Summary of the Sustainable Planning Bill 2011
The explanatory guide to the Integrated Planning Act
1997 (IPA) advised of the 'user
pays' infrastructure charging regime provided in this
legislation, that its approach would ensure 'fairness and
transparency in calculating contributions and charges',
providing 'greater certainty' and minimising the 'costs
of access to services for home buyers'.
The Integrated Planning and Other Legislation Amendment Act 2003 then brought about significant changes to the infrastructure planning and funding components of the IPA. Priority infrastructure plans and infrastructure charges schedules ultimately replaced benchmark development sequences, infrastructure charges plans, and the combination of infrastructure charges schedules and infrastructure payments schedules. The explanatory notes for the Integrated Planning and Other Legislation Amendment Bill 2003 advised with respect to the changes to be made to Chapter 5, Part 1, Division 4 of the IPA, that 'this division has been amended in a number of sections but is still primarily about creating an efficient, transparent and equitable charging mechanism in the form of the infrastructure charges schedule'.
While the Sustainable Planning Act 2009 (SPA) contained minimal changes to the infrastructure planning and funding arrangements provided for in the preceding reprint of the IPA, the explanatory notes which accompanied the Sustainable Planning Bill 2009 commented that plan making would be improved by (in amongst other things), 'making the infrastructure charging regime even more transparent and equitable including through more flexible plan development process'.
Following the commencement of the SPA, and in response to the Queensland Growth Management Summit held during March 2010, the Infrastructure Charges Taskforce (Taskforce) was established in May 2010. The Taskforce generated its interim report for consultation in November 2010, and its final report on 15 March 2011 (Report). The Queensland Government has responded to the Report by response dated 12 April 2011 (Response), and now in the form of the Sustainable Planning (Housing Affordability and Infrastructure Charges Reform) Amendment Bill 2011(Bill). The Bill was introduced into Parliament on 10 May 2011, and passed on 25 May 2011.
In his second reading speech for the Bill, the Deputy Premier and Attorney General, Minister for Local Government and Special Minister of State, the Honourable Paul Lucas MP advised that this Bill 'will make our infrastructure-charging system in Queensland much more transparent and simple' and 'dramatically increase certainty'.
At the time of writing this article, the resulting Sustainable Planning (Housing Affordability and Infrastructure Charges Reform) Amendment Act 2011 was not electronically available, so references have been made to the Bill instead. There is no indication that the Bill was the subject of any amendments prior to it being passed.
The Bill contains amendments to the Building Act 1975, the Local Government Act 2009, and the SPA. This article will only deal with the amendments proposed to the SPA.
The proposed SPA amendments can be further categorised into the following:
- Changes concerning the introduction of an 'adopted infrastructure charge' for local governments.
- Changes arising out of the above, which specifically relate to water and waste water services and Distributor-retailers.
Understanding an Adopted Infrastructure Charge
The Bill creates a regime whereby:
- Maximum charges for trunk infrastructure ('maximum adopted charge' (MAC)) will be established.1
- MACs are identified together with the development for which the charge is to be levied, in a State planning regulatory provision (SPRP).
- The SPRP must include a schedule of the MACs for the trunk infrastructure – which will be known as the 'adopted infrastructure charges schedule' (Adopted ICS).
- An SPRP of this nature:
(a) will be called a 'SPRP (adopted charges).
(b) may state different charges for different developments.
(c) may state different charges for different local governments (or parts thereof).
(d) may identify for a local government area, a priority infrastructure area.
(e) may state a proportion of an adopted infrastructure charge for trunk infrastructure that may be levied by a participating local government, or charged by a distributor-retailer for its water service or wastewater service.
Local governments will be entitled to, by resolution:
- Adopt a charge for a particular development, that is less than the MAC.
- Adopt different charges for development in different parts of its area, if each charge is less than the MAC for the development in the part.
- Declare that an adopted infrastructure charge does not apply to its local government area (or part thereof).
- State circumstances in which a charge can be discounted, and how that discount is to be calculated.
- If there is no priority infrastructure plan, the local government may also, by resolution, identify trunk infrastructure for its local government area, identify trunk infrastructure or trunk infrastructure networks to which an adopted infrastructure charge applies, state the standard of service for each of these networks, and state the establishment cost of each network.
(This resolution will be an 'adopted infrastructure charges resolution' (Adopted IC Resolution), and it can be made before the commencement of the amending Act resulting from the Bill – albeit certain qualifications will apply (see clause 44 of the Bill, particularly, proposed new section 881 of the SPA)).
The 'adopted infrastructure charge' will be (for trunk infrastructure for which a SPRP (adopted charges) applies):
- Where an Adopted IC Resolution applies - the charge adopted under an Adopted IC Resolution.
- Otherwise, the lesser of:
(a) The MAC for the infrastructure.
(b) A charge which is equivalent to the 'pre-SPRP amount ' for the development for which the charge is being levied.
An adopted infrastructure charge can not be levied for:
- Work or use of land authorised under the Mineral Resources Act 1989.
- Work or use of land authorised under the Petroleum Act 1923.
- Work or use of land authorised under the Petroleum and Gas (Production and Safety) Act 2004.
- Work or use of land authorised under the Greenhouse Gas Storage Act 2009.
- Development in an urban development area under the Urban Land Development Authority Act 2007.
- Development in a declared master planned area in a local government's area, unless an Adopted IC Resolution for that local government states the charge applies for development in the declared master planned area. (See clause 20 of the Bill, proposed new section 648E of the SPA).
The proposed new section 880 of the SPA (see clause 44 of the Bill) is an essential provision in understanding the intended operation of the new regime, from a local government perspective. This proposed new section confirms that from the day the SPRP (adopted charges) takes effect, local governments will not be allowed to:
- levy infrastructure or regulated infrastructure charges under Chapter 8, part 1, Divisions 4 or 5 of the SPA (i.e. via infrastructure charges notices or regulated infrastructure charges notices)..
- impose a condition under a planning scheme policy to which section 847 of the SPA applies (that section concerns planning scheme policies regarding infrastructure, created in accordance with section 6.1.20 of the Integrated Planning Act 1997) (see clause 44 of the Bill, proposed new section 880 of the SPA).
Instead, an adopted infrastructure charges notice will need to
be issued in accordance with clause 20 (proposed section 648F of
the SPA). Adopted infrastructure charges notices may only be
given in relation to a development approval or compliance permit
(which differs from the present arrangements in the SPA).
However, local governments will still be able to collect charges or contributions that were lawfully levied or imposed. Also, any rights or liabilities, or actions that could be taken under the SPA with respect to the above described charges or contributions, will not be affected by the changes anticipated in the Bill (see clause 44 of the Bill, proposed new section 880 of the SPA).
To facilitate the above, and to support the new Chapter 8, part 1, Division 5A of the SPA generally, consequential amendments will be made to various sections in the SPA including the following:
- Section 20 – to give the Minister the power to make the SPRP (adopted charges).
- Section 185 – to give local governments the ability to issue an adopted infrastructure charges notice, ordinary infrastructure charges notice or regulated infrastructure charges notice, that replaces an existing notice, where (1) representations have been made to the local government with respect to a master plan approval, and (2) the local government has agreed to those representations and will issue a negotiated decision notice, and (3) the master plan approved by the negotiated notice is different from the master plan originally approved in a way that affects the amount of the charge.
- Section 282 – to allow referral agencies to consider any relevant adopted infrastructure charges resolution, to the extent that agencies jurisdiction involves the assessment of the cost impacts of suppling infrastructure (as a State infrastructure provider under sections 655 and 657 of the SPA).
- Sections 314 and 314 – amended to ensure that in an assessment of either a code or impact assessable development, if the assessment manager is an infrastructure provider it can assess the development against an adopted infrastructure charges resolution or the priority infrastructure plan.
- Section 364 – to give a local government the ability to issue a new infrastructure charges notice where the applicant has made written representations during its appeal period about issues in the decision notice, the local government has agreed with those representations and the development approved via the resulting negotiated decision notice is different from the original approval in such a way that affects the amount of the charges.
- Section 388 – to ensure that the assessment manager can have regard to (in amongst other things), charges payable under chapter 8, part 1 of the SPA, in deciding a request to extend a relevant period for a development approval.
- Sections 478 and 535 – which confirms that appeal rights to both the Planning and Environment Court (Court), and the Building and Development Dispute Resolution Committee (Committee) with respect to adopted infrastructure charges notices are available, but limited in their scope in the same manner as is currently the case under these sections.
- Amendments to various sections in Chapter 8 of the SPA, in acknowledgment of adopted infrastructure charges notices, adopted infrastructure charges resolutions and adopted infrastructure charges generally.
- Sections 724, 738 and 739 – to ensure that the relevant new documents are made available for inspection or purchase, and otherwise dealt with in planning and development certificates.
- Section 879 – extending the application of section 856 of the SPA, which concerns rezoning agreements, to include adopted infrastructure charges.
What the Bill does not clearly address by way of transitional provisions are:
- What charging regime should be applied by the Court or the
Committee in deciding current appeals (or declarations) regarding
infrastructure contributions or charges, filed under either the
Integrated Planning Act 1997, or the SPA. While the Court and
the Committee have the discretion to give weight to any 'new
laws or policies' each considers appropriate (see sections 495
and 563 of the SPA), it is not clear:
(a) whether the pending SPRP (adopted charges) constitutes a 'new law or policy' (or whether it is better described as a planning instrument – which is specifically catered for in the similar discretion section for local governments – see section 317(a) and the definition of planning instrument in schedule 3).
(b) whether the appeal grounds regarding infrastructure charges notices which are presently limited by sections 478 and 535 of the SPA (following their amendment), would allow a Court or tribunal the jurisdiction to apply a different charging regime, in cases where the appeal was filed before the amending Act commences.
- Whether a Council in considering a request to change a development approval (i.e. a permissible change request), is obliged to generate an adopted infrastructure charges notice. It would seem by virtue of section 374(1)(b) and 374(2) of the SPA, a local government will not be obliged to apply the new charging regime and could refuse a request to change the approval, and rely on the previously imposed condition or infrastructure charges notice to collect the charge/contribution (see clause 44 of the Bill, particularly what will become section 880(3)(b) of the SPA).
- There is no mention in the Bill as to the three-year moratorium on the collection of local function charges for transport infrastructure.
1The Minister will be able to change these by gazette notice, by not more than an amount which will effectively account for inflation.
2The 'pre-SPRP amount' is, for development, the maximum amount the local government could have obtained in relation to the development, at the time immediately before the SPRP (adopted charges) comes into effect, by doing any of the following: (a) imposing a condition requiring payment of a contribution under section 848 of the SPA; (b) levying an infrastructure charge under Chapter 1, Part 1, Division 4 of the SPA; or (c) levying a regulated infrastructure charge under Chapter 1, Part 1, Division 5 of the SPA.
Water and Wastewater
By 1 July 2011, South East Queensland (SEQ) local governments
are to advise the State Government as to whether they will 'opt
out' of the Distributor-retailer arrangements, in preference to
going back to the former local government water and wastewater
Where the local government stays 'in' the Distributor-retailer arrangements, then under the Bill, the SPRP (Adopted Charges) will establish a proportional split for an adopted infrastructure charge as between the Distributor-retailer and the local government (until 30 June 2013, being the intended end of their 3 year interim SPA provisions).
A distributor-retailer's board then may decide to adopt a charge for supplying trunk infrastructure in relation to its water service or wastewater service, up to the relevant proportion of the maximum adopted charge for the infrastructure. If no such decision is made, the 'standard amount' will apply.
The 'standard amount' for a distributor-retailer will be either:
- If its participating local government has made an adopted infrastructure charges resolution which is applicable to the area in which the trunk infrastructure for the charge is supplied – the amount of the distributor-retailer's relevant proportion of the adopted infrastructure charge immediately before the resolution takes effect.
- Otherwise – the distributor-retailer's relevant proportion of the adopted infrastructure charge (being here, the lesser of the MAC for the infrastructure, or a charge equivalent to the pre-SPRP amount for development for which the charge is levied) (see clause 36 of the Bill).
A distributor-retailer will be able to levy a charge (either the charge adopted by the board if one exists, or otherwise, the 'standard amount') for supplying trunk infrastructure in relation to its water service or wastewater service, on and from the 'standard charge day' (i.e. the day the SPRP (adopted changes) first has effect). To achieve this, a distributor-retailer must give a person an adopted infrastructure charges notice, and like the local government – that notice may only be given in relation to a development approval or compliance permit.
It will be interesting to consider development statistics over
the years ahead with the commencement of the SPRP (adopted charges)
as a key date, and whether conclusions will be easily drawn that
this Bill has made 'our infrastructure-charging system in
Queensland much more transparent and simple' and
'dramatically increase certainty'.
In the meantime, legal questions shroud its introduction – particularly as to the transitional arrangements and by implication – the extent to which infrastructure agreements can (in light of proposed new sections 648K and 755MA of the SPA) and will seek to deal with any issues that arise in relation to perceived inequities.
Finally, it remains to be seen how the three-year moratorium on the collection of local function charges for transport infrastructure will be achieved, given it is not addressed in the Bill.
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.