By David Nicholls, Partner
In the lead up to the recent Queensland State election, the LNP made commitments to review the Urban Land Development Authority and return planning powers, where appropriate, to local governments. The LNP also promised to put the economic development of the State at the forefront of the government's policy agenda. When introducing the Economic Development Bill 2012 (ED Bill) into Parliament, the Deputy Premier and Minister for State Development, Infrastructure and Planning, the Honourable Jeff Seeney, said:
"The essential reforms to existing planning and development legislation contained in this Bill will put the government in a position to facilitate economic development and development for community purposes and to deliver our election commitments, particularly where there are identified and persistent market gaps. Our government has committed to building a four-pillar economy for Queensland. Enacting the Economic Development Bill will equip us with the legislative tools necessary to identify and drive development projects that contribute to a strong and sustainable State economy by combining the powers of the former ULDA and the former Minister for Industrial Development."
The repeal of the Urban Land Development Authority Act 2007
The ED Bill, when enacted, will repeal the Urban Land Development Authority Act 2007 (ULDA Act) and abolish the Urban Land Development Authority. However, the ED Bill creates a new corporation sole called the Minister for Economic Development Queensland (MEDQ), with essentially the same powers and functions as the Authority. The ED Bill will facilitate the creation of Priority Development Areas (PDAs), equivalent to Urban Development Areas under the ULDA Act, and provides for the making of provisional land use plans and development schemes for those areas. The ED Bill contains provisions which transition existing ULDA development applications into PDA development applications, which will then be decided by the MEDQ under the new legislation. Existing ULDA development approvals will be taken to be PDA development approvals of the same kind under the new legislation.
The ED Bill essentially replicates all of the provisions of the ULDA Act, but the powers and functions of the Authority will reside within the machinery of the State government rather than in an independent statutory corporation. As a result, the ED Bill maintains Queensland's bifurcated planning system, allowing for impact assessment through the Integrated Development Assessment System (IDAS) to be by-passed where it is considered that there are particular economic and community benefits to be gained from development in the area, and there would be unacceptable impacts on delivery of the development were the Sustainable Planning Act 2009 (SPA) to apply.
The ED Bill provides for local government engagement in the process for making development schemes. The consultation and submission provisions relating to proposed development schemes are similar to those in effect under the ULDA Act. The most significant difference can be seen by comparing section 97(3) of the ULDA Act with section 13(3) of the ED Bill. While the ULDA is free to act alone in performing its functions, the MEDQ "...in planning for, or developing land in, priority development areas... must consult with each relevant local government". This consultation is mandatory.
Local representative committees
Additionally, the ED Bill provides for the optional establishment of local representative committees, to which appointments are made by the MEDQ. One member of a local committee must also be a board member of the Economic Development Board (EDB). The EDB will operate as the governing body of the MEDQ. The other four members of local committees may be anyone the MEDQ considers can appropriately represent the interests of entities affected by development in a PDA. The functions of the committee are purely advisory, unless the MEDQ delegates its functions or powers to the committee.
The process under which a committee may exercise powers and functions as a delegate of the MEDQ is unclear. The ED Bill states that such committees may conduct business, including meetings, in the way they consider appropriate, and provides a broad enabling power to do what is necessary to perform those functions. Of course, when exercising delegated powers, such committees cannot exceed the powers of the MEDQ itself, and must act in accordance with any general directions, or specific written directions, given to them by the MEDQ.
At present it is unclear whether the MEDQ intends to delegate decision-making powers relating to PDA development applications to local committees. There is some potential for conflict of interest to arise where a committee is made up of people who "...represent entities affected by development in an area". Where a committee has previously provided advice and made recommendations to the MEDQ about "...the impact or potential impact of development in the area..." and "...community needs and expectations in the area..." that are adverse to a specific development proposal, the committee may not be in a position to exercise delegated decision-making functions independently and objectively. Depending on their composition, and the manner in which they conduct business, there may be some scope for potential challenges to delegated decision-making by such committees due to the potential for conflict of interest to arise. No doubt the MEDQ will put in place transparent and accountable protocols to avoid actual or perceived conflict of interest, which will overcome these concerns.
Delegating decision-making functions
The ED Bill also allows the functions of the MEDQ to be delegated to other entities, including to a single member of a local committee or to a local government. When such functions are delegated to a member of a committee who is an officer of the local government, that person would be exercising the powers of the MEDQ in accordance with the ED legislation rather than under the Local Government Act 2009 (LGA) and the SPA. The need for protocols and clear lines of accountability in such situations cannot be refuted, as the potential for confusion and error is obvious. The possibility of delegation to local governments is more problematic given that they are bodies corporate established under the LGA, and perform their functions through the governance system set up under that legislation. The ED legislation, when enacted, will not be a 'Local Government Act' for the purpose of the provisions of the LGA, because it is not a law under which a local government performs the local government's responsibilities. Rather, it is a law under which the local government will perform the MEDQ's responsibilities. This appears to give rise to difficulties in exercising the delegated functions other than through full Council meetings, which would not be practical.
The decision-making functions of the MEDQ related to PDA development applications are subject to specific statutory requirements. The MEDQ cannot decide an application unless the conditions referred to in section 85 have been fulfilled, and section 86 contains express prohibitions on the granting of an approval in particular circumstances. Section 87 sets out criteria which the MEDQ must consider in deciding applications. These provisions, if not complied with, provide potential grounds for seeking a statutory order for review under the Judicial Review Act 1991 (JR Act).
As is the case under the ULDA Act, there is no statutory right to appeal on the merits for decisions on PDA development applications. The ED Bill replicates section 92 of the ULDA Act in allowing the MEDQ to bring a proceeding in the Planning and Environment Court (PEC) for a declaration about a variety of matters arising under the Bill relating to PDAs. The Court's jurisdiction is, however, restricted to proceedings brought by the MEDQ. The application of the JR Act is excluded under the SPA because that Act provides for merits appeals in respect of development decisions, as well as a mechanism for reviewing other decisions by way of declaration. The JR Act was not excluded in the ULDA Act, and this will continue under the ED Bill - neither of which provide for merit appeals. A consequence of this is that the PEC will not have exclusive jurisdiction to review, by way of declaration, all decisions made under the ED Bill. Applicants for PDA development approvals will be able to apply to the Supreme Court for statutory orders for review in relation to decisions, including failure to make decisions, pursuant to the JR Act, but the MEDQ will only be able to seek declarations in the PEC. As a result, the judicial review mechanism for decisions relating to PDAs will also be bifurcated, with jurisdiction split between the Supreme Court and the PEC. This is an odd outcome. It would seem logical for the PEC to be vested with its own statutory review jurisdiction (equivalent to the declaratory jurisdiction) irrespective of who commences the proceeding. Consideration should be given to amending the ED Bill to overcome this bifurcated jurisdiction, because the PEC, being a specialist Court, is better equipped to deal with such matters, given their planning flavour, and because it is more efficient to have all such matters dealt with in the same Court.
Changes to the State Development and Public Works Organisation Act 1971
The ED Bill amends a number of Acts including the State Development and Public Works Organisation Act 1971 (State Development Act). 'Significant projects' become 'coordinated projects' under the amendments. This is said to ensure that there is no implication that such projects have some form of State support. The criteria for determining an application for a declaration of a project as a coordinated project have been broadened and made more discretionary.
The broad discretion has, however, been subjected to four limiting criteria, at least one of which must be present in order for a project to be declared. These are:
- Complex approval requirements imposed by a local government, the State or the Commonwealth
- Strategic significance to a locality, region or the State, including for the infrastructure, economic and social benefits, capital investment or employment opportunities it may provide
- Significant environmental effects
- Significant infrastructure requirements
The ED Bill inserts a new section 27AF into the State Development Act, empowering the Coordinator-General to cancel a declaration for a coordinated project before completing a report on the project. There are six alternative grounds on which such a cancellation decision can be made, the most significant of which is that "the Coordinator-General considers it is in the public interest to cancel a declaration." Section 27AD provides that the JR Act does not apply to a decision, action or conduct of the Coordinator-General under this part of the State Development Act. The explanatory notes say that the current absence of such a power to cancel a declaration has resulted in some projects 'languishing on the books'. The explanatory notes also say that it was not intended that merely triggering any one of the grounds for cancellation would automatically result in a decision to cancel the declaration by the Coordinator-General. The notes provide the example of a change of proponent, where the new proponent is determined to not have the capacity to complete the project, as a circumstance where the Coordinator-General might cancel the declaration. The 'public interest' trigger, by comparison, is very flexible and potentially subjective and, for the reasons already mentioned, its exercise is beyond any form of realistic legal challenge.
Two new sections, 35M and 35N, are inserted into the State Development Act to allow the Coordinator-General to assess a proposed change to a project on the Coordinator-General's own initiative. This will allow the Coordinator-General to address the situation where an activity that is regarded as a change to a project comes to the Coordinator-General's attention, where no application to assess the change is made by a proponent. The Coordinator-General is required to give written notice of the intention to assess the proposed change. The Coordinator-General may then give a notice to the proponent, requiring the proponent to apply to the Coordinator-General to evaluate the environmental effects of the proposed change.
Another important change to the State Development Act is the insertion of two new subdivisions in part 6, division 7 of the Act, which provide for the approval of a project as a 'private infrastructure facility'. The amendments delete the term 'infrastructure facility of significance', again to avoid the implication that there is any level of State support for the project. The amendments facilitate the proponent applying in the one application for approval of the project as a private infrastructure facility and for compulsory acquisition of the land required for the facility.
There are seven criteria which must be satisfied before the Governor-in-Council may approve a project as a private infrastructure facility. Essentially the decision-making is based around economic or social significance, identified public need or demand, and certainty that the project will be completed in a timely way so as to satisfy the identified need or demand. Approval cannot be given by the Governor-in-Council unless the proponent has negotiated with each registered owner of land in accordance with guidelines for at least four months, and has taken reasonable steps to purchase the land by agreement. Also, where native title exists in relation to the land, the proponent must have taken reasonable steps to enter into an Indigenous Land Use Agreement for the land.
The ED Bill seeks to achieve similar outcomes as the ULDA Act, while engaging with local governments in the plan making processes for PDAs, and potentially bringing them within the decision-making framework relating to development in PDAs. The legal mechanism to achieve this involves the appointment of local government members or officers to local representative committees and delegation to those committees, their members, or to local governments of the MEDQ's powers and functions. The concept is obviously worthwhile, but its implementation may prove difficult unless there is a clear demarcation of lines of responsibility and separation of the laws, powers and duties under which the delegate is acting.
The amendments to the State Development Act will improve the State's capacity to fast track projects that are economically important. However, the ability of the Coordinator-General to cancel a declaration of a coordinated project on 'public interest' grounds is concerning, because it is only through what are essentially public interest grounds that a project is declared in the first place. The existence of this power will create some potential risk for proponents.
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