Australia: Queensland's Regulatory Quagmire: The Dark Side of Planning - Part 2

Planning and Environment paper
Last Updated: 2 June 2012

By David Nicholls,Partner

Standard Planning Scheme Provisions

The SPA introduced a new category of State planning instrument, called the standard planning scheme provisions. 42 This creature was conceived during the review of the IPA following the then Minister for Local Government and Planning's announcement in February 2006 of a general review of the legislation. Extensive consultation revealed a concern about inconsistencies in the structure, language and application of planning schemes and a desire for a more uniform approach to their drafting. This occurred in the context of a broader general concern on the part of stakeholders that the IDAS system was very heavy on process and light on producing good planning outcomes.

Chapter 2 part 5 of the SPA contains six sections dealing with the standard planning scheme provisions (SPSPs) which are summarised below:

  1. SPSPs are said to advance the purpose of the SPA by providing for a consistent structure for planning schemes and standard provisions for implementing integrated planning at the local level.43
  2. SPSPs have the status of a statutory instrument and have the force of law in the manner provided for under the SPA.44
  3. SPSPs have no effect in regulating or affecting development until they have effect in a planning scheme area.45
  4. Where a local planning instrument for a planning scheme area is inconsistent with the SPSPs, the latter prevails to the extent of the inconsistency and will have effect in the place of the local planning instrument to the extent of the inconsistency.
  5. The Minister is empowered to make SPSPs for the whole of the State.46
  6. Local governments must ensure that their local planning instruments are consistent with the SPSPs.47
  7. If the SPSPs are amended local governments must amend their planning schemes to reflect the SPSPs as amended.48
  8. The relevant Minister may amend a planning scheme where a local government has not amended its planning scheme within 90 days of gazettal of SPSPs or amended SPSPs.

The SPSPs are not a "relevant instrument" for the purposes of the decision rules in section 326 of the SPA, other than by implication. A "relevant instrument" for the purposes of the decision rules is a matter or thing mentioned in section 313(2) or 314(2) of the SPA. Neither of those provisions mentions the SPSPs. For code assessment, an applicable code in a planning scheme is a relevant instrument, and for impact assessment, a planning scheme is a relevant instrument. Assuming that there is an inconsistency between a local planning instrument and the SPSPs, the relevant provision of the SPSPs will prevail and have effect in place of the local planning instrument and therefore, by implication, that provision of the SPSPs becomes a relevant instrument for the purposes of testing the assessment manager's decision to identify conflict. There is, however, an alternative view based upon the literal reading of section 326 of SPA because the SPSPs are simply not "a matter or thing mentioned in section 313(2) or 314(2) against which code assessment or impact assessment is to be carried out." There would appear to be an argument that compliance with the relevant provision of the SPSP provides a ground to overcome conflict with the inconsistent provision of the planning instrument sufficient to justify a decision to approve an application despite the conflict.

This is, as can be seen, a terribly convoluted legal outcome. It begs the question, why can't the process of achieving an appropriate level of consistency of terminology and uniformity of structure for planning schemes be achieved through the State's role in the local scheme making process? Instead we have another added level of complexity which is not justified by the end sought to be achieved.

Systemic failures

The Productivity Commission's draft report dated March 2012 "Performance Benchmarking of Australian Business Regulation: The Role of Local Government as Regulator" 49 , records that the regulatory framework, including legislative complexity and conflicting State objectives, was reported by local governments as an important constraint in Queensland but less so for local governments in other states. 50

The housing affordability crisis in Queensland saw the creation in 2007 of the Urban Land Development Authority (ULDA) with its own unique development assessment process as provided for in The Urban Land Development Authority Act 2007 (ULDA Act). The ULDA Act provides that for development applications within an urban development area (UDA), the application will be assessed against the ULDA Act and initially an interim land use plan until a development scheme becomes effective for the area. 51

The development assessment process stated in the ULDA Act differs from the current provisions and timeframes specified in the Integrated Development Assessment System (IDAS) under the SPA. Under the ULDA Act the assessment process has been streamlined to enable a development application to be assessed and decided within 40 business days of lodgement. The express purpose of the then government in creating the ULDA Act and providing for it to operate under a different development assessment system was stated by the then premier, the Honourable Anna Bligh, as follows:

"The ULDA will plan, manage and deliver the strategic sites to the market, cutting red tape and reducing the cost to industry of delivering housing." 52

While the ULDA Act mechanisms were indeed able to fast track coordinated and efficient development of major greenfield and brownfield development areas, this happened against growing unrest on the part of local governments about being stripped of their planning powers in these areas and also from the community at large about the uncertainties associated with the ULDA Act process. 53 Since the election of the current government, announcements have been made that a number of UDAs are to be handed back to the relevant local governments in combination with powers to oversee the development of those areas similar to the powers exercised by the ULDA. This will require legislative reform. It involves a tacit acknowledgement by the new government that the current development assessment system under the SPA is deeply flawed and that a different route will have to be followed in order to achieve timely, cost efficient and orderly development outcomes which will provide affordable housing for the public.

The ULDA Act is not the only example of a parallel planning process in Queensland. Following the floods of January 2011, the Queensland government established the Reconstruction Authority under the Queensland Reconstruction Authority Act (QRA Act). The QRA Act gave the QRA powers to make development schemes and to intervene in the development assessment system in order to coordinate and manage the recovery of disaster–affected communities. The then Premier's second reading speech advised Parliament that the new Bill: "will establish an authority to scope and coordinate the state-wide rebuilding program and to cut through red tape and any other barriers that would stand in the way of swift recovery and rebuilding". 54 That was another reference by the then Premier to the regulatory system involving "red tape".

Although local governments retain primary responsibility for assessing and deciding development applications and requests, the QRA development schemes prevail over other planning instruments to the extent of any inconsistency. 55 Further, the QRA has the ability to override local government development decisions and, unlike the ULDA, has the ability to compulsory acquire land. 56

QRA development schemes are given status as the pre-eminent planning instrument for declared areas. 57 This, coupled with an ability to amend existing development approvals, indicates that in order to "fast track" the rebuilding area, the usual SPA process needs to be short-circuited.

Essentially, the QRA Act gives the QRA the ability to make decisions that may not be made because another level of government or authority drags its feet. For example, part of the reconstruction of the Grantham area included the creation of a development scheme that effectively turned off assessment and referral triggers under the SPA. This development scheme was written in the space of four months, enabled subdivision in the area to be exempt development and also enabled roads to be closed within days rather than months. 58

If mechanisms such as the ULDA and QRA are considered necessary to circumvent "red tape", surely the same applies to land outside of a UDA or reconstruction area. It is wrong in principle and contrary to the goals of sustainable planning for parts of the State to be unshackled from this "red tape" while other parts of the State, perhaps equally deserving economic progression, are left languishing under the burden.

Performance based planning outcomes

Although the IPA, and now the SPA, were intended to promote a performance approach to planning, that goal has largely been thwarted through overbearingly prescriptive drafting of planning schemes which retaliated against the IPA's proscription of prohibition in planning schemes. One of the many ways this was attempted was to provide that a particular type of use is an "inconsistent use" on an identified parcel of land and to define the term "inconsistent use" as a use which is strongly inappropriate in the zone because of incompatibility with other uses in the zone. Then the code would effectively provide in a performance criteria that particular development could not happen on that land, and there would be no stated acceptable solution for that performance criteria. This is the complete antithesis of performance or outcome based planning. It attempts to facilitate de facto prohibition without any consideration of ameliorating impacts or positive benefits. It is an inappropriate way in which to state the objectives or intent of a zone. I have seen this device used, for example, to make the use of identical buildings on adjoining land consistent on one parcel and inconsistent on the other unless used for short term accommodation. Sadly it is an approach which is also evident throughout the new generation of State planning instruments such as SPPs and regulatory provisions which eschew flexibility in favour of prohibition. These instruments have to some extent side-swiped and derailed performance based planning at the local level.

Planning discretion – a case of slow desiccation

In the paper I presented to the annual QELA conference in 2010, I surveyed the statutory purpose clauses of Queensland legislation and statutory instruments falling within the SPA's decisional framework and commented that:

"When one drills down into the relevant operative provisions of the legislation and statutory instruments, varying degrees of prescription and prohibition are revealed which are inconsistent with the concept of balance enshrined in the principles of ESD.

The conclusion to be drawn from this is that while the SPA, and its predecessor the IPA, intended that a balance be sought between environmental protection, economic development and social enhancement when making planning instruments, that strategy is easily fractured through the intervention of single purpose ecologically driven regulation. This has become most obvious in recent years in various codes, regulatory provisions and prohibitions under the SPA, which have effectively precluded any discretionary balancing exercise by decision makers." 59

Prohibition or absolute preclusion of particular forms of development is the antithesis of a performance based planning system. The IPA removed prohibition in local planning instruments but not in other statutory instruments. 60 The State has been able to regulate through prohibitory instruments and has done so regularly throughout the life of the IPA and more vigorously under the SPA. Under the SPA, with respect to local planning instruments, the door has been left ajar to prohibit development where this is provided for in the SPSPs. None of this bodes well for a system which depends upon flexibility in order to produce sustainable planning outcomes that are in the public interest.

Rapid societal, demographic, economic and technological changes over the past decade have exposed the planning system's inability to quickly respond. The housing affordability crisis is a good example. In order to respond to this problem effectively and in a timely way, the State chose to completely bypass the system and create a new one. This clearly demonstrated that at both local and State levels the planning system is not capable of appropriately delivering either greenfield or brownfield housing development quickly and cost effectively. It is not delivering on a key component of sustainability.

In summary, the planning system appears to have interfered with or removed discretion in planning decisions at a number of levels, for example through:

  • prohibition of particular development under State instruments; or
  • removal, or severely limiting, discretion in the drafting of local planning instruments;
  • the operation of SPA's decisional framework;
  • unwillingness to exercise, or recommend the exercise of, discretion at a technical level;
  • unwillingness to exercise discretion at a political level in local government.

In combination these factors have limited discretion in favour of a more prescriptive and less flexible approach to decision making within the planning system. These factors make it easy for State agencies and local governments to say "no" to development. It is still possible to say "yes" where there is strong political will to do so, but where the application is impact assessable there is the ever present spectre of third party submitter appeals, in which the Court's discretion is likely to be similarly constrained. Overall the availability of discretion has tended to wither on the vine due to greater prescription and changes to the IDAS decision rules.

Conclusions

A well performing planning system must have inbuilt flexibility if it is to ensure that opportunities for sustainable development which delivers public benefit are seized rather than stymied. The ability to balance all relevant factors and to exercise discretion in the public interest within a suitable policy framework is essential in achieving the social and economic purposes of good urban planning.

My experience, anecdotally, over the life of the IPA and now under the SPA is that anything other than compliant code assessable "plain vanilla" development proposals are likely to experience difficulty, delay and, often, failure. The system is top heavy with State regulation. 2010 and 2011 in particular saw new regional plans and associated regulatory provisions and new SPPs introduced which added complexity to existing development applications as well as concerns about retrospective effects on approved development. I call this the dark side of planning.

The term "dark side of planning" was coined by an academic planner, Bent Flyvbjerg, and it refers to the real rationality that planners employ in planning practice, as opposed to the ideal rationalities of the theoretical planners that often inhabit planning textbooks. In the conclusion to a paper he wrote entitled "The Dark Side of Planning: Rationality and 'Realrationalität", he wrote:

"In 'The Prince', Machiavelli spells out in no uncertain terms the dangers of the normative attitude when he says 'a man who neglects what is actually done for what should be done learns the way to self-destruction'. The focus of modernity and of planning theory is on 'what should be done?' I suggest a reorientation toward the first half of Machiavelli's dictum, 'what is actually done ...'. In this way, we may gain a better grasp – less idealistic, more grounded – of what planning is and what the strategy and tactics are that may help change it for the better." 61

The mysterious process by which State interests are "balanced" in making regional plans is what some academic planners would refer to as the "dark side of planning".

I think that what has happened to the planning system in Queensland is that it has moved from a practical or rational planning approach to one which is more influenced by notions of ideal outcomes. The regulatory system hinders rather than helps planning practitioners. Checklists and compliance minutiae seem to have replaced innovation and creativity. Idealism, ideology and single-issue manipulation by minority interest groups has fractured the system, which now needs to be "re-balanced". There are a multitude of things which need to be considered if the planning system is to be reformed to improve its performance. In the context of the issues canvassed in this paper the following should be considered:

  1. The preclusion on making development applications in respect of land outside the urban footprint under regional plans should be removed. Such applications should at least be capable of being assessed and decided against relevant criteria, allowing for appropriate grounds for approval to be weighed against the policy of the regional plan.
  2. Remove special conflict rules which are specific to State instruments, for example, the "overriding need" test contained in regulatory provisions under regional plans and recent SPPs. The State can always retain sufficient interest in such applications through its role as a concurrence agency and its call-in powers.
  3. Remove the rules that require refusal of a development application when it conflicts with an SPP unless there is sufficient grounds.
  4. Alter the drafting of SPPs so that they are policy instruments rather than prescriptive regulatory instruments.
  5. Remove potential prohibition of development from the mandate of SPSPs and enforce the adoption of consistent terminology and structure through administrative arrangements rather than hierarchical inconsistency rules.

To these I would also add reinstating the pre-SPA decision rules for compliant, code-assessable applications.

It is suggested that reforms along those lines, amongst others, should make the system more responsive, efficient and capable of producing better more sustainable urban planning outcomes. Hopefully the planning system can be moved away from the dark side towards a more enlightened approach, involving a lighter regulatory hand on the controls. This should allow urban planning as described at the commencement of this paper to be undertaken by the public and private sectors with more emphasis on innovation and creativity than is presently the case. That would be in the public interest.

Footnotes

42 SPA, chapter 2, part 5
43 SPA, section 50
44 SPA, section 51
45 SPA, section 52
46 SPA, section 54
47 SPA, section 55(1)
48 SPA, section 55(2)
49 Australian Government Productivity Commission, Performance Benchmarking of Australian Business Regulation: The Role of Local Government as Regulator, Productivity Commission Research Report, March 2012
50 Page 453
51 Section 57 of the ULDA Act
52 "Bligh declares Queensland first urban development authority areas." Ministerial media statement, joint statement of Premier Bligh and Deputy Premier and Minister for Infrastructure and Planning Paul Lucas, 31 March 2008
53 For example, the absence of particular rights of appeal which are contained in the SPA
54 Second Reading Speech, Queensland Reconstruction Authority Bill 2011, (QLD) 16 February 2011, (Hon PM Bligh)
55 QRA Act, section 78
56 QRA Act, section 11
57 Section 78(1) of the QRA Act
58 Presentation by Brendan Nelson, 2011 Planning Institute of Australia Queensland State Planning Conference, 22 September 2011
59 ESD and the Sustainable Planning Act 2009 – where is the balance? QELA Conference Papers – May 2010
60 IPA, section 2.1.23
61 Flyvberg, Bent, 1996, "The Dark Side of Planning: Rationality and Realrationalitat" published in Seymour Mandelbaum, Luigi Mazza, and Robert Burchell eds, Explorations in Planning Theory, page 392

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