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Planning and Development

Prohibited Development

Process for Combined Development and Planning Scheme Amendment (Section 43A Process)

1. Application submission and referral

Action

Discuss your intentions with your local council prior to submitting a formal request

Action

Write to your local council to request they amend the planning scheme to enable granting of a Planning Permit / Development Application

2. Initial decision

 

Decision

Council decides not to initiate amendment

Decision

Council decides to initiate amendment *1

Process

Council may request additional information from the applicant

 Internal timeline
Council has 28 days to request additional information		 External timeline
Council has 42 days to decide whether or not to initiate amendment

Process

The applicant may request the Resource Planning and Development Commission  (RPDC) review the method by which council reached its decision

Decision

Council refuses to grant permit

If there are environmental implications, the Board of Environmental Management and Pollution Control (BEMPC) considers the application *2

Decision

Council grants permit unconditionally or subject to conditions *3

 External timeline
The applicant has 14 days to request review

3. Advertising and Consultation

Process

Council exhibits the planning scheme amendment

Process

Council exhibits the planning scheme amendment and permit application concurrently 

Internal timeline
There is a minimum advertising period of 21 days		 External timeline
Council has 7 days to notify the RPDC of the decision to initiate an amendment and forward a copy of the draft amendment, instrument of Certificate and permit to the RPDC

Action

Council forwards the report, submissions and decision regarding permit and/or the draft amendment to the RPDC

Document

Council prepares a 'Section 39 Report' detailing submissions *4

Action

Applicants and/or third parties can prepare submissions regarding the draft amendment and/or the permit application and submit them to the Council


Document

BEMPC prepares a report detailing the submissions

Action

Council forwards submissions regarding the draft amendment and the permit application to the BEMPC *5

Process

BEMPC may request additional information from the applicant

Internal timeline
BEMPC has 28 days to request additional information
 

4. Assessment and Decision

Process

RPDC may hold a hearing into the submissions *6

External timeline
The RPDC has 3 months after receiving the report to approve a draft amendment

Decision

Decision by RPDC: Amendment modified: Permit approved, refused or modified

Decision

Decision by RPDC: Amendment approved: Permit approved, refused or modified

Decision

Decision by RPDC: Amendment rejected: Permit refused

 

5. Appeal

There are no rights of appeal against the RPDC's decision.

Key

           
  decision   process
  action   internal timeline
  document   external timeline
 

document notes

  1. In its determination, a council must consider whether the amendment seeks to further the objectives set out in Schedule 1 of the Land Use Planning and Approvals Act 1993 (LUPAA) and has been prepared in accordance with State Policies (Section 32 of LUPAA).
    The planning authority must consider the granting of a permit in the normal manner (including reference to the Board of Environmental Management and Pollution Control (BEMPC) if appropriate), except that it shall do so as if the required planning scheme amendment has been approved.
    In this case, any approval of a permit by the planning authority is conditional on the planning scheme amendment being approved by the Resource Planning and Development Commission (RPDC).
    To determine the application, the council must take into account:
    • the objectives set out in Schedule 1 of LUPAA;
    • prescribed matters that are relevant to the use and development; and
    • relevant planning scheme provisions.
  2. If the permit application is one that must be considered by the BEMPC (in accordance with Sections 24 and 25 of the Environmental Management and Pollution Control Act 1994) then it also follows this process. A council must incorporate any conditions of the BEMPC into the permit. If the BEMPC resolves that the application should not proceed, then a planning authority must refuse the permit application.
  3. The permit has no effect until confirmed by the RPDC.
  4. The planning authority is required to prepare a report including copies of the representations and forward it to the RPDC, commenting on the merits of each representation. This is commonly known as a ‘Section 39’ report, which refers to section 39 of LUPAA. In particular, a planning authority is required to provide its opinion on whether the decision in regard to the permit application or the draft amendment requires modification in light of the representations. Where there are no representations, a statement to this effect is required.
  5. The BEMPC must, within 28 days of receiving the representations in relation to the application for the permit and the planning authority’s decision, provide a report to the RPDC containing a statement on the merit of each representation and such recommendations in relation to the planning authority’s decision that the BEMPC considers necessary.
  6. The RPDC reviews the Council's decision on the permit at the same time it reviews the draft amendment. The RPDC may modify or delete conditions or restrictions attached to the permit or add new conditions or restrictions to the permit.