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Planning and Environment

26 March 2010

For updated information on the Building and Other Legislation Amendment Regulation (No. 1) 2010 (Qld) please click here.

New exemptions for residential development under SPA

When the Sustainable Planning Act 2009 (Qld) (SPA) commenced (18 December 2009), duplexes and some other structures were declared to be exempt from assessment against planning schemes. This is an opportunity for developers and landowners and changes the goalpost for local government. The effects might also cause community friction if duplexes and the like were previously impact assessable.

There has been some element of confusion as to the types of buildings or structures it affects and in what circumstances the exemption applies. There is also some confusion on the impact on a local government’s ability to charge for infrastructure for exempt development.

The new planning regime, through section 232(2) SPA, has broadened the scope of exemptions for residential development in Queensland. The legislative requirements of the exemption can be found in item 2 table 2 schedule 4 Sustainable Planning Regulation 2009 (Qld).

What type of application does the exemption apply to?

The exemption only applies to a material change of use of premises where the development is:

for a residential purpose in a residential zone
not self-assessable, and
not subject to an overlay (however, if there is a bushfire overlay the exemption may not apply).

The scope of the exemption is also limited where a building already exists on the land.

What type of buildings or structures does the exemption apply to?

Subject to the other prerequisites, the exemption applies to a material change of use for the following buildings and structures:

Class 1(a)(i) buildings

Detached houses.

Class 1(a)(ii) buildings

Duplexes, e.g.:

· row houses

· terrace houses

· townhouses, and

· villa units.

Class 10 buildings

Non-habitable buildings, e.g.:

· private garages

· carports

· sheds

· fences

· masts

· antennas

· retaining walls

· freestanding walls, and

· swimming pools.

What effect will the exemption have on a development application?

Application for a material change of use of premises - not required

An application for a development permit for a material change of use of premises for assessment against a planning scheme is not required if the exemption applies.

As the development will not be impact assessable, the public notification stage of IDAS does not apply. Therefore, third party appeal rights will not vest.

Application for building work - required in most cases

An application for a development permit for assessable building work will still be required in most cases for the residential development contemplated by the exemption.

The application will be assessed against the building assessment provisions which can include technical standards such as those contained within the Building Code of Australia.

The application may be approved by either a local government building certifier or a private building certifier.

Issues for local government

A local government may be a concurrence agency for a building work application with limited jurisdiction to consider issues such as amenity, design and siting.

A local government may also extend the scope of their control by ensuring the type of development contemplated by this exemption is classified as self-assessable or by expanding the jurisdiction of overlays under a planning scheme.

There may still be scope for a local government with a priority infrastructure plan (PIP) to issue an infrastructure charges notice. However, a local government without a PIP will not be able to attach an infrastructure contribution condition under a planning scheme policy on an exempt material change of use.

Further information

For any specific questions relating to the new exempt assessment schedule feel free to contact our group and we can assist you further:

Planning and Environment Group contacts

Stuart Macnaughton on 07 3233 8869
Troy Webb on 07 3233 8928
Fraser Hardman on 07 3233 8975
Jaclyn Rolfe on 07 3233 8738

Finance Group contacts

Peter Stewart on 07 3233 8942
Peter Kennedy on 07 3233 8537
Charlotte Davis on 07 3233 8614
Michael Hobson on 07 3233 8908

Projects and Property Group contacts

Kristan Butler on 07 3233 8848
Ian Hazzard on 07 3233 8976
Cherie Leatham on 07 3233 8867
Andrew Muir on 07 3233 8836