Last updated 14 December 2016 This chapter is currently under review.
The Sustainable Planning Act 2009 (Qld) (Sustainable Planning Act) provides a formal procedure for objecting to an impact-assessable development by making a submission during the notification period (s 305 Sustainable Planning Act).
Code-assessable development does not allow formal objection rights, but members of the public can still write to the local government and lobby their councillors.
Has a development application been submitted?
Sometimes, people only become aware that a particular development is proposed when bulldozers arrive at the land and start clearing it or demolishing buildings on it. It is difficult to stop development at this late stage, and the damage may be done before there is time to react. It is therefore important to know when a public notice of a proposed development is required and how to find out about a proposed development if public notice is not required.
A proposal to carry out impact-assessable development must be publicly notified (see Advertising requirements). The notice that is placed on the land must explain the type of development that is proposed and where to find out more information about it.
Code-assessable development generally does not require notification, so it is harder to know about it before the development actually begins. A person should contact the relevant local government if they suspect that a code-assessable development has been made.
Right to make a submission
Any person can oppose an impact-assessable development application by making a submission to the relevant assessment manager and appealing against a decision to approve the development to the Planning and Environment Court. The assessment manager should be able to advise if a specific development application is impact assessable.
Although the community has no formal rights to make submissions or appeal approvals of developments that are not impact assessable, an informal submission can be made to the relevant assessment manager and referral agencies. Although this does not give any rights to appeal the decision, it at least makes it possible for the public’s views to be considered.
Other than making submissions, any person may seek a declaration from the court under s 456 of the Sustainable Planning Act if the correct procedures are not followed in assessing a development application (e.g. if an impact assessable development is treated as code assessable). If development occurs without the correct approvals in place, a person may also apply to the court under s 601 of the Sustainable Planning Act for an order to stop the commission of a development offence.
How to make a submission
A submission is defined in sch 3 of the Sustainable Planning Act. To be a ‘properly made submission’ about a development application it must:
- be in writing and, unless the submission is made electronically under the Sustainable Planning Act, signed by each person who made the submission
- be received during the notification period (i.e. the public advertising period)
- state the name and residential or business address of each person who made the submission
- state the grounds of the submission and the facts and circumstances relied on in support of the grounds
- be made to the assessment manager.
Generally, a clear and rational submission based on valid planning and environmental issues and supported by evidence of likely adverse impacts is more persuasive than an emotional or irrational submission against the proposed development.
Petitions and form letters (i.e. identical submissions signed by different people) are less persuasive than individually tailored submissions made by people who show that they have looked at the application, considered its consequences and made reasonable criticisms.
Before making a submission, you should inspect:
- the development application held by the assessment manager for public inspection
- any reports or supporting information that accompany the development application (these may deal with planning issues, environmental impacts, traffic or other relevant issues)
- the relevant parts of the local government planning scheme.
Many local governments now make development applications, supporting reports and their planning scheme available on their websites. Alternatively, these documents should be available for inspection at the local government offices during the public notification period.
After carefully reviewing these documents, a person intending to make a submission should consider the extent to which the development application complies with the provisions of the planning documents and how much it takes into account any issues raised in relevant studies. A submission should focus on the issues that must be considered when deciding the application, such as:
- inconsistency with the planning scheme and other planning instruments (e.g. a regional plan)
- impact on residential amenity, urban design and character
- traffic (e.g. insufficient road capacity, traffic hazards)
- environmental impacts (air, noise and water pollution, ecology, conservation and cultural heritage values of the site)
- need and economic factors.
If sufficient funds are available, professional experts can be hired to advise about these issues and to help write a submission (see Taking Action to Protect the Environment for more ideas about how to successfully oppose a proposed development).
A factsheet on making submissions is available from the Environmental Defenders Office (EDO).
Notification of the decision
If a properly made submission on an impact-assessable development application is lodged, the assessment manager must notify any submitter of the decision about the development application.
Information about how to appeal the decision (i.e. the relevant appeal provisions) must be provided with the notice.
The applicant for the development approval has 20 days (although this may be extended) from the decision to negotiate conditions or appeal the decision.
If the applicant chooses to appeal, they must inform all submitters within 10 business days of starting the appeal. The development cannot lawfully be started before the appeal period ends or any appeal is decided.
Appeals to the court
The applicant for a development approval (whether code or impact assessable) can appeal to the Planning and Environment Court against any decision by the assessment manager rejecting an application or imposing conditions on an approval (s 461 Sustainable Planning Act).
In contrast, members of the public can only appeal against approval of a development application if it is impact assessable and they have lodged a properly made submission about it (s 462 Sustainable Planning Act).
The procedure for making an appeal is set out in ch 7 of the Sustainable Planning Act and the Planning and Environment Court rules. The steps for making an appeal are:
- lodge a Notice of Appeal in the approved form in the court registry within 20 business days of being given the decision notice
- request from the assessment manager the name and address of each principal submitter who gave a properly made submission and notify each of them of the appeal
- give a copy of the Notice of Appeal to the assessment manager, the applicant, any referral agency and the chief executive administering the Sustainable Planning Act within 10 business days after starting the appeal.
If the applicant for the proposed development appeals the decision of the assessment manager, each principal submitter must be notified of the appeal. Each submitter may then join the appeal by lodging a Notice of Election with the court to become a co-respondent within 10 business days of being given the Notice of Appeal (s 488 Sustainable Planning Act).
Even if a proposed development has been refused by local government, it may be important to become a co-respondent to the appeal to protect the rights to oppose the development in case the council back-flips during the appeal process.
It is strongly advised that applicants and submitters seek legal advice if contemplating an appeal to the court. Many community members and groups represent themselves in appeals to the court because they lack the funds to pay for lawyers. Being a self-represented litigant can be daunting, time consuming and confusing. The costs of the other parties to an appeal can be awarded against unsuccessful litigants in the court.
The appeal procedures in the court are complex, and the Community Litigants Handbook published by the EDO should be referred to when contemplating self-representation in court. Case studies of appeals are also available online.
Role of the court
The primary role of the court is to decide any appeal according to law and independent of local political pressures. The law is contained in the Sustainable Planning Act and the relevant planning scheme, planning scheme policies and other relevant planning instruments.
When hearing an appeal, the court re-hears the matter anew and makes a new decision on the merits of the application (s 495 Sustainable Planning Act). In this way, the court acts as the assessment manager for the appealed application.
The court will generally only protect environmental values that are recognised in a planning scheme or other planning instrument. This emphasises the importance of community involvement in the preparation of the planning scheme for a local area. If a person or group wants a wetland or other environmentally important area to be protected, the basic rule is that they must ensure that it is recognised and protected in the planning scheme.