Australia: The Sustainable Planning and Other Legislation Amendment Bill 2011

Planning and Development Alert: 13 Oct 2011
Last Updated: 14 October 2011
Article by James Ireland and Sarah Persijn

By Sarah Persijn and Olivia Williamson

The Sustainable Planning and Other Legislation Amendment Bill 2011 was introduced to Queensland Parliament on 11 October 2011. While the Bill introduces a range of amendments to a number of Acts, it acts as the first broad review of the Sustainable Planning Act 2009 (SPA) since it came into effect.

Here, partner Sarah Persijn and associate Olivia Williamson outline the key changes that the Sustainable Planning and Other Legislation Amendment Bill introduces to the SPA.

Key changes to the Sustainable Planning Act

The Bill introduces:

  • a requirement for the Minister to consult with affected parties before calling in a development application;
  • a state-wide urban encroachment policy modelled on the Planning (Urban Encroachment- Milton Brewery) Act 2009, designed to allow certain uses to be registered and thereby protected from certain legal proceedings; and
  • amendments to clarify the recent infrastructure charges reform to enable local governments to index adopted infrastructure charges.

Ministerial directions and call ins

The SPA enables the Minister to make directions to various entities on a range of matters, and to also "call in" a development application if State interests are affected.

The Bill amends the powers of the Minister to direct action in relation to local planning instruments. It clarifies that direction can be made about a proposed amendment to an instrument, as well as to a proposed instrument. 1

The amendment also adds to the examples of directions which may be made, the power to direct the making of a structure plan, or compliance with the timeframes set out in master planned area declarations for the making of a structure plan. 2

Clauses 75-78 of the Bill amend sections 424-425 of the SPA relating to Ministerial call in powers.

The amendments clarify that the Minister is required to consult with the assessment manager, the applicant, any submitters for the application, and each concurrence agency before calling in a development application, and that those given notice that the Minister is proposing to call in the application may make representations to the Minister 3 to ensure natural justice is afforded to all parties.

A new section 424C requires the Minister to consider the representations received from the affected parties about the proposed call in before making a decision to call in the application.

The amendments related to consultation remedy a procedural fairness issue, in that the SPA (and previously the Integrated Planning Act (IPA)) does not impose any requirement for notice to be given or submissions to be called for from those affected before the Minister exercises the power to call in a development application. The rationale for this change is likely to flow from the judgment in Landel Pty Ltd v Hinchliffe & Anor [2009] QSC 408. In this case, the Supreme Court declared a Ministerial decision to call in a development application unlawful and of no effect because the Minister did not afford an affected party the right to be heard, to make representations to the Minister, and to be told of what had advanced in support of the proposed decision.

Should the Minister decide, after considering representations, not to call in the application, any appeal period relating to the application starts again the day after notice that the Minister has decided not to call in the application section 424C(2)(a) is given. 4 This section operates so that the rights of any party to appeal the decision is not adversely affected by the giving of the proposed call in notice and the subsequent time delay for the nominated representation period.

Relevantly, by amending section 758A of the SPA, the Bill clarifies that the Minister was not, under the repealed IPA, required to consult with anyone before giving a direction, making a decision to call in a development application, or making any decision in relation to the called in application. Further, a new section 890 is inserted as a transitional provision to deal with development applications that have been called in by the Minister before commencement, and have not been finally dealt with by commencement. The amended process does not apply in those circumstances, and the provisions in place before commencement continue to apply.

The amendments also clarify where consultation is not required in relation to certain Ministerial decisions. 5

Urban encroachment

The pressures of housing supply and the greater utilisation of existing space can result in increased levels of conflict between lawfully operating existing uses and encroaching urban development.

Clause 94 inserts a new chapter 8A to the SPA to implement a State-wide urban encroachment policy. Through this amendment, the Queensland Government recognises the need to address concerns about the impact of urban encroachment on existing industries. It does this by limiting particular civil proceedings for nuisance and criminal proceedings relating to a local law where the registered premises is operating within its approved conditions. 6

The changes will enable existing lawful uses which meet certain listed criteria (such as if the activity being carried out is significant to the economy, heritage or infrastructure of the State, regional or locality) to apply to the Minister for protection for 10 years. A similar policy already exists under the now repealed Planning (Urban Encroachment- Milton Brewery) Act 2009. The Bill's amendments extend the existing Milton Brewery Act urban encroachment policy on a State-wide basis.

Clause 79 of the Bill inserts a new section 475A in the SPA, which provides that where the Minister issues an information notice under chapter 8A (Registration of Premises), the recipient of the information notice has a period of 20 business days from when the information notice is issued to appeal the Minister's decision to the Planning and Environment Court.

In recognition that this policy is likely to have a significant impact on the rights of landowners, the amending provisions in section 495A also allow for those affected to appeal against a decision by the Minister to register 7 or renew 8 registration of premises. The onus is on the owner of the registered premises to establish that the appeal should be dismissed. 9

There are also obligations imposed on developers and landlords within "affected areas" (identified as part of the registration of a premises).

Infrastructure charges

The regime for infrastructure charging under the SPA underwent significant reform in July 2011. See our Alert dated 14 July 2011 for a summary of the major changes.

Clause 88 of the Bill proposes to amend section 648D of the SPA to correct a discrepancy that currently prevents a local government's "adopted infrastructure charges resolution" from adopting a charge equal to the maximum charge under the State Planning Regulatory Provision (adopted infrastructure charges). Clause 88 substitutes the term "not more" for "less" in section 648D.

Subclause (2) inserts a new paragraph (f) into subsection (1) allowing for a local government's adopted infrastructure charges resolution to allow an adopted infrastructure charge to be indexed during the period between the levying and the payment of the charge. Further, should the local government's adopted infrastructure charges resolution provide for the new charge to be indexed, the resolution must also state how the increase is worked out. Indexing beyond the maximum cap as established by the State Planning Regulatory Provision (adopted charges) is not permitted. 10

Superseded planning scheme

Clause 82 of the Bill also seeks to amend the Court power and relevant matters for consideration when dealing with a superseded planning scheme in an appeal context. The proposed amendment of section 495 (appeal by way of hearing anew) requires the Court to consider "the aspect" of the appeal relating to the assessment manager's consideration of a superseded planning scheme under the superseded planning scheme, and disregard the current planning scheme in relation to "that aspect".

Court's excusatory power

Through clause 892 of the Bill, there is an extension of the Court's excusatory powers to appeal proceedings commenced under the repealed IPA, but not finalised when the SPA commenced. However, the new section 892 does not appear to enable the Court to extend similar excusatory powers to proceedings for declarations.

HopgoodGanim is preparing a more detailed alert on the provisions of the Bill in relation to urban encroachment, which will be released shortly.

For more information on the Sustainable Planning and Other Legislation Amendment Bill 2011, please contact HopgoodGanim's Planning and Development team.


1 Clause 64

2 Clause 64, new section 126(4)

3 Clause 74, new section 424A(4)

4 New section 424D

5 Clauses 67, 68 & 74

6 Chapter 8A, Part 2

7 Chapter 8A, Part 3 Division 1

8 Chapter 8A, Part 3 Division 2

9 Clause 81

10 New section 648D(10)

© HopgoodGanim Lawyers

Gold Employer of Choice - ALB magazine, April 2010
Finalist, Brisbane Law Firm of the Year, ALB Australasian Law Awards 2010

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.