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  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
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).
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)
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