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ZONING AND PLANNING

Queensland is considered one of the fastest growing areas in Australia when it comes to zoning and planning. With its predominant industry being tourism, Queensland has focused on refining its zoning and planning laws.

Since the introduction of the new Integrated Planning Act 1997 (the Act) a totally new regime of planning and zoning in Queensland has been established, one design to achieve "ecological sustainability". This system primarily focuses on performance and outcomes with the emphasis on "development" rather than "use".

Many of you may be deciding to build a house or make renovations or changes to the use of your property. It is important that you understand the planning and zoning system in Queensland to ensure you meet the legal obligations required for your particular development.

THE KEY STEPS

The key steps in making a Development Application under the Integrated Planning Act are:

  1. The Applicant Lodges a Development Application with the Assessment Manager (usually the Local Government).
  2. An Acknowledgment Notice is issued to the Applicant by the Assessment Manager.
  3. The Applicant gives a copy of the Application to each referral agency if any, and if referral coordination is required, to the Chief Executive of the Department of Local Government and Planning (DLGP).
  4. The Assessment Manager may ask the Applicant to provide further information to assess the Application.
  5. Any concurrence agencies may ask the Applicant to provide further information to assess the Application.
  6. If referral coordination is required, the Chief Executive of DLGP will issue a coordinated request for further information.
  7. An Applicant may request the Chief Executive of DLGP to provide assistance in relation to the information request.
  8. The Applicant may provide all of the further information requested, part of the further information requested or none of the further information requested.
  9. The referral agencies assess the Application and provide their responses to the Assessment Manager.
  10. The Applicant undertakes public notification of an Application which requires impact assessment.
  11. Before a decision is made the Applicant may stop the decision making period for not more than three months to make representations to referral agencies or for the purpose of requesting the Chief Executive to resolve conflicts between two or more concurrence agency responses containing conditions the Applicant is satisfied are inconsistent.
  12. The Assessment Manager assesses the Application and issues the Decision Notice.
  13. If the Applicant is dissatisfied with the Decision Notice the Applicant may negotiate with the Assessment Manager to alter the Decision Notice (with or without suspending the Applicant's appeal period) and the Assessment Manager may issue a negotiated Decision Notice.
  14. The Applicant submitters may appeal against the decision to the Planning & Environment Court or to the Building and Development Tribunal in the case of building matters.

The Act provides timeframes to complete each step in the Development Application Process. These timeframes are an important consideration for you in making your application to know when you can expect your application to be decided and when you can expect to commence your proposed development.

The following lists possible time frames:

  1. No referral coordination and code assessment:-
  • without statutory extensions: 3 months;
  • with statutory extensions: 5 months.
  1. No referral coordination impact assessment or impact and code assessment:-
  • without statutory extensions: 3-4 months;
  • with statutory extensions: 5-6 months.
  1. Referral coordination and code assessment:-
  • without statutory extensions: 4 months;
  • with statutory extensions: 6-7 months.
  1. Referral coordination impact assessment or impact and code assessment:-
  • without statutory extensions: 5-6 months;
  • with statutory extensions: 8 months.
  1. Lodgement of appeal add:-
  • without statutory extensions: 1 month;
  • with statutory extensions: 1 month.

ECOLOGICAL SUSTAINABILITY

The purpose of the Act is to achieve ecological sustainability by:-

  • Coordinating and integrating planning at the local, regional and state levels; and
  • Managing the process by which development occurs; and
  • Managing the effects of development on the environment (including managing the use of the premises).

Ecological sustainability is the key to planning and zoning in Queensland.

Any development which is not ecologically sustainable will not be approved.

It is most important therefore that your Development Application does not conflict with the main purpose of the Act.

DEVELOPMENT

The Act defines development as any of the following:-

(a) Carrying out building work;

(b) Carrying out plumbing or drainage work;

(c) Carrying out operational work;

(d) Reconfiguring a lot;

(e) Making a material change of use.

Each of these points are further defined as follows:-

Building work means:-

  • Building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure; or

Excavating or filling:-

  • For, or incidental to, the activities mentioned in paragraph (a); or
  • That may adversely affect the stability of a building or other structure, whether on the land on which the building or other structure is situated or on adjoining land; or
  • Supporting (whether vertically or laterally) land for activities mentioned in paragraph (a).

Plumbing work means installing, repairing, altering or removing any system, or components of a system, for:-

  • Supplying water within premises from the point of connection to a property service; or
  • Conveying sewerage from premises to a sanitary drain; or
  • A fire service within premises.

Drainage work means installing, repairing, altering or removing:-

  • A sanitary drain used, or intended to be used, to carry sewerage from sanitary plumbing to a sewer, on on-site sewerage system; or
  • A property sewer; or
  • An on-site sewerage system, including a common affluent drain, located on premises; or
  • A stormwater installation on premises.

Operational work means:-

  • Extracting gravel, rock, sand or soil from the place where it occurs naturally; or
  • Planting trees or managing, felling and removing standing timber for an ongoing forestry business (whether in a native forest or a plantation); or
  • Excavating or filling that materially affects premises or their use; or
  • Placing an advertising device on premises; or
  • Undertaking work other than destroying or removing vegetation in, on, over or under premises that materially affects premises or their use; but does not include building, drainage or plumbing work.

Reconfiguring a lot means:-

  • Creating lots by subdividing another lot; or
  • Amalgamating two or more lots; or
  • Re-arranging the boundaries of a lot by registering a Plan of Subdivision; or
  • 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; or
  • Create an easement giving access to a lot from a constructed road.

Material change of use of premises means:- 

  • the start of a new use of the premises or the re-establishment of the premises of a use that has been abandoned or a material change in the intensity or scale of the use of the premises.

Taking into consideration the definition of Development, you can decide whether your proposed development falls within one of these criteria.

If your proposed development falls within the above definition you will then need to decide whether your development is exempt development, self-assessable development or assessable development.

Development is regulated under the Act only if it is made assessable or self-assessable development by the Act or a Planning Scheme. If not, the development is exempt and you can proceed without approval.

EXEMPT DEVELOPMENT

Schedule 8 Part 3 of the Act identifies particular exempt development which a Planning Scheme cannot make into assessable or self-assessable development. This includes the following:-

  1. A material change of use of premises or operational work for an activity authorised under:-
  • The Mineral Resources Act 1989;
  • The Petroleum Act 1923 other than activity relating to the construction and operation of an oil refinery; or
  • The Petroleum (Submerged Lands Act 1982);
  • The Offshore Minerals Act 1998.
  1. All building work declared under the standing building regulation to be exempt development.
  2. A material change of use for a Class 1 or Class 2 building under the Building Code of Australia Part A3 if the use is providing support services and short term accommodation for persons escaping domestic violence.
  3. Operational work associated with:-
  • Management practices for the conduct of agricultural use; and
  • Weed control, pest control, fire hazard reduction and the conservation or restoration of natural areas; and
  • The use of premises for forestry (including the managing, filling and removal of standing timber in a native forest) for a business in roads, drainage and other engineering works.
  1. Reconfiguring a lot other than a lot within the meaning of the Land Title Act 1994.
  2. Reconfiguring a lot under the Land Title Act 1994 for a Plan of Subdivision necessary for the reconfiguring is a Building Format Plant of Subdivision that does not subdivide land on or below the surface of the land or is for the amalgamation of two or more lots or is in relation to the acquisition including by agreement of land by constructing authority within the meaning of Acquisition of Land Act 1967 for a purpose set out in Schedule 2 of that Act.
  3. Development which a person is directed to carry out under a notice, order or direction made under a state law.
  4. Operational work or plumbing or drainage work (including maintenance or repair work) if the work is carried by or on behalf of a public sector entity authorised under a state law to carry out that work.
  5. Operational work that is digging or boring into a land by an authorised person under Coastal Protection & Management Act 1995 Section 70.
  6. Operational work that is ancillary work and encroachments that are carried out in accordance with requirements specified by Gazette Notice by the Chief Executive under the Transport Infrastructure Act 1994 or done as required by a contract entered into with the Chief Executive under the Transport Infrastructure Act 1994 Section 47.
  7. Operation work for the construction of a substituted railway crossing by a railway manager in response to emergency under the Transport Infrastructure Act 1994 Section 100.
  8. Operational work performed by Queensland Rail under the Transport Infrastructure Act 1994 Section 150.
  9. Operational work carried out under a Rail Feasibility Investigators Authority granted under the Transport Infrastructure Act 1994.

These particular exempt developments cannot be made assessable or self-assessable development under Schedule 8 of the Act or a Planning Scheme. Furthermore, a development which is neither listed in Schedule 8 Part 3(a) declared to be assessable or self-assessable development pursuant to the Act or a Planning Scheme will be characterised as exempt development.

SELF-ASSESSABLE DEVELOPMENT

Self-assessable development can either be identified under Schedule 8 Part 2 of the Act or made self-assessable development under a Planning Scheme.

Schedule 8 Part 2 Division 1 lists self-assessable development that may be made assessable development as follows:-

All building work in relation to a Class 10 building under the Building Code of Australia Part 83 (other than building work mentioned in Part 3 of the Schedule (that is):-

  1. A greenhouse, pergola, gazebo, shed or the like; or
  2. A fence other than a swimming pool fence and required to be constructed by the Building Act 1975 Part 4B; or
  3. A non load bearing aerial antenna, flagpole, mast or tower that is:-
  • If it is detached from a building is not more than 10 metres high; or
  • If it is attached to a building is not more than 2.5 metres high.

Schedule 8 Part 2 Division 2 lists that self-assessable development which may not be made assessable development or exempt development. "All building work that would be assessable development if it were not carried out by or on behalf of the state, public sector entity or a local government".

Self-assessable development may proceed without any approval but must comply with codes included in the Planning Scheme. A Development Permit is not necessary for self-assessable development.

ASSESSABLE DEVELOPMENT

Assessable development is set out under Schedule 8 Part 1 of the Integrated Planning Act as follows:-

  1. Carrying out building work that is not self-assessable development or exempt development;
  2. Carrying out operational work if the reconfiguration of a lot is also assessable development for the reconfiguration of the lot;
  3. Reconfiguring a lot under the Land Titles Act 1994 unless the Plan of Subdivision necessary for the reconfiguration is a Building Format Plan of Subdivision that does not subdivide land on or below the surface of the land or is for the amalgamation of two or more lots or is in relation to the acquisition including by agreement of land by a constructing authority within the meaning of the Acquisition of Land Act 1967 for the purpose set out in Schedule 2 of that Act;
  4. Development prescribed under a regulation under the Environmental Protection Act 1994 for this section for carrying out an environmentally relevant activity under that Act.

A Planning Scheme may also dictate what is assessable development. Development approval and development permits are required before assessable development can be commenced.

Once you have decided whether your Development is exempt, self-assessable or assessable development you can then proceed with making the necessary applications with the relevant Assessment Manager, usually the Local Government.

FURTHER INFORMATION

This Information Outline is provided courtesy of Hall Payne Lawyers who are experienced in this area of law. They are located at Level 9, 344 Queen Street, Brisbane, QLD 4000 or call them on (07) 3221-2044 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Hall Payne Lawyers are an established Queensland firm practicing in the areas of employment law (unfair dismissal etc), accident compensation (WorkCover, motor vehicle accident, personal injuries), anti-discrimination & harassment, consumer law, family law, wills & estates, criminal law and conveyancing. Hall Payne Lawyers are a founding member of the Australia-wide PeopleLaw group.

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