Development Assessment Rules

In anticipation of the commencement of the Planning Act 2016 on 3 July 2017, the Department of Infrastructure, Local Government and Planning has released the Development Assessment Rules.

The Development Assessment Rules is a statutory instrument made by the Minister under the Planning Act. It is one of the key instruments under the new planning framework in Queensland which sets out rules for the development assessment process including rules about:

• making a development application;
• referring a development application to a referral agency;
• requesting additional information for a development application;
• carrying out public notification of a development application;
• deciding a development application by an assessment manager and a referral agency;
• circumstances where a development application has lapsed and reviving a lapsed application;
• changing a development application and referral agency responses;
• the effect of the Native Title Act 1993 (Cth).

The DA Rules takes effect once it is prescribed by the Planning Regulation which is currently in draft. The DA Rules is required to be kept on the department’s website.

DA Rules released in March 2017

The DA Rules released in March 2017 which similarly follows the stages of the current integrated development assessment system under the Sustainable Planning Act 2009 relevantly provide for the following:

• Application stage – when a development application is taken to be a properly made application and when the application stage is taken to have been completed.
• Referral stage – when a development application is taken to be properly referred, the referral agency’s assessment process, when the referral stage may start and when it is taken to have been completed.
• Information stage – the process for making and responding to an information request and when the information stage is taken to have been completed.
• Notification stage – the public notification requirements of a development application and when the notification stage may start and when it is taken to have been completed.
• Decision stage – the process for deciding a development application and when the decision stage may start and when it is taken to have been completed.
• Miscellaneous – other matters affecting the development assessment process including the process for changing a development application and a referral agency response, rectifying any missed referral, making representations about a referral agency response, reviving a lapsed application and stopping a current period in the development assessment process and effect of the Native Title Act.

Application stage

The application stage starts when a development application is received by the assessment manager. The assessment manager has 10 business days (known as the confirmation period) to determine whether it is a properly made application.

A development application is taken to be a properly made application:

• where no action notice is given to the applicant within the confirmation period – on the business day the application is received by the assessment manager;
• where an action notice is given within the confirmation period – on the business day the applicant gives the assessment manager a written notice that the action notice has been complied with;
• where an action notice is given within the confirmation period but the assessment manager subsequently accepts the application as a properly made application – on the date the assessment manager accepts the application as a properly made application.

The applicant has 20 business days (or a further agreed period) to comply with an action notice. The application is taken to have not been made if the action notice is not complied with and the application has not been accepted as a properly made application.

An assessment manager must give a confirmation notice for a properly made application in the following circumstances:

• where the referral stage or the notification stage applies to the application – within the confirmation period;
• where an action notice is given and it is complied with – within 5 business days after the assessment manager receives a written notice that the action notice has been complied with;
• where an action notice is given and the assessment manager subsequently accepts the application as a properly made application – before the end of the period in which the applicant is required to comply with the action notice.

The application stage ends when:

• the assessment manager gives a confirmation notice to the applicant;
• the confirmation period had ended, where no confirmation notice is given and the development application is a properly made application;
• an information request is made by the assessment manager, where the referral and notification stages are not applicable; or
• a decision notice is given by the assessment manager, where the referral, information and notification stages are not applicable.

Referral stage

The referral stage only applies if the development application is subject to referral as prescribed in the Planning Regulation and a valid referral response has not already been given by the referral agency before the application is made.

The referral stage starts on the business day after the application stage has ended.

An applicant has 10 business days (or a further agreed period) to give a copy of the development application to a referral agency together with any confirmation notice. Within 5 business days after the application is referred, the applicant is required to give the assessment manager a written notice of the day of the referral.

A referral agency has 5 business days after its receipt of the application (known as the referral confirmation period) to determine whether it is a properly referred application.

An application is taken to be a properly referred application:

•  where no action notice is given to the applicant and the assessment manager – on the business day the application and a copy of any confirmation notice is received by the referral agency;
• where an action notice is given to the applicant and the assessment manager – when the applicant has complied with the action notice within 20 business days after its receipt of the action notice (or a further agreed period).

The application is taken to have not been referred if the applicant does not comply with the action notice within the prescribed timeframe.

The application may lapse in certain circumstances if the applicant does not take the required actions for the referral of the application within the prescribed timeframe. However, the applicant has 20 business days to revive a lapsed application by undertaking the required actions.

A referral confirmation notice may be given by a referral agency for a properly referred application. However, where an applicant has complied with an action notice, the referral agency must give a referral confirmation notice to the applicant and the assessment manager within 5 business days of the applicant complying with the action notice.

The referral agency assessment period (as prescribed in schedule 2 of the DA Rules or otherwise 25 business days, or a further agreed period) starts on the business day after the earlier of the following:

• the referral confirmation notice has been given;
• the referral confirmation period has ended, where no action notice has been given.

[Note – this period includes the time taken by the referral agency to make an information request within the initial prescribed period.]

A referral agency must give a referral agency response to the assessment manager and the applicant before the end of the referral agency assessment period.

The referral stage ends when the assessment manager receives all referral agency responses or the period to provide a referral agency response for all referral agencies has ended, whichever occurs first.

Information stage

The information stage does not apply in the following circumstances:

• the applicant has advised that it does not agree to accept an information request (except for a development application for specific matters, for example, it includes a variation request);
• the assessment manager has stated in the confirmation notice that it does not intend to make an information request and the referral stage is not applicable or all referral agencies have given valid responses before the application was made.

Any information request must be made by:

•  an assessment manager – within 10 business days (or a further agreed period) starting from the business day after the application stage has ended;
• a referral agency – within the first 10 business days of the referral agency assessment period (or a further agreed period).

The applicant has 3 months (or a further agreed period) to respond to an information request. The applicant may do the following:

• provide all of the requested information; or
• provide part of the requested information or give a written notice that none of the information will be provided and advise the assessing authority to proceed with its assessment.

The information stage ends when:

• where no information request is made – the later of the prescribed periods for making an information request by an assessing authority has ended;
• where an information request is made – the earlier of the applicant responding to all information requests or all of the prescribed periods for responding to an information request have ended.

Notification stage

Public notification of a development application must start:

• where there are no referral agencies and the information stage does not apply – within 20 business days after the confirmation notice is given;
• where there are referral agencies and the information stage does not apply because the applicant has advised that it does not agree to accept an information request – within 20 business days after the last referral agency assessment period has started;
• in other circumstances – within 20 business days after the information stage has ended.

Public notification must be carried out in the way prescribed in schedule 3 of the DA Rules within the prescribed period by:

• publishing a notice in a newspaper (see Part 1B);
• placing notice on the premises the subject of the application for a specified period (see Part 1A);
• giving notice to the owners of lots adjoining the premises (see Part 1B).

The applicant must give the following to the assessment manager:

• a written notice of the intended start date of public notification;
• a notice of compliance with the public notification requirements within 10 business days after the last day on which a submission may be made (or a further agreed period).

The application may lapse if the applicant does not take the required actions to publicly notify the application or give a notice of compliance within the prescribed timeframe. However, the applicant has 20 business days to revive a lapsed application by undertaking the required actions.

The assessment manager must accept a submission which is a properly made submission but may accept a submission even if it is not.

The assessment manager has up to 10 business days (or a further agreed period) to consider the submissions starting from:

• where the public notification was carried out by the applicant – the business day after its receipt of the notice of compliance;
• where the public notification was carried out by the assessment manager – the business day after the last day on which a submission can be made [note – the minimum period for making a submission about a development application is prescribed in section 53(4)(b) of the Planning Act].

The notification stage ends:

• where submissions are received – when the period to consider a submission has ended or the assessment manager gives an earlier written notice to end the period;
• where no submissions are received – on the business day after a notice of compliance is received by the assessment manager or the last day on which a submission can be made (if the publication notification was carried out by the assessment manager).

Decision stage

A development application cannot be decided by the assessment manager until all of the above stages have ended if they are applicable to the application.

The assessment manager generally has 35 business days (or a further agreed period) to assess and decide an application which starts from [note – this period includes the time taken by the assessment manger to make an information request within the initial prescribed period (of 10 business days)]:

• where the referral and notification stages are not applicable and no information request is made – the business day after the end of the application stage;
• in other circumstances – the end of the last stage.

The assessment manager’s decision period cannot be extended by agreement where the assessment manager has been given a Ministerial direction to decide the application or the application is subject to a Ministerial call in.

If there is a concurrence agency, the assessment manager must not decide the application within 10 business days of its receipt of the last concurrence agency response. However, this restriction does not apply if the applicant has given a written notice to the assessment manager that it does not intend to make representations about the concurrence agency response.

In general, the assessment manager must give a decision notice within 5 business days of deciding the application. The decision stage ends when a decision notice is given to the relevant interested entities.

Miscellaneous

Changed application

An application may be changed at any time before it is decided. Depending on whether the change constitutes a “minor change”, it may affect the development assessment process. Minor change is defined under the Planning Act by reference to whether it would result in “substantially different development” [see schedule 1 of the DA Rules and schedule 2 of the Planning Act].

A change which is a minor change does not affect the development assessment process. Where a change is not a minor change, the changed application may be required to be publicly notified again and the notification stage would apply.

In circumstances where the changed application causes additional referral requirements, the referral stage would apply and the information stage could also apply if an information request was made by the referral agency.

Changed or late referral agency response

A concurrence agency may change its referral agency response at any time before the application is decided in specified circumstances.

A late referral agency response may also be given by a concurrence agency before the application is decided if agreed in writing by the applicant.

Rectification of any missed referral

The DA Rules provide for circumstances before the application is decided where a missed referral may be rectified prior to the application becoming lapsed.

Certain prescribed actions are required to be taken by the applicant to rectify any missed referral and the referral and information stages would apply to the missed referral agency. If the notification stage applies to the application, the rectification of a missed referral would not affect the required actions for public notification which have already been undertaken.

Representations about a referral agency response

Representations may be made by an applicant to a concurrence agency at any time before the application is decided about changing a matter in the referral agency response. In doing so, the applicant may stop the assessment manager’s decision period.

Reviving a lapsed application

As noted above, an applicant’s failure to carry out certain actions within the prescribed period could result in the lapsing of a development application. The applicant generally has 20 business days of the application lapsing to take steps to revive the application. If those steps are not properly undertaken, the lapsed application may not be revived.

Stopping a current period

An applicant may stop a period which is “active” [note – this does not include any period that has already ended or is yet to commence] (known as the current period) in the development assessment process under the DA Rules. However, such entitlement would not exist where the application has lapsed or is required by an enforcement notice or in response to a show cause notice.

The current period for specified matters may be stopped by giving a written notice to the assessing authority, which may be withdrawn or given as many times as required for a cumulative period of up to 130 business days.

Where such written notice is given, the current period is stopped for the period stated in the notice and the balance of the current period restarts on the business day after the period stated in the notice ends or the assessing authority receives a written notice that it has been withdrawn.

Other matters

The DA Rules prescribe the following requirements for an agreement for a further period in the development assessment process:

• The agreement must be made before the end of the initial prescribed period by written notice between the parties.
• The agreement must identify the section of the DA Rules to which it relates and a copy must be given by the party who initiated the extension to other parties to the application.

The DA Rules also provide for other procedural rules about matters associated with a third party advice or further advice about a development application, the effect of the Native Title Act and publishing a notice about the decision in relation to a development application and an application to change a development approval.

General observations

The DA Rules has retained most of the fundamental elements of the current integrated development assessment system under the Sustainable Planning Act.

However, the DA Rules has introduced a number of mechanisms to enable the referral and information stages to be “skipped” where they are not applicable or necessary. It has also broadened the opportunity for an applicant to stop a current period in the development assessment process to attend to matters as required which is currently available in the integrated development assessment system under the Sustainable Planning Act in limited circumstances.

Overall, the DA Rules does provide a level of certainty on the development assessment process and the mechanisms available to stream-line and expedite the process are welcoming. However, it is a complex process and requires both the applicants and assessing authorities to pay close attention to the prescribed requirements and timeframes.

Like any other process, once the DA Rules is put into practice, it will become clearer which part of the process will require refinements or improvements. Perhaps, this is where the “true” flexibility comes in since the DA Rules may be amended by the Minister when necessary.