Australia: Did you know... recent developments in planning and environment in Queensland

Planning & Environment Update
Last Updated: 24 October 2016
Article by Vanessa Thompson
Services: Property & Projects
Industry Focus: Property

Brisbane City Council is seeking to streamline 'permissible change' requests?

In an effort to address potential issues regarding proposed changes to development approvals before formal 'permissible change' requests are made, Brisbane City Council has re-introduced a pre-lodgement service.

This service allows applicants to obtain advice regarding proposed changes through a request for written information or a pre-lodgement meeting.

The Council has updated its 'Development Assessment Enquiry' online form to allow applicants to tick boxes for permissible change enquiries, with a 10 business day turnaround on such enquiries.

The Council has also said that new technology is being piloted to assist in reviewing proposed changes to plans.

Completing the first stage of a development approval can prevent subsequent stages from lapsing?

The lifespan of a development approval frequently emerges as a complex issue for developers. This was made clear in a recent matter where our team considered whether or not the completion of the first stage of a multi-staged development could potentially keep the development approval alive indefinitely.

Under the Sustainable Planning Act 2009 (SPA), to the extent that a development approval is for a material change of use, the approval will lapse if the 'first change of use under the approval does not start' within the relevant period (generally four years).

The question is - when does the first change of use start? If, for example, there was a development approval for a material change of use for a multi-staged residential subdivision, the first change of use would be the commencement of the use of the first stage. Is it then the case that commencement of subsequent stages can be deferred indefinitely without fear of the approval lapsing in future, even if the first stage is only a small component of the overall development? It seems an unusual outcome, but the explanatory notes to the SPA provision acknowledge that the intent is to preserve staged approvals if the first use under the staged approval starts.

Of course, the development approval and conditions will typically dictate when a staged approval will lapse if not acted upon. Councils may issue separate approvals for each stage of a development, or conditions will dictate how the stages are to proceed. There are, however, circumstances where councils do not implement these measures into approvals.

Whilst the new Planning Act 2016, which is due to commence next year, has made significant changes to the lapsing provisions, it maintains that the 'first change of use' prevents an approval for a material change of use from lapsing.

These three decisions were handed down by the Queensland Planning & Environment Court this week?

Flanders & Others v Brisbane City Council [2016] QPEC 46 – the court dismissed a submitter's appeal against the Council's approval of a multi-unit residential development in Sunnybank Hills. The appellants cited height, bulk, scale and consequential amenity impacts, but the court found an absence of undue adverse impacts associated with the alleged conflicts with the planning scheme and held that the proposal had sufficient merit to warrant approval.

Steendyk v Brisbane City Council & Anor [2016] QPEC 47 – the court dismissed an application by a local resident for declarations in relation to the Council's decision to approve a permissible change to an existing development approval. The applicant cited impacts on his privacy and amenity as a result of the change, and relied on a range of grounds relating to the unlawfulness of the Council's decision, which the court found were not established.

Gerhardt v Brisbane City Council [2016] QPEC 48 – the court dismissed an application by a private certifier for declarations that he was at liberty to decide a building application to demolish two pre-1946 houses, without Council having assessed it against its demolition code (although submissions on the terms of a final order were invited). The court found that where building work is required to be assessed against the demolition code, local government retains complete responsibility for that aspect of any proposed development.

Quality is the key to keeping development assessment times to a minimum?

Development applications come in all shapes and sizes - from the overly brief, begging the assessment manager to make an information request, to full and complete, comprehensively addressing all contingencies.

With experience on both sides of the assessment process, as an assessment manager and planning consultant, this week we put Alan Holliday, the principal of Alan Holliday Consulting Town Planners, under the spotlight to find out his strategy for getting development applications across the line as efficiently as possible. The following is a summary of his key points:

  • Putting aside resourcing or process constraints of some assessment managers, the primary reason for delay in development assessment comes from the quality of the supporting documentation that is lodged with the application. An applicant is less likely to suffer an onerous (and often costly) information request if the planning report and supporting information are consistent and appropriately respond to relevant issues. Accordingly, the amount of supporting information to be provided with an application requires a degree of judgement, depending upon the complexity of issues involved.
  • When an assessment manager makes an information request, some control is taken away from the applicant, that is, control of the process and of the range of information that the assessment manager will consider in making its decision.
  • Some applicants are understandably reluctant to pay for the cost of a comprehensive application upfront. However, prudent applicants are more likely to address issues during application preparation, when the benefit of the earlier cost outlay greatly outweighs the more significant cost of delays incurred during the assessment process. The point is that information requests are not inevitable and a good quality, comprehensive application is less likely to attract an onerous request, thereby resulting in a more streamlined assessment process and less double handling by consultants.
  • Just as when preparing for litigation, it is important to have an experienced person project managing the whole application through to decision. A well-prepared application, like a well-prepared court case, can considerably reduce the planning legal risk and subsequent costs. Consultants' reports need to be clear and logical, and address all necessary issues. Importantly, reports must be reviewed to ensure recommendations are consistent across the reports.
  • It is also worthwhile to consider running complex applications past a planning litigation lawyer as a final check pre-lodgement, particularly where there is a risk of a third party appeal.

Thank you Alan for your insights!

This article is intended to provide commentary and general information. It 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 article. Authors listed may not be admitted in all states and territories

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