This article is the fifth in our series examining the key provisions of the new Planning Act, which is expected to commence on 3 July 2017.
Making changes to a development application
Under the new regime, applicants wanting to make changes to their development application will need to follow a procedure similar to that currently in place under the Sustainable Planning Act 2009, with some changes.
As can be seen from the above flowchart, the process for changing applications will continue to depend on the threshold question of whether the change to the application is a "minor change". The definition of minor change retains the fundamental requirement that the minor changes must not result in substantially different development.
The Planning Act provides some express statements on what is not a minor change. For example, the definition of minor change now expressly excludes changes that introduce prohibited development or that require a referral agency to assess the application against, or have regard to, new matters.
"Substantially different development" remains undefined in the Act. However, the guidance currently contained within Statutory Guideline 06/09 is proposed to be largely incorporated into the new Development Assessment Rules.
Applicants should be aware that any applications made before the commencement of the Planning Act will continue to be governed by the current regime, including the process for changing applications.
Negotiated decision notices
Under the Planning Act, applicants will still be able to make representations (to be called "change representations") about a development approval during the appeal period. Applicants also retain the ability to suspend their appeal period to have further time to make representations.
If an applicant suspends its appeal period to make representations and the assessment manager does not respond within 20 business days (or a longer period agreed with the applicant), the suspension will be lifted and the appeal period will resume. While this new feature of the Planning Act has been referred to as a de facto time limit on the consideration of representations, it should be recognised that there is no positive obligation on the assessment manager to respond to representations within this timeframe. Importantly, this change also means that applicants could be caught out if they are not aware that their appeal period will resume if they do not receive a response within 20 business days.
Change representations will be assessed by the assessment manager against the same matters that must be considered when deciding a development application. Similar to the current regime, if the assessment manager agrees with a change representation, a negotiated decision notice will issue.
Making changes to a development approval after the appeal period
Changes to a development approval after the expiration of the appeal period are called "change applications" under the Planning Act.
Developers wanting to make a change application will need to consider whether their change is a:
- minor change: similar to a "permissible change" under the current regime; or
- other change: a new concept under the Planning Act for a change that is not a minor change.
There are some subtle differences between minor changes under the Planning Act and permissible changes under the current regime. For example, for approvals that were publicly notified, there will no longer be a requirement to consider whether a change would be likely to cause a person to make a submission objecting to the proposed change when determining whether a change is minor. However, as with changes to applications, the Planning Act retains the fundamental requirement that minor changes must not result in substantially different development.
For those applicants wanting to make more substantial changes to a development approval, the new procedure for "other changes" may prove useful. Unlike the current regime, which requires an applicant to submit a new application if a change is not a permissible change, the Planning Act will enable non-minor changes (other changes) to be made without requiring the applicant to resubmit a new development application.
A responsible entity will assess the change application as if it were the assessment manager and the change application is the original development application. This could result in new or amended conditions. The responsible entity will be required to assess and decide these other change applications "in the context of the development approval". According to the explanatory notes to the Planning Bill, not only is this intended to avoid having the change considered in isolation, it is also (importantly) not intended that the entirety of the development need be assessed.
What does all this mean?
The Planning Act does not dramatically change the process for changing development applications and approvals. Applicants will still be able to make minor changes to their applications with no impact to the assessment process, and changes to approvals before and after the expiry of the applicant's appeal period will remain substantially the same as under the current regime (albeit with different terminology).
However, there are a number of subtle changes to these processes that are hidden in the detail. For example, the introduction of a de facto time limit on the consideration of representations may be seen as a welcome addition, but the accompanying risk of appeal periods expiring will need to be managed by applicants. The new regime also provides the opportunity to make more substantial changes to an approval without requiring a new development application. Given the impending commencement of the Planning Act, developers who may require changes to their applications or approvals in the near future should familiarise themselves with these new processes.
If you would like to know more about how these changes might affect you, please contact a member of our team.
In our next article we consider Planning and Environment Court appeals and enforcement orders under the Planning Act.
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