Guest Blog
Graham Clegg
1. The Planning Appeal Process Explained

In this Guest Blog, Planning and Environment Lawyer and Principal of Anderssen Lawyers, Dale Ellerman outlines the process of an Appeal in the Planning and Environment Court.

1. The Planning Appeal Process Explained
Informative
Graham Clegg
When a Heritage Exemption Certificate does not ...

In Queensland, a Heritage Place may be listed by a Council (if of local significance) or by the State (if of state significance), or both. A search can be undertaken of a local or state heritage register to determine if a place is heritage listed.

If development is being undertaken on (or adjoining) a heritage place, it may trigger the requirement to obtain development approval for the aspect of development being proposed. This is to ensure that the effects of the proposal on the heritage place can be appropriately considered and assessed. In some instances, it may be possible to obtain a Heritage Exemption Certificate (local or state).

A client recently came to us proudly waiving the Exemption Certificate they had obtained from the Department of Environment & Heritage Protection (DEHP), in respect of works to a heritage place of State significance. The proposed works were limited to internal fit-out alterations to accommodate their new tenancy lease within the building. We were commissioned to obtain the development approval for Material Change of Use (MCU) from the local Council. Having had the heritage assessment of the works completed upfront and an Exemption Certificate issued, they thought there would be no need for further assessment of heritage matters and that this would expedite processing time within Council for the development application. Time was of the essence to meet commercial and contractual obligations of the lease.

Schedule 3 of the Sustainable Planning Regulation 2009 identifies circumstances when development is ‘assessable’ or ‘self-assessable’ and the type of assessment required. With respect to development on a heritage place, Table 5, item 2 of Schedule 3 states inter alia that any aspect of development is assessable, other than development for which an exemption certificate under the Queensland Heritage Act 1992 has been issued. It further states that the type of assessment in such circumstances is code assessment (against the Qld Heritage Place State Code). Since the client held an Exemption Certificate, they understood the heritage aspects were therefore not assessable and the MCU would not have to be referred back to DEHP for heritage assessment, thus reducing processing time.

While preparing the development application and on closer inspection of the Exemption Certificate, we found that the development description that the certificate was issued in favour of was for ‘Demolition of existing fit-out and new fit-out work and new lift, structural openings and modifications’.

Although the particular aspect of development that was granted exemption was not stated on the certificate, it was apparent that it was in respect of the actual works to be performed (ie building work). The Exemption Certificate did not extend to the Material Change of Use component. This meant that the development application submitted to Council for Material Change of Use triggered referral to SARA for assessment by DEHP of heritage matters pertaining to the MCU aspect, pursuant to Schedule 3, Table 5, item 2 of the Sustainable Planning Regulation. The time savings the client thought they had achieved by obtaining the Exemption Certificate upfront were not realised because the MCU still triggered referral to SARA for consideration of heritage matters by DEHP, notwithstanding the Exemption Certificate.

We think it’s fair to say that it is highly likely that only a town planner would know the subtleties of distinction between the various aspects of development (eg Building Work, MCU, Op Works, etc) and the actual extent or limitations of a heritage exemption certificate. To avoid this confusion, we believe the certificate (and for that matter the Exemption Certificate Application Form) could be modified to more clearly identify the aspect of development that is being granted exemption, so that proponents are aware whether further approvals will be required for any other aspects of development. In the event that an Exemption Certificate does not extend to an MCU, then this should be clearly stated on the Exemption Certificate Application Form, so that the recipient of the certificate is aware that further approvals may be required.

We also found that the client had made some modifications to the drawings supplied to us for the MCU development application, when compared to those authorised by the original Exemption Certificate. This meant that while there were no contrary conditions imposed on the development application to those contained within the Exemption Certificate, the client would be required to either refer their building application to the DEHP for assessment of the modified drawings, or to return again to DEHP to update the Exemption Certificate to reflect the modified drawings, prior to gaining building approval.

The Take-Away

From the traps and tips we’ve shared in this blog, you should now have a better idea of things to be aware of when dealing with a heritage place and the potential limitations of Exemption Certificates.

If the proposed development involves an MCU in addition to carrying out building work, be sure to investigate whether the Exemption Certificate being sought extends to all aspects of development being applied for. If it doesn’t, you’ll need to factor in additional time to your development approvals timeframe for heritage assessment of that aspect of the development that does not benefit from the Exemption Certificate. In addition, be sure (as far as is practicable) to finalise the proposed development drawings prior to obtaining an Exemption Certificate, so that they will be consistent with those submitted with the development application, otherwise it will be necessary to either refer the building application to DEHP for assessment of the modified drawings, or to return again to DEHP at building application stage to update the Exemption Certificate to reflect the modified drawings.

Clegg Town Planning is experienced in procuring development approvals for both local and state heritage places and can relieve the stress and uncertainty from your project, by ensuring an efficient and streamlined approval process is followed.

When a Heritage Exemption Certificate does not provide Exemption
Quick Tip
Graham Clegg
Building Height

How is building height prescribed? A quick rundown on a common development assessment element. 

Building Height
Informative
Graham Clegg
Census – A Key Tool for Town Planners

With the Australian Census recently completed, this blog explores how census information is useful to, and indeed necessary for good town planning.

The Australian Census is an important tool for a wide array of users, for a variety of reasons and census results provide an essential source of information to prepare forward planning strategies. This ensures forward planning strategies accommodate developing trends. Town Planning by nature is a dynamic process that should continually seek to identify and address issues and objectives based on reliable data. That way, appropriate responses can be made and reviews conducted to assess how successful the strategies were at achieving their goal. Perpetual repetition of this process should result in continual improvement in planning policy to meet the needs of the future population. The strategies and even the objectives may need to be adjusted to accommodate the changing nature of the area to achieve the best planning outcomes for the community.

Without the availability of census information, early identification of trends would not be possible and the planning instrument might otherwise just be an arbitrary, theoretical document that is likely to be ineffective.

Read on if you would like to know why the census is a key tool for town planners. 

Census – A Key Tool for Town Planners
QLD Planning News
Graham Clegg
Queensland Planning Reform Website now Available

Following on from our June 13 blog post about the new planning legislation being approved by parliament, the Queensland government has just release their new 'Planning Reform' website to provide resources for industry participants to get up to speed with how the new planning system works before it comes into force mid-2017.

The Planning Reform website is packed with useful information covering every aspect of the new system with section on the System, Plan Making, Development Assessment, Dispute Resolution, News and Events, and Resources. 

Queensland Planning Reform Website now Available

12. Development Approvals in Ipswich involving Underground Mining

12. Development Approvals in Ipswich involving Underground Mining

When procuring development approvals from Ipswich City Council for clients whose site involves past underground mining activity, we have engaged Moreton Geotechnical to provide the necessary expert advice. In this Guest Blog, Ken Grubb (Director, Moreton Geotechnical) discusses what’s involved in preparing a site specific geotechnical report to support a development application to Council.

Initially, a PD Online search can be simp[ly done to identify whether your site is affected by the Mining Influence Area Overlay, triggering the need for a mining study or site specific geotechnical report (due to past underground open cut mining activities).

The mining studies need to include factual information on the bedrock geology and mining including mine plans if available, as well as engineering assessment of the stability of the workings and comments on the best way to minimise the risk from any potential subsidence damage. Ken and his team at Moreton Geotechnical are very helpful and appropriately qualified to undertake this work and with Ken’s expertise we have obtained the necessary development approvals for our clients.

11. Justifying your Project's Economic Need and Impact

11. Justifying your Project's Economic Need and Impact

You’ve held your pre-lodgement meeting with Council or received your Information Request stating that an independent Economic Need and Impact Assessment report is required for your development application. What now?

In this Guest Blog, Managing Director of Urban Economics Kerrianne Muelman explains the answer.

The Story of Oliverland City

The Story of Oliverland City

Oliver Manias has had a passion for city building since he was just six-years old so he decided to build a model city in his bedroom. He studied geography at school and begins university in Brisbane in 2020 to study town planning. Whilst commissioned to help undertake masterplanning and extensive redevelopment projects at his school, we were introduced to Oliver to talk about town planning and immediately noticed his passion. We offered Oliver some work experience at Clegg Town Planning during his holidays and this space on our blog to tell us about his passion. Keep up the good work Oliver, our cities are waiting for you!

10. Development Assessment under the Planning Act 2016: Striking a balance between a rigid and flexible approach to planning discretion

10. Development Assessment under the Planning Act 2016: Striking a balance between a rigid and flexible approach to planning discretion

Since the commencement of the Planning Act 2016 (PA), the Planning and Environment Court (Court) has been providing increasing guidance through its decisions on the changes to development assessment and decision making under the new legislation. From this emerging case law, the PA represents far more than a simple rebadging of previous concepts and approaches and a substantially new and different approach now applies to development assessment in Queensland. In this Guest Blog, Stafford Hopewell (Gadens Lawyers) explains how this affects all those involved in the development assessment process in Queensland, from applicants to assessment managers to owners to submitters.

9. Property Development Due Diligence: A Beginner’s Guide

9. Property Development Due Diligence: A Beginner’s Guide

A comprehensive due diligence process before buying a site will identify as many potential issues up-front to avoid any costly mistakes or delays once a purchase is complete. Many financiers will insist on this before approval and advancing funds to settle development property. In this Guest Blog, Michael Sing of Rostron Carlyle Rojas Lawyers provides an overview of property development due diligence.

8. The Changing Face of Project Management

8. The Changing Face of Project Management

Not so long ago many project managers ‘stumbled’ into the profession either as a result of a new role or from spending too much time dealing with clients, rather than designing. Move on 20 to 25 years and these organisations have devolved into ‘self-licking ice creams’ that are rapidly melting! Why? …read on to find out!

In this Guest Blog, David McGuire of Gripfast Consulting discusses his views on the changing face of project management. David has extensive experience as a Project Director on major projects across multiple sectors, both in Australia and internationally. He has worked closely with Defence, Government and the private sector undertaking feasibility and due diligence studies as well as leading planning and risk management workshops for major infrastructure and vertical construction projects. David is a graduate of the Australian Company Director’s Course and has served on the Boards of national project management companies, not-for-profit, charitable and professional certification bodies over the last ten years.

7. Compensation on Resumption of Real Estate in Qld

7. Compensation on Resumption of Real Estate in Qld

In this Guest Blog, Ian Neil of McCarthy Durie Lawyers discusses the procedure for compensation on resumption of real estate in Queensland.

Compensation is to be assessed “on fair and reasonable value as at the date of the taking, based on the highest and best use of the land”. Importantly, Ian notes that it is essential for professional advice to be obtained, because the value of the taken land is not based on the value of the current use but the land’s potential use. Any affected land owner is well advised to immediately seek advices from specialists such as a town planner, valuer and lawyer to advise on the compensation claimable. And why wouldn’t you do so, because all reasonable cost incurred are claimable against the resuming authority, even if the resumption does not ultimately proceed.

Ian has over 30 years experience as a solicitor in the Queensland Planning & Environment and Land and Supreme Courts and can assist with all matters relating to the topics canvassed in this blog as well as other planning law matters.

6. Great Parks make Good Financial Investments

6. Great Parks make Good Financial Investments

In this Guest Blog, David Hatherly of Vee Design suggests the importance of well designed public open space should no longer be seen as ‘nice to have’ in our cities, but rather should now be seen as providing sound economic value and return for our cities. So isn’t it time we widen our economic ROI perspective to put parks, open space and public urban plazas as high up the list of essential public infrastructure as sewer networks, waste services and water supply systems.

5. The Role of Traffic Engineers/Transport Planners in the DA Process.

5. The Role of Traffic Engineers/Transport Planners in the DA Process.

Within this blog, Damien Bitzios from Bitzios Consulting describes the key roles and functions of a traffic engineer within the development application process and how ‘upfront’ design advice is the most important contribution to achieving project success.  He also delves into why Brisbane and similar Australian cities have traffic congestion and why it is not going to go away.

Buying or Renovating a House in Brisbane in the Traditional Building Character Overlay

Buying or Renovating a House in Brisbane in the Traditional Building Character Overlay

The importance of preserving character houses has been identified by Brisbane City Council with measures enacted throughout the planning scheme to protect the citys traditional building character (TBC).

In this blog, our work experience student discusses what is Brisbane’s TBC, why it is important to the cultural identity of Brisbane and what you need to know if buying or renovating a house that has traditional building character.

4. Flood Assessment for Property Development

4. Flood Assessment for Property Development

Since the early 2000’s, overland flow has become an increasingly important constraint which has affected large scale developers, Mum and Dad investor/renovators, engineers, architects and certifiers.  This guest blog by Mark Gibson from MRG Water & Civil discusses a little more about the issue and how to understand the challenges and solutions in a Brisbane based setting.

3. Bushfire Hazard Assessment for Development Applications

3. Bushfire Hazard Assessment for Development Applications

In this Guest Blog Rob Friend, Director of Rob Friend & Associates Environmental Consultants briefly outlines the methodology for assessing bushfire hazard risk and reporting requirements for situations where development is proposed on land that is mapped within a particular bushfire hazard class.

2. Environmental Impact Assessment - An Overview

2. Environmental Impact Assessment - An Overview

In this Guest Blog, certified environmental practitioner and Director of Epic Environmental, Dr Mark Breitfuss briefly describes the practical aspects of environmental impact assessment that development proponents could consider as they venture down a particular approvals pathway. 

1. The Planning Appeal Process Explained

1. The Planning Appeal Process Explained

In this Guest Blog, Planning and Environment Lawyer and Principal of Anderssen Lawyers, Dale Ellerman outlines the process of an Appeal in the Planning and Environment Court.

When a Heritage Exemption Certificate does not provide Exemption

When a Heritage Exemption Certificate does not provide Exemption

In Queensland, a Heritage Place may be listed by a Council (if of local significance) or by the State (if of state significance), or both. A search can be undertaken of a local or state heritage register to determine if a place is heritage listed.

If development is being undertaken on (or adjoining) a heritage place, it may trigger the requirement to obtain development approval for the aspect of development being proposed. This is to ensure that the effects of the proposal on the heritage place can be appropriately considered and assessed. In some instances, it may be possible to obtain a Heritage Exemption Certificate (local or state).

A client recently came to us proudly waiving the Exemption Certificate they had obtained from the Department of Environment & Heritage Protection (DEHP), in respect of works to a heritage place of State significance. The proposed works were limited to internal fit-out alterations to accommodate their new tenancy lease within the building. We were commissioned to obtain the development approval for Material Change of Use (MCU) from the local Council. Having had the heritage assessment of the works completed upfront and an Exemption Certificate issued, they thought there would be no need for further assessment of heritage matters and that this would expedite processing time within Council for the development application. Time was of the essence to meet commercial and contractual obligations of the lease.

Schedule 3 of the Sustainable Planning Regulation 2009 identifies circumstances when development is ‘assessable’ or ‘self-assessable’ and the type of assessment required. With respect to development on a heritage place, Table 5, item 2 of Schedule 3 states inter alia that any aspect of development is assessable, other than development for which an exemption certificate under the Queensland Heritage Act 1992 has been issued. It further states that the type of assessment in such circumstances is code assessment (against the Qld Heritage Place State Code). Since the client held an Exemption Certificate, they understood the heritage aspects were therefore not assessable and the MCU would not have to be referred back to DEHP for heritage assessment, thus reducing processing time.

While preparing the development application and on closer inspection of the Exemption Certificate, we found that the development description that the certificate was issued in favour of was for ‘Demolition of existing fit-out and new fit-out work and new lift, structural openings and modifications’.

Although the particular aspect of development that was granted exemption was not stated on the certificate, it was apparent that it was in respect of the actual works to be performed (ie building work). The Exemption Certificate did not extend to the Material Change of Use component. This meant that the development application submitted to Council for Material Change of Use triggered referral to SARA for assessment by DEHP of heritage matters pertaining to the MCU aspect, pursuant to Schedule 3, Table 5, item 2 of the Sustainable Planning Regulation. The time savings the client thought they had achieved by obtaining the Exemption Certificate upfront were not realised because the MCU still triggered referral to SARA for consideration of heritage matters by DEHP, notwithstanding the Exemption Certificate.

We think it’s fair to say that it is highly likely that only a town planner would know the subtleties of distinction between the various aspects of development (eg Building Work, MCU, Op Works, etc) and the actual extent or limitations of a heritage exemption certificate. To avoid this confusion, we believe the certificate (and for that matter the Exemption Certificate Application Form) could be modified to more clearly identify the aspect of development that is being granted exemption, so that proponents are aware whether further approvals will be required for any other aspects of development. In the event that an Exemption Certificate does not extend to an MCU, then this should be clearly stated on the Exemption Certificate Application Form, so that the recipient of the certificate is aware that further approvals may be required.

We also found that the client had made some modifications to the drawings supplied to us for the MCU development application, when compared to those authorised by the original Exemption Certificate. This meant that while there were no contrary conditions imposed on the development application to those contained within the Exemption Certificate, the client would be required to either refer their building application to the DEHP for assessment of the modified drawings, or to return again to DEHP to update the Exemption Certificate to reflect the modified drawings, prior to gaining building approval.

The Take-Away

From the traps and tips we’ve shared in this blog, you should now have a better idea of things to be aware of when dealing with a heritage place and the potential limitations of Exemption Certificates.

If the proposed development involves an MCU in addition to carrying out building work, be sure to investigate whether the Exemption Certificate being sought extends to all aspects of development being applied for. If it doesn’t, you’ll need to factor in additional time to your development approvals timeframe for heritage assessment of that aspect of the development that does not benefit from the Exemption Certificate. In addition, be sure (as far as is practicable) to finalise the proposed development drawings prior to obtaining an Exemption Certificate, so that they will be consistent with those submitted with the development application, otherwise it will be necessary to either refer the building application to DEHP for assessment of the modified drawings, or to return again to DEHP at building application stage to update the Exemption Certificate to reflect the modified drawings.

Clegg Town Planning is experienced in procuring development approvals for both local and state heritage places and can relieve the stress and uncertainty from your project, by ensuring an efficient and streamlined approval process is followed.

Census – A Key Tool for Town Planners

Census – A Key Tool for Town Planners

With the Australian Census recently completed, this blog explores how census information is useful to, and indeed necessary for good town planning.

The Australian Census is an important tool for a wide array of users, for a variety of reasons and census results provide an essential source of information to prepare forward planning strategies. This ensures forward planning strategies accommodate developing trends. Town Planning by nature is a dynamic process that should continually seek to identify and address issues and objectives based on reliable data. That way, appropriate responses can be made and reviews conducted to assess how successful the strategies were at achieving their goal. Perpetual repetition of this process should result in continual improvement in planning policy to meet the needs of the future population. The strategies and even the objectives may need to be adjusted to accommodate the changing nature of the area to achieve the best planning outcomes for the community.

Without the availability of census information, early identification of trends would not be possible and the planning instrument might otherwise just be an arbitrary, theoretical document that is likely to be ineffective.

Read on if you would like to know why the census is a key tool for town planners. 

Queensland Planning Reform Website now Available

Queensland Planning Reform Website now Available

Following on from our June 13 blog post about the new planning legislation being approved by parliament, the Queensland government has just release their new 'Planning Reform' website to provide resources for industry participants to get up to speed with how the new planning system works before it comes into force mid-2017.

The Planning Reform website is packed with useful information covering every aspect of the new system with section on the System, Plan Making, Development Assessment, Dispute Resolution, News and Events, and Resources. 

Development Approval Conditions

Development Approval Conditions

Conditions of development approval specify how a development is to be carried out, usually with the intent to protect or reduce impacts on the environment and amenity of the surrounding area and to ensure that the proposed development is adequately serviced by all necessary civic infrastructure. Conditions generally consist of an action to be carried out and the timing for that action to be undertaken. If neither reasonable nor relevant, conditions may be changed or removed.

This blog outlines the rules under the Sustainable Planning Act 2009 (SPA) for setting conditions on development approvals, so read on if you wish to better understand the logic behind and the limits to development approval conditions.

New Planning Legislation Passed by Queensland Parliament to Commence Mid-2017

New Planning Legislation Passed by Queensland Parliament to Commence Mid-2017

On 12 May 2016 the Queensland Parliament passed the Government's suite of planning reform legislation which is due to commence mid-2017.