Planning Act 2023

This section applies if—

there is a development proposal in relation to land; and

undertaking the proposal would result in an authorised use of the land, or of a building or other structure on the land, requiring development approval because of section 148.

The proponent of the proposal must apply for development approval for—

the proposal; and

any authorised use of the land, or of a building or other structure on the land, that is intended to continue to apply after the proposal is undertaken (the proposed use).

In deciding the development application, the decision‑maker—

must not refuse to approve the application only on the ground that, if the application were an application only for the proposed use, the application would be refused; and

must not approve the application on a condition only because, if the application were an application only for the proposed use, the application would be approved on the condition.

Example

Maria is the lessee of land for which the authorised uses are retail and commercial and on which there are office buildings and shops. Maria wants to undertake earthworks to clear an area of vegetation for people to park on the land, which will require development approval. If the earthworks were undertaken, the authorised uses of the land would stop being exempt under s 148.

In addition to applying for development approval to undertake the earthworks, Maria must also apply for development approval to use the land for retail and commercial purposes.

The decision-maker cannot refuse to approve the application, or approve it on a condition, only on the ground that, if the application were only for the use of the land for retail purposes or commercial purposes, or use of the office buildings and shops, the decision-maker would refuse the application or approve it on conditions.

Division 7.2.2 Exempt development and approvals