Planning Reform in Queensland – Evolution or Revolution

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Monday, October 12th, 2015
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Queensland Deputy Premier and Minister for Infrastructure, Local Government and Planning Jackie Trad
has opened the public consultation period for the state’s Draft Planning Bill known as Planning Act 2015.

“The draft Bills support jobs and economic development through streamlined assessment processes, whilst ensuring ecological sustainability remains at the core of our planning system,” Trad is reported to have said according to a media statement released on 10 September.

“We are also delivering on our commitment to ensure the community and local government continues to play a key role in planning.”

The state government has commenced a focused state-wide engagement program which will include workshops, agency briefings, meet-a-planner sessions and community conversations around the state. The program will run until 23 October. The state government conducted community, local council, and industry consultations earlier this year across the state, following the release of the planning directions paper in May and June’s Planning Summit.

The state government has committed $59.4 million for planning reform. The draft Planning Bill 2015 can be seen online here, a site which includes supplementary planning reform documents, including but not limited to the Planning and Environment Court Bill and the Planning (Consequential) and Other Legislation Amendment Bill.

Along with the consultation drafts of the Planning and Environment Court Bill and the Planning (Consequential) and Other Legislation Amendment Bill, the draft Planning Bill will replace the current legislation – the Sustainable Planning Act 2009 (SPA).

In its current incomplete form, the draft Planning Bill 2015 is half the length of the Sustainable Planning Act 2009. In its current incomplete form, the Planning Regulation Bill runs to 378 pages, while the Sustainable Planning Regulation 2009 is 273 pages in length. Given the more flexible capacity of Government to amend a regulation and to add further specific topic focus regulation than amending an Act of Parliament, the new arrangements in planning law may see more responsive and industry focused planning arrangements in the future. The elements of the new planning system remain the same as the Sustainable Planning Act 2009, with:

  • State planning instruments and local planning instruments (reducing state planning instruments from four to two, with only the State Planning Policy (SPP) and Regional Plans to be used in the new arrangements)
  • An Integrated Development Assessment System which identifies the powers to perform functions that are needed by the various players, still set in the Act, with three levels of assessment including accepted, assessable and prohibited
  • Dispute resolution processes including the Planning and Environment Court
  • A hierarchy of regulatory instruments with the preeminent legislation establishing the system, roles and responsibilities; the regulation under the Act setting regulatory matters; and then statutory instruments, like the rules for certain processes, which are required to be created by the Act and are empowered by the regulation.

The draft Planning Bill 2015 introduces the concepts of a categorising instrument (an instrument that categorises development) and assessment benchmarks (matters an assessment manager is to assess against), as well as exemption certificates for particular assessable development. Categories of development are framed differently to the SPA as a core element of the reforms, but the presumption remains that development is accepted if it is not categorised otherwise.

Some specific areas that the state government is seeking feedback on include:

  • Advancing the Act’s purpose
  • Compensation arrangements in relation to natural hazards
  • The names of assessment categories for assessable development
  • The standard/code decision rules

At the finer grain, the draft Planning Bill 2015 establishes arrangements for:

  • The amendment or withdrawal of an application
  • Development Assessment rules
  • Ministerial powers
  • Provisions for local governments and referral agencies
  • Offences and dispute resolution
  • Repeal, savings and transitional provisions

Some observations of the draft Planning Bill 2015:

1. Public notification, consultation and display timelines are variable, according to the aspect of land use planning being presented to the community. For ease of drafting of the final legislation, transparency of process and to help return confidence to the community and industry, there is value in streamlining these time frames. Public submissions time frames are generally 15 business days, though decision makers (principally local government) generally have a minimum of 20 business days.

Given the decision makers and referral agencies have the internal expertise to review and understand a development, and the general public does not, there is a strong argument to give the community 20 business days for the preparation and presentation of a submission.

Developers and their consultants may not support the idea of an extended public consultation period. It may be seen as giving submitters the opportunity to make more substantive claims against a development proposal.

Considered in another light, the public notification process can enhance the developers’ social license to operate and develop in the community. A developer should not be afraid of the public notification period.

By preparing high quality developments with substantive planning arguments, and outlining the social economic and environmental benefit to the community of the development, the reputation of the developer should be enhanced for future opportunities.

2. Ministerial powers and Ministerial call-ins give authority for the relevant minister to direct a local government or referral agency to take (or not take) specific actions. Ministerial instructions can be delivered at any time prior to a development approval decision being made, including after the regulated time frame for the referral agency assessment period. Before or after a development permit is issued, the Minister may call-in a development.

There are no apparent compensation provisions within this section of the Act. There is no defined timeline following the issuing of a development permit within which the Minister needs to make the determination to call-in a development.

Two recent Ministerial call-ins highlight the risk and cost implications for developers. Lengthy time delays created by the call-in assessment period are a cost burden on the developer. Depending on the specifics of the Ministerial call-in, developer submissions on permit conditions will need to be suspended, operational works design actions may need to be stopped, operational works constructions may need to be suspended, and holding costs will rise.

There is value in making provisions on the commencement of the Ministerial call-in process after the issuing of a development permit.

3. Section 111 of the Bill states that adopted infrastructure charges must not be for development in a priority development area under the Economic Development Act 2012; or development by a department, or part of a department, under a designation. Many developers and community members would have cause to be aggrieved by these provisions.

Development of a hospital or a school by a private enterprise is no different to similar infrastructure by a state entity, yet the state entity is not required to pay adopted charges. The extra load on infrastructure resulting from state owned community infrastructure is subsequently borne by the local community through higher infrastructure charges imposed by the local authority to make up the shortfall in revenues.

Development in the priority development areas (PDA) is at substantial advantage over development in other parts of a local government area. Streamlined development approval processes for the properties within the prescribed areas are a case in point. For example, high-rise development at Broadbeach on the Gold Coast will have a substantially higher cost burden than development within the Southport PDA due to the imposition of adopted infrastructure charges. Market distortion could occur. Substantial environmental, social and economic impact may occur:

  • Within the PDA through the lack of a cumulative effects check within such precincts
  • Outside the PDA (with their higher costs) through market distortions in the delivery of required commercial and residential space

Despite the lack of infrastructure charges in the PDA areas, there does not appear to be a commensurate increase in affordable housing or affordable commercial spaces within some of these precincts.

There is a strong argument to be put forward that the built-form elements of the Economic Development Act 2012 be included into a sub-ordinate regulation of the Planning Bill 2015 and within approved planning schemes to regulate the development of these spaces in the context of a whole local government area, and where relevant, the region.

Through refocusing the Economic Development Act 2012 as an act that focuses on economic development policy settings and frameworks (outside the built environment) and which provide opportunities for the whole state (not specific precincts), market distortions in land development and balanced infrastructure charging regimes will minimise the cost burden on those external to the PDA precincts.

4. Other matters that require serious review include:

a. The deemed approval and deemed refusal provisions, which have the potential to be impacted by resourcing constraints within the decision-making entity. Within the deemed approvals provisions, a minimum time frame should be set aside/explicitly stated within the decision making period (within the Bill) that clearly states the time frame before a deemed approval notice is issued by an applicant.

b. More clearly defining the size of a (major) development that will trigger when such a development should be assessed jointly by the state government and local government under the Planning Bill 2015 provisions (for instance, large-scale renewable energy development by private developer), when such development is to be assessed under the State Development and Public Works Organisation Act 1971.

c. Adding relevant definitions for new land uses such as large-scale renewable energy plants, electric motor vehicle charging stations, and bio-mass plants. Defining the environmental and social parameters around these forms of development in the relevant supplementary legislation could assist in minimizing the discretion of all parties in delivering these new industry types.

d. Adding relevant administrative definitions for matters that decision-making authorities rely on and apply to development such as lawful point of discharge (as defined within the Queensland Urban Drainage Manual).

Of course, there are still questions regarding which different people will undoubtedly have differing opinions, such as:

  • Do the planning reform initiatives of the Queensland Government go far enough or too far?
  • Will the planning system, as proposed in the Planning Bill 2015, provide flexibility, consistency and certainty for future development in the Sunshine State?
  • Does the Planning Bill 2015 and the supplementary legislation provide enough clarity in how to develop the state, where disruptions in almost all areas of economic activity could see completely new forms of development being required, but not necessarily catered for?

If you wish to contribute to the discussion please add your comments below.

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