All Things Newz
Law \ Legal

When a development approval is not enough: other regulatory pitfalls that can make or break a project – Land Law & Agriculture



To print this article, all you need is to be registered or login on Mondaq.com.

A development approval is a significant step on the path to
developing land. However, it is a mistake to assume further
regulatory requirements are mere formalities. Increasingly,
additional assessments and legal obligations are impacting land use
including whether, when, and in what form, development can
proceed.

In practical terms, these further regulatory matters –
which can require changes to a proposal and negotiations with third
parties in relation to cultural heritage, environmental offsets or
infrastructure – can also impact land value, development
costs, financing and feasibility.

While the potential pitfalls are many and varied, the following
draws upon some of our recent experiences to highlight (with a
Queensland focus) some of the risks.

Environment

Environmental regulation is among the most complex to navigate.
After obtaining a development approval, there may be further local,
state and federal environmental obligations before a development
can proceed. Examples include:

  • Environment Protection and Biodiversity Conservation Act
    1999
    (Cth). Where development impacts a matter of national
    environmental significance, such as koala habitat, it may require
    referral to the federal government for separate assessment. This
    often includes a lengthy assessment process as well as the risk of
    refusal or onerous conditions, including environmental offsets
    (discussed further below).

  • Nature Conservation Act 1992 (Qld). Where development
    impacts protected flora species, it is necessary to apply for
    further permits under the NCA.

  • Operational works approvals under the Planning Regulation
    2017.
    There are many environmental assessment triggers under
    the Regulations, including in relation to native vegetation, koala
    habitat and marine plants. It is important to note that, even when
    proposed clearing is defined as ‘exempt clearing work’
    (such as ‘Category X’ vegetation), it may nonetheless
    require assessment under a local planning scheme.

  • Local laws – local laws such as Brisbane’s
    Natural Assets Local Law may also impose environmental
    protections in respect of locally significant vegetation, requiring
    further permits.

Environmental offsets

Environmental offsets compensate for adverse impacts to
environmental values due to development. Offsets may be cumulative
across different local, state and federal laws and may require the
delivery of financial offsets (payment to a regulator to fund
offset projects) or land-based offsets. Land-based offsets often
require negotiations with third party landowners to secure, protect
and rehabilitate land. Suitable offset sites can be difficult to
find and, as such, demand can increase the cost of securing
suitable land.

While many risks can be managed contractually with a landowner
or offset provider, a development proponent will continue to be
liable for non-compliance under a development condition. This can
include where natural disasters, such as bushfire and flood, impact
an offset area necessitating further works to re-establish required
environmental values.

Cultural heritage

The cultural heritage duty of care applies to all land within
Queensland and is often overlooked in the development process. It
is particularly relevant to land that has not been subject to
significant ground disturbance in the past and where the presence
of artefacts or culturally important locations is likely to remain.
Notably, the overriding duty of care remains even where a site is
not identified on a cultural heritage search, and the penalties for
breach are significant.

Where a cultural heritage management plan or other agreement is
required, negotiations can be lengthy and complex, with significant
impacts on development outcomes, schedules and costs.

Infrastructure

Infrastructure obligations may require works, land dedications
or financial contributions, and can be found in approval
conditions, referral agency conditions, infrastructure agreements,
infrastructure charges notices and council searches. This can
include works involving external land and requiring negotiations
with third parties.

Infrastructure charges attach to land, bind successors in title
and may increase over time. It is critically important to
understand infrastructure obligations before you buy land subject
to an existing development approval as they can make or break a
project.

If you have any queries about your development approval and
further regulatory requirements, please contact a member of our
property, planning and environment team.

©
Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in
Brisbane.

This publication is for information only and is not legal
advice. You should obtain advice that is specific to your
circumstances and not rely on this publication as legal advice. If
there are any issues you would like us to advise you on arising
from this publication, please contact Cooper Grace Ward
Lawyers.



Source link

Related posts

Beware Of Field-Testing! Will The Right To Roam Be A New Problem? – Patent

Horace Hayward

Brazil: Newsletter – Julho/22 | Direito Tributário – Koury Lopes Advogados

Horace Hayward

INVESTOR CONTROL RIGHTS: WHAT IT MEANS FOR START-UPS AND THEIR FOUNDERS – Shareholders

Horace Hayward