Transcription

Development Assessment RulesGuidance for development assessmentSeptember 2021

Department of State Development, Infrastructure, Local Government and PlanningThe Department of State Development, Infrastructure, Local Government and Planning connects industries, businesses, communities andgovernment (at all levels) to leverage regions’ strengths to generate sustainable and enduring economic growth that supports well-planned,inclusive and resilient communities.CopyrightThis publication is protected by the Copyright Act 1968.Creative Commons licenceThis work, except as identified below, is licensed by the Department of State Development, Infrastructure, LocalGovernment and Planning under a Creative Commons Attribution Non-Commercial-No Derivative Works (CC BYNC-ND) 4.0 Australia licence. To view a copy of this licence, visit creativecommons.org.auYou are free to copy, communicate and adapt this publication as long as you attribute it as follows: State of Queensland, the Department of State Development, Infrastructure, Local Government and Planning, September 2021.Third party material that is not licensed under a Creative Commons licence is referenced within this document. All content not licensed under aCreative Commons licence is all rights reserved. Please contact the Department of State Development, Infrastructure, Local Government andPlanning /the copyright owner if you wish to use this material.Translating and interpreting serviceIf you have difficulty understanding a document and need an interpreter, we provide access to a translating and interpretingservice. You will not be charged for this service. To contact the Translating and Interpreting Service, telephone 131 450 and askthem to telephone the Department of State Development, Infrastructure, Local Government and Planning on 61 7 3328 4811.DisclaimerWhile every care has been taken in preparing this publication, to the extent permitted by law, the State of Queensland accepts no responsibilityand disclaims all liability (including without limitation, liability in negligence) for all expenses, losses (including direct and indirect loss), damagesand costs incurred as a result of decisions or actions taken as a result of any data, information, statement or advice, expressed or implied,contained within. To the best of our knowledge, the content was correct at the time of publishing.Copies of this publication are available on our website at https://planning.statedevelopment.qld.gov.au/ and further copies are available uponrequest.Contact us 61 7 3328 4811 or 13 QGOV (13 74 68)@ [email protected] www.statedevelopment.qld.gov.au PO Box 15009, City East, Queensland 4002 1 William Street, Brisbane 4000Source number D21/173199Guidance - Development Assessment Rules

Department of State Development, Infrastructure, Local Government and PlanningContents1.0Introduction. 31.1What are the development assessment rules? . 31.2Who is this guidance document for? . 32.0The Planning Act . 42.1Development assessment in the Planning Act . 42.2How the Planning Act establishes the DA Rules. 42.3Relationship between the Planning Act and the DA Rules . 52.4Guiding principles . 52.5Roles and responsibilities . 63.0The development assessment process . 83.1Overall process . 84.0The DA Rules . 104.1Structure of the DA Rules . 104.2How to read the DA Rules . 104.3DA Rules process flow charts . 104.4Use of headings in parts 1 to 7 in this guidance document . 114.5Terminology . 11Part 1: Application . 12Part 2: Referral . 15Part 3: Information request . 18Part 4: Public notification . 21Part 5: Decision . 24Part 6: Changes to a development application and referral agency responses . 26Part 7: Miscellaneous . 29Schedules of the DA Rules . 32Guidance - Development Assessment Rules1

Department of State Development, Infrastructure, Local Government and PlanningAppendix 1 – DA Rules process maps . 33Guidance - Development Assessment Rules2

Department of State Development, Infrastructure, Local Government and Planning1.0 Introduction1.1What are the development assessment rules?These rules are set out in the Development Assessment Rules (the DA Rules) document, which is a statutoryinstrument made under section 68(1) of the Planning Act 2016 (the Planning Act). It sets out the Minister’s rules forthe development assessment process in Queensland, including the processes and procedural requirements of theplanning system.Note: All section and schedule references in this document refer to the Planning Act, unless otherwise specified.1.2Who is this guidance document for?This guidance document is designed to be used by anyone who has a role in the development assessment system,or anyone who is interested in development assessment.For this reason, this document aims to provide a broad range of information about the development assessmentprocess as well as the DA Rules.Further information may be sought from:»»»planning officers in the State government department administering the Planning Act (Planning Group)local government plannersplanning professionals.Guidance - Development Assessment Rules3

Department of State Development, Infrastructure, Local Government and Planning2.0 The Planning Act2.1Development assessment in the Planning ActThe planning and development assessment system established under the Planning Act is focused on achieving:»»»»»»an efficient land-use planning and development assessment system that is responsive and not overlyprescriptivean effective land-use planning and development assessment system that facilitates the outcomes that thestate, local government and their communities are seeking to achievea transparent land-use planning and development assessment system that has highly visible policy making andassessment processes that the community and users of the system can understandan integrated land-use planning and development assessment system that facilitates consistent policies anddecision-making and allows the planning system to respond quickly to emerging issues at all levelsa coordinated land-use planning and development assessment system that ensures the maximumopportunities for coordination with other systemsan accountable land-use planning and development assessment system that enables explicit decision makingand establishes opportunities for community involvement.2.2How the Planning Act establishes theDA RulesThe Planning Act establishes the framework for Queensland’s planning system and provides the foundation forvarious elements of this system – namely, plan-making, development assessment and dispute resolution. Theplanning legislation also establishes the rights, roles and responsibilities necessary for the system to workeffectively.The planning framework is succinct and practical. It does not include much of the descriptive detail and processesthat can be found in previous planning legislation. Instead, it provides for other tools such as the PlanningRegulation and statutory instruments (including the DA Rules) to establish these details and processes.This approach makes the legislation easier to navigate and understand. It also establishes a transparent andaccountable way of providing a planning system that can be more responsive to contemporary or emergingcircumstances, informed by communities as they change and grow.As a statutory instrument, the DA Rules contains the rules about the development assessment process. Section68(1) prescribes that the Planning Minister must include rules about:(a)(b)how and when notification is to be carried out under section 53, including re-notifying the application if:(i)the applicant changes the application under section 52; and(ii)the notice under section 53(1) has been given; and(iii)the change is not a minor change; and(iv)the assessment manager is not satisfied that the change would be unlikely to attract asubmission about the matter that is the subject of the change; and(v)the assessment manager is not satisfied the change only addresses a matter raised in aproperly made submission; andthe consideration of properly made submissions.Section 68(2) prescribes that the DA Rules may provide for:(a)(b)when a development application may be taken to be properly made for section 51(5); orthe effect on a development application of the expiry of a time limit under, or of a contravention of, therules (the lapsing of the application, for example); orGuidance - Development Assessment Rules4

Department of State Development, Infrastructure, Local Government and Planning(c)(d)(e)(f)the revival of lapsed applications; orhow and when a referral agency may change its response before a development application orchange application is decided; orany matter in relation to part 5, divisions 2 to 4; orthe effect on a process under this chapter of taking action under the Native Title Act 1993 (Cwlth), part2, division 3.Section 68(2) also includes examples of what the rules may provide for, including:»»»»»»»the effect, for section 52, of different types of changes on a development applicationthe period for making referral agency’s responses, including when the responses may be made latematters to be considered when deciding whether a change to a development application or developmentapproval would result in substantially different developmentmatters to be considered when deciding if an action is a material change of usethe periods for taking actions under the processthe effect of not taking the actions within the periodsprovisions for information requests, and when and how the information can be sought.It is important to note that examples given in section 68(2), and which are mentioned above, are not to be taken asexhaustive or exclusive. The examples do not limit but may extend the meaning of what the DA Rules may providefor.This means that the DA Rules may or may not include some of the examples and may provide for aspects of theprocess that are not listed in the examples.2.3Relationship between the Planning Act andthe DA RulesThe Act retains some important elements of the development assessment process in the primary legislation. Theseinclude:»»»»decision rules – these are the rules that tell the assessment manager for a development application how theapplication should be assessed.public notification timeframes – these are the minimum timeframes a development application is required to beopen for consultation and during which anyone may make a submission about the application.requirements for a development application to be considered ‘properly made’.all aspects of the development assessment process that relate to a development application after an approvalhas been issued, including changes, extensions and appeals.The DA Rules cannot prescribe matters that are in the primary legislation. Rather, the DA Rules arecomplementary to the primary planning legislation. This means that, for some aspects of the developmentassessment process, both the legislation and the DA Rules need to be consulted to gain a full picture of theprocess.For this reason, the DA Rules include, where appropriate, references to the relevant sections of the Planning Actthat complement the DA Rules or contain information that is important to know.This guidance document can also be used to clarify links between the DA Rules and the planning legislation.2.4Guiding principlesThe development assessment process is underpinned by a set of guiding principles.These principles are intended as a guide to the development assessment process for all development applicationparties and sets the tone for the expected behaviours throughout the process.These principles are set out in table 1 as follows.Guidance - Development Assessment Rules5

Department of State Development, Infrastructure, Local Government and PlanningTable 1Guiding principles for development assessmentApplicant-driven processReinforce the role that the applicant plays in streamlining the development assessment process.Process efficienciesEmphasis on undertaking pre-application discussions with the assessment manager and with each referral agencyto create process efficiencies.Holistic assessmentEnable a holistic assessment to be undertaken of the development application.Open communicationsEncourage and facilitate open communications between the assessment manager, referral agencies and theapplicant.Public notificationFacilitate effective public notification in the development assessment process for development applications thatrequire public notification.User-friendlyA more user-friendly, navigable and transparent system that facilitates quality development outcomes.2.5Roles and responsibilitiesThe state government, local government, community, developers and applicants all play a role in the developmentassessment system and it is important to understand the roles and responsibilities of the main parties who may beinvolved in the process of making, assessing and deciding a development application.These are set out below. Definitions of these parties are also contained in schedule 4 of the DA Rules and inschedule 2 of the Planning Act.ApplicantThe applicant for a development application is the person who made the application. The applicant may be theowner of the premises, about which the application is made, or a planning consultant or agent acting on behalf ofthe owner.It is important to note that in most cases the consent of the owner is required for a development application to beproperly made.Assessment managerThe entity responsible for assessing and deciding a development application is called the assessment manager.For the majority of development applications, the local government will be the assessment manager and theyassess and decide a development application against the requirements of the local planning scheme.However, there are particular development types that the state government has responsibility for assessing anddeciding, such as a development application for:» building works on a Queensland heritage place» a major hazard facility» clearing native vegetation.The assessment manager assesses, decides and issues a decision notice for a development application statingwhether the application is approved, approved in part or refused. Where a development application requires publicnotification, the assessment manager is also responsible for reviewing any submissions made about the applicationduring the notification period. The assessment manager may also include conditions on a development approval.Guidance - Development Assessment Rules6

Department of State Development, Infrastructure, Local Government and PlanningReferral agencyParticular types of development applications require additional assessment by other agencies during thedevelopment assessment process. These agencies are called referral agencies. Section 54(2) sets out who maybe a referral agency for a development application.A referral agency may be either a concurrence agency or an advice agency. These terms are defined in the DARules.Concurrence agencyA concurrence agency is a type of referral agency that can direct an assessment manager to carry forward certainconditions on a development approval or refuse an application.This role is often undertaken by the State Assessment and Referral Agency (SARA).Advice agencyAn advice agency is defined as a referral agency that only has the power to give advice. An advice agency cannotdirect the assessment manager to carry forward certain conditions on a development approval or refuse anapplication.This role is often undertaken by utility providers, such as Powerlink, Ergon and Energex.SubmitterCertain development applications require public notification to be undertaken as part of the developmentassessment process. During public notification, submissions can be made on the development application.A submitter is a person who makes a properly made submission about a development application during the publicnotification period. A submitter who makes a properly made submission is afforded third-party appeal rights toappeal the assessment manager’s decision on the development application.Guidance - Development Assessment Rules7

Department of State Development, Infrastructure, Local Government and Planning3.0 The development assessment process3.1Overall processThe development assessment process under the DA Rules is a straightforward process, as shown in figure 1below. The parts shown in the blue boxes are those that are contained in the DA Rules.Pre-applicationApplication partInformation requestpartReferral partPublic notification partDecision partAppealFigure 1The development assessment processPre-application and appeal processes (not shown in blue) are not part of the DA Rules. Pre-application happensbefore a development application is lodged, and therefore the development assessment process has notcommenced when this happens.The DA Rules also do not accommodate the process to change an approval during an applicant’s appeal period orto change or extend an approval after appeal periods have ended.Appeals also happen after a development decision is issued and the process for an appeal is therefore retained inthe planning legislation.A short description of these aspects of the development assessment process is provided as follows.Pre-applicationApplicants play a key role in ensuring their development application is well made. Pre-application is a tool thatsupports and assists applicants in making well-made development applications. For this reason, a pre-lodgementmeeting or written pre-lodgement advice from the assessment manager and any relevant referral agency before adevelopment application is made is encouraged.The purpose of a pre-lodgement meeting is to identify the planning views of the assessment manager or referralagency on the proposed development. It may also identify particular requirements or other information that may berequired to assess the application before a development application is actually made. This will help applicantsmake a well-made development application and help streamline the development assessment process.Guidance - Development Assessment Rules8

Department of State Development, Infrastructure, Local Government and PlanningThe planning legislation also provides the ability for a referral agency to give a referral agency response before theapplication is made. In some instances, the applicant may not have to refer their development application to thatreferral agency during the development assessment process.As pre-application processes such as pre-lodgement are not captured in the DA Rules, the assessment managerand each referral agency can establish operational requirements to best suit their circumstances.Changing or extending an approvalAll post-approval processes remain set out under the Planning Act, and so these processes will not be found in theDA Rules. They can be found in chapter 3, part 5, and include processes for:» changing a development approval during the appeal period (negotiated decision) — see division 2,subdivision 1» changing a development approval after the approval has effect (change application) — see division 2,subdivision 2» cancelling an approval — see division 3» extending the currency period for a development approval (extension applications) — see division 4.However, it should be noted that, while these processes remain in the legislation, some of the provisions that relateto a change application will still use some of the processes and periods that are established in the DA Rules.AppealsAfter a development application has been decided, the legislation specifies certain instances where a decision maybe appealed by an applicant or other party to the development application.If a submitter made a properly made submission during the public notification period for a development application,that submitter is afforded appeal rights and may, within the submitter’s appeal period, lodge an appeal against thedecision.Further information about appealing a decision and the appeal rights that are established under the legislation canbe found in chapter six of the Planning Act.Guidance - Development Assessment Rules9

Department of State Development, Infrastructure, Local Government and Planning4.0 The DA Rules4.1Structure of the DA RulesThe development assessment process in the DA Rules involves the following parts:» Part 1 – Application» Part 2 – Referral» Part 3 – Information request» Part 4 – Public notification» Part 5 – Decision.As each development application is different, the required steps in that assessment will vary. Not all parts apply toevery development application. Similarly, not all of the actions within each part may apply.In addition to these parts, the DA Rules also includes the following parts:» Part 6 – which provides the process to change an application or a concurrence agency response before theapplication has been decided» Part 7 – which is a miscellaneous section that details all of the ‘by exceptions’ provisions that may affect any orall of the other parts of the DA Rules.The DA Rules also includes the following schedules:» Schedule 1 – Substantially different development» Schedule 2 – Referral agency’s assessment period» Schedule 3 – Public notice requirements» Schedule 4 – Definitions.4.2How to read the DA RulesEach development application will start with part 1, which is when a development application is lodged, and, unlessthe development application is withdrawn or lapses, it will finish with part 5, which is when a decision notice isissued by the assessment manager.To understand the development assessment process, we recommend starting with part 1. Each part has a definedend, and this will tell you when the development application can proceed to the next relevant part.The relevance of some parts to a particular development application can only be determined by looking at otherdocuments. For example:»»In most cases, it is the local planning scheme or the Planning Regulation that establishes whether adevelopment application is code or impact assessable. Only impact assessable applications (i.e. those thatseek to vary the planning scheme) are subject to part 4 – public notification.The Planning Regulation sets out which matters for which referral of an application to a referral agency arerequired and for which part 2 – referral is applicable.4.3DA Rules process flow chartsTo find out which parts of the DA Rules might apply to your development application, you can use the ‘Map yourdevelopment application’ tool available on the department’s website. By answering the questions about whether ornot your development application will require public notification, referral or an information request you will be ableto generate a flow chart that will give you an indicative process and timeline for your development application.Appendix 1 also includes examples of these process flow charts to illustrate scenarios that may occur under the DARules.Guidance - Development Assessment Rules10

Department of State Development, Infrastructure, Local Government and Planning4.4Use of headings in parts 1 to 7 in thisguidance documentParts 1 to 7 of this guidance document are to be read in conjunction with the DA Rules. To support this, theheadings used here are equivalent to those within the DA Rules.4.5TerminologySome phrases and terms used in the DA Rules have a specific meaning in the context of the developmentassessment process. While these are generally defined in schedule 4 of the DA Rules, below are a few key termsthat will help when reading the DA Rules and this guidance document.»»»»»»»Give – this is taken to include the time taken for the notice to be received by the recipient and is consistent withthe definition under the Acts Interpretation Act 1954.Act – refers to the Planning Act 2016. This guidance document uses the terms Act and Planning Actinterchangeably.Rules – refers to the DA Rules. This guidance document uses the terms rules and DA Rules interchangeably.Day – means business day. This guidance document uses the terms day and business day interchangeably.Current period – means the period that is active at the time notice is given under this section. It does notinclude any period that has already ended or any period that is yet to commence.Further period agreed – any agreement for a further period under these rules must be made before the end ofthe relevant period, by notice between the parties and must identify the section of these rules to which theagreement relates and a copy must be given to any other party to the development application.Assessing authority – means an assessment manager, concurrence agency or advice agency.Guidance - Development Assessment Rules11

Department of State Development, Infrastructure, Local Government and PlanningPart 1: ApplicationGeneralFor every development application, this part:»sets out the timeframes and steps the assessment manager must take to determine whether a developmentapplication is a properly made application; and»sets out the steps the assessment manager must take for development applications that are not properlymade.Note: Refer to Appendix 1 for the completediagram of the scenario and footnote informationFigure 2Part 1 – Application processProperly made application»What is required to make a properly made application is set out in section 51 of the Planning Act. To make aproperly made development application it must be:––––»in the approved form to the assessment manageraccompanied by the documents under the form to be attached to, or given with, the applicationaccompanied by the required feeaccompanied by written consent of the owner, if required. For further information about owner’s consent,refer to the owner’s consent factsheet on the department’s website.In accordance with section 51(4) of the Planning Act, the assessment manager may accept an application thatdoes not comply in certain circumstances. For example, where it is not in the approved form the assessmentmanager may still choose to accept the development application.»The development application may be received electronically or in hard copy.»The assessment manager has 10 business days to determine whether the development application is properlymade. This is called the confirmation period, as the assessment manager is confirming whether or not thedevelopment application it has received is properly made.»Where the assessment manager gives a confirmation notice or an action notice during the confirmation period,the confirmation period is taken to have ended on the day the notice is given to the applicant.Confirmation notice»The purpose of a confirmation notice is to confirm the development details, public notification requirements of adevelopment application requiring public notification and, where applicable, identifying whether referral isrequired for the development application. The assessment manager can also use the confirmation notice toadvise the applicant that they will not be making an information request.Guidance - Development Assessment Rules12

Department of State Development, Infrastructure, Local Government and Planning»The assessment manager must issue a confirmation notice within the confirmation period for all developmentapplications that are properly made and that require referral (part 2) or public notification to be undertaken (part4).»For all other development application types, the assessment manager may give a confirmation notice if theywish to bring forward

open for consultation and during which anyone may make a submission about the application. » requirements for a development application to be considered 'properly made'. » all aspects of the development assessment process that relate to a development application after an approval has been issued, including changes, extensions and appeals.