MCU Decision Notice

                                                                                                                  MCU16/0043




                                                Appeal Rights
                                                SUSTAINABLE PLANNING ACT 2009 & SUSTAINABLE PLANNING
                                                REGULATION 2009



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




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