Planning Appeals
Have you received an approval that you wish to appeal a condition? Or a refusal and need to appeal?
Sometimes, you might receive a decision that doesn’t align with your expectations. Whether it is a refusal, or a cost prohibitive condition. There are various ways to appeal these decisions and Steffan Harries has years of experience in navigating good and cost effective outcomes for our clients.
Types of Planning Appeals
Under the Planning Act 2016, there are various forms of planning appeals that range from appealing a decision notice within the assessment period (Change Representations), appealing a condition of approval, or appealing a refusal.
Skip forward:
Frequently Asked Questions
Yes, this process is called “Change representations’. There are strict timeframes that you must adhere to so we always recommend reaching out to one of our town planners to discuss asap.
20 business days starting the day after your development approval is dated.
This is a great question that we always ask ourselves. Where time is of the essence, sometimes we’ll recommend accepting the conditions of an approval, allowing for a Change to the application later on via Minor Change. If you aren’t in a hurry, it is always worth negotiating the decision notice.
What we now call ‘Change representations’ under the Planning Act 2016, was called ‘Request to negotiate the decision notice’ under the Sustainable Planning Act 2008.
Change Representations
The Planning Act 2016 outlines the procedures for making, considering, and deciding on change representations, along with the associated timeframes. Change representations can only be made during the applicant appeal period, which spans 20 business days after the assessment manager provides the applicant with a decision notice. It is important to note that change representations cannot be made or decided upon once the applicant’s appeal period has concluded.
An applicant has the option to submit change representations concerning matters within a development approval or the standard conditions of a deemed approval. However, change representations cannot be made for minor change applications. Examples of matters that change representations can address include the conditions of the development approval or a decision to grant a preliminary approval instead of a development permit.
Applicant Appeals
Applicants have a limited timeframe of 20 business days from the start of their appeal period to lodge an appeal against a decision made by the Council.
In cases where a negotiated decision notice (as a result of Change Representations) has been issued to the applicant, the 20 business days for filing an appeal commences from the date the negotiated decision notice is provided.
Reasons for Applicant Appeals
Applicants may have several reasons for filing an appeal, including:
- Refusal or partial refusal of the development application.
- Disagreement with a matter specified in the development approval, including any conditions attached to it.
- Displeasure with the decision to grant a preliminary approval instead of a development permit when a permit was initially sought.
- Challenging a deemed refusal, which occurs when the Council fails to make a decision within the required timeframe.
- Appealing against an infrastructure charges notice.
- Seeking to revive a lapsed development approval.
These are some of the common grounds for appeal that an applicant may pursue.
Submitter Appeals
A submitter has the opportunity to appeal a decision made by the Council within the submitter appeal period. The submitter appeal period commences once the decision notice or negotiated decision notice is provided to the submitter and spans 20 business days.
It is the Council’s responsibility to inform both applicants and submitters in writing about the specific start and end dates of their respective appeal periods. This ensures clarity and allows for timely submission of appeals.
Reasons for Submitter Appeals
A submitter has the right to appeal specifically against the portion of the development approval that pertains to impact assessable development or a variation approval under Section 43 of the Planning Act 2016.
The appeal can encompass one or more of the following aspects:
- Granting of the development approval.
- Challenge of a specific condition(s) associated with the development approval or the absence of certain conditions.
- Disagreement with the duration of the current period specified in the approval.
When submitting an appeal, a submitter can address any or all of these elements as relevant to their concerns.
Frequently Asked Questions
“Res B” is a superseded zoning that was common in Brisbane. The majority of these zones ended up becoming Low-Medium Density Residential zones (LMR), but not in all instances. We always recommend using the latest and most up-to-date mapping to determine your zone.
No. You cannot appeal a Code Assessable development application unless you can demonstrate there has been a significant non-compliance with the planning scheme. This is called the “Wednesbury Principle”.
What is the Planning and Environment Court (P&E)
The Planning and Environment Court is responsible for handling cases related to planning and development, environmental protection, coastal areas, marine parks, conservation areas, and other related matters. It is recognized as an exemplary environment court by the United Nations Environment Program (UNEP).
This section provides information on the functioning of the Planning and Environment Court and outlines the process for initiating legal proceedings. For more in-depth information on environmental courts and tribunals, policymakers can refer to the guide titled “Environmental Courts and Tribunals: A Guide for Policy Makers.”