A development approval is a significant step on the path to developing land. However, it is a mistake to assume further regulatory requirements are mere formalities. Increasingly, additional assessments and legal obligations are impacting land use including whether, when, and in what form, development can proceed.
In practical terms, these further regulatory matters – which can require changes to a proposal and negotiations with third parties in relation to cultural heritage, environmental offsets or infrastructure – can also impact land value, development costs, financing and feasibility.
While the potential pitfalls are many and varied, the following draws upon some of our recent experiences to highlight (with a Queensland focus) some of the risks.
Environmental regulation is among the most complex to navigate. After obtaining a development approval, there may be further local, state and federal environmental obligations before a development can proceed. Examples include:
- Environment Protection and Biodiversity Conservation Act 1999 (Cth). Where development impacts a matter of national environmental significance, such as koala habitat, it may require referral to the federal government for separate assessment. This often includes a lengthy assessment process as well as the risk of refusal or onerous conditions, including environmental offsets (discussed further below).
- Nature Conservation Act 1992 (Qld). Where development impacts protected flora species, it is necessary to apply for further permits under the NCA.
- Operational works approvals under the Planning Regulation 2017. There are many environmental assessment triggers under the Regulations, including in relation to native vegetation, koala habitat and marine plants. It is important to note that, even when proposed clearing is defined as 'exempt clearing work' (such as 'Category X' vegetation), it may nonetheless require assessment under a local planning scheme.
- Local laws – local laws such as Brisbane's Natural Assets Local Law may also impose environmental protections in respect of locally significant vegetation, requiring further permits.
Environmental offsets compensate for adverse impacts to environmental values due to development. Offsets may be cumulative across different local, state and federal laws and may require the delivery of financial offsets (payment to a regulator to fund offset projects) or land-based offsets. Land-based offsets often require negotiations with third party landowners to secure, protect and rehabilitate land. Suitable offset sites can be difficult to find and, as such, demand can increase the cost of securing suitable land.
While many risks can be managed contractually with a landowner or offset provider, a development proponent will continue to be liable for non-compliance under a development condition. This can include where natural disasters, such as bushfire and flood, impact an offset area necessitating further works to re-establish required environmental values.
The cultural heritage duty of care applies to all land within Queensland and is often overlooked in the development process. It is particularly relevant to land that has not been subject to significant ground disturbance in the past and where the presence of artefacts or culturally important locations is likely to remain. Notably, the overriding duty of care remains even where a site is not identified on a cultural heritage search, and the penalties for breach are significant.
Where a cultural heritage management plan or other agreement is required, negotiations can be lengthy and complex, with significant impacts on development outcomes, schedules and costs.
Infrastructure obligations may require works, land dedications or financial contributions, and can be found in approval conditions, referral agency conditions, infrastructure agreements, infrastructure charges notices and council searches. This can include works involving external land and requiring negotiations with third parties.
Infrastructure charges attach to land, bind successors in title and may increase over time. It is critically important to understand infrastructure obligations before you buy land subject to an existing development approval as they can make or break a project.
If you have any queries about your development approval and further regulatory requirements, please contact a member of our property, planning and environment team.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.