Development Control and Enforcement

When permission is needed to undertake a particular development (under the terms of the relevant planning instrument), an application will be prepared and submitted to a planning authority. Usually, the authority will be within local government (noting that in some countries there are many layers of local authority). When the development is regarded to be of minor impact, supporting documentation is usually minimal. It will include a site plan, architectural drawings (including elevations to assess overshadowing and privacy issues), as well as details as to the types of materials used. More significant development types will typically require technical studies to be submitted as well. These could relate to built heritage, flora and fauna, traffic impacts and so on. For projects likely to have a major environmental impact, a special assessment process, known as ‘environmental impact assessment’ is carried out.

Typically, the development proposal (including any environmental impact studies) will also be placed on public exhibition with the opportunity for members of the public to make written submissions. Although these submissions must be considered in the decision-making process, jurisdictions assign varying levels of importance to ‘third party’ objections (i.e. objections made by persons who are neither proposing the development or the assessment authority). Whilst consultation processes take time and can also result in barriers to housing development (as noted earlier), public participation provides important transparency and contestability of the effects and impacts (including costs and benefits) of a particular proposal.

Depending on the potential impacts of the proposal and the assessment requirements contained in the planning instrument, additional referral to other government authorities might be required. Usually, the assessment process will be managed by professional planners who will prepare a report and recommendation. However, different jurisdictions have different arrangements in place for making the final decision. These include (a) determination by a professional planner, or (b) by a specially constituted panel of experts, (c) determination by elected representatives (typically of a local municipality), or (d) by a government minister (often the case for very significant projects and public infrastructure). In general, it is usually thought that professional, expert determination results in more predictable planning decisions than those made by locally elected representatives although this can depend on the extent to which expert assessment and recommendation is part of the decision process, and the extent to which decisions are subject to legal appeal. If the proposal is approved, this will usually be subject to particular conditions of approval, typically including the level of development contribution for local infrastructure or services. The burden of development conditions and contribution levies is often a point of contention as heavy expectations may also affect project viability. Nevertheless, it is almost invariably in the interests of developers to seek to reduce development conditions and levies overall and in relation to their specific proposals, in particular.

If the developer is unsatisfied with the decision, they are usually able to seek a review within the local authority itself or by appealing the matter in court. As noted, in some jurisdictions third parties are also able to challenge a planning decision in the court. In theory, the capacity to appeal against a decision should improve system transparency and fairness. However, third party appeals also introduce delays and uncertainty to decision processes, and can be expensive to mount or defend.

Each of these steps in the planning process—from the allocation of land through a spatial plan and the setting of development controls through to the assessment of particular proposals against these rules, resolving public objections or the concerns of other agencies, and finally issuing planning permission—can take considerable time and resources, although most jurisdictions impose statutory timeframes to balance the need for quality decision-making with expediency. A timeframe for planning permission is also imposed in some jurisdictions, such that a failure to commence or complete a project within a specified period will result in the approval being revoked.

All planning systems include provisions to enforce legislative requirements and to penalise unauthorised development (if retrospective permission cannot be issued). In addition to the capacity to demolish illegal buildings, enforcement provisions might range from financial penalties to the possibility of criminal proceedings.

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