To view this post in PDF format please follow this link: Industry Update – Superseded Planning Scheme

DID YOU KNOW THAT YOU CAN REQUEST A LOCAL GOVERNMENT TO ASSESS YOUR APPLICATION UNDER A SUPERSEDED PLANNING SCHEME?

2016 is going to be a big year for planning in South East Queensland. There are changes occurring at every level of government and a number of new planning instruments in the works. Moreton Bay Regional Council and Gold Coast City Council have just recently adopted new planning schemes; several others are expected to follow throughout the year. Brisbane City Council is preparing to release their first major amendments package since the adoption of the Brisbane City Plan 2014. The commencement of a new planning instrument is an interesting time for landowners, with some seeing windfall gains and increases to a property’s development potential. On the other hand, some may find that the changes have resulted in a loss of development rights or expected yield. In this instance, a landowner has the opportunity to request that Council assess their development application under the old – or ‘superseded’ – planning scheme.

When can a request for assessment under a superseded planning scheme be made?

Under Section 95 of the Sustainable Planning Act 2009, a person may request that a Local Government assess an application under a superseded planning scheme. To do so, an applicant must have been injuriously affected by a change to a planning instrument and have thereby suffered a potential loss of development rights on their property, such as:

• A reduction in development potential due to a change in zoning (e.g. a Low Density Residential property being reclassified as Rural or Environmental Management under a new planning scheme);
• The introduction of onerous code or overlay provisions (e.g. a property identified under a new overlay);
• A change in level of assessment or development becoming prohibited;
• A subsequent and significant loss in property potential (e.g. maximum height or GFA/site cover).

How do I make a superseded planning scheme request?

A superseded planning scheme request must be made to the relevant local Council within one year of the new planning instrument taking effect. The request must include a description of the proposed development and detail the reasons for assessment under the superseded scheme. Council often require payment of a separate fee for this service and have up to 30 business days to decide the request. If approved, the applicant has a prescribed period in which they can then lodge a subsequent development application and/or compliance certificate for assessment under the superseded provisions.

What happens if Council refuse the request?

Council has full discretion when deciding a superseded planning scheme request. Council may refuse a request if they do not believe the applicant has been injuriously affected by the new planning instrument, or if they believe the changes are
marginal and do not have a significant effect on the development potential of the subject land. If an application is refused, the applicant has the right to claim compensation under Sections 701 and 703 of the Sustainable Planning Act 2009; however, the applicant must first lodge the development application under the new planning instrument and have it refused or approved subject to adverse conditions.

If you would like to enquire about superseded planning scheme requests, feel free to contact our planning team on (07) 3876 0533 or at doug@kenryanassoc.com.au.