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GE11-N Planning Act 2016 - Appeal provisions · MCU19/0001.01

Attached to the e-mail Change to SARA response & approval - MCU19/0001 & MCU19/0001.01.

Attached to the e-mail SARA Response - 152006.1999.4.

Attached to the e-mail SARA Decision notice - 6 - 10 Diamond St, Cooroy - MCU19/0001.

Attached to the e-mail 132008.176.06 - SARA Response - Decision for change application.

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Planning Act 2016 – Appeal provisions

The following provisions are the appeal rights as defined in the Planning Act 2016, schedule 2.



Chapter 6                        Dispute resolution

Part 1              Appeal rights

229 Appeals to tribunal or P&E Court


(1) Schedule 1 states—
    (a) matters that may be appealed to—
          (i) either a tribunal or the P&E Court; or
          (ii) only a tribunal; or
          (iii) only the P&E Court; and
    (b) the person—
          (i) who may appeal a matter (the appellant); and
          (ii) who is a respondent in an appeal of the matter; and
          (iii) who is a co-respondent in an appeal of the matter; and
          (iv) who may elect to be a co-respondent in an appeal of the matter.


(2) An appellant may start an appeal within the appeal period.

(3) The appeal period is—

    (a)     for an appeal by a building advisory agency—10 business days after a decision notice for
            the decision is given to the agency; or
    (b)     for an appeal against a deemed refusal—at any time after the deemed refusal happens; or
    (c)     for an appeal against a decision of the Minister, under chapter 7, part 4, to register premises
            or to renew the registration of premises—20 business days after a notice is published under
            section 269(3)(a) or (4); or
    (d)     for an appeal against an infrastructure charges notice—20 business days after the
            infrastructure charges notice is given to the person; or
    (e)     for an appeal about a deemed approval of a development application for which a decision
            notice has not been given—30 business days after the applicant gives the deemed approval
            notice to the assessment manager; or
    (f)    for any other appeal—20 business days after a notice of the decision for the matter,
           including an enforcement notice, is given to the person.
          Note—
          See the P&E Court Act for the court’s power to extend the appeal period.
(4) Each respondent and co-respondent for an appeal may be heard in the appeal.




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(5) If an appeal is only about a referral agency’s response, the assessment manager may apply to
    the tribunal or P&E Court to withdraw from the appeal.
(6) To remove any doubt, it is declared that an appeal against an infrastructure charges notice must
    not be about—
      (a)     the adopted charge itself; or
      (b)     for a decision about an offset or refund—
            (i) the establishment cost of trunk infrastructure identified in a LGIP; or
            (ii) the cost of infrastructure decided using the method included in the local
                 government’s charges resolution.
230 Notice of appeal
(1)     An appellant starts an appeal by lodging, with the registrar of the tribunal or P&E Court, a notice
        of appeal that—
      (a)     is in the approved form; and
      (b)     succinctly states the grounds of the appeal.
(2)     The notice of appeal must be accompanied by the required fee.

(3)     The appellant or, for an appeal to a tribunal, the registrar, must, within the service period, give a
        copy of the notice of appeal to—
      (a)     the respondent for the appeal; and
      (b)     each co-respondent for the appeal; and
        (c) for an appeal about a development application under schedule 1, table 1, item 1—each
            principal submitter for the development application; and
        (d) for an appeal about a change application under schedule 1, table 1, item 2 —each principal
            submitter for the change application; and
        (e) each person who may elect to become a co-respondent for the appeal, other than an
            eligible submitter who is not a principal submitter in an appeal under paragraph (c) or (d);
            and
        (f) for an appeal to the P&E Court—the chief executive; and
        (g) for an appeal to a tribunal under another Act—any other person who the registrar considers
            appropriate.
(4)     The service period is—
      (a)     if a submitter or advice agency started the appeal in the P&E Court—2 business days after
              the appeal is started; or
      (b)     otherwise—10 business days after the appeal is started.
(5)     A notice of appeal given to a person who may elect to be a co-respondent must state the effect
        of subsection (6).
(6)     A person elects to be a co-respondent by filing a notice of election, in the approved form, within
        10 business days after the notice of appeal is given to the person.
(7)     Despite any other Act or rules of court to the contrary, a copy of a notice of appeal may be given
        to the chief executive by emailing the copy to the chief executive at the email address stated on
        the department’s website for this purpose.
231 Other appeals
(1)     Subject to this chapter, schedule 1 and the P&E Court Act, unless the Supreme Court decides a
        decision or other matter under this Act is affected by jurisdictional error, the decision or matter is
        non-appealable.




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(2)    The Judicial Review Act 1991, part 5 applies to the decision or matter to the extent it is affected
       by jurisdictional error.
(3)    A person who, but for subsection (1) could have made an application under the Judicial Review
       Act 1991 in relation to the decision or matter, may apply under part 4 of that Act for a statement
       of reasons in relation to the decision or matter.
(4)    In this section—
      decision includes—
      (a) conduct engaged in for the purpose of making a decision; and
      (b) other conduct that relates to the making of a decision; and
      (c) the making of a decision or the failure to make a decision; and
      (d) a purported decision; and
      (e) a deemed refusal.
      non-appealable, for a decision or matter, means the decision or matter—
      (a) is final and conclusive; and
      (b) may not be challenged, appealed against, reviewed, quashed, set aside or called into
          question in any other way under the Judicial Review Act 1991 or otherwise, whether by the
          Supreme Court, another court, a tribunal or another entity; and
      (c) is not subject to any declaratory, injunctive or other order of the Supreme Court, another
          court, a tribunal or another entity on any ground.
232 Rules of the P&E Court
(1)    A person who is appealing to the P&E Court must comply with the rules of the court that apply
       to the appeal.
(2)    However, the P&E Court may hear and decide an appeal even if the person has not complied
       with rules of the P&E Court.



Schedule 1                     Appeals

1 Appeal rights and parties to appeals


(1)    Table 1 states the matters that may be appealed to—
       (a) the P&E court; or
       (b) a tribunal.
(2)    However, table 1 applies to a tribunal only if the matter involves—
       (a) the refusal, or deemed refusal of a development application, for—
          i      a material change of use for a classified building; or
          ii     operational work associated with building work, a retaining wall, or a tennis court; or
       (b) a provision of a development approval for—
          i      a material change of use for a classified building; or
          ii     operational work associated with building work, a retaining wall, or a tennis court; or
       (c) if a development permit was applied for—the decision to give a preliminary approval for—
          i      a material change of use for a classified building; or
          ii     operational work associated with building work, a retaining wall, or a tennis court; or



          Page 3 of 10                                                                                 GE11-N

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      (d) development condition if—
        i      the development approval is only for a material change of use that involves the use of a
               building classified under the Building Code as a class 2 building; and
        ii     the building is, or is proposed to be, not more than 3 storeys; and
        iii    the proposed development is for not more than 60 sole-occupancy units; or
      (e) a decision for, or a deemed refusal of, an extension application for a development approval
          that is only for a material change of use of a classified building; or
      (f) a decision for, or a deemed refusal of, a change application for a development approval that
          is only for a material change of use of a classified building; or
      (g) a matter under this Act, to the extent the matter relates to the Building Act, other than a
          matter under that Act that may or must decided by the Queensland Building and
          Construction Commission; or
      (h) a decision to give an enforcement notice—
               i       in relation to a matter under paragraphs (a) to (g); or
               ii      under the Plumbing and Drainage Act; or
      (i) an infrastructure charges notice; or
      (j) the refusal, or deemed refusal, of a conversion application; or
      (k) a matter prescribed by regulation.
(3)   Also, table 1 does not apply to a tribunal if the matter involves—
      (a) for a matter in subsection (2)(a) to (d)—
        i      a development approval for which the development application required impact
               assessment; and
        ii     a development approval in relation to which the assessment manager received a
               properly made submission for the development application; or
      (b) a provision of a development approval about the identification or inclusion, under a variation
          approval, of a matter for the development.
(4)   Table 2 states the matters that may be appealed only to the P&E Court.
(5)   Table 3 states the matters that may be appealed only to the tribunal.
(6)   In each table—
      (a) column 1 states the appellant in the appeal; and
      (b) column 2 states the respondent in the appeal; and
      (c) column 3 states the co-respondent (if any) in the appeal; and
      (d) column 4 states the co-respondents by election (if any) in the appeal.
(7)   If the chief executive receives a notice of appeal under section 230(3)(f), the chief executive
      may elect to be a co-respondent in the appeal.
(8)   In this section—
      storey see the Building Code, part A1.1.




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                                                      Table 1
                            Appeals to the P&E Court and, for certain matters, to a tribunal


1. Development applications
For a development application other than a development application called in by the minister, an appeal may be made against—
(a)   the refusal of all or part of the development application; or
(b)   the deemed refusal of the development application; or
(c)   a provision of the development approval; or
(d)   if a development permit was applied for—the decision to give a preliminary approval.

Column 1                            Column 2                            Column 3                           Column 4 Co-respondent
Appellant                           Respondent                          Co-respondent                      by election (if
                                                                        (if any)                           any)


The applicant                       The assessment manager              If the appeal is about a           1.   A concurrence
                                                                        concurrence agency’s referral           agency that is not a co-
                                                                        response—the concurrence                respondent
                                                                        agency                             2.   If a chosen assessment
                                                                                                                manager is the
                                                                                                                respondent—the
                                                                                                                prescribed
                                                                                                                assessment manager
                                                                                                           3.   Any eligible advice agency
                                                                                                                for the application
                                                                                                           4.   Any eligible
                                                                                                                submitter for the
                                                                                                                application




2. Change applications
For a change application other than a change application made to the P&E Court or called in by the Minister, an appeal may be made
against—
(a)   the responsible entity’s decision on the change application; or
(b)   a deemed refusal of a change application.

Column 1                            Column 2                            Column 3                           Column 4 Co-respondent
Appellant                           Respondent                          Co-respondent                      by election (if
                                                                        (if any)                           any)


1.    The applicant                 The responsible entity              If an affected entity starts the   1.   A concurrence
                                                                        appeal—the applicant                    agency for the
2.    If the responsible
                                                                                                                development application
      entity is the assessment
      manager—an                                                                                           2.   If a chosen assessment
                                                                                                                manager is the
      affected entity that gave a
                                                                                                                respondent—the
      pre-request notice or                                                                                     prescribed
      response notice                                                                                           assessment manager
                                                                                                           3.   A private
                                                                                                                certifier for the
                                                                                                                development application
                                                                                                           4.   Any eligible advice agency
                                                                                                                for the change application
                                                                                                           5.   Any eligible
                                                                                                                submitter for the
                                                                                                                change application




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3. Extension applications
For an extension application other than an extension application called in by the Minister, an appeal may be made against—
(a)   The assessment manager’s decision on the extension application; or
(b)   A deemed refusal of the extension application.

Column 1                            Column 2                           Column 3                           Column 4 Co-respondent
Appellant                           Respondent                         Co-respondent                      by election (if
                                                                       (if any)                           any)


1.    The applicant                 The assessment manager             If a concurrence agency starts     If a chosen assessment
                                                                       the appeal—the applicant           manager
2.    For a matter                                                                                        is the respondent—the
      other than a deemed                                                                                 prescribed assessment
      refusal of an extension                                                                             manager
      application—a
      concurrence agency, other
      than the chief executive,
      for the application




4. Infrastructure charges notices
An appeal may be made against an infrastructure charges notice on 1 or more of the following grounds—
(a)   the notice involved an error relating to—
      (i)   the application of the relevant adopted charge; or
      Examples of errors in applying an adopted charge:
                ▪     the incorrect application of gross floor area for a non-residential development

                ▪     applying an incorrect ‘use category’, under a regulation, to the development
      (ii) the working out of extra demand, for section 120; or
      (iii) an offset or refund; or
(b)   there was no decision about an offset or refund; or
(c)   if the infrastructure charges notice states a refund will be given—the timing for giving the refund; or
(d)   the amount of the charge is so unreasonable that no reasonable relevant local government could have imposed the amount.




Column 1                            Column 2                           Column 3                           Column 4 Co-respondent
Appellant                           Respondent                         Co-respondent                      by election (if
                                                                       (if any)                           any)


The person given the                The local government that gave —                                      —
infrastructure charges notice       the infrastructure charges notice



5. Conversion applications
An appeal may be made against—
(a)   the refusal of a conversion application; or
(b)   a deemed refusal of a conversion application.

Column 1                            Column 2                           Column 3                           Column 4 Co-respondent
Appellant                           Respondent                         Co-respondent                      by election (if
                                                                       (if any)                           any)


The applicant                       The local government to which      —                                  —
                                    the conversion application was
                                    made

6. Enforcement notices
An appeal may be made against the decision to give an enforcement notice.



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Column 1                            Column 2                         Column 3                            Column 4 Co-respondent
Appellant                           Respondent                       Co-respondent                       by election (if
                                                                     (if any)                            any)


The person given the                The enforcement authority        —                                   If the enforcement authority is
enforcement notice                                                                                       not the local government for the
                                                                                                         premises in relation to which the
                                                                                                         offence is alleged to have
                                                                                                         happened—the local
                                                                                                         government



                                                                     Table 2
                                                           Appeals to the P&E Court only

1. Appeals from tribunal
An appeal may be made against a decision of a tribunal, other than a decision under section 252, on the ground of—
(a)   an error or mistake in law on the part of the tribunal; or
(b)   jurisdictional error.


Column 1                            Column 2                         Column 3                            Column 4 Co-respondent
Appellant                           Respondent                       Co-respondent                       by election (if
                                                                     (if any)                            any)


A party to the proceedings for      The other party to the           —                                   —
the decision                        proceedings for the decision


2. Eligible submitter appeals
For a development application or change application other than an application decided by the P&E Court or called in by the Minister,
an appeal may be made against the decision to approve the application, to the extent the decision relates to—
(a)   any part of the development application or change application that required impact assessment; or
(b)   a variation request


Column 1                                 Column 2                               Column 3                      Column 4 Co-
Appellant                                Respondent                             Co-respondent                 respondent by election
                                                                                (if any)                      (if
                                                                                                              any)
1.    For a development                  1.   For a development                 1.   The applicant            Another eligible submitter for
      application—an eligible                 application—the                                                 the application
                                                                                2.   If the appeal is about
      submitter for the development           assessment manager
      application                                                                    a concurrence
                                         2.   For a change application—the           agency’s referral
2.    For a change application—an             responsible entity                     response—the
      eligible submitter for the                                                     concurrence agency
      change application




3. Eligible submitter and eligible advice agency appeals
For a development application or change application other than an application decided by the P&E Court or called in by the Minister,
an appeal may be made against a provision of the development approval, or a failure to include a provision in the development
approval, to the extent the matter relates to—
(a)   any part of the development application or the change application, that required impact assessment; or
(b)   a variation request.

Column 1                            Column 2                         Column 3                            Column 4 Co-respondent
Appellant                           Respondent                       Co-respondent                       by election (if
                                                                     (if any)                            any)




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1.    For a development                1.   For a development           1.   The applicant              Another eligible submitter for the
      application—an eligible               application—the                                             application
                                                                        2.   If the appeal is about a
      submitter for the                     assessment manager
      development application                                                concurrence agency’s
                                       2.   For a change application—        referral response—the
2.    For a change application—             the responsible entity           concurrence agency
      an eligible submitter for the
      change application
3.    An eligible advice agency
      for the development
      application or change
      application




4. Compensation claims
An appeal may be made against—
(a)   a decision under section 32 about a compensation claim; or
(b)   a decision under section 265 about a claim for compensation; or
(c)   a deemed refusal of a claim under paragraph (a) or (b).

Column 1                               Column 2                         Column 3                        Column 4 Co-respondent
Appellant                              Respondent                       Co-respondent                   by election (if
                                                                        (if any)                        any)


A person dissatisfied with the         The local government to which    —                               —
decision                               the claim was made




5. Registered premises
An appeal may be made against a decision of the Minister under chapter 7, part 4.

Column 1                               Column 2                         Column 3                        Column 4 Co-respondent
Appellant                              Respondent                       Co-respondent                   by election (if
                                                                        (if any)                        any)


1.    A person given a                 The Minister                     —                               If an owner or occupier starts
      decision notice about the                                                                         the appeal—the owner of the
      decision                                                                                          registered premises
2.    If the decision is to register
      premises or renew the
      registration of premises—
      an owner or occupier of
      premises in the affected
      area for the registered
      premises who is
      dissatisfied with the
      decision




6. Local laws
An appeal may be made against a decision of a local government, or conditions applied, under a local law about—
(a)   the use of premises, other than a use that is the natural and ordinary consequence of prohibited development; or
(b)   the erection of a building or other structure.




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Column 1                          Column 2                          Column 3                           Column 4 Co-respondent
Appellant                         Respondent                        Co-respondent                      by election (if
                                                                    (if any)                           any)


A person who—                     The local government              —                                  —
(a)   applied for the decision;
      and
(b)   is dissatisfied with the
      decision or conditions.


                                                                   Table 3
                                                           Appeals and tribunal only

1. Building advisory agency appeals
An appeal may be made against giving a development approval for building work to the extent the building work required code
assessment against the building assessment provisions.

Column 1                          Column 2                          Column 3                           Column 4 Co-respondent
Appellant                         Respondent                        Co-respondent                      by election (if
                                                                    (if any)                           any)


A building advisory agency for    The assessment manager            The applicant                      1.   A concurrence
the development application                                                                                 agency for the
related to the approval                                                                                     development application
                                                                                                            related to the approval
                                                                                                       2.   A private
                                                                                                            certifier for the
                                                                                                            development application
                                                                                                            related to the approval



2. Inspection of building work
An appeal may be made against a decision of a building certifier or referral agency about the inspection of building work that is the
subject of a building development approval under the Building Act.


Column 1                          Column 2                          Column 3                           Column 4 Co-respondent
Appellant                         Respondent                        Co-respondent                      by election (if
                                                                    (if any)                           any)


The applicant for the             The person who made the           —                                  —
development approval              decision

3. Certain decisions under the Building Act and the Plumbing and Drainage Act
An appeal may be made against—
(a)   a decision under the Building Act, other than a decision made by the Queensland Building and Construction Commission, if an
      information notice about the decision was given or required to be given under that Act; or
(b)   a decision under the Plumbing and Drainage Act, part 4 or 5, if an information notice about the decision ws given or required to
      be given under that Act.
Column 1                          Column 2                          Column 3                           Column 4 Co-respondent
Appellant                         Respondent                        Co-respondent                      by election (if
                                                                    (if any)                           any)


A person who received, or was     The person who made the           —                                  —
entitled to receive, an           decision
information notice about the
decision
4. Local government failure to decide application under the Building Act
An appeal may be made against a local government’s failure to decide an application under the Building Act within the period
required under that Act.




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Column 1                         Column 2                        Column 3        Column 4 Co-respondent
Appellant                        Respondent                      Co-respondent   by election (if
                                                                 (if any)        any)


A person who was entitled to     The local government to which   —               —
receive notice of the decision   the application was made




          Page 10 of 10                                                                         GE11-N

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