Frequently Asked Questions

The Integrated Planning Act provides for existing lawful uses (i.e. that have commenced, before 1 March 2005) to continue with no impediment from the new planning scheme.

However any intensification / increase or change of the existing lawful use would be considered in light of the new Scheme provisions.

For example land that is currently zoned Rural, that becomes Residential in the new CairnsPlan would still be able to be used for rural purposes. However any intensification / increase or change of the Rural use (e.g. from growing cane to chicken farming) would be considered in light of the new Residential zone, and would be unlikely to be supported.

Similarly, development approvals issued prior to the commencement of the new scheme continue provided they have not lapsed. The conditions of those approvals must still be complied with.

2. What happens if the new scheme has not preserved my rights?

Introducing a new scheme means that development rights may change, for example the scheme provisions or the level of assessment or zone / Planning Area may be different.

IPA provides for a ‘use-it-or-lose-it’ mechanism. In brief, you have two years from the adoption date of the new scheme to lodge an application with a request to be considered under the ‘superseded planning scheme’. Refer to IDAS Implementation Note 3 (www.ipa.qld.gov.au).

Council may refuse the request, and the applicant may proceed with an appeal to the P&E Court. Ultimately, any difference in what Council subsequently decides and what was achievable under the old scheme may be the subject of a compensation claim by the owner.

Note that currently, IPA specifies that the two years starts from the ‘adoption’ date, not the commencement date.

If Council agrees to an application being assessed against the superseded planning scheme, section 3.5.6(1) IPA provides that the new CairnsPlan is not taken into account in the assessment of the development application.

3. Do approvals run with land or the land owner?

Land use rights run with the land, not the land owner, refer to Section 3.5.28 IPA.

4. What are Assessment Tables and how do I use them?

The Assessment Tables for each District are found in the section of CairnsPlan corresponding to that District.

The Assessment Tables for each District identify the level of assessment assigned to development.

There are four levels of assessment:

Exempt;
Self-assessable;
Code assessable;
Impact assessable.

The Assessment Tables for each District consist of:

Initial Level of Assessment- Material Change of Use;
Initial Level of Assessment - Other Development; and
Conversion Table

The Initial Level of Assessment tables will assign the initial level of assessment for development. Theses table also identify certain development as being “Impact Assessable (Inconsistent Use)” which means that the development requires impact assessment and is a use that is inconsistent with the development outcomes for that District.

If premises are included in an Overlay map, the Conversion Table converts the initial level of assessment to a level of assessment identified in the Conversion Table. If premises are included in more than one Overlay map, or affected by more than one Overlay Code, the highest level of assessment assigned by the Conversion Table applies to the development.

The Assessment Tables also contain a Guide to Applicability of Codes. This guide provides a guide only to the Codes applicable to development. This guide provides a guide only to the Codes applicable to development.

5. What happens if my development is self-assessable?

Self-assessable development does not require a development application to be lodged, however relevant codes must be complied with.

Self-assessable development must comply with the Acceptable Measures applying to that development. Where self-assessable development cannot comply with the Acceptable Measures (or any one of the Acceptable Measures) applicable to that development, the development will trigger code assessment.

The onus is on the developer to ensure they comply with the self-assessable requirements (the acceptable solutions of the relevant codes).

As of the 1 March 2007, self-assessable development may also require payment for infrastructure charges. Contact Council on 4044 3044 for further information.

If requested, Council will check a development proposal against the self-assessable requirements, and a letter will be issued stating the level of compliance achieved. A fee will attach to this service, and fully prepared plans for the development must be provided by the applicant.

6. Can I still apply for a relaxation or dispensation?

There are no more ‘relaxations’ or ‘dispensations’.

The onus is on the developer to ensure they comply with all of the self-assessable requirements (the acceptable measures of the relevant codes). If all of the stated acceptable measures are not complied with, the development is deemed to require code assessment.

Any assessment by Council has to be in respect of assessable development using the IDAS process. If your development is self-assessable and cannot comply with the relevant standards, then a code assessment permit will be required.

If you believe that you need some sort of change to the existing planning controls to allow a proposed development, you should consider engaging a professional Planning consultant.

7. How will an application be assessed using the Performance Criteria and Acceptable Measures?

Section 3.5.13 of the IPA sets out relevant provisions for the consideration of code assessable development.

The code contains performance criteria and acceptable measures. If you can meet all acceptable measures the application will be approved. The acceptable measures are like a recipe for the minimum acceptable standard.

If you cannot meet all acceptable measures but can demonstrate to Council’s satisfaction, compliance with the performance criteria the application will be approved. The onus is on the applicant to demonstrate that the intent of the performance criteria has been met and substantial information must be provided in support of any such arguments. It is recommended that qualified Town Planner, Architect, Landscape Architect etc. be engaged to assist in preparing such arguments.

8. Will an application be refused by Council if all acceptable measures for each Code are not met?

If you cannot meet all acceptable measures, or demonstrate compliance with the Performance Criteria to Council’s satisfaction, or an approval cannot be conditioned to achieve compliance, the application must be refused.

Code assessable developments do not have to comply with every acceptable solution, indeed it is expected that an alternative solution may be proposed by the applicant.

The applicant should be able to demonstrate compliance with all relevant Performance Criteria (PC). In some cases a specific PC might be argued by the applicant to be not relevant to the subject development. Alternatively a case might be made that while proposal conflicts with a specific and relevant PC, the development will still meet the purpose of the code and should be approved.

Obviously any significant departures from the applicable codes are likely to be refused. While Council does have some discretion under IPA to approve development that conflicts with applicable codes, there must be sufficient grounds to do so having regard to the purpose of the code and relevant

State Planning Policies, and the decision must not compromise the achievement of Desired Environmental Outcomes for the planning scheme area.

9. Can I still apply for a modification of an approval or apply to change or cancel a condition of an approval obtained before 1 March 2005?

Section 3.5.24 and Section 3.5.33 of IPA sets out the requirements for making such requests.

10. When more than one Code applies, which order do I address them in?

The requirements of the Codes are to be applied as follows:

The applicable Planning Area Code is applied first;

The requirements of any applicable Overlay Code are then applied. Where the requirements are not addressed or there is an inconsistency between requirements of the applicable Planning Area Code and the applicable Overlay Code, the requirements of the Overlay Code apply;

The requirements of the applicable Land Use Code are then applied. Where the requirements are not addressed or there is an inconsistency between the requirements of the applicable Planning Area Code, the applicable Overlay Code and the applicable Land Use Code, the requirements of the Land Use Code apply.

The requirements of the General Codes are then applied. Where the requirements are not addressed or there is an inconsistency between the applicable Land Use Code and the General Codes, the requirements of the Land Use Code apply.

11. How has my Special Facilities Approval been affected by CairnsPlan?

CairnsPlan does not contain a Special Facilities or similar zoning. However it contains a Schedule of Special Facilities for each Planning District. Special Facilities approvals that have been retained are recognised in the Special Facilities Overlay.

There are many old special facility approvals within Cairns City. Many are now completed and are not adversely affected by the CairnsPlan, so there is no need to individually list them in the schedule. Others are inactive and are unlikely to be supported by Council should they be reactivated.

The development of premises identified in the Schedule of Special Facilities Approvals are intended to proceed in accordance with the requirements of:

The approved use identified in the Schedule and the conditions of the relevant approvals; or
In accordance with the requirements of CairnsPlan if the approved use under the Special Facilities approval is not advanced.

The Schedule provides one mechanism for Council to indicate that it will respect the use rights set out in the relevant special facility designation.

(Note that old special facility development rights not listed in the Schedule of Special Facilities Approvals will not necessarily be extinguished by CairnsPlan. Refer to IDAS Implementation Note 3 ( www.ipa.qld.gov.au)

12. What is the Cultural Heritage Significance Overlay?

Heritage areas and places in the City are classified into 3 categories:

State Heritage Sites
Local Heritage Sites
Character Precinct

Sites of local cultural heritage significance are protected so that these sites are not changed in a manner that would significantly reduce the historic cultural heritage significance of the site; and
Character Precincts retain their cultural heritage significance and streetscape values and new works are sympathetic to and respectful to these values;
Development is compatible with and sympathetic to, the cultural heritage significance and streetscape values of Local sites and Character Precincts

13. My house is affected by the Cultural Heritage Significance Overlay what does this mean?

If your land is a Local Heritage Site the level of assessment is likely to change from self-assessable to code-assessable and the development must be designed and constructed in a manor which protects the significance of the premises. Refer to the Cultural Heritage Significance Code (4.6.2) and statement of significance in the Schedule for further information.
If your land is within Character Precinct the level of assessment is likely to change from self-assessable to code-assessable and the development must be designed and constructed in a manor which protects the character values of the precinct. Refer to the Cultural Heritage Significance Code (4.6.2) and statement of significance in the Schedule for further information.

14. Will pre-lodgement enquiries require more work?

The pre-lodgement service will continue to be available for Self, Code and Impact assessable development. This service is NOT intended to answer questions such as general compliance with or interpretation of the CairnsPlan, identification of applicable Planning Codes or determination of required level of assessment.

The purpose of a "pre-lodgement" service is to provide an opportunity for applicants and Council Officers to informally consider the key issues relevant to the assessment of a prepared proposal prior to lodging an application.

The applicant should accept that:

a pre-lodgement enables informal discussion and advice only. It does not constitute a detailed assessment and does not guarantee in any way the outcome of any subsequent assessment process.
advice will be given on issues detailed by the applicant. Other issues may be raised during the assessment process. Applicants cannot rely on Cairns City Council officers to identify areas of non-compliance during pre-lodgement process.

As a minimum, the applicant must provide:

a fully completed Request for Pre-lodgement form, and
suitable Concept Plan, scaled and detailing the proposal including access, parking, open space, building height and setbacks from boundaries etc for the proposal.

Any Further Questions? Email Council at cairnsplan@cairns.qld.gov.au

This web page will continuously be updated.
Last Updated: 7 February 2007.

Planning, Building & Infrastructure

Cairns Plan