IPA and IDAS Basics

1
IDAS Basics
Incorporating IPOLAA 2003, IPOLAA 2004 the IP
Amendment Regulation 2004
November 2004
2
Agenda

• Key features of IPA
• Examining IDAS -
• Preliminary matters
• what is development?
• the levels of assessability
• how development is made assessable
• the roles in IDAS
• The 4 stages of IDAS
• The types of approvals
• Conditioning a development approval
• Matters arising after approval is given
• Declarations and appeals
• Development offences, notices and orders
• How IDAS applies in special circumstances
• Implications of the IPOLAA 2003 and 2004
• IPA website

3
SESSION 1 1020am 1105am (45 mins)
4
The key features of IPA

• Integrated planning
• The IPA establishes a framework for coordinated
  and integrated local, regional and State level
  planning
• Planning schemes are the primary instruments for
  integrating State, regional and local planning
  and development assessment -
• local governments have the responsibility for
  making planning schemes and other local planning
  instruments for local government areas
• in doing this they must respond to input from
  other participants (most notably State agencies)
• The State may -
• make policies and establish assessment criteria,
  including State Planning Policies and codes
• exercise certain reserve powers in relation to
  local planning instruments
• designate land for community infrastructure
• establish regional planning advisory committees

5
The key features of IPA (cont)

• IDAS
• The Integrated Development Assessment System
• A common regulatory system for making, assessing
  deciding development applications
• Prior to IPA and IDAS development in Queensland
  was regulated through a multitude of systems
• Each system operated independently there were
  no common rules
• Prior to commencement - approx. 30 separate
  pieces of legislation 60 different approvals
  regulating development in Qld
• Upon commencement (30 March 1998), the Act only
  replaced the Local Government (Planning and
  Environment) Act 1990
• Since commencement there has been an on-going
  amendment program to integrate additional
  approvals

6
The key features of IPA (cont)

• Draft SEQ Regional Plan
• The Draft plan was launched on 27 October 2004
• The final plan is due by end June 2005
• Part G of the plan contains the Draft Regulatory
  Provisions

• Draft Regulatory Provisions
• Took effect on 27 October 2004
• These provisions have the effect of a temporary
  local planning instrument
• i.e. they suspend the operation of the planning
  scheme
• They directly regulate development by
• prohibiting certain reconfiguration
• making certain MCUs impact assessable

7
The key features of IPA (cont)

• Draft Regulatory Provisions (cont)
• An application which conflicts with Division 3 is
  not a properly made application
• The assessment manager must refuse an application
  that conflicts with Division 2
• this direction will come from OUM as a
  concurrence agency
• The provisions do not apply to development
  applications made before 27 October 2004
• From 4 November 2004, OUM (as a delegate of the
  chief executive under the IPA) is a concurrence
  agency for certain MCU applications

8
Key features of IPA (cont)

• Private certification
• Enabling an accredited person to receive, assess
  and decide certain development applications -
• thereby expanding the scope of assessment
  responsibilities beyond the local government or a
  State agency

• Infrastructure planning and provision
• Establishing a framework for -
• identifying future infrastructure intentions
• considering cost impacts of proposals
• accountable and transparent infrastructure
  charging

• Act binds all persons
• The IPA binds both State and local government

9
Key features of IPA (cont)

• The protection of certain uses and rights
• The IPA protects
• a lawful use of premises
• rights acquired under existing ( current)
  development permits which have not been acted
  upon
• implied rights to use premises
• lawfully constructed buildings and works
• rights under a preliminary approval
• The commencement of the IPA did not affect
  existing lawful development or development
  approvals
• The commencement of a new planning instrument
  does not affect lawful development or development
  approvals -
• including 3.1.6 approvals overriding a planning
  scheme

10
The focus of this presentation is on the
Integrated Development Assessment System known
as
IDAS
11
Understanding the preliminary matters
to assist in an understanding of IDAS
12
Approvals currently integrated into IDAS

• Planning scheme assessment
• Subdivision
• Building work assessable against the SBR
• Environmentally relevant activities
• Contaminated land maters
• State-controlled road matters
• Vegetation clearing
• Development on strategic port land
• Acid sulfate soil matters
• Major hazard facilities
• Taking or interfering with water under the Water
  Act 2000
• Removal of quarry material from a watercourse

• Tidal works
• Development in a coastal management district
• Development in a heritage registered place
• Development in a declared catchment area
• Building work in relation to
• special fire services
• spray paining
• retail meat premises
• private health facilities
• a workplace area less than 2.3m2 per person
• pastoral workers accommodation
• child care facilities

13
IDAS and transitional IDAS

• The IDAS process is predominantly prescribed in
• Chapter 3 of IPA
• But relies on other matters prescribed in -
• Chapters 1, 2, 4, 5 and 6 and
• The Integrated Planning Regulation 1998

• Chapter 6 of the IPA prescribes a transitional
  form of IDAS which enables
• A planning scheme prepared under the PE Act to
  operate under IPA
• A smooth transition for the role-in of new
  legislation into IPA
• A smooth transition when the IPA is amended

14
Chapter 6 of IPA
The various provisions of Ch 6 may apply equally
to a transitional planning scheme or an IPA
planning scheme

• For example - Ch 6, Div 8
• Provides a transitional form of IDAS for
  assessing deciding development applications
  triggered under transitional planning schemes
• provides links to the repealed Local Government
  (Planning and Environment) Act 1990

15
A fundamental question for interpreting and
applying IDAS is
What is development?
16
The definition of development

• Incorporates 5 aspects of development being
• Carrying out building work
• Carrying out plumbing or drainage work
• Carrying out operational work
• Reconfiguring a lot
• Making a material change of use of premises (MCU)

Each aspect is separately defined in s1.3.5 of
the IPA
17
Building work

• Defined as
• Building, repairing, altering, underpinning
  (whether by vertical or lateral support), moving
  or demolishing a building or other structure -
• including supporting land for any one of the
  activities
• Work regulated under the Standard Building
  Regulation 1993
• Excavating or filling when incidental to one of
  the activities specified above or that may
  adversely affect the stability of a building or
  other structure on the site or adjoining land
• BUT does not include -
• Tidal works
• Certain other works under the Water Act 2000

18
IPOLAA 2003 Amendment

• Definition of terms used in development (s.1.3.5)
• Amends the definition of building work and
  operational work -
• clarifies that all tidal works and works for the
  taking or interfering with water under the Water
  Act 2000 are operational works (commenced 3rd
  June 2004)

19
Operational work

• Defined as
• Extracting gravel, rock, sand or soil from the
  place where it occurs naturally
• Conducting a forest practice
• Excavating or filling that materially affects
  premises or their use
• Placing an advertising device on premises
• Undertaking work (other than destroying or
  removing vegetation not on freehold land) in, on,
  over or under premises that materially affects
  premises or their use
• Clearing vegetation on freehold land
• Operations of any kind and all things constructed
  or installed that allow taking or interfering
  with water under the Water Act 2002
• BUT does not include building, plumbing or
  drainage work

20
Reconfiguring a lot

• Defined as
• Creating lots by subdividing
• Amalgamating 2 or more lots
• Rearranging the boundaries of a lot by
  registering a plan of subdivision
• Dividing land into parts by agreement (other than
  a lease for a term, including renewal options,
  not exceeding 10 years) rendering different parts
  of a lot immediately available for separate
  disposition or separate occupation
• Creating an easement giving access to a lot from
  a constructed road

21
Material change of use

• Generally defined as
• The start of a new use on the premises
• The re-establishment on the premises of a use
  that has been abandoned
• A material change in the intensity or scale of
  the premises

• For administering IDAS under the EP Act for ERAs
• The start of a new ERA on the premises
• An increase in the threshold for an ERA on the
  premises
• The re-establishment on the premises of an ERA
  that has been abandoned
• A material change in the intensity or scale of an
  ERA on the premises

22
To know if an IDAS development application is
required you must determine
The levels of assessability
23
Development the levels of assessability

• The 3 levels of assessability
• The IPA prescribes 3 levels of assessability

Exempt
Assessable
Self-assessable
Code
Impact
IDAS development application required
24
The levels of assessability

• Exempt development means
• No assessment criteria
• No application required

• Self-assessable development means
• Must comply with the stated assessment criteria
• No application required - responsibility for
  checking compliance rests with developer
• Self-assessment criteria are like conditions of
  approval and apply for the life of the use

25
The levels of assessability (cont)

• Assessable development means
• A development application is required to be
  lodged, assessed and determined
• The proposal must comply with the stated
  assessment criteria
• A development permit is required prior to
  commencing the use or undertaking works on the
  site

26
The 2 types of assessable development

• Code assessment
• where the assessment of the application against
  the applicable codes and common material only
• Involves special assessment and decision rules
• addressed in more detail later in this
  presentation

• Impact assessment
• requires a broader assessment of the application
  and its potential physical, social and economic
  impacts
• publicly notified and attracts 3rd party appeal
  rights
• Involves special assessment and decision rules
• addressed in more detail later in this
  presentation

27
To understand and apply IPA and IDAS it is
critical to understand
How development can be made exempt,
self-assessable or assessable
28
How development is made assessable or
self-assessable or exempt
The basic assumption of the IPA is that all
development is exempt from assessment unless
otherwise specified
Schedules 8 9 of the IPA the Draft Regulatory
Provisions of the Draft SEQ Regional Plan
Local government planning instruments
Assessable Development (Code or Impact)
29
How the State makes development assessable,
self-assessable exempt
looking at schedules 8 9 of the IPA the Draft
Regulatory Provisions of the Draft SEQ Regional
Plan the complementary role of the IP
Regulation.
30
How the State makes development assessable,
self-assessable or exempt

• The 3 ways
• Schedule 8 of the IPA -
• Part 1 - identifies development the State has
  made assessable
• Part 2 identifies development the State has
  made self-assessable
• Schedule 9 of the IPA -
• identifies exempt development that CANNOT be made
  assessable or self-assessable against a local
  governments planning scheme - replaces previous
  schedule 8, part 3 (s3.1.2)
• Draft Regulatory Provisions of the Draft SEQ
  Regional Plan

A local governments planning scheme cannot
override schedules 8 and 9 of the IPA or the
Draft Regulatory Provisions of the Draft SEQ
Regional Plan
31
Schedule 8, Part 1

• Table 1 identifies assessable building work
• e.g. assessing certain building work against the
  Standard Building Regulation (SBR)
• Table 2 - identifies assessable MCUs
• e.g. ERAs, brothels, development on strategic
  port land
• Table 3 - identifies assessable reconfigurations
• e.g. reconfiguration other than those mentioned
  in item 1
• Table 4 identifies assessable operational
• e.g. clearing vegetation under the Vegetation
  Management Act 1999
• Table 5 identifies various aspects of assessable
  development
• e.g. all development for the removal of quarry
  material

32
Schedule 8, Part 2

• Table 1 identifies self-assessable building
  work
• e.g. certain building work carried out by or on
  behalf of the State, a public sector entity or
  local government
• Table 2 identifies self-assessable MCUs
• this table is currently empty
• Table 3 identifies self-assessable
  reconfigurations
• this table is currently empty
• Table 4 identifies self-assessable operational
  works
• e.g. certain works for taking or interfering with
  water under the Water Act 2000

33
Schedule 9 of the IPA

• Table 1 - identifies building work exempt from
  planning scheme assessment
• this table is currently empty
• Table 2 - identifies MCU exempt from planning
  scheme assessment
• Table 3 - identifies reconfiguration exempt from
  planning scheme assessment
• Table 4 identifies operational work exempt from
  planning scheme assessment
• e.g. certain works for taking or interfering with
  water under the Water Act 2000
• Table 5 identifies all aspects of development
  associated with certain activities
• e.g development for a mining or petroleum
  activity as defined under the Environmental
  Protection Act 1994

34
Draft Regulatory Provisions of the Draft SEQ
Regional Plan

• Division 2
• MCU for urban purposes1 (other than for a single
  dwelling on an existing lot) is impact assessable
  if in any of the following areas
• regional landscape rural production area
• rural living area
• investigation area
• Mt Lindesay/North Beaudesert Investigation area
  (unless zoned for urban purposes)

• Division 3
• Provisions in relation to reconfiguring of a lot

The draft regulatory provisions took effect as of
27 October 2004. These provisions do not apply to
applications lodged prior to 27 October 2004
1 Urban purposes is defined in Part 4 of Schedule
8 of IPA
35
Relationship with the IP Regulation 1998
(as amended by the IP Amendment Regulation 2004)
Slide 35
36
Schedule 1

• For development made assessable by sch 8 of the
  IPA, sch 1 of the IP Reg. prescribes
• the level of assessment
• the Codes, Laws and Policies that may apply
• The schedule is arranged according to -
• Part 1 - impact assessable
• Part 2 - code assessable unless a scheme requires
  impact (e.g. reconfiguring a lot and prescribed
  tidal works)
• Part 3 - code assessment
• Part 4 - self-assessable (guidance only
  actually prescribed in schedule 8 of the Act)
• Each part is further split by aspects of
  development

The list of codes etc. identified in column 2 and
Part 4 of the schedule are not definitive
37
EXERCISE 1 (15 mins)
SHORT BREAK 1120am 1130am (10 mins)
SESSION 2 1130am 1205pm (35 mins)
38
How LGs makes development assessable,
self-assessable exempt - using planning
instruments
39
Recognising and differentiating between
IPA, transitional superseded planning
schemes
40
Local government planning schemes generally

• Principal role
• To ensure development occurs in an appropriate
  manner form

• Contain
• Local and State government policy direction and
  specify -
• the outcomes that are being sought in different
  areas of a local government area
• what kind of development requires a development
  application
• the criteria used to assess the suitability of a
  development proposal

41
IPA planning schemes
Many local governments throughout the State are
now operating under IPA planning schemes

• These are planning schemes that
• Were adopted after the commencement of IPA using
  the processes in schedule 1 of the IPA
• Use IPA terminology
• for example - material change of use, operational
  work, self-assessable development etc.
• Contain codes
• Reflect State Planning Policies in force at the
  time the scheme was made

42
Transitional planning schemes
Several local governments are still operating
under transitional planning schemes

• These are planning schemes that
• Were prepared prior to commencement of IPA under
  the provisions of the Local Government Act or the
  repealed LG(PE) Act
• Now operate under IPA
• Operate under the transitional form of IDAS
• that is - using Chapters 3 6 of the IPA
• Do not contain codes
• May have been amended since the commencement of
  the IPA

IPA takes precedence where the provisions in a
transitional planning scheme are inconsistent
with IPA
43
Superseded planning schemes planning scheme
policies

• These are planning schemes or policies that
• Have been amended since 30th March 1998 -
• in their entirety (i.e. a whole new scheme or
  policy) and was in force immediately before the
  current scheme or policy under which the
  application is being made or
• in part (i.e. a provision/development standard)
• This concept may apply to an IPA planning
  scheme or a transitional planning scheme

Every amendment to a part of a scheme or policy
creates a new superseded planning scheme
44
Understanding the many
Roles in IDAS
45
Roles in IDAS

• Applicant
• Assessment Manager (AM) - usually the local
  government
• Alternative Assessment Manager - usually a State
  agency
• IDAS Referral Agency - usually a State agency
• Private Certifier (PC)
• Submitter
• A third party - usually a State agency consulted
  during referral coordination under the
  transitional provisions
• The Minister for Local Government and Planning
• Chief Executive (CE)
• Planning Environment Court
• Building Development Tribunal

46
Determining the assessment manager referral
agencies for an application
47
IPOLAA 2003 Amendment

• Assessment Manager (s3.1.7)
• Previous arrangements deleted from IP Reg, sch 1A
  
• Provides for new sch 8A details the new
  arrangements for identifying the assessment
  manager for an application

48
Schedule 8A of the IPA

• Table 1
• Identifies when the local government is the
  assessment manager for an application

If Table 1 does not apply move to Table 2

• Table 2
• Identifies when the port authority is the
  assessment manager for an application

If Table 2 does not apply move to Table 3

• Table 3
• Identifies special instances when a particular
  State agency may be the assessment manager for an
  application when there is only 1 assessment
  jurisdiction

If Table 3 does not apply move to Table 4
49
Schedule 8A of the IPA

• Table 4
• Identifies when a particular State agency may be
  the assessment manager for an application with
  multiple assessment jurisdiction

If Table 4 does not apply move to Table 5

• Table 5
• Identifies when the Minister for the Department
  of Local Government, Planning, Sport Recreation
  must determine the assessment manager for an
  application

• Table 6
• Identifies when a concurrence agency may become
  the assessment manager for an application

50
Roles in IDAS - Assessment manager

• When the AM also has referral jurisdiction
  (s3.1.7)
• If an agency / local government is the assessment
  manager for an application
• AND
• Also has referral jurisdiction
• THEN
• The agency / local government is the AM for the
  application and has multiple jurisdictions

• When the Minister determines the assessment
  manager
• The Minister for the Department of Local
  Government, Planning, Sport Recreation can
  nominate an entity that was a candidate for
  assessment manager as a concurrence agency for
  the application

51
Roles in IDAS - Referral Agencies

• Have a formally recognised role in the
  assessment of specified development applications
  
• Are prescribed by the IP Reg, Schedule 2
• Are usually a State government agency
• If an agency is not in Schedule 2 of the IP Reg,
  they are not an IDAS referral agency
• An entity which goes by different names for the
  purpose of exercising their referral
  jurisdiction, but which in fact is the same
  natural person - is taken to be a single referral
  agency for the application (IPOLAA 2003 amendment)

52
Roles in IDAS - 2 types of referral agencies
Schedule 2 identifies 2 types of referral agencies

• Concurrence Agency
• Can ask for further information
• Can direct the outcome of an application by -
• imposing conditions
• directing a PA only
• directing part approval only
• directing refusal

• Advice Agency
• Can assess the application
• Can offer advice to the assessment manager

53
Schedule 2 of the IP Regulation

• Prescribes referral agencies and their
  jurisdiction
• Rearranged into 3 tables -
• Table 1 - building work assessable against SBR
  (easy access for private certifiers)
• Table 2 - development assessable under sch 8
• Table 3 - development assessable under a planning
  scheme
• Some triggers appear in more than 1 table
• e.g. development in a heritage registered place

54
Schedule 2 of the IP Reg IPOLAA 2004 Amendment

• As of 4 November 2004
• OUM is a concurrence agency for MCU for urban
  purposes outside Urban Footprint
• the Referrals Checklist has been amended to
  reflect this new referral

• OUM will assess referred applications against the
  draft Regulatory Provisions of the draft Regional
  Plan
• As a concurrence agency, OUM can make information
  requests and direct the outcome of the application

55
Schedule 2 other new or changed referrals

• Expanded ERA triggers
• Table 2, item 23 (mobile and temporary ERAs)
• Op works causing stormwater concentration on
  State controlled roads
• Table 2, item 3(c) and Table 3, item 1(b)
• MCU and reconfiguration referrals for vegetation
  clearing
• Table 2, item 4 and Table 3, item 11
• Removal of quarry material under the Water Act
  2000
• Table 2, item 11 (corrects previous oversight)
• Electricity infrastructure
• Table 2, item 20 and Table 3, items 8, 9 10
  advice referrals for development on easements and
  adjoining substations
• Land designated for community infrastructure
• Table 3, item 7

56
The role of the Department in IDAS

• Minister
• Ministerial Powers of Direction
• Ministerial call - in
• Minister may be party to an appeal

• Chief Executive
• Referral Coordination - coordinated information
  request
• Referral assistance - resolves conflicting
  information requests
• Resolving conflicting concurrence agency
  responses
• Certain information publicly available

57
Examining the stages of IDAS
58
The 4 stages of IDAS
Application
Information Referral
Notification
Decision
59
Code vs Impact assessment

• Not all stages apply to all applications

Impact assessment
Code assessment
Application
Application
Information Referral
Information Referral
Notification
Decision
Decision
60
Application Stage
61
The application stage
For the purposes of the IPA, business day does
not include those days between 26 December and 1
January of the following year
Acknowledgment notice given by the assessment
manager (if required2)
Application accepted by the assessment manager
Application received from the applicant
10 business days1 (if an acknowledgment notice is
required)
1 this period can not be extended 2
acknowledgment notice not required if code
assessment only, no referrals (other than
building referrals), and the application is not a
development application (superseded planning
scheme)
62
Properly made application

• IDAS development applications must be
• In the approved form
• IDAS Application Form 1 or 2 (available from the
  IPA website)
• Accompanied by the relevant fee
• For certain applications, supported by
• the written consent of the land owner (IPOLAA
  2003 amendment) or
• resource entitlement - if the application
  involves the taking or interfering with a State
  resource (IPOLAA 2003 amendment)
• Comply with the SEQ Plans Draft Regulatory
  Provisions Division 3 (IPOLAA 2004 amendment)

Written consent of land owner, resource
entitlement and compliance with the Draft
Regulatory Provisions of the SEQ Regional Plan
cannot be excused by the assessment manager
63
SEQ Draft Regulatory Provisions for a properly
made application

• An application is not properly made if it is
  contrary to the SEQ Plans Draft Regulatory
  Provisions
• To be properly made an application must comply
  with the requirements under Division 3 of the
  provisions with respect to certain
  reconfiguration being prohibited

64
Owners consent

• Owners consent is only required for an
  application involving
• MCU
• Reconfiguring a lot
• Building and operational work -
• on land below high-water mark and outside a canal
• on rail corridor land

• Owners consent and easements
• Owners consent (from the owner of the land
  underlying the easement) is not required for land
  the subject of an easement, where the development
  is consistent with the terms of easement (IPOLAA
  2003 amendment)

65
Resource entitlement

• Resource entitlement is required if an
  application involves taking or interfering with a
  State resource
• A State resource can be
• land
• material e.g. quarry material, water etc
• The resource entitlement may be -
• evidence of an allocation, or entitlement to, the
  resource
• evidence that the development is consistent with
  an allocation of, or entitlement to, the resource
• evidence that an allocation of, or entitlement
  to, the resource is not required
• The type of evidence required is set out in
  schedule 10 of the IP Regulation
• This evidence is required instead of, not in
  addition to, owners consent

66
(No Transcript)
67
When an acknowledgment notice is required

• An acknowledgment notice is NOT required if
• The application involves code assessment only
• There are no referral agencies (other than a
  building referral agencies)
• The application is not a development application
  (superseded planning scheme)

68
Public scrutiny

• The AM must keep, for each application, the
  following documents available for inspection and
  purchase
• The application, including any supporting
  material
• Any acknowledgment notice
• Any information request made by the assessment
  manager or a referral agency
• Any properly made submission
• Any referral agency response

• The term supporting material includes
• Site plans
• Elevations
• Supporting reports (IPOLAA 2003 amendment)

69
Development Application (superseded planning
scheme)

• A development application (superseded planning
  scheme) must be made within 2 years after the day
  the new or amended scheme or scheme policy was
  adopted
• If the application is refused or conditions
  imposed, the applicant may seek compensation from
  the LG for any reduced value of the interest

70
EXERCISE 2 (15 mins)
QUESTIONS (10 mins)
LUNCH BREAK 1230pm 115pm (45 mins)
SESSION 3 115pm 145pm (30 mins)
71
Information Referral Stage
72
Referral agencies and the IDAS process
Application stage
Referral of application
Assessment managers information request
Concurrence agency information request
Referral agency response
Notification stage
Decision stage
73
The information and referral stage
Assessment managers process
AMs info. request
Applicants response
AM continues assessment
up to 10 b.d1.
up to 12 mths1, 3
Concurrence agencys process
Referral agencys response
Concurrence agencys info. request
Applicants response
Applicant refers application
up to 3 mths2
up to 12 mths1, 3
up to 10 b.d1
up to 30 b.d1 (inclusive of up to 10 b.d. for
information request)
1 this period may be extended 2 this period
can NOT be extended 3 - 3 months for applications
required by an enforcement notice or in response
to a show cause notice.
74
Referring the application to a referral agency

• The applicant must give each referral agency -
• a copy of the application material (including
  plans and documents lodged with the application)
• a copy of the acknowledgment notice
• the prescribed concurrence agency fee
• Referral must be undertaken within 3 months of
  the acknowledgment notice being given to the
  applicant (otherwise the application lapses)
• The applicant must notify the AM of the agencys
  referral day (i.e the day the agency receives the
  above material)

75
Applicants response to an information request

• An applicant may respond to an information
  request by giving either -
• All of the information requested
• Part of the information requested with a notice
  asking for the assessment to proceed
• None of the information requested with a notice
  asking for the assessment to proceed

76
Referral agency assessment rules (s3.3.15)

• Each referral agency must, within the limits of
  its jurisdiction, assess the application -
• Against the laws and policies administered by the
  agency
• Having regard to
• The local governments planning scheme
• Any SPP not reflected in the planning scheme
• In the SEQ region - the SEQ Regional Plan (when
  adopted)
• The designation of the land
• A referral agency may give weight to any laws,
  planning schemes, policies and codes that came
  into effect after the application was made

77
Referral agencys assessment response

• A referral agencys assessment response
• Must be given to the applicant and AM
• The applicant may negotiate the concurrence
  agency requirements before the AM decides the
  application
• The concurrence agencys response cannot be
  changed as part of a negotiated decision notice

78
Some applications trigger
Referral coordination
79
Referral Coordination

• Occurs if the application involves
• 3 or more concurrence agencies (remember the 1
  entity rule!)
• All or part of the application is for
• a MCU (assessable against a planning scheme) for
  a purpose prescribed under sch 7 of the IP
  Regulation or
• a MCU (assessable against a planning scheme) or
  reconfiguration, if the premises in prescribed in
  sch 8 of the IP Regulation (schedules renumbered
  under IPOLAA 2003)
• 3.1.6 preliminary approval

Applies equally to transitional planning
schemes and IPA planning schemes
3 months for an application required by an
enforcement notice or in response to a show cause
notice.
80
IPOLAA 2003 Amendment

• Referral coordination under s6.1.35C
• Previous s6.1.35C called-up schedule 7 and 8 of
  the IP Regulation
• This trigger is now is chapter 3 of the IPA
• The basis for the AM determining when referral
  coordination is not required in relation to
  schedule 7 8 has been amended
• The decision is now based on whether the
  application would
• in the assessment managers opinion, be unlikely
  to have significant effects on the environment

As a general rule, referral coordination is
triggered regardless of whether the application
follows code or impact assessment or is for PA or
DP
81
The referral coordination process
Info. request by concurrence agency (s3.3.6)
Referral agencys assessment (s3.3.14-3.3.19)
Applicant refers application other material
Applicants response (s3.3.8)
Info. request by Assessment manger (s3.3.6)
start of AM assessment
up to 12 mths2,3
up to 30 b.d.2 (including information request
period)
up to 3 mths1
up to 20 b.d2
1 this period can NOT be extended 2 this
period may be extended 3 3 months for
applications required by an enforcement notice or
in response to a show cause notice.
3 months for an application required by an
enforcement notice or in response to a show cause
notice.
82
The referral coordination process
Referral agencys assessment (s3.3.14-3.3.19)
Applicant refers application other material
Applicants response (s3.3.8)
Information request by Chief executive (s3.3.6)
start of AM assessment
up to 12 mths2,3
up to 30 b.d.2 (including information request
period)
up to 3 mths1
up to 20 b.d2
1 this period can NOT be extended 2 this
period may be extended 3 3 months for
applications required by an enforcement notice or
in response to a show cause notice.
3 months for an application required by an
enforcement notice or in response to a show cause
notice.
83
Notification Stage
84
The notification stage

Applies only to applications involving impact
assessment
Submissions are received by AM
Public notification
Notice of compliance
up to 3 mths1
up to 20 b.d.1
Min 15 b.d. (30 b.d. if referral coordination
triggered)
1 this period may NOT be extended
85
IPOLAA 2003 Amendment

• Public notification (s3.4.5)
• Clarification of public notification requirements
  over the Christmas period (commenced 16th Oct
  2003)
• Now required for, at least the 1st stage of, all
  applications for a s3.1.6 preliminary approval

The notification period excludes any days from 20
December and 5 January of the following year,
both days included.
86
When notification must commence

• Notification must commence within 20 business
  days of -
• the AM and concurrence agencies information
  requests being responded to
• OR
• the AM and concurrence agencies information
  request periods expiring
• Otherwise the application lapses
• The notification stage may need to commence prior
  to the end of the information and referral stage
  (i.e. while IDAS referral agencies are providing
  their assessment response)

87
Notification actions

• There are 3 notification actions -
• notice in newspaper
• letter to adjoining owners
• sign on the land
• These actions need to be undertaken within 5
  business days of the first action being completed
• All notices must detail -
• a description of the proposal
• the property address
• the last day for receipt of submissions
• The notice on the land must be in the approved
  form (Form 7)
• The format for the notice is prescribed in
  section 11 of the IP Regulation

88
Submissions

• Submissions must be made before the end of the
  notification period
• A submission may -
• support a proposal
• object to all or part of a proposal
• The AM may accept a late submission -
• but the submitter will not have third party
  appeal rights
• Submissions can be withdrawn before a decision is
  made
• Submissions form part of the common material
  for an application and are therefore available
  through public scrutiny

89
Properly made submissions

• For a submission to be a properly made submission
  it must -
• Be in writing
• Be signed by each person lodging the submission
• Be received on or before the last day of the
  notification period
• State the names and addresses of each person
• State the grounds of the submission
• Be made to the assessment manager

90
Notice of compliance

• Within 3 months of completing notification the
  applicant must give to the assessment manager -
• written notice that they have complied with the
  public notification requirements (otherwise the
  application lapses)
• This period cannot be extended

A notice of compliance is not required when the
notification is carried out by the AM on the
applicants behalf
91
EXERCISE 3 (15 mins)
SESSION 4 200 220 (20 mins)
92
Decision Stage
93
Decision stage
Applicant may suspend their appeal period and
make representations
AM may issue negotiated decision notice (if
requested)
Applicant may stop decision making period (up
to 3 mths2)
Submitters appeal period ( applicants new
appeal period if negotiated decision notice
issued)
AM assesses decides application
Decision notice given by AM
Applicants appeal period
20 b.d.1
5 b.d.2
20 b.d.2
.
20 b.d.2 (plus time to consider negotiated
decision notice)
1 this period may extended 2 - this period may
not be extended
94
Code assessment rules IPA planning scheme
(s3.5.4)

• For that part requiring code assessment, the AM
  must assess that part of the application only
  against -
• the applicable codes
• the common material
• any relevant SPP (not reflected in the planning
  scheme)
• for local governments in SEQ the SEQ Regional
  Plan, when adopted (if not reflected in the
  planning scheme)
• this does not include the DRAFT SEQ Regional Plan
• if the AM is an infrastructure provider the
  priority infrastructure plan
• If the AM is not a local government, the
  applicable codes are taken to be -
• the laws and policies reasonably identifiable as
  applied by the AM relevant to the application

95
Impact assessment rules IPA planning scheme
(s3.5.4)

• In a planning scheme area, the AM must carry out
  the impact assessment having regard to -
• the common material
• the planning scheme and any other relevant local
  planning instruments
• any relevant SPP (not reflected in the planning
  scheme)
• for local governments in SEQ the SEQ Regional
  Plan, when adopted (if not reflected in the
  planning scheme)
• this does not include the DRAFT SEQ Regional Plan
• any development approval and any lawful use of
  the premises or adjacent premises
• if the AM is not a local government - the laws
  policies reasonably identifiable as applied by
  the AM relevant to the application
• any matters prescribed by regulation

96
Impact assessment rules IPA planning scheme
(s3.5.4)

• Outside a planning scheme area, the AM must carry
  out the impact assessment having regard to -
• the common material
• if the development could materially affect a
  planning scheme area the planning scheme and
  any other relevant local planning instruments
• any relevant SPP
• if the AM is not a local government - the laws
  policies reasonably identifiable as policies
  applied by the AM relevant to the application
• any matters prescribed by regulation

97
Decision rules generally

• In deciding the application, the AM must
• Approve all or part of the application -
• with or without conditions
• attach any concurrence agency conditions
• Refuse the application
• Decide the application based on their assessment
• Take any action directed by a concurrence agency
  response
• Not make a decision contrary to the Regulatory
  Provisions of the Draft SEQ Regional Plan

98
Decision rules for code assessment IPA planning
scheme

• The AM must approve the application if the
  application complies with all applicable codes -
• whether or not conditions are required for the
  development to comply with the codes
• The AM decision may conflict with with an
  applicable code only if there are enough grounds
  to justify the decision, having regard to -
• the purpose of the code
• any relevant SPP (not reflected in the planning
  scheme)
• for a local government in SEQ the SEQ Regional
  Plan, when adopted (if not reflected in the
  planning scheme)
• this does not include the DRAFT SEQ Regional Plan

99
Decision rules for impact assessment IPA
planning scheme

• The AMs decision must not -
• compromise the achievement of the DEOs for the
  scheme area
• conflict with the scheme, unless there are
  sufficient grounds to justify the decision

100
Current State Planning Policies

• 1/92 Development and Conservation of Agricultural
  Land
• 1/97 Conservation of Koalas in the Koala Coast
• State Coastal Management Plan
• 1/2 Development in the Vicinity of Certain
  Airports and Aviation Facilities
• Planning and Managing Development involving Acid
  Sulfate Soils
• Mitigating the Adverse Impacts of Flood, Bushfire
  and Landslide
• DRAFT SPP - Protection of Extractive Resources

101
For a development application, there are
different types of approvals that may be sought
by the applicant or given by the assessment
manager
The types of development approvals that can be
issued by the AM
102
Development permit

• A development permit (DP)
• Must be obtained if development is assessable
• Authorises assessable development to occur -
• to the extent stated in the permit
• subject to the conditions in the permit and any
  preliminary approval (i.e. conditions of a DP
  must be consistent with any preliminary approval)
• Is necessary for each aspect of assessable
  development applicable to the proposal

103
Preliminary approval

• A preliminary approval (PA)
• Is optional, however -
• may be mandatory prior to certification by a PC,
  if building work is assessable against the
  planning scheme
• Approves assessable development -
• to the extent stated in the approval
• subject to the conditions in the approval
• Does not authorise development to occur -
• a DP is still required
• Is legally binding
• May be used to assist in the staging of approvals
  
• May override a planning scheme

104
Preliminary approval

• If the application is for a PA and the
  development requires
• Public notification -
• the subsequent DP application will also require
  public notification (unless the PA overrides the
  planning schemes as permitted under s3.1.6 of the
  IPA)
• Referral to a referral agency -
• the subsequent DP application will also require
  referral
• Referral coordination -
• the subsequent DP application will also require
  referral coordination

105
The decision notice

• Must state
• The day the decision was made
• Name address of each IDAS referral agency
• If the application is approved or refused
• If approved -
• the type of approval given (PA/DP) and conditions
• any other development permits necessary (from the
  AM)
• any codes required to be complied with for any
  subsequent self-assessable development
• If refused, the reasons for refusal
• If any properly made submissions were lodged
• Information about appeal rights

106
The development approval
Permit
Assessment managers conditions 1........ 2......
.. 3........ 4........etc
Concurrence agency conditions 1...... 2....... 3
....... 4.......etc
107
The concept of a deemed refusal

• If the assessment manager fails to decide an
  application within the decision period
• The application is not automatically taken to be
  a deemed refusal

• However
• The applicant may choose to lodge an appeal in
  the PE Court on the basis of a deemed refusal

• Alternatively
• The applicant may choose to wait for a decision
  on the application

108
Assessment decision rules for s3.1.6
preliminary approvals (overriding the planning
scheme)
109
Preliminary approval overriding the planning
scheme

• A PA overriding the planning scheme (s3.1.6)
• Does not need to be for assessable development
• may be for conceptual development (IPOLAA 2003
  amendment)
• May apply to MCU and other aspects of development
• May apply to code and impact assessable
  development, but all applications must be -
• publicly notified as per the notification stage
  of IDAS and
• be subjected to referral coordination
• Cannot be given by the assessment manager unless
  applied for by the applicant
• May, in addition to approving development, do
  either or both of the following-
• state that subsequent development may be either
  assessable, self-assessable or exempt
• identify any codes applying to the development

110
Assessment rules for a 3.1.6 preliminary approval

• The AM must assess the part of the application
  having regard to -
• the common material
• the results of the AMs assessment of the parts
  of the application requiring code and impact
  assessment
• the effect the proposed variation would have on
  any right of a submitter for the following
  applications
• the consistency of the proposed variation with
  aspects of the planning scheme, other than those
  sought to be varied
• any relevant SPP (not reflected in the planning
  scheme)
• for a local government in SEQ the SEQ Regional
  Plan, when adopted (if not reflected in the
  planning scheme)
• this does not include the DRAFT SEQ Regional Plan
• any matters prescribed by regulation

111
Decision rules for a 3.1.6 preliminary approval

• In deciding that part for a 3.1.6 preliminary
  approval, the AM must
• approve all or some of the variations sought
• approve different variations sought
• refuse the variations sought
• However, to the extent other parts of the
  application are refused any variation relating
  to the development must also be refused
• The AMs decision must not compromise the DEOs
  for the scheme area except to the extent
  necessary to further the outcomes of -
• any relevant SPP (not reflected in the planning
  scheme)
• for a local government in SEQ the SEQ Regional
  Plan, when adopted (if not reflected in the
  planning scheme)
• this does not include the DRAFT SEQ Regional Plan

112
EXERCISE 4 (15 mins)
AFTERNOON TEA BREAK 245pm 300pm (15 mins)
SESSION 5 300pm 325pm (35 mins)
113
Conditioning a development approval
114
What may be conditioned s 3.5.31

• A condition may
• Limit how long the use may continue on the site
  works may remain in place
• State the development must not start until other
  DPs have been given, or other development has
  been substantially started or completed
• Require the development (or an aspect of the
  development) to be completed within a particular
  time period and require the payment of security
  to support the condition

115
Conditions that cannot be imposed

• A condition must not -
• Be inconsistent with a condition of an earlier
  approval still in effect for the development ?
• if a condition establishes a limit/standard in a
  PA, a condition on the DP cannot establish a
  different limit/standard
• State that works required to be carried out for
  the development must be undertaken by an entity
  other than the applicant
• Require an access restriction strip

116
reasonable or relevant
The statutory requirements for conditions to be
Slide 116
117
Reasonableness Relevance Test

• Regardless of an assessing authorities laws and
  policies a condition must be
• Reasonably required in respect to the development
  or use of premises as a consequence of the
  development
• that is, the condition must have been reasonably
  imposed in the interest of the rational
  development of the area
• OR
• Relevant to, but not an unreasonable imposition
  on, the development or use of premises as a
  consequence of the development
• that is, there must be a clear relationship
  between the proposed development and the condition

118
Common law requirements for conditions
Slide 118
119
Common law requirements

• There are a range of common law limitations on
  the power to impose a condition, some examples
  are
• Certainty the condition is complete and fully
  identifies the applicants rights and
  responsibilities
• Finality - the condition must be final so that a
  matter does not depend upon the making of any
  further discretionary decisions
• Enforceability conditions should be able to be
  reasonably enforced
• The condition should not materially change the
  proposal

Reference England, P, 2001 Integrated Planning
in Queensland, The Federation Press
120
Conditioning applications

• If a development application identifies stages,
  clearly separate which conditions apply to ?-
• the whole proposal
• a specific stage of the proposal
• If the application is for an integrated proposal
  incorporating several discrete activities clearly
  identify which conditions apply to -
• the whole proposal
• a particular activity

121
Referral agency conditions (s 3.3.18)

• The AM must
• Include all of the concurrence agencys
  conditions in the approval
• They must be imposed in their entirety onto the
  development approval
• i.e. they cannot be changed by the AM in any way
• They must be included in the decision notice
  whether the AM is approving all or part of the
  application
• The conditions of the AM and each concurrence
  agency must be clearly distinguishable

122
IPOLAA 2003 Amendment

• Conditions requiring compliance assessment
  (s3.5.31A)
• This provides for the operation of a compliance
  checking mechanism for conditions of development
  approvals
• The matters for which a compliance check can be
  required, and the process for checking
  compliance, are prescribed in schedule 12 of the
  IP Regulation
• This mechanism can be used
• for operational works that are the natural and
  ordinary consequence of an assessable MCU (eg.
  car parking, landscaping, vehicular cross overs,
  site drainage and acoustic treatments)
• where a code or standard (identified in the
  planning scheme) can be identified in the
  condition

123
(No Transcript)
124
Matters arising after approval is given
Slide 124
125
IPOLAA 2003 Amendment

• Certain approvals recorded on planning schemes
  (s3.5.27)
• Expands the circumstances under which approvals
  or decisions must be noted on a planning scheme -
• preliminary approvals under s 3.1.6
• decisions to allow the application of a
  superseded planning scheme for development on
  premises
• Requires the chief executive to be given notice
  of the notation

126
When an approval takes effect
In order for development to be lawfully carried
out the development permit must have taken effect

• An approval takes effect
• If there is no submitter applicant does not
  appeal the decision -
• at the time the decision notice is given
• If there is a submitter -
• when the period for a submitter to appeal has
  expired or
• the submitter has notified the AM that they forgo
  their appeal rights (IPOLAA 2003 amendment)
• If an appeal has been made -
• when the decision of the Court or tribunal is made

127
Currency periods when approvals lapse

• For a material change of use
• If the change of use has not happened
• 4 years after the approval takes effect or
• a time stated or implied in the approval

• For reconfiguring a lot
• If the plan is not lodged for endorsement by
  the local government
• 2 years after the approval takes effect or
• a time state or implied in the approval

• For operational works or building works
• If the development has not substantially started
  
• 2 years after the approval takes effect or
• a time stated or implied in the approval

128
Changing a development approval (other than a
change of a condition of approval)

• A person can apply to change a development
  approval provided that the change is a minor
  change only
• The term minor change is defined in Sch. 10 of
  the IPA as follows

• Implementation Note 18 Changing an Existing
  Approval -
• provides further information regarding this
  provision and is available on the IPA webpage
  (http//www.ipa.qld.gov.au)

129
Changing or cancelling conditions of approval

• A person wanting to change or cancel conditions
  of development approval can apply to make the
  change if
• no assessable development would arise from the
  change or cancellation
• An application to change or cancel conditions is
  to be made to the entity that decided the
  condition or required the condition to be imposed
  
• therefore, if the PE Court imposed the condition
  - a request to change that condition must be made
  to the Court

130
Declaration and appeal provisions
131
The Planning Environment Court and Building
Development Tribunal

• The Planning and Environment Court has the
  jurisdiction to hear and decide declarations and
  appeals made under the IPA
• including for the review of a decisi