Australia: Parliament Passes Sustainable Planning and Other Legislation Amendment Bill 2012

Introduction

On 13 November 2012, the Sustainable Planning and Other Legislation Amendment Bill 2012 (Bill) was passed by the Queensland Parliament. The Bill was first introduced on 13 September 2012 and proposed seven key reforms to the Sustainable Planning Act 2009 (SPA).

Following its introduction, the Bill was referred to the State Development, Infrastructure and Industry Committee (Committee) which was tasked with liaising with stakeholders and preparing a report for Parliament.

Committee report and recommendations

A total of 124 stakeholder submissions were received by the Committee. Interestingly, of those submissions, all but two made representations in relation to the proposed change to the Planning and Environment Court's costs regime. This has easily been the most controversial of the Bill's proposed reforms.

A public hearing was held on 25 October 2012, at which the Committee heard evidence from witnesses representing 29 organisations. The Committee's report¹ made six recommendations with respect to the Bill, which were adopted by Parliament in passing the Bill.

The Bill is currently awaiting assent. While the provisions relating to the reform of the State referral and assessment regime will commence by proclamation in 2013, the provisions reforming the Planning and Environment Court's costs regime and expanding the role of the Alternative Dispute Resolution (ADR) Registrar of the Court will commence on assent.

Key amendments to the SPA

Our previous article on the seven key amendments proposed by the original Bill can be read here.

A summary of amendments as passed by Parliament and an explanation of the changes made to the original form of the Bill follows.

Amendment 1 – State referral and assessment regime

The Bill as passed reforms the State's role in assessing and deciding development applications as either a referral agency or as an assessment manager. The Bill introduces a new Chapter 6, Part 1, Division 4, Subdivision 2A into the SPA, which makes the chief executive administering the SPA the single State assessment manager or referral agency in particular circumstances.

Pursuant to changes made to the Bill following the Committee's report, the chief executive administering the SPA is now able to shift responsibility for enforcing compliance with conditions imposed or recommended by the chief executive to a nominated entity.

Amendments to the Sustainable Planning Regulation 2009 will still be required to implement this amendment. In its response to issues raised before the Committee, the Department of State Development, Infrastructure and Planning indicated that there is intended to be an ongoing reduction of referral triggers via that process.

Amendment 2 – Removal of master planning and structure planning provisions

The Bill as passed removes the planning partnership provisions of Chapter 4 of the SPA, which provided for master planning and structure planning arrangements.

The Committee report noted strong support for this reform from peak planning bodies, although it was opposed by some local governments which were concerned it may have an impact on future planning for master plan areas.

The amendment has been retained with some minor changes, including a clarification that development applications for preliminary approvals under s. 242 of the SPA within a master planned area are not required to undergo public notification in most circumstances.

Amendment 3 – Removal of requirement for evidence of allocation or entitlement to State resource to accompany development application

This amendment was passed unchanged. The Bill reforms the requirements for making a development application by removing the requirement for a development application involving a State resource to be accompanied by evidence of an allocation of, or entitlement to, that resource.

While the amendment will not make State resource allocations unnecessary, it will mean that an applicant will be able to seek an allocation before, during or after the development application and assessment process.

The amendments do not affect the requirement for a development application to be accompanied by owner's consent. Where the State is the owner of the relevant land and owner's consent is required for a development application, written consent from the State as owner will be required.

Amendment 4 – Assessment manager to have power to accept development applications as properly made

The Bill as passed provides flexibility by giving assessment managers the discretion to accept development applications as properly made where those applications do not include all of the information identified as mandatory supporting information in the approved IDAS application form.

The provisions as passed are unchanged from the original wording of the Bill. However, in its report on the Bill, the Committee recommended that protocols and/or guidelines be developed to promote a consistent approach and to clarify what information is required for development applications to be deemed adequate for assessment. This recommendation was acknowledged and accepted by the Deputy Premier in the second reading of the Bill².

Amendment 5 – Maximum level of assessment for low risk operational works

Once again, this amendment was passed unchanged. The Bill as passed will make certain standard planning scheme provisions applicable to local planning instruments made under the repealed Integrated Planning Act 1997 and the SPA to ensure that maximum levels of assessment and codes for low-risk operational works to be identified in the standard planning scheme provisions (Queensland Planning Provisions) will apply to all local government planning schemes.

Local governments will retain the flexibility to impose lower levels of assessment or adopt exemptions in their planning schemes.

Amendment 6 – Change to costs regime in Planning and Environment Court

The Bill originally proposed the adoption of a "costs follow the event" regime, in line with the costs regimes in the District and Supreme Courts, with the losing party being required to pay an amount towards the winning party's costs, subject to the Court's discretion.

This contrasted with the current rule in the Planning and Environment Court that each party generally bears its own costs.

Stakeholder submissions and evidence before the Committee expressed concerns that, among other things:

• the proposed change would disadvantage smaller scale applicants, local governments, residents and community interest groups;
• the current regime provided parties with a degree of certainty in making risk assessments for litigation;
• some of the objectives of the proposed reform (such as dissuading litigation on weak town planning grounds) could be achieved by widening the Court's discretion to award costs) rather than a wholesale change to the regime;
• the change would focus local government decision making on costs, rather than the public interest and sound town planning;
• determining what "event" the costs would follow would be problematic and generate costly legal argument; and
• the proposed amendments were not consistent with practice in other specialist courts or tribunals within Australia or with best international practice.

The Bill as passed provides that costs will be in the discretion of the Court and provides a non-exhaustive list of matters that the court may take into consideration when deciding whether to award costs. These matters include such things as:

• the relative success of the parties in the proceeding;
• the commercial interests of the parties in the proceeding;
• whether a party commenced or participated in the proceeding for an improper purpose;
• whether a party commenced or participated in the proceeding without reasonable prospects of success;
• whether the proceeding involves an issue that affects, or may affect, a matter of public interest, in addition to any personal right or interest of a party to the proceeding;
• whether a party has acted unreasonably leading up to the proceeding or in the conduct of the proceeding;
• whether a party has incurred costs because another party has introduced, or sought to introduce, new material; and
• whether a party has incurred costs because another party has not complied with a provision of the SPA; and
• whether a party should have taken a more active role in a proceeding and did not do so.

The only instance where costs will generally follow the event, unless otherwise ordered by the Court, is that of enforcement proceedings, which are generally brought by local governments.

The Bill as passed also provides that:

• each party to a proceeding must bear its own costs where parties participate in an early alternative dispute resolution process which is successful in resolving the appeal, unless the Court orders otherwise;
• if a proceeding is not resolved via alternative dispute resolution, the costs of the proceeding include the cost of that process; and
• the costs of a proceeding also include investigation costs (particularly relevant for enforcement proceedings).

Transitional provisions ensure that the old costs regime will continue to apply to Court proceedings already commenced before the amended costs provisions take effect.

Amendment 7 – Court to have power to direct ADR Registrar to hear and determine proceedings

The Bill as passed retains with only minor changes the new Chapter 7, Part 1, Division 12A relating to the powers of the ADR Registrar of the Court.

A new section 491B of the SPA will provide the Chief Judge of the District Court with discretion to direct that specific powers of the Court be exercised by the ADR Registrar, including that the ADR Registrar hear and decide proceedings on the basis that each party bears its own costs.

The Committee report noted strong support for the amendment from all stakeholder groups and consensus shown by stakeholders on the benefits the ADR process contributed to the resolution of proceedings. The Committee's report stressed the need to address the question of resourcing for the ADR Registrar to ensure the amendments can be properly implemented.

The only change which was made to the original wording of the Bill was to remove the ability for the ADR Registrar, in exercising a power of the Court, to "inform himself or herself in a way the ADR Registrar considers appropriate". This resulted from concerns that the provision gave the ADR Registrar a broad power to consider evidentiary matters usually the subject of a full hearing.

Final comments

With the provisions relating to the change to the costs regime in the Court to commence on assent, it will make costs a live issue in most Court proceedings filed subsequently. It will be very interesting to see how the Court will wield its discretion and how parties to proceedings will approach the issue.

It will also be interesting to watch over the coming months as further details of the single State assessment manager and referral agency regime and referral trigger reform become available.

Footnotes

¹Queensland, Sustainable Planning and Other Legislation Amendment Bill 2012: Report No. 13, State Development, Infrastructure and Industry Committee, November 2012.

²Queensland, Record of Proceedings, Legislative Assembly, 13 November 2012, 2533 (Jeff Seeny).

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