Planning approvals 

Planning approval (sometimes called development approval or development consent, depending on the jurisdiction) is the primary legal mechanism controlling how land may be used and developed in Australia. Unlike environmental approval, which has a significant Commonwealth overlay, planning approval is almost entirely a state, territory and local government function. There is no national planning code, and each state and territory administers its own planning legislation, its own planning instruments, and its own local schemes. This article describes the general structure common to Australian planning systems conceptually, without attributing that structure to any single state's legislation.

The planning scheme

At the centre of most Australian planning systems is a planning scheme (also called a local environmental plan, planning instrument, or similar depending on jurisdiction): a document, usually prepared or approved by a local council in accordance with state legislation, that governs land use within a defined area. A planning scheme typically performs two related functions:

• zoning — dividing land within the scheme area into zones (for example, residential, commercial, industrial, rural or conservation zones), each of which identifies the kinds of use that are permitted, prohibited, or permitted only with consent; and
• setting development standards — rules governing matters such as building height, setbacks, density, and other physical or environmental controls that apply to development within a zone or across the scheme area.

A planning scheme is generally made under, and must be consistent with, a hierarchy of higher-level state planning instruments and legislation, so that local schemes operate within boundaries set by state policy rather than as freestanding documents. Because each state and territory has its own hierarchy and its own terminology, a planning concept that carries a particular label in one jurisdiction should not be assumed to carry the same label, or even to exist, in another.

The development application

Where a proposed use or development is not simply permitted outright under the relevant zone, a person wishing to carry it out generally must lodge a development application with the relevant consent authority — typically the local council, though state legislation may direct certain classes of development to a state-level authority instead. The consent authority assesses the application against the planning scheme, any relevant state planning policies, and — for larger or more significant proposals — the results of any environmental impact assessment that has been required. Community and neighbour notification and submission rights are common features of this process, particularly for development that departs from what is permitted as of right.

The consent authority's decision generally takes one of three broad forms: approval, approval subject to conditions (which may address matters such as design, environmental mitigation, or staging), or refusal. Because planning schemes typically confer a genuine discretion rather than mechanical rules, planning decision-making commonly involves weighing the proposal against multiple, sometimes competing, considerations in the scheme and any relevant policy.

Merits appeal

A person dissatisfied with a planning decision — commonly an applicant whose application is refused or approved subject to onerous conditions, though in some jurisdictions an objecting third party may also have rights — can generally seek a merits appeal to a specialist tribunal or court. A merits appeal is conceptually distinct from judicial review: rather than asking whether the original decision-maker made a legal error, a merits review body stands in the shoes of the original decision-maker and decides afresh, on the merits, what the correct or preferable decision is, based on the material before it (which may include new evidence). This is a significant feature of Australian planning law: unsuccessful applicants are often not limited to arguing legal error, but can obtain a genuine re-assessment of the planning merits of their proposal. Third parties, decision-makers and issues eligible for merits appeal vary considerably between jurisdictions, so the availability and scope of a merits appeal must always be checked against the specific jurisdiction's legislation.

Applying this in a problem question

1. Identify the specific state or territory whose planning legislation applies, and avoid assuming a scheme or process from one jurisdiction applies elsewhere.
2. Identify the zone that applies to the land and whether the proposed use or development is permitted, prohibited, or permitted only with consent under the planning scheme.
3. Determine whether a development application is required, which consent authority decides it, and what considerations the scheme directs the decision-maker to weigh.
4. Identify whether conditions attached to an approval are genuinely connected to the development, rather than being used for an unrelated purpose.
5. Check whether a merits appeal is available to the dissatisfied party, and distinguish that pathway clearly from a claim of legal error going to judicial review.