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
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
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
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
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.
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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
Generally a town planning application is made to the local authority. There is an application form (which varies between each state) and a requirement to provide adequate information, plans and reports, having regard to the nature of the proposed use, to ensure that the authority can make an appropriate decision.
In most jurisdictions, special application and approval procedures are available for state or regionally significant development. Development with significant environmental impacts may require a detailed environmental impact assessment to be undertaken.
Last modified 31 Aug 2020
In many cases third parties do have a right to object. For example, in Victoria there is a requirement that notice be given except where the local authority forms the view that such notice is not necessary. In some states notice may be required for particular types of development listed in Schedules or otherwise identified by reference to the planning controls.
Last modified 31 Aug 2020
While the process varies between states, there is generally a right of merits review to a court or tribunal. Each state has a specific Land and Environment Court or Planning Appeals Tribunal to deal with planning, environmental and related matters.
Rights of review may accrue to the applicant (in case of a refusal or in an appeal against imposed conditions) or to a third party (for example, an objector or another statutory authority which has concerns about the proposal). Most jurisdictions allow both applicants and third parties to initiate court proceedings to seek judicial review of the lawfulness of planning decisions. This generally involves review on administrative law grounds; eg failure to provide procedural fairness, having regard to irrelevant considerations or improper purpose.
Last modified 31 Aug 2020
Timing varies from state to state and depending on the complexity of the matter. However, it would generally be in the order of between 60 to 120 days.
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In most cases there is a right of appeal against the relevant authority's decision; that is, a right of appeal on the merits against a refusal or against the imposition of conditions which are regarded as unreasonable or inappropriate.
Last modified 31 Aug 2020
Each state has its own regime for the making of agreements with local or governmental authorities and utility suppliers. In some cases these agreements are recognised by legislation and may be registered on title as a form of covenant.
Agreements frequently deal with financial matters and the carrying out of off-site works. It is not necessary to have an agreement as part of an approval. Agreements are generally used for more complex matters where there is the need to impose detailed obligations in addition to permit conditions.
Last modified 31 Aug 2020
In some states, the period of validity is set by the legislation or may be set by the development authority in its determination. These consents can be valid for up to five years before lapsing although if the construction works commence before the lapsing date they may be extended.
In relation to a use, these permits would generally last for so long as the conditions are complied with, unless otherwise specified. There are variations in each jurisdiction, for example, in New South Wales a consent can be valid for up to five years before lapsing.
Last modified 31 Aug 2020
Each state has an enforcement regime involving the grant of enforcement or other orders requiring compliance or infringement notices imposing fines. The relevant courts and tribunals of each state may make orders requiring compliance. Prosecutions may also be brought in the relevant courts in relation to breaches of controls.
Last modified 31 Aug 2020
Does public law control whether a landowner may construct a new building or refurbish an existing building on its land?
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