Development Assessment

Development applications are made through the development assessment process and are assessed against the relevant planning scheme and, where state-level assessment is triggered, the State Development Assessment Provisions . It is designed to integrate state and local government approval processes.

Chapter 3 of the Planning Act 2016 (Qld) (Planning Act) provides the overall framework for the development assessment process, but much of the detail for the process is fleshed out in a subsidiary document, the Development Assessment Rules .

The overall process is shown in the following flowchart, but not all parts necessarily apply to each development application.

Figure 1: Development application process. This flowchart is adapted from a Queensland Government publication.

The parts of the development assessment process

• • Pre-application: is not mandatory but allows applicants to meet with the assessment manager and any referral agency to gauge their views on the application and improve it.
  • Application: involves lodging an application that meets the requirements for it to be ‘properly made’ and, therefore, commence the development application process.
  • Information request: provides a formal opportunity for the assessment manager and any referral agency to request further information about the application or its impacts.
  • Referral: if an application triggers referral to a referral agency, this part allows for the referral to occur, for the application to be assessed by the referral agency and for its response to be given.
  • Public notification: if an application requires impact assessment, it must be publicly notified in accordance with the Development Assessment Rules . Any person can make a submission during the notification period.
  • Decision: after all other parts have been completed, the assessment manager makes its decision on the application and what conditions to impose on any approval.
  • Appeal: after the application has been decided, an applicant who is dissatisfied with a decision may appeal it to the Planning and Environment Court. Submitters who made a properly made submission can also appeal against decisions involving impact assessment.

  Three preliminary questions

  In order to determine whether a development application must be made and, if so, which parts of development assessment process apply, it is necessary to answer three preliminary questions:

  • Does the proposal involve ‘development’ as defined in the Planning Act?
  • What category of development is it (accepted development, assessable development (code assessable or impact assessable) or prohibited development)?
  • Which levels of government (or private certifier) are involved in the assessment process?

  Answering these three questions allows the development assessment requirements to be determined including the strict timelines for each of the parts.

  Meaning of development

  • 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.

  The different forms of development under the Planning Act are further defined sch 2 of the Planning Act as:

  • building work—building, repairing, altering, moving or demolishing a building or structure and some other forms of related work such as excavating or filling that is incidental to building. For a building listed on the Heritage Register under the Queensland Heritage Act 1992 (Qld), building work even includes any painting or plastering that substantially alters the appearance of the place
  • plumbing or drainage work—installing, changing and maintaining an apparatus or fitting a pipe for the supply or removal of water, sewage or greywater
  • operational work—this is a very wide term that, in practice, includes activities such as excavating or filling, clearing vegetation, road works and other work that materially affects premises or their use (other than building work, plumbing or drainage)
  • reconfiguring a lot—subdividing a large lot into smaller lots, amalgamating several lots together or rearranging the boundaries of a lot
  • material change of use—start of a new use, re-establishment of a use that has been abandoned or a material change in the intensity or scale of a use of premises.

  To understand what a ‘material change of use’ means requires understanding what a ‘use’ of land is. A ‘use’ of land is the purpose for which activities are conducted on the land as understood in ordinary terminology in a town planning context. Examples of different uses of land include a dwelling house, hospital, hotel, office, shopping centre, multiple dwelling and park. Planning schemes normally include a dictionary to define common uses of land, as do schs 3, 4 and 24 of the Planning Regulation 2017 (Qld) (Planning Regulation).

  The term ‘development’ creates a broad umbrella definition into which virtually any proposal can be brought within the planning and development assessment framework. However, not all development is required to be assessed under the development assessment process.

  Categories of development

  The Planning Act uses a horribly abstract term, ‘categorising instruments’, for state and local-level planning documents that can ( s 43 ):

  • identify development in the three categories of accepted, assessable or prohibited
  • specify the categories of assessment required for different types of assessable developments (i.e. state whether code or impact assessment applies)
  • set out the matters (the assessment benchmarks) that an assessment manager must assess assessable developments against.

  State-level categories of development are identified in the schedules of the Pla nning Regulation .

  Local-level categories of development are identified in:

  • • a planning scheme
    • a temporary local planning instrument
    • a variation approval (i.e. part of a preliminary approval for premises that varies the effect of any local planning instrument in effect for the premises).

    In practice, planning schemes are the most important for identifying local-level categories of assessment.

    There are three categories of development ( s 44 ):

    • • accepted development, which means that development approval is not required (although it may still be required to comply with design and construction standards, e.g. the building code)
      • assessable development, which means that assessment is required under the development assessment process by any relevant government body (unless an exemption certificate applies under s 46 of the Planning Act)
      • prohibited development, which means the development is prohibited and cannot be applied for. If prohibited development is applied for, it need not be assessed.

      Assessable development has two subcategories ( s 45 ):

      • • code assessment, which is a more limited form of assessment that is not publicly notified and no submission or appeal rights exist
        • impact assessment, which is assessed more widely than code assessment, must be publicly notified and the public gains a right to make submissions and appeal a decision to approve the development.

        If no categorising instrument categorises a particular development, it is an accepted development ( s 44(6) ).

        Most planning schemes identify assessable development in a part called a ‘Table of Assessment’ or ‘Table of Development’.

        Some development that cannot be made assessable under a local government planning scheme is specified in sch 6 of the Planning Regulation, and this development becomes accepted development by default.

        Accepted development may still require assessment under other laws. For example, sch 6 provides that mining is not able to be made assessable development, but it requires assessment under the Mineral Resources Act 1989 (Qld) (Mineral Resources Act) and the Environmental Protection Act 1994 (Qld).

        The state government and local governments may designate premises for development of infrastructure under sch 3, pt 5 of the Planning Act. Schedule 5 of the Planning Regulation lists the infrastructure that may be designated including airports, bus ways, dams, prisons, schools and sewage treatment plants, which are accepted development under a planning scheme. Once designated, the premises are not subject to the local government planning scheme, and there are no public submission or appeal rights under the Planning Act.

        A super short (10-minute) explanation of the development assessment process is available on Youtube :

        A longer (90-minute) lecture explaining the development assessment system in more detail is also available on Youtube:

        A short quiz on basic concepts for development in Queensland, including understanding what is ‘development’ and when development approval may be required, is available online for you to test your understanding.

        Development offences

        It is a development offence under the Planning Act to:

        • carry out prohibited development (s 162)
        • carry out assessable development unless all necessary development permits are in effect (s 163), or there is an exemption certificate for the development (s 46)
        • contravene a development permit (s 164)
        • use premises unlawfully (s 165).

        Exemptions apply for development or use of premises in an emergency to prevent danger to life or to ensure the structural adequacy of a building ( s 166 ).

        The Planning Act provides several enforcement mechanisms:

        • Show cause notice—may be given where an assessing authority reasonably believes a person has committed or is committing a development offence.
        • Enforcement notice—tells a person to stop committing an offence or to remedy the commission of an offence, with fines for failing to comply.
        • Prosecutions in the Magistrates Court— may occur where local governments and state regulators prosecute offences in the Magistrates Court seeking a monetary penalty and related orders (e.g. a clean-up order).
        • Civil enforcement proceedings in the Planning and Environment Court—may occur. Anyone (including members of the public) may bring proceedings in the Planning and Environment Court to stop the commission of an offence but no fines can be imposed by this court.

        Government agencies and private certifiers

        The government entities involved in the development assessment process are referred to as the ‘assessment manager’ and ‘referral agencies’ and are listed in sch 8 of the Planning Regulation and the Development Assessment Rules.

        The assessment manager is normally the relevant local government. An application is made to this entity, which then manages the development assessment process and makes the final decision whether to approve or refuse an application and whether to impose conditions.

        Referral agencies are other government bodies to which an application is referred to for consideration.

        A referral agency may be:

        • a concurrence agency with the power to direct the assessment manager to refuse the application or to impose mandatory conditions
        • an advice agency, which may offer advice to the assessment manager but cannot direct refusal of the application or impose mandatory conditions.

        The State Assessment and Referral Agency (SARA) is the single lodgement and assessment point for virtually all development applications where the state has a jurisdiction.

        The State Development Assessment Provisions set out the criteria and codes for state assessment of development under SARA.

        Private certifiers are also commonly the assessment manager where a development application is for building work only. Private certifiers are individuals certified under the Building Act 1975 (Qld) to, amongst other things, assess and approve plans relating to new or altered buildings and certify the construction of buildings complies with approved plans.

        Ministerial powers

        The Planning Minister, as well as the minister who administers the State Development and Public Works Organisation Act 1971 (Qld), has a broad discretion to call in and assess and decide, or reassess and re-decide, an application if, in the minister’s opinion, it involves a state interest ( ch 3, pt 3 Planning Act ).

        Ministerial call ins are rare.

        All applications that have been called in, as well as applications for which a proposed call-in notice has been given, can be viewed on the Queensland Planning website .

        This power is in addition to other avenues for the state government to bypass local governments and the court appeal process such as designating land for community infrastructure or declaring a priority development area.

        Approving or refusing a development application

        The basic rule for assessing an application in the development assessment process is that it is likely to be approved if it is consistent with relevant planning scheme and other planning layers. Conversely, the more a development application conflicts with any relevant planning scheme or other planning layer, the less likely it is to be approved.

        Section 60 of the Planning Act states the statutory tests for deciding code assessment and impact assessment:

        • For code assessment, there is a presumption of approval for any application that complies with relevant assessment benchmarks or can be conditioned in such a way that it complies. The assessment manager can only refuse a code assessable application if the development cannot be conditioned to meet the assessment benchmarks.
        • For impact assessment, there is no presumption of approval expressly stated but a similar approach is generally taken in practice.

        The Planning and Environment Court explained the test for deciding whether to approve impact assessable development that does not comply with all assessment benchmarks in Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16 .

        This emphasises the importance of public submissions to local governments when they are preparing or amending their planning schemes in order to identify and protect important areas and environmental values. It is generally too late to protect important areas when a development application is lodged, if the planning scheme does not protect the area and allows it to be developed.

        Conditions

        Approval of a development can be (and virtually always is) subject to conditions that control how the development will occur. Conditions are the basic mechanism for minimising adverse impacts and for providing public infrastructure (e.g. parklands).

        Conditions are required to be relevant and reasonable (s 65 Planning Act).

        • A relevant condition is one that properly relates to the legislation under which it is imposed (e.g. for a local government, to maintain standards in local development).
        • A reasonable condition is one that is a reasonable response to the changes that the development will cause (e.g. increased traffic to a road or bridge).

        For example, a relevant and reasonable condition for a development adjacent to a watercourse may be that no development is to occur within 20 metres of the high bank of any watercourse. Whether a condition is relevant and reasonable will depend on the facts of each individual case.

        For more information on conditions, listen to the recording of a workshop on writing conditions (and see the associated workshop paper) available on the Environmental Law Australia website.