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DEVELOPMENT ACT 1993 - SECT 38

38—Public notice and consultation

        (1)         Subject to this section, there will be 4 categories of development for the purposes of this section—

            (a)         Category 1 development; and

            (ab)         Category 2A development; and

            (b)         Category 2 development; and

            (c)         Category 3 development.

        (2)         Subject to subsection (2a), the following provisions apply in relation to the assignment of developments to these categories:

            (a)         the regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and if a particular form of development is assigned to a category by both the regulations and a Development Plan—

                  (i)         if the regulations provide that an assignment by a Development Plan may prevail—the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail (subject to the operation of paragraph (b)); but

                  (ii)         in any other case—the assignment provided by the regulations will, to the extent of any inconsistency, prevail;

            (b)         the regulations may assign a form of development to Category 2A and this will prevail to the extent of any assignment provided by a Development Plan under paragraph (a);

            (c)         any development that is not assigned to a category under paragraph (a) or (b) will be taken to be a Category 3 development for the purposes of this section.

        (2a)         The assignment of a form of development to Category 1 under subsection (2)(a) cannot extend to a particular development if that development involves, or is for the purposes of, a prescribed activity of environmental significance as defined by the Environment Protection Act 1993 .

        (2c)         For the purposes of subsection (2)(b), building work will be taken to be along a boundary if there is no set-back or separation from that boundary.

        (3)         Where a person applies for a consent in respect of the Development Plan for a Category 1 development

            (a)         the relevant authority must not, on its own initiative, seek the views of the owners or occupiers of adjacent or other land in relation to the granting or refusal of development plan consent; and

            (b)         the following provisions of this section do not apply.

        (3a)         Where a person applies for a consent in respect of the Development Plan for a Category 2A development

            (a)         the relevant authority must—

                  (i)         subject to any exclusion or qualification prescribed by the regulations—give an owner or occupier of each piece of adjoining land; and

                  (ii)         give any other person of a prescribed class,

notice of the application; and

            (b)         the relevant authority must—

                  (i)         give consideration to any representations in writing made in accordance with the regulations by a person who is entitled to be given a notice under paragraph (a); and

                  (ii)         forward to the applicant a copy of any representations that the relevant authority must consider under subparagraph (i) and allow the applicant an opportunity to respond, in writing, to those representations within the period prescribed by the regulations; and

            (c)         if a representation is received under paragraph (b) within the prescribed number of days, the relevant authority may, in its absolute discretion, allow the person who made the representation to appear personally or by representative before it to be heard in support of the representation.

        (4)         Where a person applies for a consent in respect of the Development Plan for a Category 2 development, notice of the application must be given, in accordance with the regulations, to—

            (a)         an owner or occupier of each piece of adjacent land; and

            (b)         any other person of a prescribed class.

        (5)         Where a person applies for a development assessment of a Category 3 development, notice of the application must be given, in accordance with the regulations, to—

            (a)         the persons referred to in subsection (4); and

            (b)         any other owner or occupier of land which, according to the determination of the relevant authority, would be directly affected to a significant degree by the development if it were to proceed; and

            (c)         the public generally.

        (6)         Except as otherwise provided by the regulations, the subject matter of—

            (a)         any notice required under this section; or

            (b)         any representations under this section; or

            (c)         any appeal against a decision on a Category 3 development by a person entitled to be given notice of the decision under subsection (12),

must be limited to the following:

            (d)         what should be the decision of the relevant authority as to development plan consent;

            (e)         in a case where a prescribed body is empowered to direct that the application be refused, or that conditions be imposed in relation to the development—what should be the decision of the prescribed body in response to the application.

        (7)         Subject to subsection (17), where notice of an application for consent in respect of a Category 2 or Category 3 development has been given under this section, any person who desires to do so may, in accordance with the regulations, make representations in writing to the relevant authority in relation to the granting or refusal of consent.

        (8)         The relevant authority to which the application is made must forward to the applicant a copy of the representations made and allow the applicant an opportunity to respond, in writing, to those representations.

        (9)         The response referred to in subsection (8) must be made within the prescribed number of days after the relevant material is forwarded to the applicant.

        (10)         In addition to the requirements of subsections (7), (8) and (9)—

            (a)         in the case of a Category 2 development—the relevant authority may, in its absolute discretion, allow a person who made a representation to appear personally or by representative before it to be heard in support of the representation; and

            (b)         in the case of a Category 3 development—the relevant authority must allow a person who made a representation and who, as part of that representation, indicated an interest in appearing before the authority, a reasonable opportunity to appear personally or by representative before it to be heard in support of the representation.

        (11)         If a person appears before the relevant authority under subsection (10), the relevant authority must also allow the applicant a reasonable opportunity, on request, to appear personally or by representative before it in order to respond to any relevant matter.

        (12)         Where representations have been made under this section, the relevant authority must—

            (a)         give to each person who made a representation notice of its decision on the application and of the date of the decision and, in the case of a Category 3 development, of the person's appeal rights under this Act; and

            (b)         in the case of a Category 3 development—give notice to the Court

                  (i)         of its decision on the application and of the date of the decision; and

                  (ii)         of the names and addresses of persons who made representations to the relevant authority under this section.

        (13)         A notice under subsection (12) must be given within five business days from the date of the decision on the application.

        (14)         An appeal against a decision on a Category 3 development by a person who is entitled to be given notice of the decision under subsection (12) must be commenced within 15 business days after the date of the decision.

        (15)         If an appeal is lodged against a decision on a Category 3 development by a person who is entitled to be given notice of the decision under subsection (12)—

            (a)         the applicant for the relevant development authorisation must be notified by the Court of the appeal and will be a party to the appeal; and

            (b)         in a case where the decision of a prescribed body in response to the application for the development authorisation could be a subject matter of such an appeal—the prescribed body will be a party to the appeal.

        (16)         A decision of a relevant authority in respect of a Category 3 development in respect of which representations have been made under this section does not operate—

            (a)         until the time within which any person who made any such representation may appeal against a decision to grant the development authorisation has expired; or

            (b)         where an appeal is commenced—

                  (i)         until the appeal is dismissed, struck out or withdrawn; or

                  (ii)         until the questions raised by the appeal have been finally determined (other than any question as to costs).

        (17)         Where a relevant authority is acting under this section in relation to a Category 2A or Category 2 development, a representation made by a person who is not entitled to be given notice of the relevant application under this section is not required to be taken into account under this section and will not have effect for any relevant purpose under this section.

        (18)         In addition, a representation that is not made in accordance with any requirement prescribed by the regulations for the purposes of this section is not required to be taken into account under this section and will not have effect for any relevant purpose under this section (including, in the case of a Category 3 development, in connection with the operation of subsection (12)).



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