Is your development application properly made since the recent amendments to the Sustainable Planning Act 2009

15 February 2013 Topics: Planning and environment

The transitional issue

As a result of the recent amendments to the Sustainable Planning Act 2009 (SPA), transitional issues have arisen that may render your development application as ‘not properly made’.

The issue has arisen because of a delay in updating the Sustainable Planning Regulation 2009 and the approved IDAS forms to reflect amendments made to the SPA.

One of the major amendments to the SPA was the removal of the requirement that an applicant provide evidence of entitlement to State resources at the time of making a development application. The State government has decoupled the requirement to provide evidence of entitlement to State resources from the Integrated Development Assessment process. The result is that the SPA no longer recognises the concept of State resources.

However, until 17 November 2012, the approved IDAS forms still requested this information in a mandatory section of the form. Question 9 of the IDAS form 1 that was in effect until 17 December 2012 and was mandatory, asked ‘does the application involve a State resource?’ If the question was answered yes, the applicant was also required to provide evidence.

The current version of IDAS form 1 as amended on 17 December 2012 has moved Question 9 to Question 8 (to being a non-mandatory question), which means the question may now be left unanswered.

Consequences for applications made between 22 November 2012 and 17 December 2012

The failure to update the forms is significant because, even though information about State resources did not need to be provided under the SPA from 22 November 2012, the question on the IDAS form 1 was mandatory, and so a failure to complete it (and provide evidence if necessary) would mean that the application was not properly made under section 260 and 261 of SPA.

Whilst the assessment manager has discretion to excuse non-compliance with the mandatory supporting information, the excusal power does not extend to the mandatory requirements part which must be completed as part of the approved form.

Therefore, any developers who failed to answer Question 9 in the IDAS form 1 between 22 November 2012 and 17 December 2012, or failed to provide evidence required by the form, may have issues in relation to whether their application has been properly made. For those development applications, we would advise contacting the assessment manager at this early stage rather than having to deal with the issue of realising that the development application was not a properly made application later down the track.

Consequences for future applications

Although the question relating to State resources on the new IDAS form is non-mandatory, developers still need to be careful about not providing misleading information. The risk is that developers might select ‘No’ in answer to the question, on the basis that they do not need to provide the information; but on one view this would be misleading.

To avoid that risk, given that the question is non-mandatory, the safest approach is generally not to complete the question.

Other issues

In addition to the issues associated with the approved IDAS forms, the SPA checklists are also out of date. We advise applicants not to rely on these checklists when determining what supporting information is needed and considering referral requirements.

If you are concerned that your application may not be a properly made application in accordance with the mandatory requirements of the SPA you should consider obtaining legal advice.

Should you have any queries, please do not hesitate to contact our team on +61 7 3231 2444.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.