Australia: Deemed Approvals

The commencing of the Sustainable Planning Act 2009 (SPA) on 18 December 2009, brought with it a significant change to the approval (or refusal) of certain types of development applications. This change was to introduce the concept of a deemed approval of certain development applications. It was a position that had been lobbied for by the property industry for some time, but until the SPA, had been resisted. This article gives a brief overview of the deemed approval provisions and highlights some key points for those in the development industry to be aware of.

The provisions in the SPA for deemed approvals take up only a few pages, but carry some significant weight. Section 331 allows a development applicant to issue a deemed approval notice to a Council that has not made a decision on the development application within the normal decision making period (including any lawful extension of that period). This right for an applicant applies only to certain types of code assessable development applications. While not an exhaustive list, some of the instances in which the deemed approval provisions do not apply include:

  1. an application for a preliminary approval seeking to override the planning scheme (under section 242)1
  2. any development application that a concurrence agency has required a refusal of or that only part of it be approved
  3. any development application on a Queensland heritage place (noting that this applies to heritage places listed on the State heritage register,)
  4. a vegetation clearing application under the Vegetation Management Act 1999
  5. a development application for building work.

A local government that receives a deemed approval notice from a development applicant has been deemed to have approved the development application on the day it receives the deemed approval notice. It then has 10 business days within which to issue a decision notice containing approval with any conditions it wishes to impose.

There are some limits on the type of development approval that a local government can give in a deemed approval, including:

  1. for applications where a concurrency agency has directed that an approval be just a preliminary approval, only a preliminary approval may be granted
  2. if the application was for a preliminary approval, a preliminary approval may only be granted
  3. if the application was for a development permit and no direction has been given by a concurrence agency about issuing a preliminary approval, a development permit must be issued
  4. a development application for a combined preliminary approval and development permit (where no direction from the concurrence agency about issuing a preliminary approval has been given) a combined preliminary approval and development permit must be issued.

If a local government fails to issue a decision notice within the 10 business days of receiving a deemed approval notice, the development application is taken to be approved subject to the standard conditions that are issued by the Minister for the Department of Infrastructure and Planning.2

The usual provisions about appealing the decision notice and making representations about a decision notice apply to a deemed approval. The appeal period for a deemed approval with standard conditions begins on the day that Council was due to provide its conditions.

The development applicant is able to make written representations and request a negotiated decision whether the standard conditions were applied to the deemed approval or not.

The usual tests apply when challenging conditions (including standard conditions), that is, the conditions must meet the test for reasonableness and relevance set out in SPA.

Things that the relevant stakeholders in the development assessment process should look out for are:

  1. timeframes for making decisions on a development application
  2. when looking to issue a deemed approval notice, whether any earlier steps in the integrated development assessment system have not been properly complied with. This might cause a situation where a development application is not actually in the decision stage and so a deemed approval notice could not be properly given
  3. when a deemed approval notice is given (local government and developer ought to carefully note the 10 business days in which the local government has to issue a decision notice and conditions)
  4. whether any notice extending a decision making period is issued within the initial 20 business days for a decision.

1. This type of development application was previously dealt with under section 3.1.6 of the Integrated Planning Act 1997.

2. Department of Infrastructure and Planning - Standard conditions for deemed approvals

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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