REALWorld Law

Does public law control the detailed design, appearance and method of construction of any new building?

Town planning and development control in Australia is undertaken at a state and territory level. Each state and territory has a legislative framework which imposes planning and zoning controls, generally on the basis of each local government area or municipality.

In almost all parts of Australia, each local government area or municipality has a local planning regime (variously called planning schemes, environmental planning instruments or development plans depending on the state or territory jurisdiction) which controls the use and development of land. These controls are based on state legislation.

Last modified 31 Aug 2020

Does public law control the detailed design, appearance and method of construction of any new building?

There are a number of different public law controls which impose requirements in relation to new buildings or refurbishments to existing buildings. These include development controls under the relevant planning instrument, heritage controls, native vegetation controls and in some cases, environmental controls.

Last modified 31 Aug 2020

Does public law control the detailed design, appearance and method of construction of any new building?

Generally, public laws do not control detailed design, appearance and method of construction. These matters are dealt with under separate documents which address specific design criteria unique to local areas. In some cases, for example in heritage areas or special urban design precincts, there may be controls over detailed design and appearance.

Some planning instruments also include objectives and standards for urban design (relating to neighbourhood character, amenity, design responses, etc). These are matters considered by the planning authority as part of the application process. In addition to general planning controls there are building controls which concern the structural integrity of the proposed building. However these controls are not directed at urban design and appearance.

Last modified 31 Aug 2020

Does public law control the detailed design, appearance and method of construction of any new building?

Zoning controls impose legal restrictions on the use to which a building may be put and any change in the use of a building. In most cases a change in use will require a permit, approval or consent. In determining whether consent will be granted to the use change, matters such as intensification of the use, car-parking and the impact on amenity of the proposed new use will be considered. In some cases there may be no control over the change of use, for example between shops of different kinds. If a use is prohibited by the current zoning, a change of use may be permitted by rezoning the land through an amendment of the relevant planning instrument. This will usually involve a public participation process and hearing. Use of a particular building will also be determined by the building classification system that is dependent on the purpose for which the building is designed, constructed or adapted to be used.

Last modified 31 Aug 2020

Does public law control the detailed design, appearance and method of construction of any new building?

Generally speaking, it is the local government entity (usually an elected council) which regulates development and use of individual parcels of real estate. In the case of special development areas, it may be the Minister for Planning or some other statutory authority. There are opportunities for Ministerial intervention in special cases, usually reserved for major projects of state or regional significance, or projects having key policy objectives.

The legislation which applies is the state planning legislation. Some significant environmental matters (such as threatened and migratory species, wetlands or heritage) are regulated by a Commonwealth authority under Commonwealth legislation. 

Last modified 31 Aug 2020

Does public law control the detailed design, appearance and method of construction of any new building?

There are a number of other statutory permit regimes dealing with matters related to planning and environment consent. These include state and Commonwealth heritage requirements, state and Commonwealth environmental requirements (directed primarily at protected flora and fauna species), Aboriginal heritage requirements and similar matters. Local authorities also have by-laws or local laws which will sometimes regulate matters in a more detailed way than the provisions of the planning scheme. These controls might regulate advertising signs, car-parking and access, tables and chairs on footpaths and other similar matters.

Last modified 31 Aug 2020