2016-12-12 General Committee Agenda

GENERAL COMMITTEE MEETING AGENDA                                              12 DECEMBER 2016


Ordinary Meeting, 22 October 2015, Item 1, Page 8
That Council note the report by the Manager, Planning & Environment, Principal Strategic
Planner and Infrastructure Assessment Coordinator to the Planning & Organisation Committee
Meeting dated 13 October 2015 and make a submission to the Department of Infrastructure,
Local Government and Planning on the draft Planning Bills in accordance with the following:
A.    The Planning & Development Bill and Planning & Development Regulations are not clear in
      the decision rules, particularly for those applications which conflict with the planning
      scheme. It is considered that where an application conflicts with the planning scheme, the
      onus of proof should be on the applicant to prove the merits of the proposal and justify any
      inconsistencies. Further, clear grounds and/or reasons should be required to be provided
      as part of the decision in order to ensure a transparent, accountable development
      assessment system for the community;
B.    The definition of material change of use should not be limited to only increases in scale and
      density of the premises, as there are circumstances where reducing the scale of the
      development does materially change the site’s use. This is particularly relevant for
      developments which include an important community use or the like. For example
      removing the nursing home component from a retirement village may have a significant
      social impact on an area;
C.    Case law on the SPA definition of ‘use’ makes it clear that secondary uses forming part of a
      primary use must not only be incidental, but also necessarily associated such that it would
      be impossible for the primary use to be carried out in the absence of the incidental use.
      The definition proposed in the Bill related to ‘use’ fundamentally expands the activities that
      may be carried out because secondary activities need not be necessarily associated with
      the primary use to be considered part of that use and as a result, lawful. The regulation
      and enforcement of activities that were not contemplated as part of a development
      approval (although ancillary) may prove problematic for councils and undermine local
      communities’ understanding of the development process;
D.    The removal of the requirement to consider whether a person may make a properly made
      submission objecting to change from the minor change test is likely to undermine the
      communities input into development assessment matters, particularly where they may be
      impacted upon by a proposed change;
E.    The Planning Bill maintains and extends the time frame for applicants to be able revive a
      development application where it lapses. This ability is not consistent with the principles for
      the DA Rules of being an applicant driven process, and is likely to create administrative
      problems for councils and lead to significant confusion for the community, particularly
      submitters;
F.    In the absence of demonstrable net benefit, no change is sought to the existing levels of
      assessment or the terms used (i.e. code and impact) in the new legislation;
G.    The proposed extension of Infrastructure Designation to privately owned infrastructure is a
      significant policy shift and would remove due consideration by the community, third party
      appeal rights and the need to comply with the planning scheme. Infrastructure charges
      revenue would be forfeited and would result in a considerable cost shift onto councils and
      their local communities. Statutory requirements around community infrastructure should at
      a minimum enable council to have a statutory role similar to a referral agency and allow
      consideration of local planning instruments in the designation process;
H.    Key process matters (including the development assessment process) should not be
      moved from the principal legislation and into subordinate legislation, given the potential
      negative outcomes for Councils and the broader community. The framework should be
      located in one statutory instrument to ensure genuine review processes cannot be
      expedited without due consultation and engagement;
I.    Attachment 1 of this report which includes comment on Draft Planning Bills provisions
      relating to Infrastructure Charges as amended at the Planning & Organisation Committee
      dated 13 October 2015;

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