New planning legislation for Queensland's development

In brief

The latest component of the Queensland Government's planning reform package has been released. The draft Planning and Development Bill aims to facilitate Queensland's development by balancing economic growth, environmental protection and community wellbeing. Special Counsel Rosanne Meurling and Senior Associate Anna Vella report. 

Background

The draft Bill was released for public consultation on 1 August 2014. The consultation period will close on 26 September 2014. The draft Bill creates the future framework for planning and development assessment in Queensland, with much of the detail to be provided in the regulation and other supporting documents, which have not yet been released. The legislation, once enacted, will replace the Sustainable Planning Act 2009 (Qld) (the SPA) and Sustainable Planning Regulation 2009 (the SPR).

Purpose

The purpose of the draft Bill is to facilitate Queensland's prosperity – not seeking to achieve ecological sustainability, as was the case under the SPA. The purpose includes balancing economic growth, environmental protection and community wellbeing. Under the draft Bill, there is a change in focus away from outcomes of the system, as was the case under the SPA, to considering the plan making and development assessment system itself. The draft Bill states that the main purpose of the legislation is to provide for an efficient  and accountable planning and development system. 

Planning instruments

The draft Bill provides for both state and local planning instruments.

At the state level, the planning instruments are state planning policies, temporary state planning policies and regional plans. State planning regulatory provisions and the standard planning scheme provisions are not carried forward, however, to the extent that the matters in these documents need to be dealt with, this will be done through the regulation.

At the local level, the planning instruments are planning schemes, planning scheme policies and temporary local planning instruments (TLPIs). The process for making or amending local planning instruments will be governed by guidelines and rules made by the Minister.

The Minister continues to have powers to direct a local government to make, amend or repeal a local planning instrument and, if a local government fails to take the directed action or if the action must be taken urgently, the Minister can take the action.

The ability to make a superseded planning scheme request remains unchanged, except that much of the detail will be found in the regulation. The right to make a claim for compensation for an adverse planning change is preserved; however, this right continues to be very limited.

Designations

Only the Minister for State Development, Infrastructure and Planning or the Minister's delegate may make or amend a designation under the draft Bill. Development under a designation, other than building work assessable against the Building Act 1975 (Qld), is accepted development (for which no development approval is required). The provisions in the SPA dealing with hardship acquisitions of designated land are not continued in the draft Bill.

Development assessment

Much of the detail of the development application and assessment process that is currently found in the SPA will be supplied in the development assessment rules to be made by the Minister under the draft Bill.

Development categories, assessment and approvals

The new categories of development are accepted development, assessable development and prohibited development. 

Existing exempt development will come accepted development, and existing self-assessable development will become either accepted or assessable development, depending on compliance with applicable codes. Existing assessable and prohibited development will not be affected.

Under the SPA, assessable development is subject to code, impact or compliance assessment. Under the draft Bill the categories of assessment for assessable development are standard assessment and merit assessment. Development requiring code or compliance assessment under the SPA will require standard assessment and development requiring impact assessment will require merit assessment.

The process of standard assessment is bounded and there is a presumption in favour of approval of an application requiring standard assessment. The process of merit assessment is more open ended, with assessment occurring against a range of relevant matters. 

The development type and level of assessment will be specified in a categorising instrument (either a regulation or a local instrument (being a planning scheme, a TLPI or a variation approval)).

There will also be an ability for a local government or the chief executive to grant an owner an exemption certificate with respect to assessable development in specified circumstances.

There are three types of development approval, as under the SPA – a preliminary approval, a development permit and a variation approval (previously a preliminary approval to vary the effect of a planning scheme).

Assessment managers

The assessment manager for development will be identified in a regulation. For development requiring standard assessment, if a local government or chief executive is identified as the assessment manager, these entities may keep a list of other entities who may be assessment managers for the application.

Development applications

The concept of a properly made application continues; however, an assessment manager has more discretion to accept an application that is not properly made.

Owner's consent for material change of use and reconfiguring a lot is not needed if the State is the owner. With respect to owner's consent generally, the assessment manager may decide to accept an application, even if the application is not accompanied by the consent of the owner; however, this may have consequences at the decision stage.

Public notification

A categorising instrument will specify whether or not public notification is required for an application requiring merit assessment. Not all applications requiring merit assessment will need to be publicly notified. The details of public notification, including its manner and timing, will be contained in the development assessment rules.

Changing applications

The process for changing an application will be different to the provisions under the SPA, as it will apply to both a minor change and a change other than a minor change. With respect to a development approval given by the Planning and Environment Court, the court is the responsible entity for the change only if there were properly made submissions for the application. This will reduce the number of change applications that need to be referred to the court.

Currency periods and extensions

The provisions regarding the currency period and lapsing of a development approval are clearer, with the removal of the roll forward provisions and an increase in the default currency period for a material  change of use to  six years. In addition, the assessment manager must give the applicant and owner notice that the approval is due to lapse, before the approval lapses. In deciding an application to extend the currency period, the assessment manager is not limited to the matters relevant to the granting of the development approval and may consider any relevant matter.

Ministerial powers

The Minister continues to have direction and call-in powers, which may be exercised in relation to a matter of State interest. The definition of a 'State interest' under the draft Bill has also been expanded so that it includes an interest that the Minister considers may affect ensuring the legislation's purpose is achieved. The Minister's ability to exercise these powers is less constrained than under the SPA.

The natural justice provisions for the exercise of Ministerial powers have also been amended. The draft Bill provides that when exercising a power, the Minister is not required to give notice to, consult with, or consider any material given to the Minister unless otherwise provided for in the Bill.

The call-in process has been simplified, with the removal of the two stage process under the SPA. That is, the Minister may issue a call-in notice, without consulting about the decision to issue the call-in notice and the ability for an interested party to make a submission in relation to the proposed exercise of a power by the Minister has been removed. In deciding the call-in application, the Minister may consider anything the Minister considers relevant.

The scope of the Minister's powers has also been widened so that the Minister may step in and decide a change, extension or cancellation application, even if the application has already been decided.  The Minister must be satisfied that the exercise of a step-in power in is accordance with a State interest and, once this determination has been made, the step-in power is to work in the same way as the call-in power.

Infrastructure

The existing infrastructure provisions, which commenced on 4 July 2014 and are discussed in our previous publication, have been incorporated into the draft Bill. The maximum adopted charges that are specified in the SPRP (adopted charges) will, instead, be prescribed by regulation.

Offences, enforcement and the court

A significant change between the SPA and the draft Bill is the removal of the Planning and Environment Court's powers from the planning legislation and the creation of standalone legislation, being the draft Planning and Environment Court Bill, which was also released for public consultation on 1 August 2014. While the Planning and Environment Court's powers and jurisdiction are similar to those as provided for by the SPA, notable changes include the further expansion of the court's power to excuse non-compliance with a provision of the draft Bill (or the SPA to the extent it still applies to a proceeding before the court) and the widening of the powers of the ADR Registrar to hear and determine matters before the court.

Schedule 1 of the draft Bill helpfully includes a table that sets out the various parties who may have an interest in a development application or a request made under the draft Bill and the basis upon which they may bring a proceeding in the Planning and Environment Court.

The provisions relating to the power and scope of the Building and Development Dispute Resolution Committees remains in the draft Bill.

 The offence provisions under the draft Bill are largely unchanged from the SPA provisions; however, some changes have been made in relation to:

• what is an 'emergency' and the circumstances in which an exemption will exist for undertaking development that would otherwise be an offence under the draft Bill;
• enabling a local government to delegate powers to the chief executive officer to issue an enforcement notice to demolish a building; and
• widening the circumstances in which a 'show cause' notice is not required to be issued before the issue of an enforcement notice.

Transitional arrangements

The transitional provisions in the draft Bill are preliminary and are to be developed further as the draft Bill is refined. Further guidance is also still to be provided as to how categories of development and assessment under the SPR will be transitioned so that existing planning instruments can continue to be used in assessment without the need for immediate amendment.

For a development application that is lodged under the SPA and is still being assessed at the time the draft Bill commences, those applications will continue to be assessed and decided under the SPA.

Provision is also made under the draft Bill for local governments to 'fast track' amendments to local planning instruments so that development that was code assessable under the SPA instrument can be nominated as being subject to 'merit' as opposed to 'standard' assessment.