Refinements ‘roll on’ for our planning system

Refinements ‘roll on’ for our planning system

18 January 2022

Shortly before the Festive Season break, the Planning, Development and (General) Regulations 2017 were, again, amended.  The amendments are numerous and extend to a number of development assessment and compliance functions.  The most significant changes are summarised below.

Regulation 31 – Verification of application

An accredited professional who has determined that they are the correct relevant authority for an application or part of an application, is taken to have been engaged as the relevant authority at the time that they verify an application and serve notice under regulation 31(1)(d).

This is an important clarification for the purposes of section 90(1) of the Planning, Development and Infrastructure Act 2016 (“the PDI Act”) which prevents applicants from removing accredited professionals from their engagement other than with the consent of the Minister or in accordance with section 90(2) thereof.

Regulation 41 – Referrals

This regulation is amended to clarify that referrals under section 122(1) of the PDI Act are only relevant to whether planning consent should be granted to a development application and to allow referral agencies to reserve matters for further consideration, in accordance with clause 2 of Schedule 9.

Regulation 47 – Performance assessed development and restricted development

In addition to allowing the zones, subzones or overlays within the Planning and Design Code to specify places where public notices for notifiable performance assessed development and restricted development applications are not required, the Planning and Design Code can now specify classes of development where placement of the public notice is not required.

Regulation 64A – Access to neighbouring land

This is a new regulation. The corresponding Form within the new Schedule 10B provides for a formal notice to be issued by any developer who wishes to gain access to neighbouring land under section 140 of the PDI Act (for instance, if the development cannot occur unless access is available from the neighbouring property).  Without this regulation, section 140 can be rendered of no effect.

Regulation 67 – Lapse of consents or approvals (section 126(2))

This regulation is amended to clarify that the operative date of a consent or approval is the latter of the date upon which it was given, or the date upon which an appeal against the relevant decision is finalised (other than for costs applications).

Regulation 76 – Advice from Commission

This regulation is amended to clarify that when the State Planning Commission provides initial advice on land division applications to relevant authorities, it must relate to the grant of a land division consent under section 102(c) or 102(d) of the PDI Act only. Therefore, the advice cannot have regard to matters relevant to assessment of the application against the Planning Rules for the purposes of determining planning consent under section 102(a).

103 – Certificates of Occupancy

Certificates of occupancy requirements are now within Part 11 Division 3 and Part 11 Division 4 of the Regulations, comprising regulations 103 – 103H, summarised below:

  •  regulation 103 – a certificate of occupancy is not required for Class 1a buildings until after 30 June 2022.  Class 10 buildings remain exempt from a certificate of occupancy;
  • regulation 103A(1) – documents required to accompany an application for a certificate of occupancy for Class 1b-9 buildings.  Regulation 103A(2) contains separate document requirements for applications for certificates of occupancy for Class 1a buildings.  Regulation 103B provides that, from 1 July 2022, the requirements set out in a statement of building occupancy requirements for Class 1a buildings, published by the Chief Executive on the portal, will be prescribed requirements (i.e. must be met) for Class 1a buildings;
  • regulation 103A(2) – relevant authorities can dispense with the requirement for a Statement of Compliance for any Class of building provided that:
    • it is not a designated building (currently Class 2, 3 or 9 buildings consisting of two or more storeys and Class 5-8 buildings consisting of 3 or more storeys) on which the use of a designated building product (currently products consisting of metal panels or linings formed with an aluminum, or similar thin metal sheet material with any type of core material – e.g. ACP cladding) was carried out after 12 March 2018;
    • the relevant authority is satisfied that a person required to complete 1 or both parts of the Statement has refused or failed to complete that part and the person seeking the certificate of occupancy has taken reasonable steps to obtain the relevant certification or certifications; and
    • it appears to the relevant council (and only a council), after undertaking an inspection, that the relevant building is suitable for occupation;
  • regulation 103C – provisions relevant to developments where site contamination exists and remediation is necessary but has not occurred before the grant of a certificate of occupancy or, where a certificate is not required, occupation commences;
  •  regulation 103D – where certain fire safety measures are required to be installed within a building, a certificate of occupancy cannot be granted unless or until a report from the relevant fire authority is sought;
  • regulation 103E – timeframes for the determination of applications for certificates of occupancy;
  • regulation 103F – instances where a council (and only a council) can revoke a certificate of occupancy; and
  • regulation 103G – that, in addition to regulation 103 where a Class 1a building was approved prior to 19 March 2021 and building work commences on or after 16 December 2021, a certificate of occupancy is not required for that Class 1a building, regardless of whether it is completed after 30 June 2022.

Regulation 126 – Additional expiable offences

Expiation fees are, again, applicable in circumstances where the recipient of an enforcement notice has not complied with a (lawful) direction in that notice.

There is a new expiation fee at regulation 126(e) of $750 for offences under section 213(11) of the PDI Act.

Schedule 8

Clause 2(1)(a)(xiv) is new. It provides that plans for development ancillary to dwellings and plans for applications seeking planning consent for new buildings or structures or extensions to existing buildings, must be accompanied by details of soft landscaping and the percentage of the site that is pervious to water.

Clause 2(1)(g)(i) is amended to provide that if a proposed development involves native vegetation clearance and the land is subject to a Native Vegetation Overlay or State Significant Native Vegetation Overlay, a clearance report is required for level 2, 3 and 4 clearances under the Native Vegetation Act 1991 as well as level 1 clearances.

Delegations

When considering the above amendments, we recommend that consideration be given to updating  existing delegations under the Regulations.

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