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PLANNING INSTITUTE OF AUSTRALIA How to – “make a well made application”

PLANNING INSTITUTE OF AUSTRALIA How to – “make a well made application” Wednesday 15 February 2012. Introduction. Setting the scene – war stories Relevant statutory provisions – IPA and SPA Owners consent and State resource entitlement Excusatory power Potential reforms. War stories.

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PLANNING INSTITUTE OF AUSTRALIA How to – “make a well made application”

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  1. PLANNING INSTITUTE OF AUSTRALIA How to – “make a well made application” Wednesday 15 February 2012

  2. Introduction • Setting the scene – war stories • Relevant statutory provisions – IPA and SPA • Owners consent and State resource entitlement • Excusatory power • Potential reforms

  3. War stories • 5 story apartment building – Albatross Ave - IPA application / IPA appeal - preliminary issues: accurate description of land, accurate description of proposal, and owner’s consent - excused under s.4.1.5A “I am satisfied that neither the owners of lots 1 or 2 nor any other person has had their opportunity to exercise rights in relation to this application substantially restricted” - Court of Appeal – no right to excuse a “requirement” of the act - application fatality! Fawkes Pty Ltd and Anor -v- GCCC [2007] QPEC and GCCC -v- Fawkes P/L & Ors [2007] QCA 444

  4. War stories • “Significant project” comprising marina, residential and industrial precinct – Caboolture - IPA application / SPA appeal - preliminary issue: resource entitlement - P&E Court decision “The appellant developer is the latest in a line of developers to face arguments of a broadly similar kind that they’ve fallen foul of the hitherto unsuspected traps in the application process under IPA” - excusal - 5 factors in support of discretion set out in Neilsens Quality Gravel decision Northeast Business Park Pty Ltd -v- MBRC and Ors [2010] QPEC 112

  5. War stories • ATV adventures – Gold Coast - SPA application / SPA appeal - Preliminary issues: mandatory supporting information (application premised on the fact that it was an intensification of an existing use) and resource entitlement - Excusal denied! - “The non compliances have prejudiced the appellants and wider community”. - Application killed! Gates & Ors -v- GCCC and Ors [2011] QPEC 120

  6. Properly made applications

  7. Properly made applications IPA v SPA similarities and difference • Allowances for electronic lodgment of applications • Owner’s consent and State resource evidence in separate provisions (s.263 and 264) • Mandatory supporting information specified in approved forms • s.3.2.1(9) and (10) removed – these provisions allowed for applications to be deemed to be properly made in limited circumstances • Not properly made notice

  8. Owners consent • Who is the owner? • Mandatory for owner of land to which the application related to provide consent • MCU and ROL – not op works or building works • Easements • State resources • Onus rests with the applicant! Don’t stuff it up

  9. State resource entitlement • s.264 – “involves” a State resource • Schedule 14 of the Sustainable Planning Regulation 2009 • What is the “required evidence”?

  10. Excusatory power SPA – s.440 and s.820 • Wide and more generous that s.4.1.5A of IPA • Transitional provision found at s.820 • “In a way the court considers appropriate” • Specifically applies to applications that are not properly made.

  11. Reform • Discretion and excusatory power to Council – return of s.3.2.1(9) • Resource entitlement – clarification and consistency • Time given to rectify an application that is not properly made • Is there really any need for owners consent and resource entitlement?

  12. Questions? For More Information, please contact: Gerard Timbs Principal (07) 3231 0660 gtimbs@mcw.com.au

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