QLD Planning Act 2016: Evolution or Revolution?

Tuesday, June 21st, 2016
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Queensland Deputy Premier and Minister for Infrastructure, Local Government and Planning Jackie Trad, has completed the processes through the Queensland Parliament to see the passing of the Planning Act 2016.

The Planning Act 2016 website offers supplementary planning reform documents including, but not limited to, Planning and Environment Court Act 2016 and Planning (Consequential) and Other Legislation Act 2016. The Planning Act 2016 will replace the current legislation – the Sustainable Planning Act 2009 (SPA) in 2017.

The Planning Act 2016 is half the length of the Sustainable Planning Act 2009 (SPA), running to 313 pages, while the Sustainable Planning Regulation 2009 is 273 pages in length. 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 will 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 pre-eminent 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
  • In Chapter 2, Part 4 of the Act, there is a framework for making an application under a superseded planning scheme and for compensation to land owners in relation to an adverse planning change that reduces the value of an interest in premises (with quite strict guidelines attached)
  • In Chapter 2, Part 5 of the Act, there is a framework and processes by which the Minister or a local government identifies premises for the development of one or more types of infrastructure that are prescribed by regulation. Notification of the proposed designation must be given to affected parties, providing at least 15 business days to make submissions about the proposal. Designations must be noted within the relevant planning scheme.

The Planning Act 2016 introduces the concepts of a categorising instrument (an instrument that categorises development) and assessment benchmarks (matters an assessment manager is to assess against), and exemption certificates for particular assessable development. There are three categories of  development, namely prohibited, assessable or accepted development.

Prohibited development is development for which a development application may not be  made.

Assessable development is development for which a development approval is required.

Accepted development is development for which a development approval is not required.

A code assessment is an assessment that must be carried out only (a) against the assessment benchmarks in a categorizing instrument for the development, and (b) having regard to any matters prescribed by regulation.

An impact assessment is an assessment that must be carried out (i) against the assessment benchmarks in a categorising instrument for the development, and (ii) having regard to any matters prescribed by regulation for this subparagraph. It also may be carried out against, or having regard to, any other relevant matter, other than a person’s individual circumstances, financial or otherwise.

Examples of another relevant matter:

  • a planning need
  • the current relevance of the assessment benchmarks in the light of changed  circumstances
  • whether assessment benchmarks or other prescribed matters were based on material errors

However, the term accepted development is not clearly defined in the Act. Guidance notes and the yet to be released Planning Regulations may clarify what each form of assessment actually means (e.g. as presented in Schedule 3 of the Sustainable Planning Regulation 2009).

It is likely accepted development will comprise an adoption of the currently available self-assessable and compliant-assessment provisions of the Sustainable Planning Act 2009. As is currently available under the Sustainable Planning Act 2009, a development approval will take the form of:

  • a preliminary approval
  • a development permit
  • a combination of a preliminary approval and development permit.

The transitional arrangements for the Planning Act 2016 from the Sustainable Planning Act 2009 will need to clearly articulate:

(a)   How the Act will address the differing assessment levels under SPA compliant planning schemes to those that will apply under the new Act

(b)   How assessment managers assess a new development application or an application to amend a current development permit where the application has been prepared under SPA provisions prior to adoption of the new Act

(c)   How assessment managers make decisions regarding development applications lodged under SPA yet require approval following adoption of the new Act.

Some observations on the Planning Act 2016:

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 (at least) 15 business days according to Section 53 (4) (b), though decision makers (principally local government) generally have a minimum of 20 business days. It is unclear why under Section 53 (4) (b) (i) a variation request should be deemed to need a 30-business public notice period, particularly if it is a variation to a development that previously required only a 15-business day public notice period.

Given the decision maker 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 developer’s 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. Chapter 3 Part 6 Division 3 (Sections 100 to 105) deals with Ministerial Call-ins powers giving 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.

3. Section 112 of the Act 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, development by a non-State school under a designation or for works or use of premises authorised under the Greenhouse Gas Storage Act 2009, the Mineral Resources Act 1989, the Petroleum Act 1923 or the Petroleum and Gas (Production and Safety) Act 2004.

Many developers and community members would have cause to be aggrieved by these provisions. Development of a hospital 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 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 being a case in point. 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

Overall, the Planning Act 2016 appears to be a balanced well-considered piece of legislation. Presentation of an updated Planning Regulation 2016 in the third quarter of 2016 will certainly help developers and the broader industry understand the probable impacts Planning Act 2016 will have on development in Queensland.

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