2015-01-12 General Committee Agenda

GENERAL COMMITTEE MEETING AGENDA                                                     12 January 2015


This is essentially private certification for planning and operational works matters and is of
significant concern given that experience has shown that private building certification has not
been as successful in ensuring compliance with the planning scheme requirements given the
inherent commercial interest. It is also a concern for any development application that includes
works which ultimately become a Council asset and maintained at ratepayers expense.

Material Change of Use Definition

Under SPA, the definition of material change of use means that there must be a material
increase in the intensity or scale of the use of premises. This definition has been carried through
to the P&D Bill whereas IPA originally defined it as being any material change in the intensity or
scale of the use of the premises. In this way, a lesser or small scaled development could also be
considered a material change of use. This is important for uses which might include a
community component and the applicant seeks to remove this, for example a retirement village
where the nursing home component is removed.

Appeal provisions

A fundamental shift to the cost provisions in the Planning and Environment Court was introduced
under SPA, and has been continued under the P&D Bill. These provisions essentially bring the
P&E Court in line with the usual rule in civil litigation that the losing party pays the winning party’s
costs.

While it may have been intended that in appeals where each party has a well-founded argument
and calls expert evidence to justify their position, the P&E Court would exercise its discretion to
direct that each party bear its own costs, this is not necessarily what has eventuated as
evidenced in the Masters appeal. In this instance, costs were awarded against the Council
despite judgement recognising that Masters conflicted with the planning scheme, suggesting that
Council’s case for Masters was not without merit.

The Masters decision is also particularly concerning for genuine community interest groups who
are trying to protect an environmental or other public concern within their community. These
costs rules mean community groups and submitters may be faced with meeting their own legal
costs and the possibility of paying the developers costs, which could be crippling. This does not
serve the public interest of enabling the community to dispute planning decisions. It is
considered that the previous Court powers to award costs in circumstances such as where cases
were frivolous or vexatious or instituted primarily to delay or obstruct are sufficient protections
from abuse of the court appeal system.

Previous Council Consideration

In September 2014 Officers previously reported on the draft Planning & Development Bill and the
Planning & Environment Court Bill. At its meeting of 28 September 2015 Council resolved as
follows:

That Council note the report by the Manager, Planning & Environment and Strategic Planner to
the Planning & Organisation Committee Meeting dated 16 September 2014 and request the
Chief Executive Officer to make a submission to the draft Planning and Development Bill 2014
and Planning and Environment Court Bill 2014 generally seeking that:-
A.    The Department of State Development, Infrastructure and Planning undertake consultation
      on the draft Planning and Development Regulations and Guidelines where much of the
      practical impacts of the legislation changes for the community, development industry and
      local governments will be located;
B.    Local governments and their communities should continue to retain the ability to decide
      through their planning schemes which developments will be required to be publicly notified
      and have third party appeal rights;

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