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Client Update: A new planning regime for Queensland

3 July 2017

In brief: The Planning Act 2016 commences today, together with the Planning Regulation 2017, various new planning documents and new forms. The Act replaces the Sustainable Planning Act 2009. While there is a lot that has changed under the new regime, the cornerstones of the planning system remain intact. Special Counsel Rosanne Meurling (view CV) identifies those things that you need to know on day one of the new planning regime.

Development assessment

A new development assessment process has replaced IDAS. The new process is found in both the Planning Act 2016 (Qld) (PAct) and the new Development Assessment Rules. There are many similarities between the new process and IDAS, but the differences are significant.

There are, as expected, changes to terminology and timeframes, and minor process changes.

Of significance, however, are the removal of automatic extensions for assessing authorities (with all extensions requiring the approval of the applicant), the ability for applicants to 'opt-out' of an information request in certain circumstances and the ability for applicants to 'stop the clock' on the development assessment process for a cumulative period of 130 business days.

There are numerous other improvements to the process to remove unnecessary 'red tape', to provide applicants with necessary flexibility and to improve accountability and transparency in decision making. These improvements include a greater ability to change a development approval, a clear statement of assessment criteria and the provision of a statement of reasons by assessing authorities for decisions made.

Planning documents

Overall, the number of State planning documents has been reduced, with the demise, in part, of the Queensland planning provisions and the relocation of the State planning regulatory provisions to the Planning Regulation 2017. A new State planning policy 2017 also commences today, and the release of a new regional plan for South East Queensland is imminent.

At the local level, all of the local planning documents remain, with some modification. Many local governments have modified their planning schemes to bring them into conformity with the terminology and processes in the new regime, although without making policy changes. Since 19 May 2017, it has been possible for retrospective temporary local planning instruments to be made, and this ability continues under the new regime.

Designations for infrastructure

The designation processes for infrastructure have been streamlined.

At the State level, only the Minister administering the PAct can make a designation, with the process contained in the PAct and in the new Minister's Guidelines and Rules (MGR).

For local governments, the designation process rules are found in the MGR.

For designations made under the PAct, development under a designation does not require a development approval, except for building works.

Disputes and enforcement

The dispute resolution provisions are now found in both the PAct and the new Planning and Environment Court Act 2016 (Qld).

There is little change in relation to dispute resolution. The costs powers of the Planning and Environment Court changed on 19 May 2017 to provide that each party would bear its own costs except in certain circumstances. This change is replicated in the new provisions. The court's ability to excuse non-compliance has also been clarified.

The fines for development offences increased substantially on 19 May 2017 and these provisions have also been carried into the new regime. There is also an ability under the new regime for the Planning and Environment Court or the Magistrates Court to make an enforcement order that attaches to the land and if such an order is made the order must be recorded on title. The removal of the enforcement order from the title will require the relevant court to make a compliance order. This new mechanism will have implications for landowners and their financiers.

Transitional provisions

For those development applications that have been made under the previous legislation but not decided before today, the previous legislation continues to apply to the application until decided; however, the deeming of the decision to have been made under the PAct will require careful consideration to be given to the Act's impact on consequential matters, such as the currency period for an approval and appeal rights.

The Allens team can assist you to navigate the new planning regime and, particularly, assist you to utilise the opportunities that the new regime offers.

 

For further information, please contact:

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