Allens

Environment & Planning

Focus: Queensland's new Sustainable Planning Bill

22 June 2009

In brief: The Sustainable Planning Bill 2009 was recently introduced into the Queensland Parliament. The Bill will attempt to address the issues facing planning and development assessment in the State by standardising planning scheme provisions, addressing shortcomings in the development assessment process, introducing deemed approvals for certain types of development applications and giving the court increased powers to deal with development applications notwithstanding procedural errors that have occurred during the development assessment process. Partner Bill McCredie (view CV), Special Counsel Rosanne Meurling (view CV) and Senior Associate Anna Vella look at what the new legislation means.

How does it affect you?

  • The standard planning scheme provisions, once implemented, will provide some uniformity to the format and content of planning schemes throughout Queensland, making it easier for applicants to operate across local government boundaries.
  • The emphasis in the new Bill on properly made applications will require applicants to ensure that their development applications are well made and meet the mandatory requirements.
  • Applicants will need to become familiar with the changes to the time limits during the development assessment process.
  • Applicants will benefit from the ability to revive lapsed applications and rectify missed referrals.  Applicants will also benefit from the expanded powers of the court to excuse non-compliance with procedural irregularities during the development application process.
  • Local governments will need to be vigilant to ensure that decision timeframes are met so as not to run the risk of development applications being deemed to be approved.
  • Applicants making development applications under superseded planning schemes will need to do so within one year of the new planning scheme taking effect.

Background

The move to reform the Integrated Planning Act 1997 (the IPA) began with a discussion paper published in August 2006.  This was followed, a year later, by a reform agenda containing 80 actions to be taken to improve planning and development in Queensland.  The reforms are not all legislative, with cultural and operational change seen as equally important.

The new Bill has many similarities with the IPA.  In particular, the Bill preserves the integrated development assessment system (IDAS). It does, however, attempt to deal with many of the issues identified by local governments, the development industry and the general public about shortcomings with the existing legislation. 

The purpose of the new legislation has been expanded to include references to the effects of development on climate change, considering alternatives to the use of non-renewable natural resources, urban congestion, housing choice and diversity and adverse effects on human health.

When introducing the Bill into the Queensland Parliament, Hon. Stirling Hinchliffe, the Minister for Infrastructure and Planning, described the legislation as 'a key milestone in implementing significant reform in Queensland's land use planning and development framework – the most significant and comprehensive reform in over a decade since the integrated framework was introduced in 1997.'  The more important reforms are discussed below.

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State planning instruments

The Bill continues to provide for the making of state planning regulatory provisions, regional plans and state planning policies, but clearly identifies the hierarchy between these state planning instruments.

The Bill also introduces a new state planning instrument – the standard planning scheme provisions (the SPS provisions).  The Minister is responsible for making standard planning scheme provisions, which will be progressively reflected in planning schemes made under the Sustainable Planning Bill.  The SPS provisions will include both mandatory and optional components.  For example, the SPS provisions will include standard definitions, a suite of standard zones, overlays and codes, and standard infrastructure planning provisions.  This prescriptive approach has been taken to facilitate consistency across Queensland planning schemes and provide greater certainty for users.

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Local planning instruments

There is little change in the Bill with respect to local planning instruments.  The Bill continues to provide for the making of planning schemes, temporary local planning instruments and planning scheme policies. 

The Bill also introduces a new process for individuals to make a written request to a local government to apply a superseded planning scheme to the carrying out of a development or to assessing and deciding a proposed development application under a superseded planning scheme.  Under the IPA, a person wanting to carry out development under a superseded planning scheme or to have a development application assessed under a superseded planning scheme must make the request as part of a development application to the relevant local government.  Under the new Bill, the written request must be made within one year after the day the planning scheme, planning scheme policy or amendment creating the superseded planning scheme takes effect.  Under the IPA, the relevant period is two years.  This process is a prerequisite to enlivening the compensation provisions in IPA.

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IDAS

Types of development

The Bill introduces two new types of development – development requiring compliance assessment and prohibited development.  Prohibited development is the development listed in Schedule 1 of the Bill and may also include development that is declared to be prohibited by a planning scheme or a state planning regulatory provision.

Types of approvals

There are two new types of approvals for development contemplated by the Bill – a compliance permit and a compliance certificate.   It is envisaged that compliance assessment will be for simple or technical proposals that require assessment for compliance against certain provisions of the relevant planning instruments.

A compliance permit is needed for development requiring compliance assessment.  A compliance certificate approves documents or works requiring compliance assessment.  Compliance assessment has been established through a new stage of IDAS being the 'compliance stage'.  Compliance assessment is undertaken by the relevant local government, a public sector entity or an entity nominated by the local government. 

A 'section 3.1.6' preliminary approval may still be obtained under the Bill to vary a local planning instrument and to set up a regime under that approval for subsequent development approvals.

Changes to IDAS

Some changes that have been made to the IDAS process are:

  • The Bill is more prescriptive with respect to properly made applications.  If an application is not properly made, the assessment manager must give the applicant a notice stating the reasons why the application is not properly made and the action required to be taken to rectify the deficiency.  This notice must be given within 10 business days of receipt of the application.
  • If an assessment manager or referral agency makes an information request, the application will lapse if the applicant does not respond to the request within six months (unless extended by agreement).  The period under IPA is 12 months.
  • There is now an ability for an applicant to revive an application that has lapsed due to the applicant's failure to comply with time limits in the legislation.  The action to prevent lapsing, however, has to be taken within a short time frame to be effective.
  • If the assessment manager does not decide some types of code assessable development applications within the decision-making period, the application is deemed to have been approved.  The applicant must send a deemed approval notice to the assessment manager prior to the application being decided.  The assessment manager must then send a decision notice to the applicant approving the application or approving the application subject to conditions.
Changing applications

There is a new regime for changing applications.  A 'minor change' to a development application will not stop the IDAS process and the notification stage will not need to be repeated.  Changes that only deal with a matter raised in a properly made submission for the application or that are in response to an information request also do not stop the IDAS process.  In these circumstances, the repetition of the notification stage is within the discretion of the assessment manager.  All other changes stop the IDAS process and it starts again from the start of the acknowledgement period. The notification stage will also need to be repeated unless the assessment manager decides that this is not required.

Missed referral agencies

If it is discovered during the information and referral, notification or decision stages of IDAS that an application has not been referred to a required referral agency, the IDAS process is paused to enable the application to be referred to the missed agency and for that agency to 'catch up' prior to the application being decided.  Importantly, a missed referral will not cause an application to lapse.

Changing approvals

An applicant can apply to make a 'permissible change' to a development approval.  The change is permissible if, among other things, it does not result in a substantially different development.

Under the IPA, there were different processes and different tests for changing an approval or a condition of an approval, with the result that sometimes an applicant could fall between both stools depending upon how the approval was drafted.  The Bill has done away with the distinction between changing approvals and changing conditions and a single test is to be used when assessing applications to change an approval.

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Infrastructure

The Bill proposes to create a process to allow representations and negotiations about infrastructure charge notices to be made to the local government or the state infrastructure provider that gave the notice.  The appeal period against the notice can be suspended to allow these negotiations to occur.  If the representations are accepted, a negotiated notice can be issued which will replace the original notice. 

The Bill does not propose major changes to the infrastructure planning and funding or infrastructure agreement provisions as currently set out in the IPA.  In particular, the limited appeal rights to the Planning and Environment Court remain unchanged.

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Appeals, offences and enforcement

The jurisdiction of the Building and Development Dispute Resolution Committee (formerly the Building and Development Tribunal) has been expanded.  The committee will have jurisdiction to hear applications for declarations and appeals with respect to a wide variety of matters. For example, the committee may hear declaratory proceedings regarding whether a development application is 'properly made' and appeals against conditions of a compliance permit.  Lawyers are not permitted to appear before the committee.  The expansion of the committee's jurisdiction does not, however, diminish the jurisdiction of the court; parties can elect to initiate proceedings in either forum.

The appeal rights currently enjoyed by applicants and submitters are preserved under the Bill and only minor amendments have been made to the provisions to reflect changes to the IDAS.

Of particular significance is the broadening of the court's discretion to cure matters of procedural non-compliance under new section 440 of the Bill.  In contrast with its counterpart, the court's discretion under the Bill is not constrained by a consideration of third-party rights and is directed at curing a non-compliance with a 'provision of' the Act rather than a 'requirement of' the Act.  The latter appears to be an attempt by the drafters to overcome one of the major hurdles to the exercise of discretion under the current s4.1.5A of the IPA by allowing the court to cure non-compliances which are not associated with some positive obligation imposed by the IPA.  To resolve uncertainty, s440 is expressly drafted to apply to a development application which has lapsed or an application that is not 'properly made'.

While the general principle that parties bear their own costs in relation to proceedings is continued under the new Bill, the court's power to make an adverse costs order has been expanded where the proceedings have been brought to 'delay or obstruct'.  Under the IPA, the court has a discretion to award costs where proceedings are instituted merely to delay or obstruct.  Under the Bill, the court has a discretion to award costs where it considers the proceedings are started or continued primarily to delay or obstruct. 

The offence provisions in the Bill are very similar to those in the IPA, with some new offences relating to the new types of development.  It is also possible for an assessing authority to give an enforcement notice with respect to a development offence without first giving a 'show cause' notice to the alleged offender where the authority reasonably believes it is not appropriate in the circumstances to do so (for example, where there is some urgency for reasons of public safety).

Transitional provisions

If enacted, the Bill will repeal the IPA.  In general, documents made or approvals granted under IPA will continue in force under the Bill.  Applications made under the IPA will continue to be assessed and decided under the IPA.  Appeals made under the IPA also will continue to be dealt with under the IPA. 

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The way forward

The new Bill needs to be debated in State Parliament and proclaimed before it becomes law.  In the meantime, the Department needs to finalise the standard planning scheme provisions and prepare the regulations and guidelines referred to in the Bill.

The new legislation attempts to address some of the shortcomings in the IPA.  In doing so, it introduces new concepts and processes, which it is likely will be the subject of some discussion and debate.

For all involved in development in Queensland, the new Bill will necessitate careful analysis to appreciate the subtle changes which will be introduced into the new IDAS.

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