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Focus: Planning – January 2008

Protecting local 'character' in Queensland

In brief: The Queensland Deputy Premier and Minister for Infrastructure and Planning, Paul Lucas, released the draft Iconic Queensland Places Bill 2008 for stakeholder consultation on 7 December 2007. The draft legislation is a direct response to fears expressed by some local governments and their communities that the widespread local government amalgamations in Queensland would rob them of their identity and character through inappropriate planning decisions. Senior Associate Rosanne Meurling (view CV) looks at the new legislation.

How does it affect you?

  • The draft legislation will be considered by Parliament in early 2008 and will be in place before the March 2008 local government elections. Once in force, development applications lodged in declared iconic places will be susceptible to being decided by development assessment panels, rather than the relevant local governments. This will, inevitably, add to the time for processing development applications. At present, the draft legislation only identifies the local government areas of Douglas Shire and Noosa Shire as declared iconic places.

Purpose of the legislation

The purpose of the draft Iconic Queensland Places Bill 2008 (the draft Bill) is to protect places with characteristics or qualities in their natural or built environment that reflect or contribute in a substantial way to Queensland's character. 

This protection is achieved by:

  • the declaration of iconic places;
  • the protection of iconic values of iconic places during the process for making and amending local planning instruments; and
  • the creation of development assessment panels (the panels) that can determine development applications in iconic places, in place of the new local governments.

The legislation, once in force, will be reviewed within five years to determine its operation and effectiveness.

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Declaring iconic places, iconic values and protected provisions

The Minister who administers the legislation (the Minister) is able to declare a place that is in a new local government area to be an iconic place if the Minister is satisfied that:

  • the characteristics or qualities of the place's natural or built environment reflect or contribute in a substantial way to Queensland's character;
  • the place is under pressure from population growth and new development;
  • there is a demonstrated threat to the characteristics or qualities;
  • local planning instruments for the place contribute in a substantial way to the protection of the characteristics or qualities; or
  • there is substantial support by the local community in that place for the making of the declaration.

The declaration must identify the place, the place's iconic values and the provisions of the local planning instruments (ie planning schemes, planning scheme policies and temporary local planning instruments) of the relevant local government that the Minister is satisfied protect the place's iconic values (the protected provisions).

The Minister may publish guidelines about how to decide whether there is substantial support from a local community for the iconic place declaration, although the Minister is not bound to follow the guidelines.

In addition to the iconic places identified by way of the above process, the Douglas Shire Council and Noosa Shire Council local government areas are declared iconic places by the draft Bill. The Minister is yet to declare the iconic values and protected provisions for these iconic places.

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Protecting iconic places through the planning process

When making or amending planning schemes and planning scheme policies:

  • the local government is required to prepare an impact report if the scheme proposal would, or may have effect, in an iconic place and would change or replace a protected provision relating to the place;
  • the local government is required to give the Minister a copy of the impact report;
  • the local government must make the impact report available during public notification;
  • the Minister must consider whether the scheme proposal would be inconsistent with protecting the iconic values of the iconic place; and
  • the Minister may notify the local government of conditions that the Minister considers are necessary to preserve the iconic values, or that it may not proceed with an amendment.

Similar provisions apply to the making of temporary local planning instruments. 

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Protecting iconic places during development assessment

With respect to development assessment, the Minister will establish a panel for each iconic place. The panel will have a maximum of five members. Of the members, at least one must represent a community, environmental or another appropriate organisation, one must have professional or technical qualifications appropriate to assessing development applications and one must be a councillor of the relevant local government. Councillors must not make up a majority of members. Decisions are made by a majority of the panel members.

For a development application relating to an iconic place and where the assessment manager is the local government, the panel can decide whether it will adjudicate on the application instead of the local government authority (the reference decision). If a reference decision is made by the panel to decide the development application, the local government is still required to give the panel a recommendation. The decision-making period starts again for the panel once the local government gives the panel its recommendation and copies of all relevant material about the development application. The panel's decision is taken to have been given by the local government as the assessment manager for the development application. 

If the panel makes the decision, the State Government is represented by the panel and is the respondent for any appeal. The local government may also appeal the panel's decision as if it had been a submitter of the application.

The Minister may, at any time before the panel gives a decision notice for the development application, reverse the reference decision, in which case the local government will adjudicate the application. 

With respect to a master plan application for a declared master planned area that is, or includes, an iconic place, the Minister is taken to be a participating agency for assessing the application. If the Minister is satisfied that an aspect of the proposed master plan is inconsistent with protecting the iconic values, the Minister may recommend that certain stated conditions are included to remove the inconsistency in any approval of the proposed master plan or the application may be refused.

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Effect of the draft legislation

The draft legislation introduces more complexity into the workings of the planning legislation and the development assessment and approval system in Queensland at a time when the State Government is undertaking a review of this legislation to improve its effectiveness and efficiency. 

It would seem that, with appropriate amendments to the existing planning legislation, the State Government, through its existing checks, should be able to monitor the effect of local planning instruments on iconic places and their values. If local planning instruments are appropriately drafted, then local governments applying these documents should not need to be usurped by the panels. If local governments act contrary to the protection of iconic places, the State Government can exercise its direction or call in powers (provided that the definition of a 'State interest' is widened to include iconic values of iconic places).

If you would like help in making a submission or if you have any further queries on this or any other environment and planning issue, please feel free to contact us.

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