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DEVELOPMENT
IN The law Welcome to one of the the most regulated and complex activity
that you can undertake in Queensland. The effect of
this desission has been the development of the Integrated
Development Assessment System (IDAS) developed by the Department
of Infrastructure and Planning. This system is supported by a several other bodies of legislation.
The principal ones being
To understand the impacts of recent development legislation
let’s walk thought the administrative process by way of an example.
While I intend to choose the simplest development you can
imagine, it will tell a story about the implication for any development
that is more complex and the principals encountered, as we travel the
road and could apply to ANY
development that you can think of. The development that I have chosen is the erection of a
humble lawn locker on a block of residential land in the suburbs Step 1. Does the local planning scheme
allow a lawn locker on your land? Don’t look at me as if I am out of my mind, placing anything
on your land is not a right
and to “use” your land for any
activity can be controlled by a planning scheme. If you live in
an area where the local council has determines that no lawn lockers
are to be allowed then you may not proceed with your desired development.
Step 2. Does the local planning scheme
allow your type
of lawn locker on your land? A planning scheme may determine the nature of the “use” on your land
and may determine aesthetic standard to which you must comply.
The planning scheme may have very prescriptive
requirements that you can interpret without assistance from council
(self assessable) but in many cases the standards will be performance based so you will need to have the proposal pass by
a planning officer after being accessed (development application) to
determine if the type of lawn locker you desire fits the requirements
of the council. Remember if you live in an area where the local council
has determines that only certain style of
lawn locker are allowed then you may not be able to proceed with your desired
development. Step 3. Does the local planning scheme
allow your size
of lawn locker on your land? A planning scheme may determine the scope of the “use” on your land
and may determine a scale or size standard to which you must comply.
The planning scheme may have very prescriptive
requirements that you can interpret without assistance from council
(self assessable) but in many cases the standards will be performance based so you will need to have the proposal pass by
a planning officer after being accessed (development application) to
determine if the size of lawn locker you desire fits the requirements
of the council. Remember if you live in an area where the local council has
determines that only certain size or scale
of lawn locker are allowed then you may not be able to proceed. At this stage I can hear you laughing at me as being ridiculous, but don’t laugh, there are councils that have these levels of controls.
You should also note that in Queensland, the time it takes for this type of application to pass
though your council could range from 7 days to 2 month before you get
a decision on an application to erect a lawn locker and at what cost
? Well expect it to be anywhere between
$250 to $500. That about the same cost as it is just to buy a
small lawn locker. Control Point 1 You should also note the scope
(size) and or nature
(appearance) of your lawn locker, the subject of your application,
is usually determined by a council planning officer who has delegated
authority from council. If the code to which you must comply is performance
based then the planning officer will have to determine, by their
own personal judgment, if your lawn locker complies with the standard.
This assessment could and does changes from person to person so don’t
be surprised if what you neighbor got approved 2 years ago won’t apply
to you. Outcome 1 If you council prohibits
lawn lockers on your land or if the local planner refused your application or changes
your application or places conditions
on your application and you are unhappy with this outcome then the planning
law provides you may appeal any of these things in the Planning and
Environment Court. On the surface this look very just and respectful of the
principal of review and transparency in governance and
while the fees to file an appeal to the court is currently only
$34.00, to embark on an appeal without the assistance of a lawyer and
a planner in what is basically the equivalent of a Distract Court is
unlikely to be a satisfying experience or deliver a satisfactory outcome,
and you are unlikely to receive much sympathy or tolerance from the
District Court judges that populate the benches of this court, if you
are self represented. Lawyers are hugely expensive (why I am yet to understand
but I suspect it is a result of having complete control over supply
and demand) but in a matter as simple as a lawn locker you will be faced
with a bill which on average, for this simplest appeal, won’t give you
much change from $20,000 -if the matter is required to eventually be
resolved by hearing in the court. A figure between $1000 and $20,000 can be expected if a
pre hearing compromise can be reached. Now I am not suggesting that many people would take a council
to court over a lawn locker, but my point is that for minor developments,
the community in general, effectively, has no practical appeal right
against planning matters. The other thing to know is that in the Planning and Environment
Court each party bears their own cost, unless one party is just plain
belligerent or administratively incompetent in the court process (easy
to do if you are self represented) and therefore you cannot count or
receiving a refund of a portion of a successful appeal and as councils
have infinitely deep pocket (no council can go bankrupt) and no shareholders
backlash if you waste money (council rarely are called on to answer
for the amount of money they throw at lawyers). Councils are loath to
back down even if it appears to you that their position is unsustainable. However for the sake of our example let say that you are
successful to this stage and the your particular council's planning
scheme is not an impediment to you meeting your ultimate dream of erecting
your own lawn locker on your parcel of land. You are now ready for-
Step 4. Does the State Government have a regional planning
strategy that could scuttle you dream to have your
own lawn locker on your land? Regional
planning scheme (currently 8 exist throughout Again I am not suggesting that it is likely a regional planning
project will scuttle your hopes to have your lawn locker but in serves
to demonstrate the layers of control that are exercised over the use
of your land and for the sake of our example we will go with the good
news that that a regional planning strategy is no impediment to your
plans. Step 5. Do requirements under any other piece
of Well lets look at some of that other State legislation and
what controls it can bring to the use of land in 5A-Environment The Environmental Protection Agency under the Environmental Protection Act 1994 controls the use of contaminated
land in The Agency also is responsible to manage the heritage
of Queensland
and if a building
or structures on your land is on a Register
kept by the Agency or that some artifacts is located under where you
wish to site your lawn locker or some custom of significance was performed
on the land where you have chosen to build your lawn locker, you will
need to have the Agency assess your proposal (development application)
before it can proceed. The Agency also manages a great many of Hopefully the construction of your lawn locker will not upset
the lifestyle of the endangered diggiest
wormist because if the project does involves an impact on biodiversity
you will need to have the Agency assess your proposal (development application)
before it can proceed. Having said all this, for a development for a lawn locker
on a block of residential land in the suburbs it is extremely unlike
but not impossible that that environmental or heritage consideration
could effect a proposal as small as our example. 5B-Water Unless you intend to supply water to your lawn locker for say potting plants and the water is to be drawn from a source other than a reticulated supply (i.e. a creek or new bore) then a development for a lawn locker on a block of residential land in the suburbs will not be affect by this legislation.
The Department of Natural Resources and Water is generally
responsible for the management of water in Queensland 5C-Mining The Mineral Resources Act 1989
controls the use of minerals in
The
Department of Natural Resources and Water is generally responsible for
the management of mining
in Queensland
For a development for a lawn locker on a block of residential
land in the suburbs it is extremely unlike but not impossible that that
mining lease will effect your project. Outcome 2 While we are not expecting any relationship between your
development, to erect a humble lawn locker on a block of residential
land in the suburbs, and any of the above pieces of legislation, if
however unusual circumstances did exist and you did encounter any of
the above and wanted to proceed you would need to consult with a specialist
in the relevant field to help you with your development application.
For the sake of our example however we will assume nothing
in the State arena acts an impediment to meeting your ultimate dream
of erecting your own chosen lawn locker. You are now ready for- Step 6. Do requirements under any other piece
of national
legislation
have an impact on your dream to have for your
own a lawn locker on your land?
6A-Native Title Native title is the term used by the common law to recognize
communal groups or certain individual's rights in relation to land and/or
waters. The recognition and protection of native title rights and interests
is set out in the Commonwealth Native Title Act 1993. Being a Federal Act it generally overrides
State law. Dealing with native title is another responsibility
that councils, as regulators, have obligation under. Nationally, native title is a role carried out by a National
Native Title Tribunal and here
in For a development for a lawn locker on a block of
residential land in the suburbs it is extremely unlike but not impossible
that that native title will be an issue for your project. 6B-Environment You may have notices that the Federal Government does not
always trust the States to do the right thing. This is true in relation
to certain areas of responsibility to protect the environment. While we are not expecting any relationship between your
development, to erect a humble lawn locker on a block of residential
land in the suburbs, and any of the above national agendas protocols
or legislation, if however unusual circumstances did exist and you did
encounter any of the above and wanted to proceed you would need to consult
with a specialist in the relevant field to help you with your development
application. For the sake of our example however we will assume nothing
in the National, State or Local planning arena has acted as an impediment to
meeting your ultimate dream of erecting your own chosen lawn locker. As we
have now completed the check of planning requirement for your development and
you are now ready for Step 7. Do you require a development permit
to actually "build" your
much desired and long awaited humble lawn locker
on your block of residential land
in the suburbs? Well, that depends exactly on how big and how high your lawn
locker is and exactly where your suburb is located. Provided that your suburb is not
located within Wind Region C (tropical cyclone area) mentioned in AS
1170.2 SAA Wind Loading Code (for this you will have to buy
a document from Standards Australia [$80] or ask you friendly local
council for advice ) and your lawn locker is less than 10m2 in area
and has a height of no more than 2.4m above the natural ground surface
and no one side is longer than 5m you may build the lawn locker without
a permit (Self Accessible). However you still have an
obligation to build it in accordance with the requirements of the Building
Regulation 2006 When you
get your copy of the Building Regulation 2006 from the Internet you
will promptly see that it is all to complicated for you to simply understand
because while no permit is required you still have to satisfy wind load
and siting requirement, which, unless you work with this document every
day you will find to daunting to locate the exact information you require so to feel comfortable your may need help from a Building
Certifier to help you with your project.
If your lawn locker does not meet
the specification set out above you will need a development permit so
let go have a look. |
