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2017-06-29 Special Meeting - Agenda Item 2 - New delegations for the Planning Act 2016, Planning Regulation 2017 and Development Assessment Rules

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                 Special Meeting
             Thursday, 29 June 2017


Agenda Item 2:   New Delegations for the Planning Act 2016,
                 Planning Regulation 2017 and Development
                 Assessment Rules
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Section 2

SPECIAL MEETING REPORT                                                                              29 JUNE 2017


2                        NEW DELEGATIONS FOR THE PLANNING ACT 2016, PLANNING REGULATION 2017
                         & DEVELOPMENT ASSESSMENT RULES
DOCUMENT INFORM AT ION




Author                              Manager, Planning & Environment, Kerri Coyle
                                    Planning & Infrastructure Department

Index                               ECM / Governance & Executive / Delegation of Authority

Attachments                         1.    Delegations of Authority: Planning Act 2016; Planning Regulation
                                          2017 and Development Assessment


EXECUTIVE SUMMARY
The purpose of this report is to update the current planning delegations ready for commencement
of the Planning Act 2016, Planning Regulation 2017 and associated Development Assessment
Rules on the 3 July 2017.

RECOMMENDATION
That Council note the report by the Manager, Planning & Environment regarding new delegations
for the Planning Act 2016, Planning Regulation 2017 and Development Assessment Rules to the
Special Meeting dated 29 June 2017 and:
A.                       Repeal the delegations for the Planning Act 2016 as adopted by Council at the Ordinary
                         Meeting of 15 June 2017;
B.                       Pursuant to section 257 of the Local Government Act 2009, agree to delegate the powers for
                         the Planning Act 2016, Planning Regulation 2017 & Development Assessment Rules as
                         detailed in Attachment 1 to the report.



REPORT
A report on the delegations for the Planning Act 2016 was considered by the Planning &
Environment Committee meeting on 6 June 2017 (refer to page 63 of the Planning & Environment
Committee Agenda) and was subsequently endorsed at the Ordinary Meeting on 15 June 2017.
Since this report, the LGAQ have provided updates to the delegation registers for Councils
including the following:
1.                       New delegation registers for the Planning Regulation 2017 (as passed by Parliament in May
                         2017) and the Development Assessment Rules; and
2.                       Amendments have also been made to the existing delegation register for the Planning Act
                         2016.
These updates provided by LGAQ are current as at 13 June 2017.

These new delegations and amendments have again been reviewed and revised by officers to
align and reflect the current delegations provided for the Sustainable Planning Act 2009.

The Planning Act 2016 will replace the Sustainable Planning Act 2009 on 3 July 2017. Rights,
roles and responsibilities are retained in the Planning Act 2016. However, many process matters
are included in other statutory instruments made under the Planning Act 2016 i.e. Minister’s
Guidelines and Rules and the Development Assessment Rules.




                                                                                                     Page 1 of 10

Section 3

SPECIAL MEETING REPORT                                                                 29 JUNE 2017


The Planning Regulation 2017 will commence at the same time as the Planning Act 2016 on 3
July 2017 and supports and complements the new Act. These regulations include:
     Assessment matters applying generally to all development applications, and the process for
      Ministerial call ins;
     The mandatory matters from the Queensland Planning Provisions (QPP) under SPA such as
      zone names, purpose statements and definitions;
     The provisions from the state planning regulatory provisions that continue under the planning
      systems, such as the SEQ koala habitat provisions and the SEQ Regional Plan;
     The state’s development assessment schedules prescribing assessable development;
      assessment benchmarks and other assessment matters; assessment managers; referral
      agencies; and state agency fees for development applications;
     Requirements for public access to planning documents and information;
     Content of planning and development certificates; and
     The process for approving plans of subdivision.

The Development Assessment Rules set out the new development assessment process and
include the key steps of the process and what rules apply.


Previous Council Consideration

Ordinary Meeting, 15 June 2017, Item 5, Page 5
That Council note the report by the Manager, Planning & Environment to the Planning &
Environment Committee Meeting dated 6 June 2017, and
A.    Pursuant to section 257 of the Local Government Act 2009, agree to delegate the powers for
      the Planning Act 2016 as detailed in Attachment 1;
B.    Note that a Special Meeting of Council may be required for those code assessable
      applications where the proposed development is of significant community interest and where
      new legislative decision making time frames mean that a decision cannot be made through
      the normal Council Meeting cycle.


Finance & Risk

Operationally, if delegations are not current or officers operate outside of their delegated authority,
relevant decisions made and action taken may be considered unauthorised and subject to legal
challenge. This may expose Council to the risk of unnecessary and expensive legal action by third
parties and reputational damage.

All of Council’s delegations contain the following conditions to manage the risk of officers acting
beyond the appropriate delegated authority:
“1.   The delegated officer must exercise this delegation in accordance with Council resolutions,
      policies, guidelines, procedures, industrial instruments and agreements.
2.    If the CEO on delegates any of these powers the delegated officer must exercise any
      delegated power in accordance with the scope and limitations of the subject officer’s letter of
      appointment and/or, position description, qualifications, technical knowledge and legislative
      requirements.”




                                                                                         Page 2 of 10

Section 4

SPECIAL MEETING REPORT                                                                      29 JUNE 2017


Consultation

External Consultation - Community & Stakeholder

The Governance Branch consults with the Principal Advisor of LGAQ in relation to delegation
matters as required.

Internal Consultation

Departments/Sections Consulted:

    Chief Executive Officer                X   Community Services                 Corporate Services
    Executive Officer to the Mayor & CEO       Community Facilities               Financial Services
    Executive Support                          Community Development              ICT
                                               Libraries & Galleries              Procurement & Fleet
                                               Local Laws                         Property & Facilities
                                           X   Waste & Environmental Health       Revenue Services

    Executive Office                       X   Planning & Infrastructure
    Community Engagement                   X   Building & Plumbing Services
    Customer Service                           Civil Operations
    Economic Development                       Disaster Management
    Governance                                 Infrastructure Planning & Design
    Human Resources                        X   Planning & Environment
    Sustainability                         X   Strategic Land Use Planning




                                                                                              Page 3 of 10

Section 5

                                                                                    ATTACHMENT 1

 DELEGATION OF AUTHORITY
 TITLE: PLANNING ACT 2016

 Delegation by the Council to:                                     Date:
 Chief Executive Officer

 Source of Authority:
 Local Government Act 2009 - Section 257
 Planning Act 2016
 Planning Regulation 2017
 Development Assessment Rules



Delegated Power:
1.   To exercise the Council’s powers pursuant to the Planning Act 2016 (Act).

 DESCRIPTION OF POWER DELEGATED                                                LEGISLATION
 Power to decide whether or not to agree to a superseded planning Section 29
 scheme request and give notice of the decision.
 Power to give an exemption certificate for the development. For Section 46
 avoidance of doubt, the power delegated includes the power to take all
 actions as detailed in section 46.
 Power to act as the “assessment manager” for all development                  Sections 48, 51, 53,
 applications, change representations, cancellation applications and           54, 59, 60, 61, 62, 63,
 extension applications received by Council under Chapter 3 of the             64, 65, 67, 71, 75, 76,
 Planning Act 2016. For avoidance of doubt, the power delegated includes       84, 85, 86, 87, 93,
 the power to take all actions of an assessment manager and consider all       100, 101, 105, 107
 matters as detailed in sections 48, 51, 53, 54, 59, 60, 61, 62, 63, 64, 65,   and 109
 67, 71, 76, 84, 85, 86, 87, 93 100, 101, 105, 107 and 109 of the Planning
 Act 2016.
 Power, as the owner of premises, to give written consent to the making of Section 51(2)
 the development application.
 Power to act as a “referral agency” for all development applications and Sections 46, 54, 55,
 cancellation applications received by Council as a referral agency under 56, 57, 65, 66, 67, 84,
 Chapter 3 of the Planning Act 2016. For avoidance of doubt, the power 85 100, 107 and 109
 delegated includes the power to take all actions of a referral agency and
 consider all matters as detailed in sections 46, 54, 55, 56, 57, 65, 66, 67,
 84, 85, 100, 107 and 109 of the Planning Act 2016.
 Power to consult with the Minister about making or amending the Section 64(9)
 instrument mentioned in subsection (8)(c).
 Power to act as a “responsible entity” for all change applications received Sections 79, 80, 81,
 by Council as a responsible entity under Chapter 3 of the Planning Act 82, 83, 93 and 100,
 2016. For avoidance of doubt, the power delegated includes the power 105, 107 and 109
 to take all actions of a responsible entity and consider all matters as
 detailed in sections 79, 80, 81, 82, 83, 93, 100, 105, 107 and 109 of the
 Planning Act 2016.


                                                                                       Page 4 of 10

Section 6

DESCRIPTION OF POWER DELEGATED                                             LEGISLATION
Power, as the owner of land, to give written consent to the cancellation Section 84(3)(b)(i)
application.
Power, as a public utility, to give written consent to the cancellation Section 84(3)(b)(iii)
application.
Power, as the owner of land, to give written consent to the extension Section 86(2)(b)(ii)
application
Power to act as an “affected entity” for all change applications received Section 80
by Council as an affected entity under Chapter 3 of the Planning Act 2016.
For avoidance of doubt, the power delegated includes the power to take
all actions of an affected entity and consider all matters as detailed in
section 80 of the Planning Act 2016.
Power to comply with a direction given by the Minister.                    Section 93(2)
Power, as the decision-maker, to give the Minister reasonable help.        Section 105(3)
Power to carry out the steps required after making a charges resolution.   Section 118
Power to give an infrastructure charges notice. For avoidance of doubt, Sections 119, 120,
the power delegated includes the power to take all actions and consider 121 and 129
all matters as detailed in sections 119, 120, 121 and 129.
Power, as a local government that gave an infrastructure charges notice, Section 123
to agree with the recipient about:-
a) whether the levied charge may be paid other than as required under
    section 122, including whether it may be paid by instalments; and/or
b) whether infrastructure may be provided instead of paying all or part of
    the levied charge.
Power, as a local government, to consider representations made on an Section 125
infrastructure charges notice and, issue a negotiated notice or give a
decision notice.
Power, as a local government with a LGIP that identifies adequate trunk Section 128(1)
infrastructure to service the subject premises, to impose a development
condition requiring either or both of the following to be provided at a stated
time:
a) the identified infrastructure; and/or
b) different trunk infrastructure delivering the same desired standard of
    service.
Power, as a local government with a LGIP that does not identify adequate Section 128(2)
trunk infrastructure to service the subject premises, to impose a
development condition requiring development infrastructure necessary to
service the premises to be provided at a stated time.
Power in the circumstances referred to in subsection (1) to, by notice Section 137
given to the applicant, amend the infrastructure charges notice.
Power, as a local government, to agree with an applicant that a levied Section 144(2)
charge, for the purpose of its recovery, is not taken to be rates.
Power, as a local government, to impose a development condition about Section 145
non-trunk infrastructure.
Power, as a local government, to enter an infrastructure agreement. For Chapter 4, Part 4
avoidance of doubt, the power delegated includes the power to take all
actions and consider all matters as detailed in Chapter 4, Part 4.
Power, as an enforcement authority, to give a show cause notice.           Section 167
Power, as an enforcement authority, to give an enforcement notice.         Section 168
                                                                                  Page 5 of 10

Section 7

DESCRIPTION OF POWER DELEGATED                                            LEGISLATION
Power to consult with a private certifier before giving an enforcement Section 169
notice.
Power to give notice of the giving or withdrawal of an enforcement notice Section 170
to the chief executive.
Power to bring offence proceedings for an offence against the Act.        Section 174
Power to consent to proceedings being brought on behalf of the Section 175(1)(a)
corporation.
Power, as an enforcement authority, to:-                             Section 176(10)
a) take the action required under the enforcement order; and
b) recover the reasonable cost of taking the action as a debt to the
   authority from the defendant.
Power, as an enforcement authority in an offence proceeding, to apply for Section 178(1)(b)
an order for the payment of the expenses.
Power to the start proceedings in the P&E Court for an enforcement order. Section 180
Power, as an enforcement authority, to:-                             Section 180(13)
a) take the action required under the enforcement order; and
b) recover the reasonable cost of taking the action as a debt to the
   authority from the respondent.
Power to apply to the P&E Court to cancel or change an enforcement Section 181(4)
order or interim enforcement order.
Power, as an enforcement authority in an offence proceeding, to apply for Section 214
a disposal order.
Power to make a claim for compensation from the State where Council Section 221
incurs loss because of the exercise, or purported exercise, of a power by
or for an inspector.
Power as an appellant to start an appeal.                                 Sections 229(2) and
                                                                          230
Power as a respondent or co-respondent to be heard in an appeal.          Section 229(4)
Power, where an appeal is only about a referral agency’s response, to Section 229(5)
apply to the tribunal or P&E Court to withdraw from the appeal.
Power to elect to be a co-respondent in an appeal.                        Section 230(6)
Power to start proceedings for a declaration by a tribunal. For avoidance Sections 239(1), 240
of doubt, the power delegated includes the power to take all actions and 241,
detailed in sections 239(1), 240 and 241.
Power to give the registrar information that the registrar reasonably     Section 246(2)
requires for the proceedings.
Power to appear as a party to a tribunal proceeding.                      Section 248
Power to make submissions to the tribunal.                                Section 249
Power to give notice to the Registrar once a tribunal’s direction or order Section 257
has been complied with.
Power to give an applicant the planning and development certificate Section 265
applied for.




                                                                                  Page 6 of 10

Section 8

 DESCRIPTION OF POWER DELEGATED                                            LEGISLATION
 Power, as an owner of premises in an affected area, before entering into Section 270
 a lease of the premises with a person, to give a notice that states :-
 a) the premises are in an affected area; and
 b) that restrictions may apply to the person in taking proceedings about
     emissions from registered premises in the affected area.
 Power to make an amendment of a type specified in subsection (1) by Section 293(5)
 following the process set out in the rules. For avoidance of doubt, the
 power delegated includes the power to take all actions as detailed in the
 rules.


2.   To exercise the Council’s powers pursuant to the Planning Regulation 2017.

 DESCRIPTION OF POWER DELEGATED                                            LEGISLATION
 Power to extend the period mentioned in subparagraph (a).                 Section 12(b)
 Power, where the request complies with the criteria stated in section 2, to Schedule 18,
 approve the request.                                                        Section 3(1)
 Power to give notice of the approval to the person making the request.    Schedule 18,
                                                                           Section 3(2)
 Power to keep the documents listed in subsection (1) available for Schedule 22,
 inspection and purchase.                                           Section 1
 Power to publish the documents listed in subsections (1) and (4) on Schedule 22,
 Council’s website.                                                  Section 3
 Power, as an assessment manager, to keep the documents listed in Schedule 22,
 subsections (1) and (2) available for inspection and purchase.   Section 5
 Power, as an assessment manager, to keep the documents listed in Schedule 22,
 subsection (1) available for inspection only.                    Section 6
 Power, as an assessment manager, to publish the documents listed in Schedule 22,
 subsections (1) and (4) on Council’s website.                       Section 7
 Power, as a referral agency, to keep the documents listed in subsections Schedule 22,
 (a) to (d) available for inspection and purchase.                        Section 8
 Power, as a referral agency, to keep a register for all development Schedule 22,
 applications and change applications given to the referral agency under Section 9
 section 54 of the Act and to make it available for inspection only.
 Power, as a referral agency, to publish the documents listed in Schedule 22,
 subsections (a) to (d) on Council’s website.                    Section 10




                                                                                   Page 7 of 10

Section 9

3.   To exercise the Council’s powers pursuant to the Development Assessment Rules.

 DESCRIPTION OF POWER DELEGATED                                             LEGISLATION
 Power, as an assessment manager, to determine if the application is a Section 1.2
 properly made application.
 Power, as an assessment manager, to give a confirmation notice.            Section 2.3
 Power, as an assessment manager, to give an action notice.                 Section 3.1
 Power, as an assessment manager, to agree to a further period for the Section 3.2
 applicant to comply with all actions in the action notice and give notice to
 the assessment manager that it has complied.
 Power, as an assessment manager, to give a confirmation notice if the Section 3.4
 applicant has complied with the action notice.
 Power, as an assessment manager, to accept the application as a Section 3.5
 properly made application after giving an action notice.
 Power, as an assessment manager, to agree on a further period for giving Section 3.6(b)
 a confirmation notice.
 Power, as an assessment manager, to agree to a further period for the Section 5.1
 applicant to give a copy of the application to a referral agency.
 Power, as a referral agency, to determine if the application is a properly Section 6.2
 referred application.
 Power, as a referral agency, to give a confirmation notice.                Section 7.1
 Power, as a referral agency, to give the applicant an action notice        Section 8.1(a)
 Power, as a referral agency, to give a copy of the action notice to the Section 8.1(b)
 assessment manager.
 Power, as a referral agency, to agree to a further period for the applicant Section 8.2
 to comply with all the actions in the action notice.
 Power, as a referral agency, where the applicant has complied with all the Section 8.2(b)
 actions in the action notice, to give a referral confirmation notice to the
 applicant and a copy to the assessment manager.
 Power, as a referral agency, to give the assessment manager notice that Section 8.3(b)
 the application is taken to have not been referred.
 Power, as a referral agency, to agree to a further period for the referral Sections 9.2(a) and
 agency assessment period.                                                  (b)
 Power, as an assessing authority, to agree to receive further information Section 11.2
 from the applicant during the development assessment process.
 Power, as an assessing authority, to make an information request.          Section 12.1
 Power, as an assessment manager, to agree to a further period in which Section 12.2
 to make the information request.
 Power, as a referral agency, to agree to a further period in which to make Section 12.4
 the information request.
 Power, as an assessing authority, to give the applicant advice about an Section 12.5
 information request or any other matter, including how the applicant may
 change the application.
 Power, as an assessing authority, to agree to a further period for the Section 13.1
 applicant to respond to the information request.
 Power, as an assessment manager acting under section 53(10) of the Act Sections 17.1, 17.3
 to comply with the public notice requirements.                         and 17.4

                                                                                    Page 8 of 10

Section 10

DESCRIPTION OF POWER DELEGATED                                               LEGISLATION
Power, as an assessment manager, to agree to a further period for the Section 18.1
applicant to give notice of compliance with the public notice requirements.
Power, as an assessment manager, to accept properly made submissions Section 19.1
and not properly made submissions.
Power, as the assessment manager, to agree to a further period to assess Section 22.1(a)
and decide the application.
Power, as the assessment manager, to:-                                      Section 25.1
a) give a copy of the notice to each referral agency for the original
   application and any other referral agency required to be given referral;
   and
b) advise each referral agency, with a copy to the applicant, of the effect
   of the change on the development assessment process.
Power, as the assessment manager, to determine whether the change:- Section 26.1
a) only deals with a matter raised in a properly made submission for the
   application; or
b) is in response to an information request for the application; or
c) is in response to further advice provided by an assessing authority
   about the application.
Power, as the assessment manager, to give the applicant a confirmation Section 26.2(a)(i)
notice where part 4 applies to the changed application and part 4 did not
apply to the original application.
Power, as the assessment manager, to determine whether the change:- Section 26.2(b)
a) would be likely to attract a submission objecting to the thing
   comprising the change if public notification were to apply to the
   change;
b) only addresses a matter raised in a properly made submission.
Power, as the assessment manager, to give notice to the applicant that Section 26.2(c)
public notification is required under section 26.2(b) and that it must be
carried out in accordance with section 16.4.
Power, as a referral agency, despite section 11.1, to make an information Section 26.5
request as a result of a referral under section 26.
Power, as an assessing authority, despite section 11.1, to make an Section 27.2
information request about the change.
Power, as the assessment manager, to determine whether the change Section 27.3
would be likely to attract a submission objecting to the thing comprising
the change, if public notification were to apply to the change.
Power, as a concurrence agency, after the referral agency assessment Section 28.1
period and any further periods has ended, to change its referral agency
response or give a late referral agency response before the application is
decided.
Power, as a concurrence agency, to give notice of its intention to change Section 28.4(a)
its referral agency response to the assessment manager and the
applicant.
Power, as a concurrence agency, to agree to a further period for the giving Section 28.4(b)
of an amended referral agency response.
Power, as a party to the application, to give notice to each other party that Section 29.2
the applicant has not referred the application in accordance with section
54(1) of the Act.


                                                                                     Page 9 of 10

Section 11

 DESCRIPTION OF POWER DELEGATED                                               LEGISLATION
 Power, as a referral agency, despite section 11.1, to make an information Section 29.6
 request as a result of a referral under section 29.
 Power, as a party who initiated an extension under the DA rules, to give Section 33.1
 a copy of the agreement to any other party to the application.
 Power, as an assessment manager or as a concurrence agency for the Section 34.1
 application, to ask any third party for third party advice.
 Power, as an assessment manager or as a concurrence agency for the Sections             35.1   and
 application, to give further advice about the application to the applicant, 35.2
 including how the applicant may change the application.


Conditions of the Delegation:

1.   The Delegated Officer must exercise this delegation in accordance with council; resolutions,
     policies, guidelines, procedures, industrial instruments and agreements.
2.   If the CEO on delegates any of these powers the delegated officer must exercise any delegated
     power in accordance with the scope and limitations of the subject officer’s letter of appointment
     and/or, position description, qualifications, technical knowledge and legislative requirements.
3.   The Delegated Officer may exercise the powers of the Council under the Planning Act 20016
     for an application other than the following:
     a)    an application for a variation request mentioned in section 61 of the Planning Act 2016
           to vary the effect of the planning scheme;
     b)    the approval of an application where there is substantial non-compliance with a stated
           policy of the Council or a high order provision of the Planning Scheme being a desired
           environmental outcome, or an overall outcome of a code;
     c)    the refusal of any application where Council is the assessment manager;
     d)    requests for change representations, and change applications to change or delete
           conditions that were imposed by Council at an Ordinary Meeting or a Special Meeting;
     e)    and an application for a proposed development of significant community interest.

However, the delegated officer may exercise the powers of the local government under the Planning
Act 2016 for an application where the application has the potential for 'deemed approval' in
accordance with section 64 of the Act.

A Councillor may request an application to be determined at a Council meeting. The request shall
be made to Chief Executive Officer, with the request to be made before the decision stage
commences.




                                                                                     Page 10 of 10

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