Court sheds light on the transitional provisions of the Planning Act 2016

The Planning and Environment Court granted an application for a request for a permissible change to a development approval for a residential subdivision on land located in Diddillibah. This decision has important implications for developers and local government moving forward in relation to how the transitional provisions operate under the Planning Act 2016.

Implications

• The Planning Act 2016 includes transitional provisions to address amongst other things the transition between applications and proceedings that were commenced under the Sustainable Planning Act 2009, but not yet determined until after the commencement of the Planning Act 2016.
• An application for a request for a permissible change to a development approval was made to the Court whilst the Sustainable Planning Act 2009 was in force.
• The Court heard and determined the application at the time the Sustainable Planning Act 2009 had been repealed and the Planning Act 2016 had commenced.
• The Court in considering the transitional provisions under the Planning Act 2016 determined that the application would be assessed and determined under the Sustainable Planning Act 2009.
• The Court in making this determination considered whether the application was an application for the purposes of section 288 or a proceeding for the purposes of section 311 of the Planning Act 2016.
• Ultimately, in both instances, the Court was satisfied that the Sustainable Planning Act 2009 would continue to apply and consequently the application would be assessed under that Act.
• The Court in considering the application also noted that considerable weight would be given to a local government’s view of changes to a development approval which impact on the road network external to the development given the network is the responsibility and concern of the local government.

Decision

The applicant Sailmist Pty Ltd made an application to the Court seeking a request for a permissible change to a development approval for a residential subdivision on land located in Diddillibah. At the time the application was made, the Sustainable Planning Act 2009 was in force. However, shortly thereafter the Sustainable Planning Act 2009 was repealed and the Planning Act 2016 commenced.

Prior to determining the application, the Court considered which planning regime the application would be assessed under. The Court considered sections 288 and 311 of the Planning Act 2016 and formed the view that the application would be assessed under the Sustainable Planning Act 2009 despite the commencement of the Planning Act 2016.

The Court then proceeded to have regard to the applicable provisions under the Sustainable Planning Act 2009 and in determining to grant the application noted that:

• owner’s consent of the land the subject of the development approval was provided;
• the change did not result in a substantially different development as the change related to the internal road layout of the development;
• the Council was in support of the proposed change and such support gained considerable weight given that the change would impact on the Council’s external road network;
• of the 33 properly made submissions in relation to the development approval, only two were against the development and raised concerns about the appropriateness and or/ safety of their access which would not be impacted upon.

Authored by:
Stafford Hopewell, Partner
Elton Morais, Senior Associate