As a result of the recent amendments to the Sustainable
Planning Act 2009 (SPA), transitional issues have arisen that
may render your development application as 'not properly
The issue has arisen because of a delay in updating the
Sustainable Planning Regulation 2009 and the approved IDAS
forms to reflect amendments made to the SPA.
One of the major amendments to the SPA was the removal of the
requirement that an applicant provide evidence of entitlement to
State resources at the time of making a development application.
The State government has decoupled the requirement to provide
evidence of entitlement to State resources from the Integrated
Development Assessment process. The result is that the SPA no
longer recognises the concept of State resources.
However, until 17 November 2012, the approved IDAS forms still
requested this information in a mandatory section of the form.
Question 9 of the IDAS form 1 that was in effect until 17 December
2012 and was mandatory, asked 'does the application involve a
State resource?' If the question was answered yes, the
applicant was also required to provide evidence.
The current version of IDAS form 1 as amended on 17 December
2012 has moved Question 9 to Question 8 (to being a non-mandatory
question), which means the question may now be left unanswered.
Consequences for applications made between 22 November 2012 and
17 December 2012
The failure to update the forms is significant because, even
though information about State resources did not need to be
provided under the SPA from 22 November 2012, the question on the
IDAS form 1 was mandatory, and so a failure to complete it (and
provide evidence if necessary) would mean that the application was
not properly made under section 260 and 261 of SPA.
Whilst the assessment manager has discretion to excuse
non-compliance with the mandatory supporting information, the
excusal power does not extend to the mandatory requirements part
which must be completed as part of the approved form.
Therefore, any developers who failed to answer Question 9 in the
IDAS form 1 between 22 November 2012 and 17 December 2012, or
failed to provide evidence required by the form, may have issues in
relation to whether their application has been properly made. For
those development applications, we would advise contacting the
assessment manager at this early stage rather than having to deal
with the issue of realising that the development application was
not a properly made application later down the track.
Consequences for future applications
Although the question relating to State resources on the new
IDAS form is non-mandatory, developers still need to be careful
about not providing misleading information. The risk is that
developers might select 'No' in answer to the question, on
the basis that they do not need to provide the information; but on
one view this would be misleading.
To avoid that risk, given that the question is non-mandatory,
the safest approach is generally not to complete the question.
In addition to the issues associated with the approved IDAS
forms, the SPA checklists are also out of date. We advise
applicants not to rely on these checklists when determining what
supporting information is needed and considering referral
If you are concerned that your application may not be a properly
made application in accordance with the mandatory requirements of
the SPA you should consider obtaining legal advice.
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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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