FOR PL A N N ERS. Michael Forwood. Tuesday 11 July 2017

Transcription

1 ESSENTIAL REFERRALS FOR PL A N N ERS Michael Forwood Tuesday 11 July 2017

2 OVERVIEW Legislation Schedule 10 of the Planning Regulation Referrals Process SARA Referrals Non SARA Referrals Tricks and Traps Qualifier: This presentation is intended to provide a plain English overview of referrals. DA rules have been written in a way that requires careful interpretation before detailed advice is provided.

3 LEGISL ATION - Planning Act 2016 Planning Act 2016 Chapter 3, Part 3, Division 1 of the Planning Act sets out the requirements for a Referral agency assessment s54 s56 will guide the majority of processes s57 relates to a response before application (pre-referral) s58 relates to the effect of no response from a referral agency s54 states an applicant for a development application must, within the period required under the development assessment rules, give a copy of the application and the required fee, to each referral agency. s55 states a regulation may prescribe the matters the referral agency: may, must, or must only assess a development application against; and may, must, or must only have regard to for the assessment. s55 confirms the referral agency must assess against the instrument in effect when the application was properly made, but a referral agency may give the weight that the referral agency considers is appropriate, to an amendment or placement to the instrument or other document that came into effect after the application was properly made.

4 LEGISL ATION - Planning Regulation 2017 Planning Regulation 2017 Part 4, Division 3, Sections set out the requirements for a referral agency s assessment s22 will guide the majority of processes s23 relating to changes to referral agency s assessment for particular development at Port of Brisbane s24 relating to a non-response from a referral agency for a development application for building work under the Building Act s22 sets out referral agency s assessment generally, and refers to Schedules 9 and 10 of the Regulation. s22 states the referral agency must assess the application against the laws administered by the referral agency and the policies that are reasonably identifiable as policies applied by the referral agency. In addition to the requirements of schedule 9 and 10, s.22 states what the referral agency must also have regard to in its assessment.

5 LEGISL ATION - Planning Regulation 2017 if the referral agency is the chief executive: the strategic outcomes stated in the planning scheme the purpose statement stated in the planning scheme for the zone and applicable overlays the strategic intent and desired regional outcomes stated in the regional plan the State Planning Policy, parts C and D for premises designated by the Minister the designation for the premises if the referral agency is a person other than the chief executive: a local planning instrument the regional plan for a region, to the extent the regional plan is not identified in the planning scheme the State Planning Policy, to the extent the State Planning Policy is not identified in the planning scheme for premises that are designated premises - the designation any temporary State planning policy applying to the premises any development approval applying to the premises where relevant, any relevant charges resolution material about the application received by the referral agency

6 LEGISL ATION Schedule 9 & 10 Schedule 9 relates to building work under the Building Act can apply to applications proposing building work seaward of coastal building line in a declared fish habitat area if all or part of the premises are within 25m of a State transport corridor Schedule 10 relates to development assessable and is the source of most referral information includes the previous SPRP for the South East Queensland Regional Plan and Koala Habitat Areas brings together all relevant information relating to the referral triggers and the assessment of a referred development applications is 131 pages in length (94 pages more than Schedule 7 of the SPR) made up of 21 parts

7 LEGISL ATION Schedule 10 Par ts Part Purpose 1 Airport land 2 Brothels 3 Clearing native vegetation 4 Contaminated land 5 Environmentally relevant activities 6 Fisheries 7 Hazardous chemical facilities 8 Heritage places 9 Infrastructure-related referrals 10 Koala habitat area 11 Noise sensitive place on noise attenuation land Part Purpose 12 Operational work for reconfiguring a lot 13 Ports 14 Reconfiguring a lot under Land Title Act 15 SEQ development area 16 SEQ regional landscape and rural production area and SEQ rural living area 17 Tidal works or work in a coastal management district 18 Urban design 19 Water-related development 20 Wetland protection area 21 Wind Farms

8 LEGISL ATION Schedule 10 Structure Category of development (assessable or prohibited) Requirements for assessment by assessment manager, including: Category of assessment (code or impact); Assessment Benchmarks; Matters code assessment must have regard to; Matters impact assessment must have regard to; and The fee for development application

9 LEGISL ATION Schedule 10 Structure Requirements for referral agency s assessment, including: Type of development application requiring referral; The referral agency; Limitations on referral agency s powers; Matters referral agency s assessment must be against (i.e. SDAP Codes); Matters referral agency s assessment must have regard to; Matters referral agency s assessment may be against; Matters referral agency s assessment may have regard to; and The fee for development application.

10 REFERRAL TRIGGERS Quick Reference Guide Appendix 1 of SDAP 2.0 (

11 REFERRAL TRIGGERS Trigger Review Review Provide clearer delineation between state and local matters; Carry forward the existing policy intent, unless there is a reason to change; Remove duplication of assessment; Review fees to ensure the amount is equivalent to the level of assessment undertaken; and Recognise sequencing of development when determining fees. Key Changes New Urban design trigger (Part 18) New Clearing native vegetation trigger(part 3) Coastal development Refinement of MCU and ROL triggers to reduce unnecessary referrals State transport triggers New triggers based on existing state transport corridors or future state transport corridors (In most instances reduced number of triggers and reduced fees) Hazardous chemical facilities

12 REFERRAL TRIGGERS Urban Design Trigger Urban Design Trigger Trigger has received significant press from industry groups and peak bodies Purpose is to ensure that significant projects result in high quality urban design outcomes and provide guidance to applicants on how to demonstrate that a robust urban design process has informed the design of the project. Trigger intended to capture MCU applications with a GFA of more than 50,000m 2 in Brisbane City Council or Gold Coast City Council; and 25,000m 2 in other Council s

13 REFERRAL TRIGGERS Urban Design Trigger Urban Design Trigger Two possible assessment pathways Pre-referral Direct engagement with Queensland Government Architect Obtain written support for development application $2,000 fee Avoid referral to SARA Referral Development application referred to SARA with advice received from Queensland Government Architect Standard referral assessment process $15,000 fee Trigger not applicable to Variation Requests (i.e. master planned residential estates)

14 REFERRAL PROCESS

15 REFERRAL PROCESS - Lapsing Lapsing Unless actions are taken, not undertaking referrals in accordance with s.54(1) of the Planning Act will result in the development application lapsing. Lapsing provisions relate to: Not referring the application within 10 days (s5.1); Not advising assessment manager of referral within 5 days (s5.4); Not complying with all of the actions in the action notice within 20 days (s8.3); and Not undertaking the above actions within timeframes for a change that is not a minor change (s27).

16 REFERRAL PROCESS Missed Referral Process Missed Referral Process s29 of the DA rules sets out the process for a missed referral agency and states that: A party to the application (applicant, assessment manager or referral agency) may advise other parties that the applicant has not referred the application correctly Where notice has been given, the application does not lapse as a result of a missed referral agency The applicant must refer the application in accordance with s5.1 within 10 days of receiving the notice Referral and Information Request parts apply to the missed referral agency The Decision part cannot commence until the Referral part has been completed A notice about a missed referral agency has no effect on any actions already undertaken during public notification. If the application is not referred in accordance with s5.1, the application will lapse

17 REFERRAL PROCESS Changes Minor Change Applicant gives a notice of the change to assessment manager Assessment manager gives a copy of the notice to each referral agency Assessment manager advises referral agencies and the applicant of the effect of the change on the development assessment process Non Minor Change about a matter raised in a submission, information request or further advice Applicant gives a notice of the change to assessment manager Assessment manager gives a copy of the notice to each referral agency Assessment manager advises referral agencies and the applicant of the effect of the change on the development assessment process Where new referral agency is triggered: Assessment manager gives a copy of the notice to new referral agency Applicant refers the application in accordance with s5.1 Other Changes Applicant gives a notice to the assessment manager of the change Applicant refers the application in accordance with s5.1

18 REFERRAL PROCESS Response Before Application Response Before Application (aka Pre-referral) Section 57 of the Planning Act allows an applicant to seek a referral agency response before a development application is made. The response is considered a referral agency response where the application: is the same or is not substantially different from the proposed application; and is made within the time, if any, stated in the response. Where a response before application is requested, the referral agency can seek payment of a fee. Where a fee is paid, the fee does not have to be paid again for the application.

19 SARA REFERRALS - SARA Processes SARA reviewing practises and processes to achieve greater efficiencies and to make better decisions. Process changes are focused on 4 areas: Pre-lodgement Information provided at a level consistent with detail provided Flexible method of delivery of advice The right people in the room and minutes before you leave Pre-referral Only intended for applications likely to get a no requirements or standard condition response Process acceptable to Fast Track applications Information Requests and Further Advice IR used to seek essential information (TIA) FA used to empower changes and identify non-compliances

20 SARA REFERRALS - SDAP SDAP version 2.0 is applicable as of 3 July 2017 and can be found on the DILGP website: SDAP Amendments include: improved code drafting with simplified and clarified provisions; Modules removed and replaced with standalone state codes. These state codes are broadly grouped into locational, usebased or advice only; Module 2: Regional plans, Module 6: Strategic cropping land and Module 15: Airports have been deleted; and changes to FastTrack5 checklist.

21 NON SARA REFERRALS Referral Agency Local Government The chief executive of the distribution entity or transmission entity (i.e. Energex and Powerlink) Certain building work Development on airport land A devolved environmentally relevant activity Aspect of Development Development on a premises subject to an easement or near a substation site. Brisbane City Council Development on Brisbane core port land Port operator Development below high-water mark and within port limits if applicant is not port operator Chief executive of the port authority Prescribed assessable development within limits of a port Minister responsible for administering the Transport Infrastructure Act for: Gold Coast Waterways Authority The Queensland Fire and Emergency Service Development that is inconsistent with Brisbane port land use plan for transport reasons material change of use on strategic port land that is inconsistent with the land use plan Operational work that is tidal works or work in a coastal management district in Gold Coast waters Operational work that is tidal works or work in a coastal management district involving a marina

22 TRICK & TRAPS Notification of referral of application to assessment manager (5 days) Missed Trigger = Missed Referral No backup for non compliance with missed referral process Applicant and assessment manager rolls with change applications Requirement to notify advice agencies of a post decision change Urban Design trigger Non SARA referrals Land subject to a distribution or transition entity (dial before you dig can assist with this). Federal referral requirements & native title obligations

23 ESSENTIAL REFERRALS FOR THANK PL A NYOU N ERS Michael Forwood Tuesday 11 July 2017