Australia: Making and amending planning instruments under Queensland's Planning and Development Bill 2014

Clayton Utz Insights
Last Updated: 14 December 2014
Article by Nicole Besgrove

Key Points:

Plan-making will be streamlined, and the interaction of plans clarified, under the Planning and Development Bill 2014.

With the reduction in the number of State planning instruments and the Minister's new rules and guidelines for the making and amending of local planning instruments, the Planning and Development Bill 2014 seeks to promote efficient and effective plan-making, improve the hierarchy and range of instruments, and remove the potentially conflicting policy positions in the current development assessment system in Queensland.

The key changes for the making and amending of planning instruments are outlined below, with a focus on local government planning schemes.

Planning instruments

Similarly to the Sustainable Planning Act 2009 (SPA), the Planning Bill provides for the making and amending of the following types of planning instruments:

  • State planning instruments – a planning instrument made by the Minister to protect or give effect to State interests and is either a State planning policy (including a temporary State planning policy) or a regional plan; and
  • Local planning instrument – a planning instrument made by a local government and is either a planning scheme, a temporary local planning instrument (TLPI) or a planning scheme policy.

The Planning Bill reduces the number of mechanisms for expressing the State's interests in plan-making by not carrying forward State planning regulatory provisions and the standard planning scheme provisions as State planning instruments. However, the regulatory matters in these current instruments that need to continue will be carried forward in the Regulation. The core components that are mandated in the current Queensland Planning Provisions (QPP) will be reduced and the remaining components of the QPPs will be available to councils as guidance material.

The purpose of the Planning Bill is to be mainly achieved by providing for an efficient, effective, transparent, integrated and accountable system for land use planning and development assessment. The roles which the planning instruments play in this system are as follows:

  • State planning policy – setting out planning and development assessment policies about matters of State interest;
  • regional plans – setting out planning and development assessment policies about matters of State interest for particular regions of the State;
  • planning schemes – setting out integrated State, regional and local planning and development assessment policies for all of a local government area;
  • TLPIs – setting out planning and development assessment policies to protect all or part of a local government area from adverse impacts in urgent or emergent circumstances; and
  • planning scheme policies – setting out policies, for all or part of a local government area, that support:
    • planning and development assessment policies under planning schemes; and
    • action by a local government in making or amending local planning instruments; and
    • action by a local government under the development assessment system.

The Planning Bill provides that to the extent of any inconsistency between planning instruments:

  • a State planning policy applies instead of a regional plan or local planning instrument;
  • a regional plan applies instead of a local planning instrument;
  • a planning scheme applies instead of a planning scheme policy; and
  • a TLPI applies instead of a planning scheme policy.

Under SPA, a TLPI is made by a local government and advances the purpose of SPA by protecting a planning scheme area from adverse impact. The Planning Bill clarifies the nature of the "adverse impact" for which protection of all or part of a local government area is required; now, an adverse impact must be urgent or emergent.

Making and amending planning instruments

Under the Planning Bill, the Minister continues to have power to make and amend a State planning instrument.

In relation to the making or amending of a local planning instrument, the Minister must make an instrument that contains the following and it will start to have effect when adopted by the Regulation:

  • guidelines setting out the matters that the chief executive must consider when preparing a notice about making or amending planning schemes; and
  • rules setting out the process for:
    • making amendments, of a type stated in the rules, to planning schemes; and
    • making or amending planning scheme policies; and
    • making or amending TLPIs.

To the extent of any inconsistency between the required contents, as set out in the Minister's guidelines, and a local planning instrument, the required contents apply instead of the local planning instrument.

A draft statutory instrument for making and amending local planning instruments has been prepared which outlines the Minister's rules and guidelines in accordance with the above. The Minister's Rules and Guidelines seek to reform the current system for making and amending local planning instruments by reducing or removing unnecessary process for local governments.

Minister's Rules and Guidelines

In its current form, the Minister's Rules and Guidelines provide the following key changes to the existing process for making and amending local planning instruments:

  • A tailored process is required in the following instances and the Minister's guidelines are relevant in the process approval phase:
    • making a planning scheme;
    • if the local government requests a tailored process for undertaking a major amendment to a planning scheme; and
    • where the Minister has used his direction powers and the local government needs a tailored process to follow.
  • The Minister's rules are the default processes which address:
    • a major amendment to a planning scheme;
    • making and amending a planning scheme policy;
    • making and amending a TLPI;
    • making a local government infrastructure plan (LGIP);
    • an interim amendment to a LGIP; and
    • a minor amendment to a local planning instrument.

The Minister continues to have powers to direct a local government to take an action in relation to making, amending or repealing a local planning instrument, where necessary to ensure consistency with the required contents or to protect or give effect to a State interest. Similarly to SPA, if a local government does not comply with the Minister's direction or if the action must be taken urgently, the Minister can take the action which will have the same effect as if the local government has taken the action.

Local Government Planning Schemes

When making or amending planning schemes the local government must give notice of the proposed planning scheme, or proposed amendment, to the chief executive who, when consulting with the local government, must give notice about the process for making and amendment the planning scheme to the local government. When preparing this notice, the chief executive must consider the Minister's Rules and Guidelines.

The required contents for local government planning schemes will be mandated by inclusion in the Regulation and based on the draft are likely to include:

  • Strategic plan;
  • Zone names and purpose intent, and associated mapping detail; and
  • Definitions – use and administrative.

A suite of guidance material will also be provided including:

  • Planning scheme contents – not mandatory, but should be considered when creating a planning scheme.
  • Leading practice – a suite of leading practice material provided by the State to further assist local governments in creating planning schemes. The Department of State Development, Infrastructure and Planning (DSDIP) is currently developing:
    • Model Scheme template for low growth local government areas;
    • Guide for "Delivering Prosperity and Growth through Planning Schemes"; and
    • Model standards assessment provisions.

Relevantly to planning schemes 1, the transitional provisions in the Planning Bill provide:

  • if a process for making or amending a planning scheme has started under SPA but will not end before SPA is repealed, SPA will continue to apply to the making or amending of that planning scheme; and
  • where a planning scheme was made before SPA is repealed (ie. either under SPA or the repealed Integrated Planning Act 1997), the planning scheme has effect according to the terms and conditions of that scheme, even if the terms and conditions could not be imposed on the planning scheme under the Planning and Development Act 2014.

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1This equally applies to other statutory instruments.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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