SCHEDULE 5 - Savings and Transitional Provisions – Land Use Planning and Approvals Amendment (Streamlining of Process) Act 2014

Section 87B

1.    Interpretation

In this Schedule –

amending Act means the Land Use Planning and Approvals Amendment (Streamlining of Process) Act 2014 ;

dispensation means –

(a) a dispensation granted under section 30W of this Act as in force before the day on which that section is repealed by the amending Act; or

(b) a dispensation that was in force immediately before the previous amending Act came into force;

previous amending Act means the Land Use Planning and Approvals Amendment Act 2013 ;

section 30Q means section 30Q as in force immediately before the day on which that section is repealed by the amending Act;

section 30R means section 30R as in force immediately before the day on which that section is repealed by the amending Act.

2.    Validation and savings of certain applications and dispensations

(1) A dispensation remains in force despite the repeal of section 30W of this Act.

(2) Any permit that is granted or confirmed and that relates to a dispensation, including a dispensation to which subclause (4) applies, is to be taken to be a permit granted or confirmed, as the case may be, under section 43H .

(3) Subclause (4) applies in relation to a dispensation, or a purported dispensation, if –

(a) an application under this Act for the dispensation was made before the day on which section 19 of the previous amending Act came into force; and

(b) the application was not determined, or was purportedly determined, under this Act before that day; and

(c) the dispensation has been granted, or purportedly granted, under this Act as in force after that day.

(4) If this subclause applies in relation to a dispensation –

(a) the Commission, if it thinks fit, must, as soon as practicable after the day on which this Schedule commences, direct the planning authority to prepare a draft amendment, of the interim planning scheme to which the dispensation relates, that will, in the opinion of the Commission, best reflect the intended effect of the dispensation; and

(b) the planning authority must prepare the draft amendment, to the satisfaction of the Commission, as soon as practicable after receiving the direction under paragraph (a) ; and

(c) if the Commission is satisfied with the draft amendment, the Commission must –

(i) approve the amendment of the interim planning scheme; and

(ii) direct the planning authority to give notice of the amendment, and the day on which the amendment comes into effect, in accordance with the directions of the Commission; and

(d) a planning authority that receives a direction under paragraph (c)(ii) must give notice of the amendment in accordance with the direction; and

(e) the amendment of the interim planning scheme comes into effect on the day specified, in the notice in accordance with a direction under paragraph (c)(ii) , as the day on which the amendment comes into effect.

(5) If –

(a) an application for a permit that accompanied a request for a dispensation under this Act, as in force before the day on which section 19 of the previous amending Act came into force, was not determined before that day; and

(b) a permit, in relation to that application, was granted or confirmed, or purportedly granted or confirmed, under this Act after that day –

the permit is to be taken to be a permit granted or confirmed, as the case may be, under section 43H .

(6) An amendment to an interim planning scheme that is made under this clause –

(a) in accordance with a direction given in accordance with this clause; or

(b) in relation to an application to which this clause relates –

may not alter the zoning of an area of land without the approval of the owner of the area of land.

3.    Dispensations and applications for dispensations

(1) Subclause (2) applies in relation to an application for a dispensation, under this Act at any time before the day on which section 30Q is repealed, that relates to an interim planning scheme if –

(a) hearings under section 30K of the Act in relation to the scheme have been completed before the repeal of section 30K(1) by the amending Act; and

(b) the application –

(i) has been determined under this Act, before the day on which section 30Q is repealed by the amending Act, by granting the dispensation; or

(ii) has not been determined under this Act before the day on which section 30Q is repealed by the amending Act.

(2) If this subclause applies in relation to an application for a dispensation that relates to an interim planning scheme –

(a) the modifications that may be made to the interim planning scheme under section 30M include, but are not limited to including, the modifications, if any, that the Commission thinks fit that will, in the opinion of the Commission, best reflect the intended effect of any dispensation that is granted before the modifications are made; and

(b) where the application has not been determined before the hearings under section 30K of the Act in relation to the scheme have been completed – the application is to be taken to be an application to which section 40T applies; and

(c) where an application that is made under section 30R accompanies the application for a dispensation – subclause (6) applies in relation to the application under section 30R.

(3) Subclause (4) applies in relation to a dispensation if –

(a) an application under this Act, at any time before the day on which section 30Q is repealed by the amending Act, has been determined by granting the dispensation; and

(b) subclause (2) does not apply in relation to the dispensation.

(4) If this subclause applies in relation to a dispensation –

(a) the Commission, if it thinks fit, as soon as practicable after the day on which this Schedule commences, must direct the planning authority to prepare a draft amendment, of the interim planning scheme to which the dispensation relates, that will, in the opinion of the Commission, best reflect the intended effect of the dispensation; and

(b) the planning authority must prepare the draft amendment, to the satisfaction of the Commission, as soon as practicable after receiving the direction under paragraph (a) ; and

(c) if the Commission is satisfied with the draft amendment, the Commission must –

(i) approve the amendment of the interim planning scheme; and

(ii) direct the planning authority to give notice of the amendment, and the day on which the amendment comes into effect, in accordance with the directions of the Commission; and

(d) a planning authority that receives a direction under paragraph (c)(ii) must give notice of the amendment in accordance with the direction; and

(e) the amendment of the interim planning scheme comes into effect on the day specified, in the notice in accordance with a direction under paragraph (c)(ii) , as the day on which the amendment comes into effect.

(5) Subclause (6) applies to an application that is made under section 30R if –

(a) the application under section 30Q that accompanies the application under section 30R has been determined under this Act, before the day on which section 30R is repealed by the amending Act, by granting a dispensation; and

(b) the application under section 30R has been determined before that day.

(6) If this subclause applies to an application that is made under section 30R –

(a) any permit, to which the application relates, that is granted or confirmed under section 30Y, as in force immediately before the day on which that section is repealed by the amending Act, is to be taken to be a permit granted or confirmed, as the case may be, under section 43H ; and

(b) if any period in which the person could have, under section 61(3B) as in force immediately before the amending day, appealed against an amendment of the permit under section 30ZA, as in force immediately before the amending day, has not expired – the person may appeal to the Appeal Tribunal against the decision in relation to the application as if the amending Act had not come into force.

(7) If –

(a) an application under section 30Q for a dispensation in relation to an interim planning scheme has not, immediately before the day on which that section is repealed by the amending Act, been determined under this Act; and

(b) an application under 30R does not accompany the application under section 30Q –

the application under section 30Q is to be taken to be an application under section 33(1) .

(8) If –

(a) an application under section 30Q for a dispensation in relation to an interim planning scheme has not, immediately before the day on which that section is repealed by the amending Act, been determined under this Act; and

(b) an application under 30R accompanies the application under section 30Q –

the application under section 30Q is to be taken to be an application under section 33(1) and the application under section 30R is to be taken to be a request under section 40T.

(9) An amendment to an interim planning scheme that is made under this clause –

(a) in accordance with a direction given in accordance with this clause; or

(b) in relation to an application to which this clause relates –

may not alter the zoning of an area of land without the approval of the owner of the area of land.

4.    Application of provisions relating to applications and periods in which actions must be taken

(1) If a period in which an action is required to be taken by a person under this Act as amended by the amending Act has expired before the day on which this Schedule comes into effect, the reference to the period is to be taken to be a reference to a period ending as soon as practicable after that day.

(2) If an application under this Act made before the day on which this Schedule comes into effect was a valid application, it is not to be taken, after that day, to be invalid by reason only that it is not in the form required under this Act after that day.