How to assess a development application under the Sustainable Planning Act 2009

Transcription

1 How to assess a development application under the Sustainable Planning Act 2009 Planning Institute of Australia How To Seminar Series, April 2013 OLIVIA WILLIAMSON, ASSOCIATE

2 Introduction The assessment of a development application by an assessment manager under the Sustainable Planning Act 2009 (SPA) - Chapter 6 Part 5 Relevant statutory provisions and practical issues that arise with respect to: the planning instrument hierarchy; the rules that apply for planning instruments that come into effect after the date an application is lodged, or that are in draft form; the special rules that apply to assessing development applications under superseded planning schemes; and the special rules that apply for section 242 preliminary approval development applications.

3 Code assessment Section 313 of the SPA Sub-section (2): the matters or things the assessment manager must assess the application against, reflects the relationship between planning instruments Sub-section (3): the matters or things the assessment manager must assess the application having regard to Sub-section (4): additional matters when the assessment manager is not a local government Sub-section (5): confirms that all other matters or things not mentioned in section 313 must be disregarded Practical issues A code assessable development application is not assessed against the whole of the planning scheme What is an applicable code?

4 Impact assessment Section 314 of the SPA Sub-section (2): the matters or things the assessment manager must carry out the assessment against, reflects planning instrument hierarchy Sub-section (3): the matters or things the assessment manager must carry out the assessment having regard to Practical issues Impact assessment is wider than code assessment Includes the whole of the planning scheme No equivalent limiting provisions to section 313(5) in section 314

5 Case law on assessment The Planning and Environment Court has endorsed a purposive and non pedantic approach to the interpretation of planning instruments Principles of interpretation of planning instruments include: They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach They should be construed as a whole They should be construed in a way that best achieves their apparent purpose and objects A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved Implementation objectives must be read sensibly and in context

6 Case law on assessment (cont) BM Carr Holdings atf The Carr Farming Trust v Southern Downs Regional Council & Anor [2013] QPEC 4 - consideration of a surviving approval The meaning of have regard to

7 Planning instrument hierarchy Section 15 of the SPA identifies the hierarchy of State instruments which may be made under the SPA, all of which prevail over planning schemes and other local planning instruments State Planning Regulatory Provisions Regional Plans State Planning Policies Standard Planning Scheme Provisions (QPPs)

8 Planning instrument hierarchy (cont) Practical issue: sections 313 and 314 do not require assessment against the standard planning scheme provisions Section 53 of the SPA requires the standard planning scheme provisions to have effect in the place of local planning instruments to the extent of any inconsistency

9 New/draft planning instruments Sections 311 and 317 of the SPA Exception for development application (superseded planning scheme) Practical issue The assessment manager may give the weight it is satisfied is appropriate to the material identified Coty principle BM Carr Holdings atf The Carr Farming Trust v Southern Downs Regional Council & Anor [2012] QPEC 73 Reasons advanced as to why determinative weight should be given to a later planning scheme

10 Development applications (superseded planning scheme) Section 315 of the SPA Exemption for infrastructure obligations Practical issue Assessment by referral agencies Sevmere Pty Ltd v Cairns Regional Council [2009] QCA 232

11 Section 242 preliminary approval applications Section 316 of SPA Assessing the part of the application that seeks to vary the local planning instrument Sub-section (4)(b) Confirms sections 313 and 314 continue to apply for the part of the application which is the application for preliminary approval Sub-section (4)(d) The proposed variations must not cut across the existing framework of the planning scheme

12 Section 242 preliminary approval applications (cont) Sub-section (4)(e) The sufficiency of information provided to any submitters regarding the effect of the propose variations is important Statutory Guideline 04/09: Preliminary approvals that affect a local planning instrument

13 Decision rules One set of legally binding rules that regulate development decisions Section 324 Three decision options An assessment manger s decision must not be inconsistent with a State planning regulatory provision Section 326 Sets out the decision rules for code and impact assessment of development applications

14 Decision rules (cont) The key decision rule is that the assessment manager s decision (or the Court s) must not conflict with the planning scheme unless there are sufficient grounds to justify the decision, despite the conflict

15 Decision rules (cont) Relevant instruments Meaning of conflict and grounds Weightman v Gold Coast City Council & Anor [2003] QPELR 43 The process for determining whether or not there are sufficient grounds to justify approval despite conflict

16 Decision rules (cont) The decision maker should: Examine the nature and extent of the conflict Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme, and if the conflict can be justified on those planning grounds Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application despite the conflict

17 Decision rules (cont) Statutory Guideline 05/09: Sufficient Grounds for decisions that conflict with a relevant instrument Practical issues Case law relating to the equivalent provisions of the IPA should be treated with caution when seeking to apply them to the SPA regime There was a change from sufficient planning grounds to sufficient grounds in 2006 Section 329 of the SPA sets out the decision rules for a section 242 preliminary approval development application Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271 Development applications to regularise an unlawful use

18 Westlink: A case study Westlink Pty Ltd v Lockyer Valley Regional Council litigation Series of four judgments - two from the Planning and Environment Court, and two from the Court of Appeal The first P&E Court judgment: Proposed power station on land mostly zoned Rural General Zone Use was an inconsistent use for the purposes of the Gatton Planning Scheme Community need, co-location factors and SEQ Regional Plan support were advanced as grounds in support of the application The Judge ultimately considered that the application did not conflict with the planning scheme for the reason that when the scheme was read as a whole, conflict was not readily apparent

19 Westlink: A case study (cont) First Court of Appeal judgment: The primary Judge erred in finding there was no conflict with the planning scheme The specific provisions of the zone stated explicitly that the development was inconsistent This will create conflict unless there are equally powerful words elsewhere in the scheme which quality that position for the site in question Second P&E Court judgment: The Court found there was a number of sufficient grounds for approval of the application despite the conflict, including that: were the proposal to be developed as a public utility, it would qualify as a special purpose ; and the site was amongst not incompatible land uses including a landfill, a highway, and a sub-station.

20 Westlink: A case study (cont) Second Court of Appeal judgment: The primary Judge took into account an irrelevant consideration when considering that the same use, if conducted by a public utility, would be consistent with the purpose of the zone The primary Judge ought to have considered the submissions that the nearby enterprise opportunity area provided a possible site where the development could be carried out The latest Court of Appeal decision suggests that the concept of sufficient grounds has expanded Absence of a negative impact was previously considered neutral, but this case suggests that it may be a matter of public interest that the project under consideration will not destroy local amenity

21 Conclusions Sections 313 and 314 of the SPA are the starting points for assessing development applications While there are separate sections for assessment, the same decision rules apply for both code and impact assessable development applications State planning regulatory provisions must be observed and all other planning instruments are to be observed with any departures only by way of exemption in defined circumstances Westlink judgments demonstrate that assessment and decision rules can be complex to apply in practice

22 Thank you OLIVIA WILLIAMSON, ASSOCIATE Phone o.williamson@hopgoodganim.com.au