Australia: Queensland Government introduces draft Coastal Protection State Planning Regulatory Provision

Planning and Environment Alert: 10 Oct 2012

After being elected in March 2012, the new State government announced that it would undertake a full review of the Queensland Coastal Plan, including State Planning Policy 3/11: Coastal Protection (SPP). Although the SPP only came into effect on 3 February 2012, development industry participants had raised concerns about its impacts and implementation.

As an interim measure while it completes the process of fully reviewing the Queensland Coastal Plan, the State government gazetted the draft Coastal Protection State Planning Regulatory Provision (Draft Coastal SPRP) on 8 October 2012. Even though it is a draft document, the Draft Coastal SPRP has immediate legal effect and will operate for a period of 12 months, or until earlier repeal.

Partner Sarah Persijn outlines the changes introduced by the Draft Coastal SPRP and explains how it will affect development in Queensland.

Key takeaway points

  • The Draft Coastal SPRP builds on the work of Temporary State Planning Policy 2/12 - Planning for Prosperity in seeking to rebalance the elements of ‘ecological sustainability’ under the Sustainable Planning Act.
  • The Draft SPRP marks a return to State planning instruments that provide a strategic framework and overarching outcomes for matters of State interest without descending into prescriptive codes, leaving room for flexibility in appropriate circumstances.
  • The removal of onerous requirements such as coastal hazard adaptation strategies and risk assessments will be welcomed by industry participants, including local governments who were to bear the main burden of implementing the SPP.

Application of the Draft SPRP and its relationship with other planning instruments

The Draft Coastal SPRP applies to all local government areas in Queensland that contain areas within the coastal zone. It comprises two parts:

  • Part 1: Making planning documents
  • Part 2: Development assessment

It suspends the operation of the SPP from the date of commencement in favour of the provisions in Part 1, which apply to making planning documents, and Part 2, which apply to development assessment.

The Draft Coastal SPRP specifically suspends the operation of particular provisions of existing regional plans:

  • Part 1.2 of the Far North Queensland Regional Plan
  • Part 3.3 of the Mackay Isaac and Whitsunday Regional Plan
  • Part 2.2 of the Wide Bay Burnett Regional Plan
  • Parts 1.4.3 and 2.4 of the South-East Queensland Regional Plan

The parts of the various regional plans suspended by the Draft Coastal SPRP relate to coastal management and planning. Significantly, those sections of the various regional plans also include discussion about projected sea level rise and climate change.

Although the operation of the SPP is suspended from the date of commencement, the operation of the State Policy for Coastal Management (2012) is not suspended or otherwise affected. It remains in effect. This management policy applies to management planning, activities, decisions and works that are not assessable development under the Sustainable Planning Act and therefore not subject to the SPP.

In terms of development assessment, from the date of commencement:

  • the SPP no longer applies to the assessment of a development application or a master plan application, even if the application was properly made before the date that the Draft Costal SPRP commenced; and
  • Part 2 of the Draft Coastal SPRP applies to the assessment of development applications and master plan applications.

Part 1: Making planning documents

Section 1.2 sets out the provisions relating to coastal planning that apply for local plan making and amending planning schemes, regional plan making, and designation of land for community infrastructure.

The provisions fall under four headings:

  1. Land use planning
  2. Coastal hazards
  3. Provisions for coastal-dependant land uses
  4. Areas of high ecological significance

The suspended SPP also includes provisions relating to scenic amenity, public access, and canals and artificial waterways. These areas are not dealt with in Part 1 of the Draft Coastal SPRP.

Broadly speaking, the Draft Coastal SPRP’s provisions about coastal protection under each of the headings resemble the specific policy outcomes for the same topics under the suspended SPP, but are less prescriptively drafted, and focus on a strategic outcome rather than a detailed description of how the outcome is to be achieved.

For instance, under Land use planning, the suspended SPP’s specific policy outcome is:

“Allocating areas for urban development avoids or minimises the exposure of communities to the risk of adverse coastal hazard impacts, maximises the conservation of coastal resources and preferentially allocates land on the coast for coastal dependant development.”

That specific policy outcome is supported by 11 more detailed policies, including Policy 1.1, which states “planning for urban localities in the coastal zone favours consolidation through infill and redevelopment and minimises the extent of the development footprint in the coastal zone”. By contrast, Section 1.2 of Land use planning of the Draft Coastal SPRP provides the following:

  • To the extent practicable, the coastal zone is to be conserved in its natural or non urban state outside of existing urban areas. Urban growth is managed to protect coastal resources and their values by minimising adverse impacts.
  • Existing urban settlements on the coast should remain compact and physically separated through the identification and maintenance of non urban areas. The provision of new infrastructure should promote consolidation and separation of urban areas on the coast. New development within existing urban areas (for example, infill and redevelopment) is preferred and new development should be undertaken so as to avoid or minimise impacts on coastal resources and their values.

There are some subtleties in the wording which perhaps allow for greater flexibility under the Draft Coastal SPRP. However, the overall outcome sought is similar.

Significantly for local governments, the requirement to prepare a coastal hazard adaptation strategy appears to have been switched off. This move is likely to be welcomed by local governments concerned about the onerous requirement to prepare and reflect adaptation strategies for high coastal hazard areas in their planning schemes within five years of the commencement of the suspended SPP.

In terms of coastal hazards, the Draft Coastal SPRP continues to require an evaluation to be carried out to identify the level of potential risk to life and property from coastal hazards in determining new areas for urban land uses. The evaluation is to be based on the mapped coastal hazard areas (with an acknowledgement that any inaccuracy in the mapping should be taken into account). In addition, the evaluation should consider the impacts of physical coastal processes, including any impacts from potential sea level rise. Again, while the outcome sought is similar to that in the suspended SPP, it is far less prescriptive. For instance, one of the supporting policies for coastal hazards in the suspended SPP required a methodology with projected impacts of climate change by the year 2100 of a sea level rise of 0.8 metres, and an increase in the maximum cyclone intensity by 10 percent. These specifics have been removed.

In terms of areas of high ecological significance, Section 1.2(7) requires planning instruments to locate urban development outside areas of high ecological significance in any coastal management district, except where there is an overriding social and economic need demonstrated to the satisfaction of the Minister.

The introduction of the words “in any coastal management district” and the removal of reference to areas of “general ecological significance” is likely to give greater flexibility under the Draft Coast SPRP. The suspended SPP concerns itself with the protection of areas of high ecological significance and general ecological significance in the coastal zone. Generally, the coastal management district encompasses a far smaller area than the coastal zone.

Further, if the Minister is satisfied that there is an overriding social and economic need demonstrated, planning instruments will be able to locate urban development in areas of high ecological significance.

Part 2: Development assessment

Section 2.1 provides that Part 2 applies to the assessment of a development application:

  • for impact assessable development in a coastal management district by an assessment manager;
  • considered by the Chief Executive administering the Coastal Protection and Management Act 1995 as Assessment Manager in accordance with the Sustainable Planning Regulation 2009;
  • for development in a coastal management district by an agency with jurisdiction under the Coastal Protection and Management Act 1995; and
  • for a master plan application.

By contrast, the suspended SPP specifies a far broader range of development to which it applies for development assessment purposes. For example, the SPP applies to a range of material of change, reconfiguring a lot and operational work across the coastal zone, as well as to development in the coastal management district. As a consequence, fewer development applications will require assessment for coastal protection matters under the Draft Coastal SPRP.

Section 2.1(2) reiterates that the provisions apply retrospectively to the assessment of a development application or master plan application, even if the application was properly made before the date the Draft Coastal SPRP commenced.

Section 2.2 contains the provisions relating to coastal protection for development assessment purposes. Again, the detail and specificity of the suspended SPP’s development assessment code has been removed and replaced with generally broader, specific outcome-type provisions under the various coastal protection headings.

For instance, under the heading Coastal hazards, Section 2.2(1) states that development in areas on the coastal zone identified as having a high risk of being affected by coastal hazards needs to be carefully considered, and wherever possible, be retained undeveloped. Where an area vulnerable to storm tide inundation is developed, or has a development commitment, further development in these areas needs to address:

  • its vulnerability to sea level rise and storm tide inundation; and
  • the proposed access to and protection of evacuation routes.

Under the heading Development in an erosion prone area, the policy outcome is still that erosion prone areas are to remain undeveloped, apart from acceptable temporary or relocatable structures for safety and recreational purposes. However, the words “to the extent practicable” have been added as a qualification to that statement. Similarly, other provisions in relation to erosion prone areas provide that generally, future uses should not be at a greater intensity than the existing level, although scope is given for redevelopment of these areas or an increase in intensity if it can be clearly demonstrated that it would not compromise coastal management outcomes or principles.

The broad coastal hazard and erosion prone area provisions replace 17 detailed performance outcomes and acceptable solutions in the suspended SPP for coastal hazards.

As noted above, assessment in relation to areas of ecological significance is now limited to areas of high ecological significance in the coastal management district. Section 2.2(10) requires that development and development infrastructure be located outside of, and not have a significant impact on, an area of high ecological significance in any coastal management district, unless it is for a particular specified purpose which include urban or rural residential purposes within an urban area. ‘Urban areas’ are areas in the urban footprint in a regional plan, or those mapped as areas for urban purposes in a planning scheme or development scheme. The definition of ‘area of high ecological significance’ is structured so that an area is excluded if it is determined to the satisfaction of the Department of State Development, Infrastructure and Planning that the attribute’s values are not present within the area. Provisions requiring environmental offsetting (including for urban development within an urban locality) have been removed, as have specific references to areas of ‘general environmental significance’, although provisions directed at nature conservation and biodiversity outcomes are included at Section 2.2(8) and (9).

Requirements for environmental offsetting of residual impacts have been removed. This is particularly significant because under the suspended SPP, environmental offsetting of residual impacts is required even for development within designated urban areas.

The balance of the development assessment provisions relate to:

  • Public access
  • Coastal-dependent land use
  • Canals and dry land marinas

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