Australia: How Do You Overcome Processing Delays – Ask the Minister

Last Updated: 13 January 2009

David Nicholls, Partner

The development industry and the LGAQ continue to disagree about processing times for Development Applications. The Executive Director of the LGAQ, Mr Greg Hallam, in a recent letter to the editor of The Courier Mail said:

"The average processing time for a properly completed development application in southeast Queensland is 12.2 weeks (LGAQ survey of development applications 2007). It is important to realise that many developers submit poorly made applications that require requests for additional information (40 per cent)."

As an objective observer, I consider this statement to be misleading. I can say without a shadow of a doubt that I have never seen a Development Application processed within 12 weeks, either before or after the introduction of the Integrated Planning Act 1997 (IPA). It is very easy to distort the picture when there is such variability in the range of Development Applications, from relatively simple code assessment for operational work through to more complex impact assessable applications for material change of use. On no rational view of the development assessment system across the board, can it seriously be asserted that standard IDAS timeframes are, on average, being met. My observations suggest that there are several reasons for this including:

  • unwillingness/inability on the part of technical officers and/or Councillors to embrace the concept of performance-based alternative solutions;
  • failure to understand or accept that acceptable solutions cannot legally impose inflexible development parameters;
  • unwillingness to allow planning solutions to evolve through the application process;
  • failure to align Local Planning Instruments with State Instruments in a timely way;
  • refusing to process Development Applications until an applicant signs an Infrastructure Agreement to provide infrastructure or make contributions for infrastructure; and
  • political interference in assessing and deciding applications.

These factors have evolved, at least partly, out of the increased powers afforded to Local Governments since the introduction of the IPA, and the current culture of "planning by agreement". Added to this is the complexity of the planning system as a whole which has fuelled misunderstanding and errors. To suggest that processing delays are all due to poorly made Development Applications is overly simplistic, and intended to divert attention from the existing critical systemic problems, which the Government's IPA review task force is seeking to address in re-writing the Act.

The State obviously recognised the gravity of the problem when it enacted the Urban Land Development Authority Act 2007. That Act brought forward a number of amendments to the IPA which were considered to be too urgent to await the general overhaul of the legislation. One of the amendments was directed specifically at failure by Local Governments to meet IDAS timeframes. In introducing the Act the then Deputy Premier, Treasurer and Minister for Infrastructure, the Honourable Anna Bligh, indicated that those aspects of the ULDA Bill were intended "to improve the efficiency of the integrated development assessment system" ... focusing "... primarily on removing logjams and process inefficiencies ...". The Minister went on to say:

"These expanded direction powers allow the Planning Minister to ensure that Development Applications which can contribute significantly to regional land supply are not delayed through the development assessment system, and can be processed as quickly as possible to enable the land to be brought to market in a timely manner."

The amendments split the Minister's direction powers under section 3.1.6 of the IPA into two streams. One of those streams involves matters of "State interest" where the Minister wishes to directly intervene in the assessment process and compel a particular outcome on a Development Application. This component of the power was recently exercised with respect to the Development Application for the Regent Theatre. The other stream is not dependent upon the existence of a "State interest" and may be exercised where:

  • an application is not decided by the end of the decision-making period;
  • a Council has not made a decision on representations for a Negotiated Decision Notice; or
  • the Assessment Manager has not otherwise complied with a period for taking action under IDAS.

Apparently, since these powers were introduced into the IPA, the Minister has not been requested to exercise them. This is surprising. Importantly, if the powers are exercised the effect is to compel compliance with new timelines stipulated by the Minister. In contrast with the "State interest" based component, these aspects of the power relate only to timeframes and do not allow the Minister to interfere in the decision itself.

However, non-compliance by a Local Government with a Ministerial direction about timeframes is not attended by any sanctions. Presumably, such a direction would be enforced by court order but that seems to be an inconvenient remedy for either the State or an applicant. There ought to be monetary penalties for wilful failure to comply with such directions.

Time will tell if the Ministerial direction power will help in achieving compliance with IDAS timeframes. Developers who are experiencing problems in this regard should consider asking the Minister to exercise the power. The power has been included in the legislation expressly for that purpose. It is only by requesting its use that the industry will be able to know firstly whether the Government is willing to use the power and secondly, if it does so, whether Local Governments will obey the directions. It is desirable that the direction power be "road tested" while the Act is currently being reviewed and re-written.

© HopgoodGanim Lawyers

Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

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