Australia: The draft new planning legislation for Queensland - what’s changed from the consultation draft

BACKGROUND

The three bills which will (if enacted), enable the new planning framework in Queensland, were introduced into Parliament on 25 November 2014.

The three bills are:

  1. The Planning and Development Bill 2014;
  2. The Planning and Environment Court Bill 2014; and
  3. The Planning and Development (Consequential) and Other Legislation Amendment Bill 2014.

In support of their introduction, the Department of State Development, Infrastructure and Planning has released a suite of materials (which includes a draft of the regulation and the access rules) relating to the bills (all available here), and will host a live-stream event to occur on Friday 5 December 2014 (see the events tab at the above link).

In addition to the above, the three bills have been referred to the State Development, Infrastructure and Industry Committee. Submissions to that committee close on Monday 19 January 2015.

PURPOSE

The purpose of this article is to briefly highlight the key changes contained in the Planning and Development Bill 2014 (the P&D Bill) as introduced on the 25th of November 2014, from that version previously the subject of a consultation draft between August and September 2014 (the Consultation Draft). This article has been drafted without detailed regard to the supporting material – so examines the P&D Bill on face value.

Specifically excluded from this article are the differences going to offences, enforcement and dispute resolution (as these will be the subject of a later article attending to a similar examination, but with reference to the Planning and Environment Court Bill 2014).

WHAT'S CHANGED

By way of a concise summary of the key (but not only) differences between the P&D Bill, and the Consultation Draft (exclusive of the offence, enforcement and dispute resolution related changes), we note that the P&D Bill features the following:

  1. The purpose statement has been changed, so that it now expressly includes a reference to 'ecologically sustainable development' (through which prosperity can be facilitated by the balancing of the three elements previously identified in the purpose, namely economic growth, environmental protection and community wellbeing).
  2. The purpose statement defines the term 'planning' as 'being land use planning'.
  3. The Chapter 2 (Planning) provisions no longer include the statement that 'State planning instruments are not the only way of protecting or giving effect to, State interests' (see section 9(6) of the Consultation Draft).
  4. The scope of what is a 'minor amendment' to a State planning instrument has been defined (see section 9 of the P&D Bill).
  5. The only requirement for local planning instruments is that they appropriately integrate the various levels of planning and development assessment policies (i.e. there is no longer an express requirement in Chapter 2 of the P&D Bill for local government planning schemes to include local government infrastructure plans).
  6. There are new provisions throughout the P&D Bill, which relate to the new provision in section 21(9) of the P&D Bill, which confirms that a local government will not incur liability for anything the local government does, or does not do, in complying with a direction by the Minister to remove something from an existing or proposed local planning instrument, or a proposed amendment of a local planning instrument (see also, for example, sections 78(2)(e) and 84(2)).
  7. There are subtle changes made to the compensation provisions in Chapter 2, Part 4, Division 2 of the P&D Bill (see for example the deletion of the Division's applicability to adverse planning changes made by local governments, exclusion of changes made to reduce significant risk from bushfire, reference to the word 'neighbouring premises' instead of 'adjacent premises' in determinations going to the amount of compensation payable).
  8. There is a new section which contemplates a request to repeal a designation by an owner, where it is alleged to be causing the owner hardship (see section 35 of the P&D Bill).
  9. The concept of an 'exemption certificate' remains in Chapter 3, however – there is further clarity built in around how these attach to premises, and benefit successors in title (as well as occupiers of the land). Further, the opportunity for the entity who gave the exemption to unilaterally remove the exemption certificate has been removed (so that they now simply have effect for 2 years).
  10. The term 'assessment manager' is defined in section 43 of the P&D Bill, with reference to the administration of properly made development applications.
  11. The public notification requirements in section 48 of the P&D Bill work to enable a categorising instrument to require the public notification of developments if they involve both merit assessment and a variation request. The Consultation Draft was not as restrictive (enabling public notification for merit assessable development).
  12. The P&D Bill draws out the possibility that some referral agencies might only be able to give advice.
  13. The P&D Bill does not carry forward the idea that failing the provision of owners consent (where required), a decision notice can still be given if a condition is imposed to the effect that the development can not start until the owner has agreed to the development starting (for example). Instead – whilst the P&D Bill enables the later provision of owners consent – it confirms that no development approval can be given in the absence of owners consent.
  14. Decision notices must now include 'the name, residential or business address and electronic address of each principal submitter' (see section 60(2)(f) of the P&D Bill).
  15. The defined term 'reasonable or relevant requirement' has been omitted from the P&D Bill (along with its associated provisions about the deeming of certain conditions in this regard). However, the threshold still exists in section 623.
  16. With respect to variation approvals, the P&D Bill includes a statement that these apply instead of the local planning instrument that has been varied, until the development is completed, or the variation approval lapses (whichever occurs first). See section 68(7).
  17. Section 70(2) of the P&D Bill expressly confirms that development approvals do no confer or imply any proprietorial rights in relation to a resource (in addition to land).
  18. The Consultation Draft's requirement for Council's to inform applicants of the pending expiry of development approvals has been removed from the P&D Bill.
  19. There is no express 'step-in' power for the Minister in the P&D Bill. However, it is made overt that the Minister may call in an application by notice to the Court – if there are proceedings relating to the application in the P&E Court (see section 98).
  20. The differences going to the infrastructure chapter in the P&D Bill when compared to the Consultation Draft, are largely reflective of changes already made within the intervening period to Chapter 8 of the Sustainable Planning Act 2009. However, it is interesting to note that the P&D Bill contemplates that conversion applications will need to be made within 1 year after the development approval starts to take effect.
  21. The P&D Bill creates a new offence in relation to public access rights (see section 219).
  22. The provisions concerning urban encroachment and party houses have been incorporated within the P&D Bill (whereas the Consultation Draft omitted them).

CONCLUSION

In addition to the above, and as expected, the P&D Bill contains a comprehensive and complete suite of transitional provisions. The schedules containing the appeal triggers and the dictionary have also been completed. Finally, we note that the words used in the P&D Bill as opposed to the Consultation Draft appear even more in keeping with the drafting principle of plain English (e.g. the move away from the term 'have regard to' to be replaced by the word 'consider').

CONCLUSION

In conclusion, we are of the opinion that the key differences between the P&D Bill and its Consultation Draft are positive. The provisions which were no doubt the subject of most angst for local government (i.e. the obligation on them to advise proponents of the pending expiry of development approvals), and for proponents (i.e. the potential for exemption certificates to be withdrawn) have been removed. In this regard, it is likely that the P&D Bill will have a relatively peaceful committee process, and passage into legislative form.

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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