Planning Act 2016
Please note that the Planning Act 2016 comes into effect on 3 July 2017. Applications lodged prior to 3 July 2017 will continue to be assessed under Sustainable Planning Act 2009 in accordance with sections 285-289 of Planning Act 2016.
References to the Sustainable Planning Act will be changed and updated to the Planning Act 2016 in due course. Information on the new Planning Act 2016 can be found at www.dilgp.qld.gov.au/planning-reform
The Integrated Development Assessment System (IDAS) is a single uniform system for development approval that enables relevant state agencies to have input in the assessment process. The system provides for all social, environmental and economic matters relevant to a development application to be addressed at one time.
The IDAS process involves five stages:
The file is entered into Council's record keeping systems and then allocated to a Development Assessment Planner.
The planner will review the application and decide if it can proceed further (ie, whether it is "properly made"). Criteria for a properly made application can include whether the owner’s consent is given, the correct fee has been paid and mandatory supporting information is provided.
Once the application is properly made, it may be referred internally to other relevant Council officers including engineers, strategic planners, and sport and recreation planners.
If the application is impact assessable, an Acknowledgement Notice is sent. For code assessable applications, an Acknowledgement Notice is only sent if there are external referral agencies. Acknowledgement Notices are sent within ten (10) days of lodgement of an application.
You can contact your assessment manager at any time during the course of the application.
Information and Referral stage
Sometimes, information needed to properly assess a development application is not provided. Under the Sustainable Planning Act 2009, Council as the Assessment Manager may request further information via an Information Request. Where further information is required, it must be requested within the following timeframes:
- Impact Assessable applications and Code Assessable applications (with referral agencies) - within 10 days of an Acknowledgment Notice being issued
- Code Assessable applications (with no referral agencies) - within 10 days of lodgement.
The Act allows for extension of the above timeframes.
External referral agencies can also make Information Requests. These are sent directly to an applicant, with a copy forwarded to the Assessment Manager. Some of the commonly requested information includes:
- investigations into potential flooding and/or overland flow;
- stormwater disposal;
- unclear plans or lack of plans required to assess the development;
- adequately addressing the Planning Scheme Codes;
- site access, parking and manoeuvring.
If your development application does not have the information needed for assessment, it may take longer to process than a well-made application. Under the Act, you have six months from the date of the Information Request to send the information to the Assessment Manager. The information you provide is then assessed.
The application may be refused if the information provided in response to the information request is insufficient to allow for proper assessment of the application.
Under the Sustainable Planning Act 2009, referrals may be required to Queensland Government departments and authorities such as the Department of Transport and Main Roads and the Department Environmental and Heritage Protection. There are three types of referrals:
- Concurrence agencies - assess the proposal and may impose conditions of development. Concurrence agencies may also direct Council to approve an application with or without conditions, issue a preliminary approval only, or refuse an application.
- Advice agencies - assess the proposal and can recommend conditions and/or determination of development.
- Third party advice agencies - may have an interest in an application.
Referral agency requirements or conditions must be received by Council before a decision can be made on an application.
The Sustainable Planning Act 2009 requires certain development applications to be advertised or publicly notified.
Submissions can be made on a proposed development listed within the CairnsPlan as ‘impact assessable’. Normally, these are complex developments, or those that Council thinks might impact on neighbours or be potentially unsuitable for an area.
Developments that are straightforward, or considered generally suitable, are listed as ‘code assessable’. You cannot make a submission on these applications.
Guidelines and timeframes for public notification
Notification can start as soon as either the:
- Acknowledgement Notice is given, provided there are no concurrence agencies and that the Assessment Manager states in the Acknowledgement Notice that it does not intend on making an Information Request;
- Information Request period (as described in the Act) ends and if no Information Request has been made during this period;
- Applicant responds to all Information Requests and gives copies of any responses to the Assessment Manager.
The following public notification requirements apply:
- Publish a notice (at least once) in a newspaper circulating generally in the locality of the land the subject of the application;
- Place a notice on the land the subject of the application (in the approved form as detailed in the Act) for the full notification period. The notice must be maintained from the day it is placed on the land until the end of the notification period;
- Give notice to the owners of all land adjoining the land subject of the application.
The notification period is a minimum of 15 business days. It is recommended that you seek advice as to the notification period prior to commencing public notification.
The applicant must notify Council when the notification of the application has commenced. This is called the ‘notice of commencement’.
When the notification period has ended, the applicant must give the Assessment Manager written notice that the notification requirements under the Act have been met. This is called the 'notice of compliance'.
Who can make a submission?
Anyone can make a submission to Council opposing or supporting a development application.
Making a submission
Refer to the Have your say on a Development Application web page for details on how to make a 'properly made' submission.
For each development application, the Assessment Manager must:
- assess the application against all relevant State, regional and local planning legislation;
- consider the purpose of all relevant Codes; and
- consider all submissions made within the public notification period.
Decisions on development applications are made by:
- the full Council at the Planning & Sustainability Meeting or Ordinary Meeting,
- delegates of Council.
The majority of development applications are determined under delegation by the Manager Strategic Planning & Approvals following detailed assessment by a planning officer.
How applicants are notified (Decision Notice)
Applicants receive a Decision Notice within five (5) business days of the delegate or Council decision. If approved, the Decision Notice sets out the terms of the decision, appeal rights and conditions. In the case of a refusal, the Decision Notice provides the reasons for refusal.
Anyone who has made a properly made submission also receives notification of the decision.
Negotiated Decision Notice
The applicant has a 20 business day appeal period. However, the applicant may suspend the appeal period to lodge a request for a negotiated Decision Notice. The request must be lodged within 20 business days of suspending the appeal period.
The written representations must state what parts of the Decision Notice the applicant wishes to negotiate and why (for example, a condition of development). Council may amend the decision or refuse to amend the decision. The applicant then has the balance of the applicant appeal period to lodge an appeal if they do not agree with Council's negotiated Decision Notice.
Types of appeal
There are two forms of appeal for development applications:
- Applicant appeals - regarding decisions made about development applications.
- Submitter appeals - regarding decisions made for impact assessable applications, for further information please refer to Submissions & Submitter Appeals.
Reasons for appeal
Reasons for appeal can include the following:
- Refusal, or refusal in part, of the development application.
- A matter stated in the development approval, including any condition.
- Decision to give a preliminary approval when a development permit was applied for.
- Length of relevant period.
When you can appeal
An applicant can appeal against a decision by Council within 20 business days of the start of the applicant’s appeal period. If a negotiated Decision Notice has been sent to the applicant, then the 20 business days starts from when the negotiated Decision Notice is given.
Council advises applicants and submitters in writing when their appeal period begins and ends.
How to lodge an appeal
To lodge an appeal, a notice of appeal form must be completed and lodged with the accompanying fee to the Planning and Environment Court.
Following issue of a Decision Notice, additional applications or further actions may be required prior to proceeding with your development including:
- Prior to commencement - check conditions to see if you are affected by any of the conditions prior to commencement of works, or prior to lodgement of building approval.
- Provision of additional reports/studies – conditions of approval may require additional studies to be provided to and endorsed by Council prior to issue of a building approval or commencement of use (e.g. geotechnical report, landscaping plans, drainage network).
- Operational works applications lodged - get all operational works and compliance assessment applications required by the conditions of approval.
- Obtain building approval - appoint a building certifier to assess the building application. Approval of the building application must be obtained prior to commencement of works on site. Ensure you satisfy all conditions prior to commencement of works/or prior to building approval, or prior to commencement of building work.
- Appoint builder - sign a contract with a licenced builder and make sure that the builder has appropriate insurance.
- Appoint a building certifier - sign an agreement with an accredited building certifier to do the building inspections.
- Pre-start meetings - contact Council engineers from the Development Assessment Team to arrange a pre-start meeting appointment. At this time, the engineer will require details of the engineering consultant (RPEQ) and timing for the construction period (if required for engineering works on site).
- Building or reconfiguration work - comply with all approval conditions.
- On maintenance - consulting engineer to contact Council engineers from the Development Assessment Team to arrange an on maintenance inspection. Payment of on maintenance security deposit may apply.
- Plan Sealing (for reconfiguration applications) - lodge survey plan with council for signing and sealing.
- Off maintenance inspection - 12 months after the on-maintenance inspection, engineering consultant to seek joint off maintenance inspection with Council’s engineers. This will determine if assets are acceptable to be handed over to Council. A final acceptance letter will be given at this time. Where any securities are held for maintenance purposes, these will be released upon final acceptance.
- Infrastructure Charges – payment of charges if applicable.
- Titles Office (for reconfiguration applications) - lodge the sealed plan with the Titles Office.
- Occupation and use - ensure you comply with development approval conditions relating to ongoing use.
Conditions are included on every development approval. These form part of the development approval package and set out the circumstances in which the approved development may proceed.
All conditions are required to be reasonable and relevant, having regard to the proposal and planning requirements.
Legal effect of conditions
Conditions are an integral part of an approval. It is an offence under the Sustainable Planning Act to:
- fail to comply with a development condition;
- breach a development condition.
The conditions bind each and every individual and company that undertakes any work under the development approval. The development approval and conditions stay with the land, regardless of a change in ownership.
Consequences of breaching conditions
All conditions of development must be met by the applicant. Failure to meet the required conditions may have significant impacts on the surrounding area and may result in an unlawful development.
Council has a team of enforcement officers who investigate possible breaches of development approvals. The consequences of unlawful development may include:
- court action;
- the requirement to lodge a further development application.
This can be a costly and time-consuming process.