Home  |  News  |  Warnings for applicants, and for use by consulting town planners

Warnings for applicants, and for use by consulting town planners

I have reviewed hundreds of consulting town planner files, and I cannot recall any instance where the consulting town planner wrote to their applicant client recording a range of generic warnings that apply about the development assessment process.

Below, I have set out a range of warnings, which consulting town planners are free to copy and use as they see fit.

Warnings

The purpose of this letter is to provide you with written advice concerning the usual risks inherent in making a development application.  These warnings are not intended to cause unnecessary concern.  They are merely provided to inform.  You should familiarise yourself with the contents of this letter, and also review this letter from time to time during the project.

The risks can be summarised as:

  • Development is iterative
  • Refund of Council application fees
  • Onus of proof
  • Councils cannot be sued by you
  • No precedent or parity in town planning
  • Risk based approach to development assessment
  • Recommended work to be undertaken
  • Consultants’ scopes of work
  • Off-site development constraints
  • Information requests – no obligation to make one
  • Information request responses
  • Changing development applications
  • Council may seek information from anyone
  • Council documents
  • The Coty Principle
  • Timeliness
  • No continual review of planning instruments
  • Recurrent review of planning instruments recommended
  • Unknown unknowns
  • Refusals
  • Part approval
  • Preliminary approvals and development permits
  • Conditions
  • Tenure
  • Relevant periods
  • ‘Time to complete’ conditions
  • Infrastructure charges
  • Infrastructure agreements
  • Submitters
  • Politics
  • Negotiated decision notices
  • Appeals
  • Deemed refusal appeals
  • Expert witnesses
  • Appeals to superior Courts
  • Other legal challenges
  • Ministerial call-in or direction
  • Non-justiciable issues

Development is iterative

The undertaking of development is complex.  It is not ‘linear’ in the sense that simply following a list of defined steps produces an obvious and certain result.  In reality, the outcomes of later steps often inform amendments to earlier steps already undertaken.  For example, development sites will have on-site constraints (e.g. geotechnical).  These constraints will inform development yield (e.g. the number of dwellings).  Development constraints from the yield might further reduce the yield (e.g. stormwater run-off produced by the new development may need to be abated on-site e.g. traffic generated by the proposed yield might warrant a road widening, and reduced site area to accommodate the originally proposed yield).  The results of investigations undertaken by various consultants may, therefore, require other consultants to revisit their work.  You should be prepared to incur costs and spend time revisiting work previously undertaken, this being part and parcel of the development process.

Refund of Council application fees

Do not assume that, if you discontinue a development application early, that you are entitled to any refund of your development application fees.  Whilst most Councils maintain a policy in respect of the refund of development application fees, it is merely a policy, not a law.  You do not have any legally enforceable right to the partial or total refund of development application fees should you choose to discontinue the process.

Onus of proof

The onus is always on an applicant to demonstrate that a development application ought to be approved.  It is never on a Council (or a member of the community) to demonstrate that a proposal should be refused, or that certain conditions ought to be imposed.  You should be careful not to proceed on the basis that you will not have to prove every aspect of the development proposal either to the Council itself, or to a Court in an appeal.

Councils cannot be sued by you

Do not rely on any information given to you by a Council or its officers.  The Council, and its officers, do not owe to you any duty of care.  Information provided to you by the Council or its officers may be partially or totally incorrect.  You do not have any rights to any relief (like damages) should you suffer any loss arising from any information given to you by the Council or its officers.  Be mindful that a Council officer does not have any power at law to bind the Council, unless they have a delegation, and very few officers have such a delegation.  The legal default is that Councils ‘act’ only by resolution.

Take advice only from your own consultants.  Only your consultants owe you a duty of care.  If you choose to not engage a consultant, and to inform yourself about various matters, you assume all risks for yourself in relation to those matters.  Accordingly, think carefully before deciding whether to ‘do it yourself’ or to engage a consultant to do it for you.

No precedent or parity in town planning

There is no precedent or parity in town planning.  Do not proceed on the basis that, because a developer was dealt with by the Council in a certain way previously, you too will be dealt with in that way.  Councils often treat developers differently, not because of any prejudice against individual developers, but more arising from the benefit of hindsight arising from the Council’s previous experiences with other developments.  Precedent and parity does not exist in town planning, and cannot be enforced.

Risk based approach to development assessment

You should adopt a risk based approach to your development proposal.  The sooner you make yourself aware of potential risks or problems, the earlier you will be able to respond to those risks or problems.  In some cases, the identification of risks or problems may lead you to conclude that the project should not be proceeded with, or should only be proceeded with in an amended form.  If you defer having your consultants undertake work used to identify risks or problems, you expose yourself to greater losses by not being able to act on that information.

Also, if you have sufficient information to commit to particular aspects of your development proposal, you should attempt to cap that risk by seeking preliminary approvals from the Council and other authorities in relation to those aspects.  Applying for these preliminary approvals may involve some additional development application fees.  However the procurement of preliminary approvals in this way may avoid a Council and other authority attempting to revisit that aspect of the development when subsequent development applications are made.  Examples of preliminary approvals that are advanced earlier on the development assessment process include finished land level and flooding, the extent of stormwater drainage, undergrounding of electricity and so on.

Recommended work to be undertaken

We will recommend to you the work that ought to be undertaken, after having considered these risks, and the consequences flowing from those risks should they arise.  You are not obliged to follow our recommendations.  However losses to you arising from a decision by you to not adopt those recommendations will be losses that you assume.

Consultants’ scopes of work

You should consider including in your scope of works provision for the consultant to recommend the terms of the scope of works for your development.  This is particularly relevant for those less experienced in development, where the developer may not in fact know what to ask for.

Care should be taken to ensure that the scopes of works adopted by your consultants cover sufficiently well the work that they have recommended be undertaken, and the work that you require to be undertaken.

Off-site development constraints

It may not be immediately obvious that there are constraints to your development that are ‘off-site’.  Examples include:

A distant intersection that requires an expensive upgrade in order to allow your development to proceed

A sewerage pump station, gravity or rising main, or treatment plant, that requires an upgrade or duplication in order to accommodate effluent from your development

A water pump station, gravity or rising main, or treatment plant, that requires an upgrade or duplication in order to supply water to your development

Downstream stormwater infrastructure is at capacity and requires upgrade.

You should instruct your consultants to recommend what investigations should be undertaken, and when, in order to identify these potentialities, so that you may plan for these earlier rather than later.

Information requests – no obligation to make one

The Council and referral agencies are not under any obligation to make an information request for your development.  Be careful to not proceed on the basis that ‘holes’ have been deliberately left in the development application material on the basis that you will be given an opportunity to ‘patch’ those holes during the information request process.  You may not be afforded any such opportunity, which will provide you with a distinct disadvantage later.

Information request responses

Even if you consider there is a high likelihood that the development application might end with an appeal, you should still attempt to provide information in response to legitimate requests for information.  This information is likely to be prepared at considerably less cost to you than if you waited until the appeals process to prepare it.  Also, the provision of the requested information might reduce the number of reasons given by a Council for refusing your development proposal.

Changing development applications

You may want to change your development application.  Beware that you will waste time and funds changing a development application.  Care should be taken when formulating your original proposal to make sure that it is technically feasible and warrants approval.  Overzealous development applications can lead to significant time delays and losses arising from undertaking parts of the development assessment process again.

Council may seek information from anyone

The Council is entitled to seek and obtain advice about your development proposal from anyone it wishes.  The Council is not limited to seeking advice only from referral agencies and submitters.

Council documents

Generally, your are not entitled to see any of the Council’s documents generated for the purpose of assessing your development application.  Councils will usually provide copies of submissions to you if requested for the purpose of giving you an opportunity to respond to any adverse information in those submissions.  Save for the submissions, and any report prepared by Council officers for consideration by the decision maker, you will not see any of the Council’s internal documentation (unless there is a Court appeal later).

The Coty Principle

For your development proposal, do not place any reliance on a draft planning instrument that tends to support your development.  Until such time as the planning instrument becomes a final document, neither the Council or the Planning and Environment Court may give it any weight for the purpose of approving your development proposal.

Conversely, the Council or the Planning and Environment Court may give weight to a draft planning instrument for the purpose of refusing your development proposal, if your development proposal would tend to conflict or ‘cut across’ what is in the draft planning instrument.

Timeliness

Time is a developer’s greatest risk.  Whilst a development application is being processed, draft planning instruments may come into existence in respect of which your development proposal conflicts.  Those draft instruments may become final instruments before your development proposal is finally decided.  Those documents may significantly change the prospects of success for your development proposal.  Recall also the Coty Principle above.

Also, infrastructure charges, for the most part, continually rise either because the amounts required to be paid are indexed, or because the Council or the State adopts new increased charges.  Be mindful that charges are calculated according to the prescribed amounts existing at the time of payment – not the prescribed amounts at the time the development application is made or decided.  In many cases, what the extent of the charges will ultimately be, when the charges are required to be paid, will not be known at the time the development application is first mooted or made. 

For these reasons, if a development application is to be made, it should be made, processed and decided as quickly as possible so as to avoid the risks that arise from new planning instruments being made, and new infrastructure charges being levied.

No continual review of planning instruments

Planning instruments include State and local government policies and planning schemes that regulate development.  We practice in a wide geographical area that takes in dozens of Council areas.  We do not continually review planning instruments as and when they are made.  To do so would be prohibitively time consuming and expensive, and is simply not possible over such a large number of Council areas. 

Development is complex.  Planning instruments are lengthy and complex also.  The significance of changes made to planning instruments for your development may not be obvious without a detailed review of the amended planning instrument.  Such a review can take many hours at considerable cost.  Whilst we are unable to undertake such a continual review, consideration should be given by you to instructing us to undertake recurrent reviews at various intervals (below)

Recurrent review of planning instruments recommended

In view of the risks arising from changes being made constantly to planning instrument, you should give consideration to instructing us to conduct recurrent reviews of the planning instruments at various intervals.  This might be, for example, at intervals of 6 or 12 months.  We can provide you with advice about what the appropriate intervals might be for your proposal in your locality.

Unknown unknowns

Consultants can only be expected to respond to facts and risks in relation to a site that are known, or can be expected to exist.  However, there will be facts and risks that exist in relation to some sites that are not known, and cannot be expected to be known by the consultants engaged.  Examples might be the existence of unexploded ordinance, or a fibre optic cable running through the site that is not, or is not properly, mapped.

The engagement of further consultants recommended to the applicant to be engaged may avoid such oversights arising.  Equally, they may not.

The applicant must proceed on the basis that not all risks can be avoided, but that some might be avoided if certain experts recommended to be engaged by us are in fact engaged.

Refusals

A Council or a concurrence agency may refuse a development application.  If this occurs, your only remaining right is a right of appeal to the Planning and Environment Court.  In the Court proceedings you may enter into negotiations with a view to resolving your differences with the Council, but it is not possible to do so other than in the context of a Court appeal.

Part approval

A Council or a concurrence agency may lawfully give a part approval for your development application, and refuse the remainder.  This is usually done when the Council:

1. has a fundamental difficulty with the refused part of the proposal; or

2. is not satisfied that you have discharged the onus of proof in relation to that part.

Whilst you have a right of appeal in respect of that decision, time and costs may be incurred in resolving a dispute about the part refusal.

Preliminary approvals and development permits

A Council or a concurrence agency may lawfully give a preliminary approval when your development application sought a development permit.  This is usually done when the Council is not satisfied that you have discharged the onus of proof in relation to the development.  Whilst you have a right of appeal in respect of that decision, time and costs may be incurred in resolving a dispute.

Conditions

The power of a Council or concurrence agency to impose conditions on a development is extremely broad.  Conditions need not relate directly to your proposed development.  Conditions need only be relevant or reasonably required in order to be lawful.  An example is a requirement to dedicate a part of your land for a road widening, when traffic generated by your proposed development does not (of itself) require such a road widening.  The condition may still be lawful, and have a significant (even fatal) effect for your development proposal.

Also, most Councils maintain ‘standard conditions’ which are almost ritually imposed in all development approvals. 

We recommend you give consideration to instructing us to provide you with written advice about what conditions (including standard conditions) can reasonably be expected to be imposed on your development proposal.

Tenure

Conditions in development proposals may sometimes require the gaining, or giving, of tenure.

For example, a condition of a development approval may require you to obtain an easement over neighbouring land, say, for downstream discharge of stormwater.  Or a condition may require the giving of an easement over your land in favour of another.

A condition may even require the dedication (i.e. giving up altogether) of land.

Be mindful that, in relation to gaining tenure over other land (like an easement), the Council and the Planning and Environment Court do not enjoy any power to force the giving of that tenure by the owner of that other land.  The owner of that other land may agree to give tenure. But if agreement cannot be reached, your only recourse is to another Court (namely the Supreme Court) at some additional expense to you.

Currency periods

All development approvals lapse if they are not acted upon.  Different types of development approvals have different periods for doing different things.  You should seek advice from us about the likely currency period that will be imposed in any development approval, so that you can plan your development to ensure it does not unnecessarily lapse.

‘Time to complete’ conditions

It is becoming more common for Councils to impose conditions requiring that certain developments be completed by a certain time.  These conditions differ from currency period provisions, which generally require that development start (as opposed to be completed) by a certain time.  You should seek advice from us about the likely time to complete condition that will be imposed in any development approval, so that you can plan to complete your development within that time frame..

Infrastructure charges

Generally, there are very limited rights for challenging the amount of infrastructure charges.  The charges can be extremely high.  Make sure you have asked us to provide you with advice about the likely extent of the charges so you can make sure your development remains viable.

Infrastructure agreements

Some developments may only be undertaken if there is an infrastructure agreement in place with the Council or a statutory authority.  For example, your development may require access to Council land, or might require the Council to refund to you monies arising from infrastructure constructed by you for the Council.  No one can be forced to sign such an infrastructure agreement – not even by Court order.  Accordingly, you must work cooperatively with the relevant Council or statutory authority to achieve the outcome you need for your development, and this includes negotiating and signing such an agreement.

Submitters

For impact assessable development applications, any person can make a submission.  That person may be reasonable, or completely unreasonable.  They may have the ear of Council officers, or Councillors, and they may have more influence on the development assessment process than might reasonably be expected to be the case.

Also, a single submitter can appeal to the Planning and Environment Court in respect of a Council decision they do not like.  Such an appeal stops the development from proceeding until the appeal is determined.

Consequently, be respectful of submitters.  Do not underestimate the degree of influence they may have on your proposal. 

Politics

By legal default, Councils act by resolution.  Only Councillors have the power, in a general Council meeting, to make a resolution.  It is often the case that Councillors act politically rather technically.  There is nothing at law that prevents a Council from acting in this way. 

Council officers may sometimes be empowered by a standing Council resolution (known as a delegation) to decide development applications without the need for a Council resolution.  Council officers are more likely to act in a technical (than political) fashion – unlike Councillors.

You should be mindful that a development application may warrant approval having regard to all relevant technical assessments, but may still be refused, or conditioned unexpectedly, by a Council acting politically, rather than technically.

Negotiated decision notices

In respect of conditions of approval, you are entitled to request to negotiate the conditions with the Council without having to appeal the Council’s decision to the Planning and Environment Court.  Be mindful that Councils are not under any time constraints in relation to how and when the Council decides the request to change the Council’s decision.  Generally, the negotiated decision notice process is only of any utility for dealing with less than significant aspects of the Council’s decision.  Significant items are usually best deal with by appealing.

Appeals

Generally, applicants have a right of appeal to the Planning and Environment Court in respect of Council and concurrence agency decisions.  Also, submitters for impact assessable development applications may lodge their own appeal to the Court, even if you have not appealed the decision.  The cost of conducting an appeal can be significant, and so much so as to render the development no longer viable.  Developers of smaller proposals should be particularly acute of this risk insofar as the cost of the appeals system may defeat an applicant for an otherwise meritorious proposal.  Also, the appeals process can be time-consuming.

The use of the appeals process to patch holes in the development application can be disastrous.  An applicant’s expert witnesses will usually charge significantly more in fees to their client for undertaking work in the context of an appeal, than if there were no appeal on foot.  Also, the work being undertaken by your expert witness will be subject to scrutiny by an equally expert witness assisting your opponent.  This will absorb more of your financial resources.  Consequently, applicants should consider whether any such holes should prudently be left in a development application in the first place.

The Planning and Environment Court has a very limited jurisdiction to awards costs to a successful litigant.  In an appeal, therefore, generally you should proceed on the basis that if you are successful, you will not obtain any costs from your unsuccessful opponent, but also that if you are unsuccessful, you will not have to bear the costs of your successful opponent.

Deemed refusal appeals

Once certain time frames have elapsed, an applicant has a right to lodge in the Planning and Environment Court an appeal arising from the Council’s failure to decide the development application within time.  The filing of such an appeal usually has some impact (usually negative) on the attitude of the Council’s officers towards the development application.  Care should be taken when considering filing a deemed refusal appeal.  For cases where Council decisions are imminent in any event, the filing of a deemed refusal appeal is usually counterproductive, especially in terms of time.  Also, where a deemed refusal appeal is filed, Council officer reports to the Council usually become secret documents (i.e. known as documents subject to legal professional privilege), which can have an adverse effect on the applicant particularly where the Council officer’s report recommends the approval of the development application.  It would be preferable in such circumstances to not have filed a deemed refusal appeal to allow the Council officer’s report to become a public document.

Expert witnesses

In appeals in the Planning and Environment Court, most parties in the Court call evidence from expert witnesses.  Applicants usually call evidence from expert witnesses in order to discharge the onus of proof.  Be aware that you do not have any legal rights against an expert witness in relation to losses suffered by you arising from any negligent advice or evidence they provide to, or for, you in the context of the appeal. 

Appeals to superior Courts

A decision of a Planning and Environment Court is not necessarily final.  Parties to that appeal may file further appeals to superior Courts, like the Court of Appeal or even the High Court of Australia.  Both of these Courts enjoy jurisdiction to make costs orders against unsuccessful parties.  Such orders may be made even though the unsuccessful party in the further appeal may not be at any fault for the incorrect decision of the lower Court.

Other legal challenges

Any person may challenge, using proceedings in the Planning and Environment Court, the lawfulness of a development application, of a development approval, or a development, and may do so quite irrespective of whether a development proposal is impact assessable or not.  Consequently, care should be taken to ensure that development applications are properly made, processed and decided, and that development complies with all legal requirements.  Do not operate under a false sense of security in relation to development that is not impact assessable.  Developments are still open to legal challenge and being halted by Court order..

Ministerial call-in or direction

Various Ministers of the State enjoy various powers under the Act to intervene in the development assessment process, and even to decide the development application once and for all.  They may do so and thereby exclude the jurisdiction of the Planning and Environment Court i.e. the Minister’s decision is final, and there is no right of appeal.  Again, like Councillors, Ministers are more prone to act politically when making their decision.  You should be mindful of the risk that your development proposal may be interfered with by a Minister, and that interference may take away from you what ever legal rights you would normally enjoy in relation to the development application, including the right of appeal.

Non-justiciable issues

A development application is made under the Planning Act 2016. This is not the only Act a Council administers. It also has jurisdictions under other pieces of legislation for matters such as roads, parks, foreshores, stormwater and, depending on where the development is undertaken, water and sewerage. Not least of all, Councils own land for which access may be needed to undertaken your development. How the Council conducts itself under this other legislation, and how it conducts itself in relation to giving you access to Council land, is not capable of appeal before the Planning and Environment Court. The Court only has jurisdiction to decide development applications under the Planning Act 2016. The Court does not have jurisdiction to, for example, Order the Council to manage its road network in a certain way, or to build a water supply tank, or a new sewage treatment plant. The larger the development, the more risk there is that the Council’s other jurisdictions will be enlivened, and the less you will be able to enforce your will upon the Council in relation to your development application.

Yours faithfully”

You are welcome to call me if you need any further assistance with this.

Andrew Davis, 0417 330 433, andrew@andrewdavisplanninglawyers.com.au

In other news

More news

Speed

I am very quick at solving my client’s problems.

Strategy

I will quickly help you chart a course to achieve success and avoid trouble.

Honesty

I will tell you what you need to know; not what you want to hear or what is good for my business.

Approachable

I like a chat. If I can help you straight away on a phone call, I will, without charge.

Contact details

Andrew Davis Planning Lawyers services all areas of Queensland.

Brisbane Office
Level 27, Santos Place
32 Turbot Street
Brisbane QLD 4000
Australia

Phone
0417 330 433

Email
andrew@andrewdavisplanninglawyers.com.au

…or email us.






    Send my message