Australia: Development assessment under the Planning Bill 2015: A step forward and a step backwards? - 4 December 2015

Last Updated: 9 December 2015
Article by David Nicholls

The Planning Bill 2015 (Planning Bill) and two companion Bills, the Planning and Environment Court Bill 2015 and the Planning (Consequential) and Other Legislation Amendment Bill 2015 were introduced into the State Parliament by the Deputy Premier, Minister for Transport, Minister for Infrastructure, Local Government and Planning, and Minister for Trade, Hon Jackie Trad MP on 12 November 2015.

The Bills have been referred to the Infrastructure, Planning and Natural Resources Committee which is required to report to Parliament on the Bills by 21 March 2016. Public submissions on the Bills close on Monday 18 January 2016 at 4.00pm. The Committee is currently scheduled to conduct public hearings on 24 February 2016. Submissions should be sent to the Research Director, Infrastructure Planning and Natural Resources Committee, Parliament House, George Street, Brisbane or by email to ipnrc@parliament.qld.gov.au .

There are three Private Member's Bills being concurrently considered by the Committee. Those Bills were introduced by the State opposition on 4 June 2014 and are, in substance, the same as the Bills that were introduced by the opposition when it was in government, but which lapsed when the election was called in 2014. In this alert reference will be made to the Planning and Development (Planning for Prosperity) Bill 2015 (the Private Member's Bill).

This alert discusses an important proposed change to the Sustainable Planning Act 2009 (SPA). Other changes will be the subject of comment in future alerts. The change discussed in this alert involves what appears to be a significant but subtle policy shift with respect to code assessment between the Private Member's Bill and the Planning Bill.

The SPA's expressions "code" and "impact" assessment are to be retained, instead of the terms "standard" and "merit" proposed in the Private Member's Bill, but there will be alterations to the way in which assessment is undertaken, and decisions are made, for development applications that are made after the new legislation commences.

Code Assessment under the Planning Bill

Code assessment remains bounded by the "assessment benchmarks" in a "categorising instrument" for the development. The "assessment benchmarks" are defined as matters against which the planning scheme, or a regulation, requires development to be assessed. The term "assessment benchmark" has the same meaning for both code and impact assessment.

Code assessment may be carried out only against the assessment benchmarks and having regard only to matters prescribed by regulation. As is the case for code assessment under the SPA, once assessment against the relevant benchmarks has been completed the discretion to refuse a compliant development application is exhausted. This will be reinforced by changes to the assessment manager's powers when dealing with code assessable development applications. There will be an additional presumption in favour of approval for compliant development under the Planning Bill. Section 60(2) of the Bill will require the assessment manager:

  • to decide to approve an application to the extent it complies with all of the assessment benchmarks; and
  • to the extent the development does not comply with some or all of the assessment benchmarks, decide to refuse the application only if compliance cannot be achieved by imposing development conditions.

Approval of non-compliant code assessable development is otherwise discretionary, within the bounds of the relevant assessment benchmarks.

This is a move back to the original formulation of code assessment under the Integrated Planning Act 1997 (IPA), and is the same under both the Private Member's Bill and the Planning Bill.

However, it should be noted that the term "code" is not defined in the Bill, and that the nature of code assessment, while bounded, is not tied exclusively to codes or their equivalent under planning schemes. As the Explanatory Notes (ENs) for the Planning Bill state:

"There is also nothing preventing the assessment benchmarks for particular development consisting of several codes together with overarching statements of intent for the development, or areas in which the development is to be located. It would even be possible for the relevant parts of an entire planning scheme to be identified for assessing particular development in particular contexts, for example major development proposals that are not otherwise contemplated under the scheme."

The EN's make it clear that there is no particular level of specificity with which benchmarks must be expressed. Code assessment is thus intended to be an elastic category potentially stretching from compliance checking against standard criteria to broad assessment against strategic policy.

This is a significant departure from the concept of code assessment under the SPA and the IPA, under which code assessment was confined to assessment against codes which could only ever be specific components of a planning instrument. It also appears to flag a shift from policy expressed in the Private Member's Bill, under which standard assessment was described in the ENs as the category for assessable development proposals "that can be assessed against standard criteria or codes". The ENs to the Private Member's Bill do not suggest any broadening of the scope of code assessment similar to the EN's for the Planning Bill.

Thus, while code assessment remains "bounded" the relevant boundaries may potentially expand considerably under planning schemes introduced or amended under the new legislation. Taken to an extreme the reformulated rules for deciding code assessable development applications could be defeated through expansion of the benchmarks to include broad and contestable policy statements. Conversely the benchmarks may be narrow and prescriptive, while not resorting to prohibition. In either case there will be no ability under code assessment to introduce other relevant factors that may bring balance into the assessment.

Impact Assessment under the Planning Bill

While code assessment is confined within the benchmarks that are made relevant by the planning scheme, impact assessment may, in addition to the assessment benchmarks and matters prescribed by regulation, be carried out against, or having regard to, any other relevant matter, other than a person's personal circumstances, financial or otherwise.

Currently, under the SPA, for both code and impact assessment, an assessment manager's decision must not conflict with a relevant instrument (including a planning scheme) unless there are sufficient grounds for approval despite the conflict, and "grounds" must be matters of public interest. These rules have not been replicated in the Planning Bill save that for impact assessment regard may be had to relevant matters which cannot include a person's personal circumstances, financial or otherwise. The position is the same under the Private Member's Bill.

These provisions, when enacted, will over-ride jurisprudence that has accumulated over the past 20 years in relation to what constitutes "conflict" and "sufficient grounds", which had its origins in planning appeals relating to rezoning of land. That jurisprudence was eventually codified in earlier iterations of planning legislation, eventually reaching its current formulation in Section 326 of the SPA.

Under the Planning Bill neither assessment managers nor the Court will be prohibited from approving impact assessable development on account of "conflict" whether purely textural, minor or substantive. Rather, applications that do not comply with an aspect of a planning scheme may be approved if that is an appropriate outcome when balanced against other relevant factors. Save for personal circumstances, the categories of potentially relevant matters is open, but obviously "relevance" will be determined by reference to the applicable planning instruments and the circumstances of the proposed development. In this regard the ENs state:

"Assessment against, or having regard to other relevant matters is not obligatory. Neither are they intended to substitute for the prescribed matters. Assessment against and having regard to the prescribed matters is always required. Furthermore, given that the prescribed matters are matters of public record included in statutory instruments that have been the subject of extensive community consultation, the prescribed matters are always expected to carry substantial weight in any assessment."

Examples of relevant matters provided in the Planning Bill are:

  • planning need;
  • the current relevance of the assessment benchmarks in the light of changed circumstances; and
  • whether assessment benchmarks or other prescribed matters were based on material error.

These are familiar concepts which often constitute "sufficient grounds" for approving development applications despite conflict with a planning instrument. The change with respect to impact assessment is, perhaps, more significant though. Ascertaining the existence of "conflict" with a planning instrument has become a highly technical exercise often attended by detailed legal argument. It has been the cause of extensive litigation over the years. Such an enquiry will no longer be mandated by the legislation. When assessing against benchmarks, or prescribed matters as they are referred to in the ENs, enquiry ought to be directed at the substantive intent or purpose of the benchmark when read in the context of the whole planning instrument. The planning scheme has to be read as a whole while trying to give meaning to each of the relevant individual provisions. Each benchmark ought to link back to a planning policy or purpose. It should therefore be possible to undertake a meaningful balancing exercise between the planning intent of the benchmark and other relevant matters, rather than being preoccupied with whether there is a "conflict" with one or more provisions of the planning scheme. Planning schemes are statutory instruments but the Courts have said on numerous occasions that they are not to be interpreted as if they are statutes, but rather in a practical common sense way. Being able to focus on the substantive policy intent of scheme provisions rather than on "conflict" will be a very welcome change.

Conclusions

Despite the positive benefits of the Planning Bill with respect to impact assessment there is clearly potential for code assessment to move away from what has traditionally been a form of assessment bounded by specific components of planning schemes relating aspects of development or types of development in particular zones or local plan areas. It will be open to local governments through new planning schemes or amendments to convert code assessment into a hybrid form of code and impact assessment, shorn of public notification, but without the benefits associated with balancing the benchmarks against relevant considerations such as community need or environmental enhancements.

There is no reason why other relevant matters should be excluded from consideration in deciding to approve a code assessable development application. While code assessment remains bounded by the assessment benchmarks, the potential expansion of the scope of planning scheme provisions applicable to the assessment makes it more important that an equivalent of "sufficient grounds" is reinstated for code assessment. This can be achieved through a simple amendment to Section 60(2)(b) of the Planning Bill.

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