand alone article.
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The application stage in IDAS is covered by sections 260 – 269 of the SPA, and importantly, a local government development assessment planner will need to be particularly mindful of the following provisions:
- Under the SPA, there is no longer a requirement for an accurate description of the land to be provided, nor is there an express statement in the SPA as to the inability to make an application that is inconsistent with a State planning regulatory provision. However, the approved form now may make provision for mandatory supporting information for the application. If the approved forms do make certain supporting information mandatory, it must be provided in order for the application to be considered properly made (see sections 260(1)(c) and 261). Accordingly, local government development assessment planners will need to be particularly mindful of the IDAS forms when receiving development applications under the SPA.
- Owners’ consent will still be required for the same applications which require this under the IPA. However, under the SPA, such consent may either be written consent, or a declaration by the applicant that the owner has given written consent to the making of the application (see section 260(1)(e)). This amendment facilitates the on-line lodgement of applications.
- Development involving a State resource must still be supported by evidence as prescribed under the Regulation (see sections 260(1)(f) and 264), and for the reasons discussed below – it will be critical for assessment managers to properly consider whether such evidence is required at the time of receiving all development applications under the SPA.
- Perhaps the key change from a local government development assessment planner’s perspective is that there will no longer be a discretion allowing an assessment manager to accept certain applications that are not properly made. Where an application is not properly made (as per section 261 of the SPA), section 266 places a new obligation on the assessment manager to give a notice to the applicant stating the application is not properly made, the reasons why the assessment manager is of this opinion, and what action the applicant must take for the application to be properly made. This notice must be given within 10 business days after the assessment manager receives the application. The applicant then has 20 business days (or a longer period if agreed between the assessment manager and the applicant) to take the action specified in the letter otherwise the application lapses. If the application lapses under this part, then the assessment manager must as soon as practicable, return the application to the applicant and refund the fees (minus any reasonable fees for processing). This requirement for assessment managers to give the notice under section 266, appears to shift the emphasis on the process being applicant driven, to being (at least in this small part) – dependant on the astuteness of assessment managers (who, by far and large will be local government development assessment planners).
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Information and Referral Stage
The information and referral stage is dealt with in sections 270 - 293 of the SPA. From a local government development assessment planner’s perspective, the key features under the SPA are:
- In the event that an application lapses because an applicant has not provided referral agencies with a copy of the prescribed application material under section 272 of the SPA within the specified time (20 business days), then the application can be revived provided that within 5 business days after the application would otherwise have lapsed, the applicant gives the assessment manager written notice that they seek to revive the application. Provided then the applicant gives the relevant material to the referral agency within 5 business days after giving their notice of their intention to revive the application (or a longer period agreed between the assessment manager and the applicant), then the application is revived for the purpose of the IDAS process (see section 273 of the SPA).
- Information requests by assessment managers or concurrence agencies under the SPA can include an information request advice to the applicant about how the applicant may change the application (see section 276(6)). This is an important clarification given that there has been some disparity as to how the Court has viewed an information request under the IPA, seeking modifications to the proposed development (see for example Caswell v Maroochy Shire Council  QPELR 379, and Bukmanis v Maroochy Shire Council; S & L Developments v Maroochy Shire Council; Total Ice Pty Ltd v Maroochy Shire Council  QPELR 354).
- An applicant under the SPA, for applications other than those required by enforcement notices, will have 6 months to respond to an information request (rather than the 12 month period allowed under the IPA) (see section 279). This 6 month period may be lengthened but only if agreed between the applicant and the entity making the request for the information. If the response to the information request is not provided in the 6 month period (or otherwise agreed period), the application will lapse – although again can be revived provided that within 5 business days after the application would otherwise have lapsed, by attending to the process established in section 280.
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The notification stage under the SPA is dealt with in sections 294 - 307, and importantly:
- As well as a notice of compliance, the applicant must now also give the assessment manager written notice within 5 business days of taking the last of the actions to commence notification (see section 300). As such, development assessment planners should be on the lookout for both of these documents for publicly notifiable applications.
- The application will lapse within the specified time, if public notification is not undertaken accordingly, unless it is revived under section 303.
- In accordance with section 304 of the SPA, assessment managers may still assess and decide applications even if some of the public notification requirements have not been complied with (subject to the provisos identified in section 304(1) of the SPA). However, in addition to these (which are identical to sections 3.4.8(a) and (b) of the IPA), the SPA states that the assessment manager will not be able to assess and decide an application that is lapsed and has not been revived under the public notification division.
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The decision stage under the SPA is dealt with in sections 308 – 349. From a development assessment planners perspective, the following provisions are of particular importance:
- Sections 313 and 314 of the SPA incorporate detailed lists of instruments against which code and impact assessable applications will need to be assessed against, while section 324 consolidates the decision rules for code and impact assessable development into one single set of decision rules.
- Perhaps one of the most contentious features of the SPA is the introduction of deemed approvals for certain code assessable applications. These provisions are contained in sections 330 – 333 of the SPA. A number of code assessable applications will not qualify under these parts (including applications for a preliminary approval to which clause 242 applies, or code assessable vegetation clearing application under the Vegetation Management Act for example). For those code assessable applications to which sections 330 – 333 of the SPA do apply, then a deemed approval notice can be given by the applicant to the assessment manager (and a copy of it given to other specified entities including referral agencies), after the decision should have been made, but before it is made. The deemed refusal notice is a written notice that will note that the application should be deemed to have been approved. This notice must be in the approved form. If this notice is given by an applicant to an assessment manager, then the application, on the day the notice is received by the assessment manager – is taken to have been approved. After receiving a deemed approval notice, the assessment manager is to issue a decision notice approving the application (or approving it subject to conditions). If this is not done, then the deemed approval will be subject to the standard conditions made by the Minister (which will be notified in the gazette). Section 333 sets out the limitations on the ability of an applicant to give a deemed approval notice. These are specific and rather limited in nature.
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The compliance stage will form part of IDAS under the SPA (see section 257), although it may not apply to all applications.
The explanatory notes which accompanied the Bill explained that the compliance stage should ‘enable certain developments to be dealt with under IDAS more simply and effectively without compromising the benefits of integrated development assessment’ and that it will ‘provide a quick process for purely technical issues’.
Until such time when compliance assessment is nominated for work or a document in a regulation or other prescribed document (including planning schemes), this type of assessment will, at least in the beginning, only tend to arise in instances where an assessment manager nominates that certain work or a document requires compliance assessment as part of a condition of development approval (see section 398). That is, once the SPA commences, assessment managers will be able to condition compliance assessment for work and documents, provided that the provisions in section 398 are adhered to.
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Summary and Conclusions
As indicated at the start of this article, it was not the purpose of this paper to identify all of the ‘new’ features of the SPA (when compared to the IPA), as this has been attended to in many other articles prepared since the first reading speech of the Bill.
However, as detailed above, there are a number of provisions which development assessment planners should be particularly mindful of when processing applications under the SPA pursuant to IDAS requirements. Although in most instances they are only subtly different from the current IPA provisions, they are still likely to catch practitioners out if the due regard for this new enactment is not paid.
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