When a local government adopts a new planning scheme, there is a transition period during which a development application can be assessed against the superseded (old) scheme rather than the new one. This can be strategically advantageous where the new scheme imposes more restrictive requirements. The eligibility window and process vary between local governments.
How superseded scheme assessment works
The Planning Act 2016 allows applicants to request that a development application be assessed against a superseded planning scheme, typically within 12 months of the new scheme commencing. The request is made to the local government, which must consider whether to allow the assessment to proceed under the superseded scheme.
The decision to allow superseded scheme assessment is at the council's discretion, and the council's reasoning typically considers whether the proposal could reasonably have been progressed under the previous scheme had the timing been different.
When it matters
Superseded scheme assessment is most relevant where the new scheme: changes the assessment level for a particular use (for example, from code to impact); introduces new overlays or assessment benchmarks; tightens minimum lot sizes or development standards; or removes a use from the table of assessment for a particular zone.
Where the new scheme is broadly more permissive than the old, there is rarely a reason to seek superseded scheme assessment. Where the new scheme adds constraints that affect a particular project, the request can be a useful strategic tool.
Process and evidence
A request for superseded scheme assessment must be made within the time period specified in the legislation (most commonly within 12 months of scheme commencement). The request is supported by reasons explaining why the assessment should proceed under the superseded scheme, typically focused on the specific changes between the old and new schemes and how they affect the proposal.
Where the council refuses the request, there are limited appeal rights. Where the council agrees, the application proceeds under the superseded scheme, but the procedural framework still operates under the current Planning Act.
Practical considerations
Superseded scheme assessment is most often used by sophisticated applicants with prior knowledge of the scheme change, typically property developers who have been monitoring the new scheme through public consultation and who have a project that is materially affected by the change.
For most homeowners and small-scale developers, the relevant scheme is whichever scheme is in force when the application is lodged. The superseded scheme pathway is technical and time-limited, and is usually only worth pursuing where there is a clear and material disadvantage under the new scheme.
Superseded scheme assessment is a niche but sometimes valuable tool. Where a new planning scheme has tightened requirements affecting a particular project, the option should be considered early, the time window to make the request is short, and the strategic case needs to be properly built.