Australia: Draft Planning and Development Bill 2014 and Planning and Environment Court Bill 2014 released for public consultation

HG Alert: 4 August 2014
Last Updated: 7 August 2014
Article by David Nicholls

In this Alert, Partner David Nicholls discusses key aspects of the draft Planning and Development Bill 2014 (PD Bill), and Planning and Environment Court Bill 2014 (PEC Bill) which have been released for public consultation by the State government. The Bills are the final plank in an extensive raft of planning and development reforms made by the Newman government since coming to office. Submissions on the Bills may be made by the public until 26 September 2014. Subject to any changes made in response to public submissions the Bills are expected to be introduced into the November sittings of the Queensland Parliament.

Key points

  • The process for making and amending planning schemes will be streamlined to assist local governments to respond to the needs of their communities;
  • Code assessment is to be renamed "standard assessment" and combined with compliance assessment;
  • Standard assessment has been reformulated according to the Integrated Planning Act 1997 (IPA)'s original approach to code assessment involving a presumption in favour of approval for compliant development;
  • Standard assessment will not require public notification and will not give rise to third party appeal rights;
  • Impact assessment is to be renamed "merit assessment";
  • Applications requiring merit assessment may require public notification and trigger third party appeal rights if provided for in a planning scheme;
  • "Assessment benchmarks" are the matters a scheme prescribes against which development must be assessed;
  • Standard assessment may only be against assessment benchmarks and matters prescribed by regulation;
  • Merit assessment may be against assessment benchmarks, matters prescribed by regulation and other relevant mattes not prescribed;
  • "Relevant matters" cannot include a person's personal circumstances, financial or otherwise;
  • There is no requirement that an application which conflicts with a planning scheme be refused in the absence of sufficient grounds. Assessment against the relevant benchmarks will guide approval or refusal;
  • The Planning and Environment Court will operate under its own Act, the rationale being that the Court now exercises jurisdiction under several environmental statutes and is no longer only a planning appeal court;
  • In conducting proceedings the Court is required to facilitate the just and expeditious resolution of the real issues, and must avoid undue delay, expense and technicality.


The Sustainable Planning Act 2009 (SPA) and its predecessor the IPA have been in effect for approximately 15 years and is in need of review. In a government discussion paper concerning how the legislation might be reformed it was said:

"Planning Policy is best expressed through flexible, simple, clearly articulated instruments, not legislation, that can respond effectively to changing circumstances and accommodate continuous improvement. Given Local Governments' experience in scheme making since the introduction of IPA, there is a widely held view that the key elements and core matters of planning schemes in SPA should be reviewed, and significantly reduced or removed."

The draft Bill proposes to do away with the existing detailed provisions which specify the content of planning schemes. Any required content will be left to regulation. Workability, clarity and state interest content will be handled administratively. This is intended to allow local governments to make schemes which meet the needs of their communities through a more flexible approach rather than "top down" prescription, while simultaneously trying to achieve a reasonable level of consistency in key elements of scheme drafting.

In relation to development assessment the discussion paper said:

"Consistent, transparent and accountable processes are critical to protecting the integrity of the system and underpinning confidence in the 'bankabillity' of approvals. However, over-prescriptive and unresponsive processes can foster a prescriptive regulatory culture among assessment managers and referral agencies."

In response, the PD Bill has sought a workable balance between processes and the achievement of good outcomes, bearing in mind that planning and development must respond to changing circumstances over time.

In evaluating the draft Bills it is important to keep in mind the current level of sophistication and detail in both state and local planning instruments. This means that the enabling legislation can and should be streamlined. This PD Bill applies greater focus to the achievement of balanced planning outcomes and reduced emphasis on procedural formality.

This alert looks at the core aspects of the new legislation. Other provisions will be covered in later alerts.

Assessment of development applications

Assessment benchmarks

"Assessment benchmarks" are the matters set out in a planning scheme, or a regulation, that a development application must be assessed against. Assessment benchmarks that cannot be changed by a planning scheme may be identified in a regulation.

Standard assessment

Code assessment is proposed to be renamed "standard assessment", combined with compliance assessment, and reformulated according to the original intent of the IPA, in that there will be a presumption in favour of approval for compliant development. Like code assessment, standard assessment will not require public notification and will not give rise to third party appeals to the court.

Where a planning scheme prescribes standard assessment the application can only be assessed against the assessment benchmarks. This is similar to code assessment. The application must also be assessed against any matters that are prescribed by regulations.

To the extent that development complies with the assessment benchmarks (in the current language, the applicable codes) it must be approved. It can only be refused if it doesn't comply, and compliance cannot be achieved by imposing lawful conditions. This reverts to the way in which the IPA originally intended code assessment to operate.

Merit assessment

The new equivalent of impact assessment is proposed to be called "merit assessment". Merit assessment may require public notification if provided for in a planning scheme, and may give rise to third party appeals, also if provided for in the planning scheme. In that way, public notification and appeal rights will be decoupled. They will be linked in respect of particular development if both public notification and a third party appeal right are provided for under a planning scheme.

Third Party appeals

As things presently stand, third party appeal rights attach to properly made submissions in respect of impact assessable development applications. Local governments decide which applications require impact assessment and thus are presently the "gatekeepers" regarding the availability of third party appeal rights. The changes merely provide greater flexibility so as to allow development that, for example, is expected in a zone to be processed through merit assessment while not automatically giving rise to third party appeal rights. So, local governments will remain the "gatekeeper" in conferring third party appeal rights.

Assessment rules

As with standard assessment a planning scheme may state the benchmarks against which applications requiring merit assessment are to be assessed. Accordingly, merit assessment may be undertaken against particular benchmarks of the planning scheme, or more broadly against strategic benchmarks, in addition to specific ones. Assessment must be carried out against those matters as well as any prescribed mandatory matters, and may also be carried out against any prescribed discretionary matters. Additionally, assessment may be carried out against other relevant matters that are not prescribed. However, "relevant matters" cannot include a person's personal circumstances, financial or otherwise. This is in line with the present laws under the SPA, and with judicial decisions, that make private economics irrelevant to planning decisions.

Decision rules

A decision in respect of an application requiring merit assessment must be based upon the assessments described above and may be refused, approved in whole or in part, or approved with conditions. As long as the assessments are carried out within the prescribed boundaries, decisions based upon them will not usually be open to third party legal challenge, except through a merits appeal, if available, under the relevant planning scheme. It would be otherwise if the boundaries are not observed, for example, where private economic circumstances have been taken into account, or relevant assessment benchmarks have not been considered, in making a decision. In those circumstances a declaration could be sought if a merit appeal right does not exist.

It is not proposed to carry forward the existing statutory "rules" that preclude approval of a development application where it would "conflict" with a relevant State or local planning instrument, in the absence of "sufficient grounds'. An open merits based assessment against the relevant assessment benchmarks and prescribed, or relevant, matters is proposed.

This change in approach has been prompted by the legal complexity of the conflict test under the current legislation. A recent example of these complications is discussed in the Westlink paper. The existence of conflict involves interpreting the text of a planning scheme and is a legal question, whereas a planning assessment should be undertaken by comparing the performance of proposed development against the policy intent of the relevant scheme provisions.

The current statutory test requires refusal in the absence of a sufficient ground, which must be a matter of public interest. The most common ground supporting approval is economic and planning "need" for a proposal. Economic need is proven where there is an unsatisfied community demand for the products or services the development will provide that is not being satisfied. Planning need arises where the planning scheme does not make adequate provision to satisfy the proven need. There may be other public interest grounds for supporting a development that is in conflict with a planning scheme, such as environmental enhancements that will result if the development proceeds.

In such instances it is not enough to establish that the planning purpose behind the relevant scheme provisions is not offended. It isn't enough to show that a proposal is completely benign. The absence of negative impacts, without more, will not constitute sufficient ground. The conflict test requires the applicant to prove that there are tangible positive public interest grounds favouring approval. This usually imposes a substantial hurdle for most forms of development, but more particularly for residential development.

These complexities will be removed by the PD Bill. There will no longer be a preoccupation with looking for technical "conflict". Instead proposed development will simply be assessed against the true policy intent of the planning scheme. All things being equal, development that offends the policy intent would be refused. However consideration of other relevant matters may tip the balance in favour of approval. Thus there will be greater scope under the PD Bill to properly balance competing factors.

Dispute resolution

The Planning and Environment Court (PEC) is a court which hears and applies expert evidence given by specialists in a range of environmental and planning disciplines. Judges of the PEC have to resolve differences of opinion between experts in the same field by evaluating their evidence against planning instruments. This is a difficult endeavour which requires experience and specialised knowledge. The reforms recognise the need for the development of specialisation amongst this group of judges to the same extent as that specialisation occurs in the wider professions relevant to the court's jurisdiction.

Specialisation drives efficiency in the running of cases, reduces delay and costs, promotes general consistency in approach to interpretation of planning instruments and hence consistency with outcomes, and it has obvious benefits in terms of public confidence in the planning and development system.

The key driving principles in the way the court will be required to operate are placed front and centre in the Bill in that it must:

  • facilitate the just and expeditious resolution of the real issues; and
  • avoid undue delay, expense and technicality.

The Bill imposes an implied undertaking on parties to proceedings in the PEC to proceed in an expeditious way.


The Bills, when enacted, will significantly improve Queensland's planning and development system by facilitating quicker and more responsive plan making, improving the workability and efficiency of development assessment and emphasising the need for efficient and cost-effective resolution of disputes. The Bill will remove, in large measure, much of the process inefficiency and heavy handed prescription that has been a feature of the IPA and the SPA, and it does this without taking away the public's right to make submissions and participate in appeals. Conferring these rights remains in the hands of local governments. Those who would criticise the PD Bill as reducing third party participation in development assessment would be wrong. The policy intent of the Bill is not to remove those rights but rather to increase local governments' flexibility in setting the levels of assessment by allowing merit assessment without automatically generating third party appeals. Critics would do well to remember that in comparison to most other Australian jurisdictions Queensland has very generous third party appeal rights. Western Australia, for example, does not have such appeals.

The PEC Bill will foster continued emphasis on alternative dispute resolution and encourage efficiency and cost reduction in the hearing of appeals and other proceedings by the court.

The proposed changes are overdue and welcome and ought to attract bi-partisan support in the community.

There are many other efficiency improvements in the draft Bills which will enhance plan making and development assessment that will be explained in later alerts.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

David Nicholls
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions