Saal & Associates Lawyers, Corporate, Commercial & Property Lawyers & Solicitors - Brisbane, Gold Coast, Gladstone, Qld

Development Applications and recent legislative changes

26 Feb 2013, by Tina Chu at Saal & Associates Lawyers

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What is the purpose of a development application?

A development application serves the purpose of presenting all relevant information to Council in order for it to assess and approve a proposed development on a prescribed site. A development is defined under the Sustainable Planning Act 2009 (“SPA”) as any of the following:

• carrying out building work;
• carrying out plumbing or drainage work;
• carrying out operational work;
• reconfiguring a lot; or
• making a material change of use of premises.

A development application may also be required (unless self-assessable under Council’s planning Scheme) under the following circumstances:

• to change the use of land;
• to carry out subdivision; or
• to carry out building, landscaping and other work.

Any development applications must meet the requirements as stipulated in section 260 of the SPA in order for it to be considered as ‘properly made’ and assessable by Council.

What does it mean by ‘properly made’?

In summary, section 260 of the SPA states that each development application must be:

• made to the assessment manager; and
• in the approved form or made electronically under section 262(3); and
• accompanied by any supporting information the approved form states is mandatory supporting information for the application; and
• accompanied by –
• the relevant fee (depends on whether the assessment manager is a local government or another public sector entity); and
• if required – owner’s consent or declaration by the application of the owner’s prior written consent.

Advantages of a ‘properly made’ development application

Advantages of a ‘properly made’ development application include reduced time and costs for preparation and process of the application; reduced risk of application refusal; and elimination of a second application as a single development application (if properly made) may be used to obtain both a preliminary approval and a development permit.

Factors to consider when preparing the development application

In the preparation of a ‘properly made’ development application, it is important to consider the following:

• ensure all the technical requirements are met;
• conduct pre-engagement due diligence, for instance,
• a title search to confirm ownership (and if required, obtain owner’s written consent) and any encumbrance required to be taken into account of the application; and/or
• find out if other development applications have been submitted on the same site;
• completeness of issues and adequacy of information to support any merits of the development;
• identify any potential issues from the submitters’ point of view and propose practical solutions for them;
• utilise publicly available resources and format the development application accordingly. The Brisbane City Council has provided Properly Made Checklists to aid the preparation of development applications.

Recent amendments to the SPA

Recent amendments to the SPA by the Sustainable Planning and Other Legislation Amendment Act (No. 2) 2012 (QLD) (“SPOLAA”) have significant impacts on the application requirements in the SPA. Some of these amendments include:

1. establishing a single state agency referral and assessment manager;
2. providing flexibility in the requirements for supporting information accompanying a development application by providing the assessment manger with discretion to accept a non-compliant application;
3. reduced regulatory burden for development applications involving entitlement to or allocation of a State resources; and
4. ensuring consistency across all local government planning schemes on certain aspects of development by applying the relevant provisions in the Queensland Planning Provisions to all local government planning schemes.

While some of the above amendments received royal assent in November 2012 and are applicable to all applications submitted after the commencement date, certain amendments are anticipated to commence in early 2013. The commencement dates of those amendments are expected to be found in subsequent amendments to the Sustainable Planning Regulation 2009 (“SPR”).

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