A good project application can set you up for success, so it's worth getting it right.
The right approvals strategy
The most important question to ask before you start to prepare a project application is whether you have the right approvals strategy.
Your approvals strategy should identify options (where they exist) for assessment processes, pros and cons of different options, timing, resourcing and the sequence of applications (and approvals) as a critical first step in preparing project applications.
A good approvals strategy should identify a clear pathway to obtaining required project approvals, allowing timing, pricing and resources to be dedicated where they are needed. It also allows preparatory work and consultation with agencies and stakeholders to be undertaken in a ordered and timely way.
If there is any bar to lodging an application, for example because the proposed development (or an aspect of it) is prohibited, or the decision-making criteria cannot be met, it needs to be identified early.
Key things to consider in developing an approvals strategy include:
- whether Commonwealth approvals under the Environment Protection and Biodiversity Conservation Act 1999 are likely to be required, and if so whether an assessment bilateral process should be used;
- whether there is a choice in State/Territory approvals processes (particularly in EIS approvals pathways) to be followed, including whether an EIS could be required;
- what State/Territory and local government approvals are likely to be triggered, and whether the timing and assessment of those approvals is impacted by any EIS process; and
- likely project risks and community responses, and how stakeholder issues are best managed.
Properly made in accordance with the statutory requirements
It is essential that an application meet the minimum statutory requirements, which vary depending on the particular application, but there are some common features.
It must be clear who the applicant is, and the applicant should be a real legal entity.
There can be problems where:
- the named applicant is a non-existent legal entity; or
- a consultant lodges the development application on behalf of the applicant.
For companies, the actual registered company name should be used. Unregistered trading names generally should be avoided, however there have been instances where recognised business names have been excused by the Court.
Where a town planner or other consultant is lodging the application on behalf of the true applicant, the agency relationship should be made clear in the application.
An application should accurately identify the land the subject of the development. Identification of the relevant land in turn allows:
- identification of all owners required to give consent;
- an accurate assessment of the impacts of the proposed development; and
- proper notification during the public notification process (if applicable).
The "Pioneer principle" is authority for the proposition that where an application is for a single use, a piecemeal series of applications is not permissible - the whole of that intended use must be applied for in one application, so it isn't misleading.
Accurate and precise identification of the land can be difficult in some processes, particularly for linear infrastructure where the alignment may vary as the application progresses for various reasons. Consideration should be given to whether a corridor (as opposed to an alignment) should be covered by the application.
An application should clearly and unambiguously set out what is actually being applied for and what development is proposed. The role of an application is to inform the decision-maker and the broader public of the development proposed, and the application should be written in such a way to satisfy those objectives. Therefore, an application that meets the technical requirements of a statute may still be at risk of failure if its proposal is too wide or uncertain.
Clear definition of the proposed development allows:
- a proper assessment to be made as to the level of assessment that applies (where that is variable in the particular statute);
- identification of stakeholders and decision-makers;
- for a complete impact assessment;
- proper public consultation (where required), and avoids allegations that the application is misleading;
- an assessment that responds to the development being applied for.
When preparing a development application, technical reports or specialist impact assessment reports should be based on the same development description. Where the development applied for is modified during preparation of the development application, you might need to consider updating technical or supporting reports to reflect that updated application.
It's more art than science to determine the application fee for some applications. Where fee structures are such that there is the potential for differing views on the fee payable, the fee should be confirmed in writing with the regulatory agency prior to lodgement.
Sufficient information and decision-making criteria
The best protection an applicant can provide to a decision-maker's process is to ensure that the applicant responds to the decision-making criteria, to the extent possible.
Decision-making criteria will not always match the application requirements, however it is just as important to ensure that the decision-maker has the required information for the decision-making process.
This means ensuring that the application:
- includes the technical application requirements;
- includes sufficient information to allow the decision-maker to make the decision;
- addresses and responds to the decision-making criteria, in a way that is clear and concise.
Where impacts are identified, or areas of uncertainty exist following impact assessment studies, the application material should identify these issues and propose solutions. Unknowns can often be managed through a regime of further studies, monitoring and corrective actions and review.
Applying for conditions
The desired end result of an application is to obtain an approval, and normally that approval will be subject to conditions.
Depending on the particular regime, an approval can do a number of things:
- authorise the particular works or development to proceed;
- define the works or development;
- constrain or refuse parts of the development;
- authorise impacts caused by the development.
Conditions are not necessarily a bad thing to have attached to an approval, and conditions can give clarity to project developers around the bounds of the project works. An approval (including conditions) is also an important communication to the broader community of the development permitted.
When it doesn't all go to plan
There are a number of consequences of not getting the application right:
- process delays where applications are not accepted, information requests are made, there is an increased volume or complexity of submissions or extended assessment periods;
- risk of refusal, partial refusal or a preliminary approval only;
- unsatisfactory conditions being imposed on an approval;
- an approval that does not authorise the intended use;
- where an application is not properly made - a risk of invalidity of the application and consequential invalidity of any approval that is given;
- successful legal challenges either to the merits of the application (where allowed) or to the validity of the decision-making process for the application.
Some legislation makes provision for application issues to be rectified, including:
- processes for the regulator to notify the applicant of issues with the application, and that provide an opportunity to rectify the application;
- "substantial compliance" type provisions, particularly around public notification
- discretion in judicial bodies to excuse non-compliance, which is generally enlivened where a third party is not adversely affected and the balance of convenience favours the exercise of the discretion.
While repairs may be available, these are generally discretionary and sparingly used.
So how do you make a good project application?
First, make sure you have all of the information you need. To make any project application, you should know:
- What is the land the subject of the application?
- What is the proposed development (and associated development)?
- What is the tenure of the land?
- Is any public infrastructure or State/local government land involved?
- Does the project impact on any Commonwealth land?
- Are there any special designations over the land (e.g. strategic port land)?
- Is owner's consent required?
- Who is the applicant? Is the applicant a legal entity?
- What other approvals (if any) are required?
- Are there any existing approvals over the land and is the application consistent with those approvals?
Now ask yourself...
- Once you have the required background information, in drafting an application document you should consider:
- Whether you have considered all of the options for the approvals process, and whether you have the right strategy
- Whether you have identified the list of approvals required, and whether there any obvious barriers to obtaining those approvals
- What you need to ensure the application is "properly made" and in accordance with the statutory requirements
- Whether the project is clearly and properly described, and clearly communicates what is being applied for
- Whether flexibility in the project description is required, and is provided for where it is needed
- Whether the application has addressed the decision-maker's assessment criteria
- Whether there is sufficient information for the decision-maker to decide the application
- Whether the application documents leads the decision-maker to the desired conditions of approval
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.