Decision Notice OPW14-0121 388 David Low Way Peregian Beach · OPW14/0121

                                                                                                       OPW14/0121



                                                Appeal Rights
                                                SUSTAINABLE PLANNING ACT 2009 & SUSTAINABLE PLANNING
                                                REGULATION 2009



The following is an extract from the Sustainable Planning      463 Additional and extended appeal rights for
Act 2009 (Chapter 7).                                              submitters         for     particular    development
                                                                   applications
MATERIAL CHANGE OF USE, RECONFIGURING A                        (1) This section applies to a development application to
LOT & OPERATIONAL WORKS                                            which chapter 9, part 7 applies.
                                                               (2) A submitter of a properly made submission for the
Division 8           Appeals to      court relating to             application may appeal to the court about a referral
                     development      applications and             agency’s response made by a prescribed
                     approvals                                     concurrence agency for the application.
                                                               (3) However, the submitter may only appeal against a
461     Appeals by applicants                                      referral agency’s response to the extent it relates
(1)     An applicant for a development application may             to—
        appeal to the court against any of the following—          (a) if the prescribed concurrence agency is the
        (a) the refusal, or the refusal in part, of the                  chief executive (environment)—development for
             development application;                                    an aquacultural ERA; or
        (b) any condition of a development approval,               (b) if the prescribed concurrence agency is the
             another matter stated in a development                      chief executive (fisheries)—development that
             approval and the identification or inclusion of             is—
             a code under section 242;                                   (i) a material change of use of premises for
        (c) the decision to give a preliminary approval                        aquaculture; or
             when a development permit was applied for;                  (ii) operational work that is the removal,
        (d) the length of a period mentioned in section                        damage or destruction of a marine plant.
             341;                                              (4) Despite section 462(1), the submitter may appeal
        (e) a deemed refusal of the development                    against the following matters for the application even
             application.                                          if the matters relate to code assessment—
(2)     An appeal under subsection (1)(a), (b), (c) or (d)         (a) a decision about a matter mentioned in section
        must be started within 20 business days (the                     462(2) if it is a decision of the chief executive
        applicant’s appeal period) after—                                (fisheries);
        (a) if a decision notice or negotiated decision            (b) a referral agency’s response mentioned in
             notice is given—the day the decision notice                 subsection (2).
             or negotiated decision notice is given to the
             applicant; or                                     464 Appeals by advice agency submitters
        (b) otherwise—the day a decision notice was            (1) Subsection (2) applies if an advice agency, in its
             required to be given to the applicant.                response for an application, told the assessment
(3)     An appeal under subsection (1)(e) may be started           manager to treat the response as a properly made
        at any time after the last day a decision on the           submission.
        matter should have been made.                          (2) The advice agency may, within the limits of its
                                                                   jurisdiction, appeal to the court about—
462      Appeals by submitters—general                             (a) any part of the approval relating to the
(1)      A submitter for a development application may                   assessment manager’s decision about any part
         appeal to the court only against—                               of the application requiring impact assessment
          (a) the part of the approval relating to the                   under section 314; or
              assessment manager’s decision about any              (b) any part of the approval relating to the
              part of the application requiring impact                   assessment manager’s decision under section
              assessment under section 314; or                           327.
          (b) the part of the approval relating to the         (3) The appeal must be started within 20 business days
              assessment manager’s decision under                  after the day the decision notice or negotiated
              section 327.                                         decision notice is given to the advice agency as a
(2)       To the extent an appeal may be made under                submitter.
          subsection (1), the appeal may be against 1 or       (4) However, if the advice agency has given the
          more of the following—                                   assessment manager a notice under section
         (a) the giving of a development approval;                 339(1)(b)(ii), the advice agency may not appeal the
         (b) any provision of the approval including—              decision.
              (i) a condition of, or lack of condition for,
                    the approval; or                           465 Appeals about decisions relating to extensions
              (ii) the length of a period mentioned in             for approvals
                    section 341 for the approval.              (1) For a development approval given for a development
(3)      However, a submitter may not appeal if the                application, a person to whom a notice is given under
         submitter—                                                section 389, other than a notice for a decision under
         (a) withdraws the submission before the                   section 386(2), may appeal to the court against the
              application is decided; or                           decision in the notice.
         (b) has given the assessment manager a notice         (2) The appeal must be started within 20 business days
              under section 339(1)(b)(ii).                         after the day the notice of the decision is given to the
(4)   The appeal must be started within 20 business days           person.
      (the submitter’s appeal period) after the decision       (3) Also, a person who has made a request under
      notice or negotiated decision notice is given to the         section 383 may appeal to the court against a
      submitter.                                                   deemed refusal of the request.



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