Property and planning law: planning reform Queensland

The new Planning Act 2016 (the Act) is expected to commence in mid 2017, establishing a state-wide framework and overarching policy for land use planning, and replacing the Sustainable Planning Act 2009. The Palaszczuk Government has made sustainable development a key consideration in the introduction of a new land planning and development system.

Under the current legislation, key stakeholders maintain concerns about:

• the difficulty in understanding planning schemes;
• the central focus on process and not on outcome;
• aggravated wait periods for assessments and for schemes to be made and changed;
• poor on the ground work; and
• the complexity of the legislation and the many related instruments.

A critical focus of the reform is the restoration of community confidence and industry certainty, through a straightforward and clear system. A key theme underpinning the legislative change is consultation with local community, councils, and industry, in order to provide a more transparent planning framework. The reform comprises the Act, the Planning and Environment Court Act 2016, and a number of statutory instruments that were released for public consultation.

The new system claims to be simplified, understandable, and streamlined with a goal of promoting economic growth and investment. Accountability, transparency and engagement will be enhanced to provide greater protection for the community and environment. The system aims to provide these enhancements through:

• Simplified categories of development and levels of assessment to reduce risk of technical non-compliance;
• Planning documents to be reduced from four instruments to two;
• Tightened decision rules for development assessment;
• Both Council and State Government must publish reasons for decisions on development applications;
• Increased consultation times on new planning schemes;
• Mandatory consultation on state planning instruments;
• Annual indexation of the maximum infrastructure charges on new developments; and
• Regular review of Local Government planning schemes and infrastructure plans.

The new system will comprise three (3) main elements: plan making, development assessment, and dispute resolution.

The Government has indicated that a significant investment (up to $59.4 million), will be made in skills development, instrument development, ongoing advice and support to welcome the new system for industry and community. The details of these requirements are to be filtered through Regulations, Guidelines and Rules. Local Governments will see a time, resource, and financial burden during the establishment of new systems and processes.

Queensland¡¦s dispute resolution framework will support the system, with two main avenues for resolving disputes; the Planning and Environment Court, and the Development Tribunal. When accessing dispute resolution avenues, each party will be liable for their own costs, except in circumstances of frivolous, vexatious or improper action.

Items of note are detailed below:

• Self-assessable development is no longer a category for development. The new categories of development are; Accepted, Assessable (includes Code and Impact assessable) and Prohibited. Transitional provisions deal with existing Planning Schemes, however, future planning schemes will need to be drafted in line with the new Act.
• There is an established process for issuing an exemption certificate, such as for developments for which there is a referral agency, and the effects of the development are minor and inconsequential.
• Opportunities to change a development approval have broadened. Under the current legislation, only permissible changes may be made, however the Act allows for minor changes and ¡¦other changes¡¦.
• The Act also introduces a new category of development that is exempt from infrastructure charges. Private schools will be exempt from payment of Infrastructure charges, where the establishment of the school was through a Ministerial Designation.
• Applications will be made against the scheme set out by the local government, and the State government will assess aspects of the development through the State Assessment Referral Agency. The State Assessment Referral Agency will remain a one stop shop for state approvals.
• Councils and State governments will both be required to publish reasons for development decisions to promote accountability and transparency. Assessments will be more strictly made against criteria set out in the code, to enhance certainty for the community. This will support clear decision making to invest, and the potential for jobs.
• As well as mandatory increased consultation with the community for new planning schemes and state planning instruments, members of the community will be able to appeal decisions without the risk of an adverse costs order.
• Heritage buildings will see greater protection, with proposed developments requiring examination by an independent body.
• As well, the legislation will reinstate land surrender arrangements to protect the coastline.
• Assessments will all require developments to measure potential impacts for climate change.

The success of the reform will become clear over the coming 12 months.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.