Update on transitional issue in lodging development applications
13 February 2013
Recent amendments to the Sustainable Planning Act which took effect immediately on the date of assent (22 November 2012) have created a transitional risk for clients and solicitors lodging development applications.
Provisions of the Act have commenced without corresponding provisions having taken effect in the Regulation and without the approved forms having been updated by the Department of State Development, Infrastructure and Planning (DSDIP).
At this stage, DSDIP has advised that the Regulation is not expected to be updated so as to be consistent with the Act until mid-February 2013.
Although an update was made to IDAS form 1 on 17 December 2012 (published 21 December 2012), this update was also incorrect.
For anyone who has used the version of the IDAS form 1 which remained in effect until 17 December 2012, the issue was that Question 9 of that version of the form was a mandatory question (Does the application involve a State resource?). Upon the omission of Section 264 from the Act which took effect on 22 November 2012, there was no longer a concept of State resources under the Act, although a list of State resources still exists under the Regulation and the particular difficulty was that applications that do not use the approved forms and that do not contain the mandatory information required in those forms will not be properly made (see ss 260 and 261). The danger is that this might pass unnoticed by the assessment manager and only be discovered at a very late stage.
Please note that although assessment managers have jurisdiction to excuse non-compliance with supporting information (the approved form states it is mandatory to supply supporting information for the application) there is no jurisdiction under Section 261(b)(i) to excuse non-compliance with Section 260(3). This is the information required under the mandatory requirements part of the approved form itself, which was the difficulty with this version of the form.
For anyone who has used the more recent version of the IDAS form 1 dated 17 December 2012, a version of this question unfortunately still remains in the form and is located at Question 8. The question in this version is specified to be non-mandatory. If the question is left unanswered, there is no problem. However, the difficulty is that some applicants may have volunteered to answer the question.
Given that the concept of State resources no longer appears in the Act, the answer should now always be ‘no’, but the question still offers a choice of answers. One risk is that applicants who have voluntarily attempted to answer this non-mandatory question may have accidentally submitted misleading information. Additionally, for applications lodged from 22 November 2012 that include Crown land, please note that ‘owner’s consent’ is now required (not State resource consent), so a related risk is that applicants may have attempted to lodge a ‘State resource consent’ instead of an ‘owner’s consent’, because of the wording of this question.
Queensland Law Society has raised this issue with the department and hopes that a further revised version will be issued shortly but timing is not known at this stage. We have also expressed our concern that the associated checklists remain outdated.
Solicitors advising clients on applications that have been lodged from 22 November 2012 may wish to give consideration to contacting the assessment manager at an early stage regarding a minor change to the application and resubmitting those parts of the application that require the approved forms once they issue. Additionally, they should not rely on the published checklists when ascertaining information and referral requirements.