Australia: Planning and Environment Alert : 7 February 2012

Last Updated: 9 February 2012
Article by David Nicholls, James Ireland and Sarah Persijn

Queensland Coastal Plan comes into effect

The Queensland Coastal Plan commenced on 3 February 2012. This Plan is different in a number of key ways from the document the State Government adopted in March 2011 (which never came into effect).

Here, partner David Nicholls outlines the main changes between the adopted and implemented versions of the plan, and what the Plan means for landowners and developers in Queensland's coastal areas.

Key points

  • Changes to the State Planning Policy component of the Queensland Coastal Plan, implemented following the formation of a stakeholders' working group, introduce a more balanced and reasonable approach to protecting Queensland's coastal areas.
  • Some uncertainty remains in relation to the operation and effects of risk management guidelines and hazard adaption strategies. How these play out in practice remains to be seen.

Stakeholder concerns addressed

The document the State Government adopted in March 2011, which never came into effect, is the subject of two previous publications from HopgoodGanim. These publications provide an overview of how the Plan and SPP are intended to operate, and are referenced at the end of this paper.

Since March, stakeholder concern had mounted about aspects of the State Planning Policy (SPP) component of the Coastal Plan. This culminated in the formation of a stakeholders' working group to review the SPP, assisted by independent planning consultants appointed by the Department of Environment and Resource Management. HopgoodGanim partner David Nicholls participated in the working group on behalf of the UDIA (QLD). While industry bodies remain opposed to aspects of the SPP, it is more balanced and reasonable than its predecessor as a result of the group's deliberations, and the Department's role in facilitating this should be acknowledged.

The changes, in brief, are as follows:

  • References to Greenfield areas have been removed, with the policy settings now referring to urban and non-urban localities, which are defined by reference to a regional plan or local planning instrument.
  • The development of single residences on single lots is outside the scope of the SPP, unless involving building work seaward of a coastal building line, or resulting in necessary clearing of an area of general or high ecological significance.
  • Building work within 500 metres of the coastline is only a trigger with respect to the scenic amenity aspects of the policy.
  • The policy against expansion of the urban footprint in the coastal zone has been changed to a preference for infill and redevelopment, with allowance for linear expansion of urban nodes where it is in the public interest.
  • Intensified redevelopment may occur in the erosion prone area within the coastal management district if the coastal erosion impact risk is mitigated.
  • The window of opportunity for development applications in coastal hazard areas, where the planning scheme does not contain a hazard adaption strategy, is increased from three to five years.
  • Development for urban purposes in an urban area that is mapped as an area of high ecological significance is exempt from the avoidance/offset requirements of the policy, where a planning instrument or legal agreement was in place before the SPP commenced that substantially deals with ecological matters.
  • Where development is not required to fully achieve the overall policy outcome, because one of the three alternative tests in Part D of the SPP is satisfied, there is a residual requirement to do so to the maximum extent possible. Previously this requirement applied "where it would not compromise the intrinsic characteristics of the development". This has been changed to "not significantly change the nature, intensity or scale of the development".

The aspects of the SPP which remain of concern relate to uncertainty regarding:

  • the operation and effects of the risk management guidelines that will apply over the next five years to development applications in a coastal hazard area, where the planning scheme has not been amended to include a hazard adaption strategy; and
  • the nature and effect of hazard adaption strategies to be included in planning schemes, and the restrictions this will impose on development of affected land.

What the Queensland Coastal Plan means for landowners and developers

The concerns that remain are particularly acute for local government areas containing large developed, and developable, areas now mapped as high and medium hazard - for example, the Gold Coast. Development in these areas is potentially restricted unless adaption strategies provide for future defensive measures, or the interim risk management measures recognise the potential for longer-term defensive measures. At this point we don't know how this is going to work out in practice.

The SPP creates the need to make decisions over the next five years as to where and how land, buildings and infrastructure will be defended over the next 90 years, as and when the sea level rises in response to climate change. The responsibility for this has been passed to local governments and is likely to be a complex, time consuming and costly exercise. Whether the five years allowed for this is sufficient remains to be seen.

The SPP facilitates a number of approaches to the development of adaption strategies including retreat, avoidance and defence, taking into account long-term social, financial and environmental factors. One must assume that there will be a reasonable component of defensive measures in these strategies. The alternative of only applying retreat and avoidance seems unthinkable. However, local governments are likely to be worried about what they may be committing to, and their consequential long-term liability, in adopting defensive strategies.

A point of comparison is Priority Infrastructure Plans under which infrastructure is planned for the future, but in respect of which local governments are legally protected from actually having to deliver anything. An important difference, though, is that while an adaption strategy may either facilitate, restrict or preclude development in high hazard areas, where the strategy involves defence, and development is approved on that basis, legitimate community expectations will be set that defensive infrastructure will ultimately be provided.

There is no clarification as to how the costs of defensive adaption strategies will be met. There appear to be serious intergenerational equity issues about how the funding of defensive arrangements should be handled. It seems some kind of long-term infrastructure fund will be required, because it is equally inconceivable that decisions should be made today leaving future generations with huge liabilities for necessary infrastructure, or that these costs should fall on current communities who just happen to potentially live in harm's way.

Meanwhile, the Coastal Plan has commenced and the development industry and local governments are required to contend with it while solutions are developed in response to the apparent policy vacuum. In our view, State planning instruments that raise issues but defer and delegate solutions are not helpful.

No new referral triggers have been introduced as a result of the SPP's commencement. The existing triggers mainly relate to development within the Coastal Management District (CMD). The CMD has not been extended to mirror the newly created hazard areas, nor the extended erosion prone area. Examination of the mapping suggests that in most instances, the CMD has for the most part avoided privately owned land. Therefore the main influence of the SPP will be on assessment of development applications by local governments, which will, because of the SPP, be required to amend their planning schemes to deal with erosion prone and hazard areas, as well as areas mapped as general and high ecological significance.

Applications already progressing through IDAS at the time the SPP commenced are not specifically addressed by the instrument. Instead, the statutory and common law rules apply relating to the "weight" to be afforded to the SPP in deciding applications. This is a particularly complex and difficult issue which is likely to engage the Planning and Environment Court over the course of the next few years. Should the SPP, as a matter of "weight", be applied by, in effect, undertaking risk assessment in accordance with the guidelines for pre-existing development applications? Given the long-term policy objective and the period of five years allowed for the development of planning scheme amendments, it does seem unreasonable to inflict the full effects of the SPP on existing applications. However, it should be noted that as long ago as 2006, the Planning and Environment Court gave decisive weight to a local planning instrument which took into account the effects of storm tide surge on the location of coastal development. The engineering evidence that the Court accepted referred to the then current version of the Coastal Plan and the need to consider the impacts of climate change. The decision was upheld by the Queensland Court of Appeal1.

It seems inevitable that issues of the weight to be applied to the SPP will open up questions about the accuracy of the statutory mapping, which in the case of the high ecological significance (HES) layer is open to review as part of a development application. It is a live question whether weight can be attributed to the instrument in circumstances where development assessment is required to determine its applicability.

For more background on the Plan, please read our previous papers:

© 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.

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David Nicholls
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