21 March 2006

Lapsing times for development approvals to be "rolled forward"

Queensland developers will find it easier to manage their projects with new changes to the lapsing of development approvals regime in the Integrated Planning Act 1997.

Currently, developments might have several approvals, reflecting the different stages and types of development in a project. This has meant that applicants might discover the approval for one part of the development (for example, the material change of use approval) has lapsed before the other approvals, such as the building approval, leading to complications and in some cases, the death of a project.

Under the Integrated Planning and Other Legislation Amendment Bill 2006, which was introduced into Parliament on 7 March 2006, lapsing times for approvals can be "rolled forward" such that they start again when subsequent "related approvals" are granted.

What has stayed the same?

Many of the concepts for lapsing of development approvals remain unchanged. Broadly speaking, the same "default" timeframes for lapsing apply, an approval can still provide for a different timeframe for lapsing, and an extension can be granted before the approval lapses. However, the new provisions do make detailed changes to the implementation of these concepts.

The new "roll forward" provisions

The key change to the approval lapsing regime is the "roll forward" provisions which provide a more generous and logical timeframe for the lapsing periods of material change of use of premises ("MCU") and reconfiguring a lot ("ROL") approvals.

The relevant periods for the lapsing of MCU approvals and ROL approvals are "rolled forward" and are taken to have started again when subsequent approvals for the same development take effect. These amendments are quite detailed and not susceptible to general rules which will apply in all cases. However, the features of the "roll forward" mechanism are:

• It only applies to MCU approvals and ROL approvals.
• The relevant period for the lapsing of the approval is taken to have started on (or "rolled forward" to) the day on which the latest "related approval" takes effect. The timeframe for lapsing can therefore roll forward more than once through a chain of related approvals.
• A "related approval" is separately defined for an MCU approval and an ROL approval. The MCU definition makes a further distinction between a preliminary approval on the one hand and a development permit or a preliminary approval which states related development is self-assessable or exempt development on the other. There is a further distinction between the first related approval and subsequent related approvals.
• In each case, the related approval must be applied for within two years of either the day the original approval, or the latest related approval, took effect . It is therefore not necessary to obtain the related approval within this two year period. It must be applied for within the two year period but it may be approved and take effect outside this period.
• Only approvals given by a local government or a private certifier in the case of an MCU approval and a local government in the case of an ROL approval can be related approvals. Approvals given by other assessment managers are not related approvals.
• With the exception of a development permit following a preliminary approval, the related approval for an MCU approval must be "necessary" for the MCU. This is to be contrasted with related approvals for an ROL approval which need only be "related" to the ROL..
• It will apply to all approvals (apart from approvals still on foot under the transitional section 6.5.1 of the Integrated Planning Act 1997) whether granted before or after the commencement of these amending provisions.

Implications

The reform of the lapsing provisions of approvals is a significant and perhaps overdue amendment to the Integrated Planning Act. The key change to allow the roll forward of MCU and ROL approvals is a logical and sensible approach to the practical difficulties which have been experienced in recent times in carrying out development within the relevant timeframes so as to avoid the lapsing of approvals. However, it is noted these provisions are not yet in force, although this is expected to occur within the next few weeks. Also, caution should be exercised when applying these provisions in a particular fact scenario as there are several hurdles which must be jumped to achieve a successful roll forward of an approval's lapsing period.

For a more detailed analysis of these new lapsing provisions, click here for a paper prepared by John Ware.