Development Regulation At The Cross Roads: Where To From Here?

Background

If you asked developers to answer the following questions in respect of the effects of the IPA:

• does it take longer to have a project approved?
• is the process for gaining development approval more costly?
• is property development a more risky process?
• is development now being undertaken in a more environmentally sustainable way?

the answer would be a resounding "yes".

Yet there is a strong perception within some sectors, that development is antithetical to environmental protection. When the IPA was introduced conservationists criticised the Act’s objective of achieving a "balance" between economic, social and environment considerations. Instead they argued for an "environmental bottom line" with no "trade offs". These diametrically opposed positions remain central to the debate about how to further reform Queensland’s planning legislation.

South East Queensland has become a microcosmic representation of what the future holds for the whole State with the introduction of regional planning having prohibitory effect without compensation for down zoning. The SEQ Regional Plan and the Vegetation Management Act are having a profound effect on property rights. Vast areas of South East Queensland have been placed off limits to development, while within the urban footprint, development remains highly contestable. IPA is being reviewed against that background.

On 30 March 2007 the Integrated Planning Act 1997 will have been in force for 9 years. Despite this the Integrated Development Assessment Systems ("IDAS") has not yet incorporated all development approval processes; the Act’s infrastructure charging regime has not yet become operative and assessment managers remain unable or unwilling to meet the IPA’s mandatory processing timeframes.

Where IPA compliant planning schemes have been adopted they have proven to be very complex documents. This seems to have been the product of local governments attempting to achieve absolute certainty through codes, driven by fear of the Acts "prohibition on prohibitions" and dislike of "performance based planning".

The IDAS system has also proven to be procedurally complex which has led to many processing errors. Fortunately the Planning and Environment Court has been prepared to excuse many of these errors. Nevertheless the development assessment system has come under significantly increased stress through the weight of its own complexity.

All of this has had a profound effect upon the efficiency of the system as applicants have struggled to gain development approvals in a timely and cost effective manner. Overlaid upon this has been exponential growth in development contributions for infrastructure consequent upon transitional loosening of the controls on infrastructure charging. IPA was supposed to introduce a transparent, accountable and equitable system of charging for infrastructure through Priority Infrastructure Plans and Infrastructure Charging Schedules yet to date local governments continue to operate under a more liberalised regime of transitional Planning Scheme Policies.

The former Minister for Local Government, Planning, Sport and Women the Honourable Desley Boyle MP launched a full scale review of the IDAS system in February this year. A summit of all stakeholders was held in March which was followed up with direct consultation with individual key stakeholders. The Institute participated in this process. Ms Boyle released a discussion paper "Dynamic Planning for a Growing State" in August this year which contained 87 specific proposals for "improvements" to the legislative framework together with a "market survey" asking participants to rate each of the proposals on a scale from 1 to 5. Submissions in respect of the discussion paper closed on 3 November 2006.

The Institute’s perception of the proposed "improvements", was that if implemented some of the "improvements" would further erode the fundamental principles upon which the IPA was based. In particular the industry viewed with grave concern:

• Reintroduction of a mandatory front end EIS process in order for applications to be "properly made";
• Reintroduction of prohibition on development;
• Making certain code assessable development applications public notifiable and appealable by third parties.

Equally, the absence of any proposals to deal with the failure of local governments to meet IPA timeframes in assessing development applications, and the inequitable burden of infrastructure costs was very concerning. In many respects the discussion paper was very short on detail.

Although the discussion paper contains some worthy initiatives which the Institute has supported there is, overall, an absence of rigorous analysis. Instead the discussion paper seems to attempt to give something to all stakeholders who attended the summit. It has been disappointing that the Department has approached the task of reviewing the legislation in this way rather than by establishing an expert task force to undertake a rigorous and professional analysis of the operation and impacts of the legislation.

The Institute’s submission, forwarded to the Minister on 3 November comprises a detailed 8 page overview together with a 55 page spreadsheet analysing each of the specific "improvements" against performance criteria identified by the Institute. The key criteria are integration, efficiency, equity, transparency, accountability, high quality planning outcomes and creating a proper "balance" between environmental, social and economic considerations. Following is a short synopsis of the main points in the submission.

The State government should complete the IDAS "roll in" process without further delay. The Institute supports codification of referral jurisdiction for all agencies within the IDAS framework as a means of achieving clarity and certainty regarding these important procedural matters. There is a lack of consistency in the degree of certainty and transparency in the standards applied by State agencies to State interests. The identification of what constitutes a "State interest" is critical and State interests must be consistently reflected across planning schemes. The Institute does not support certain State codes sitting outside of planning schemes.

There should be increased delegation of decision making to professionally qualified officers or independent consultants in accordance with Development Assessment Forum ("DAF") leading practice 8. The State government should assume responsibility for ensuring that IDAS timeframes are adhered to by assessment managers. Imposition of mandatory information, in particular EIS documents as a pre-requisite to a properly made application is strongly opposed. However all efforts to standardise State and local planning instruments are strongly encouraged.

The State government and local governments should make a greater effort to engage with community stakeholders at the plan making stage. Planning schemes should set the parameters for code assessable development and such applications should not be subject to third party submissions and appeals. The expansion of prohibition of development at State and regional levels and reintroduction of prohibition at a local level is strongly opposed.

Transparency The proposal to expand ministerial powers to further intervene in development assessment and decision making is opposed. The Institute is particularly concerned at the increased potential for State intervention to be arbitrary and for development decisions to be based on political or ideological lobbying rather than town planning principles. However, the Institute strongly supports all measures which would maximise the opportunity for appropriate delegation of assessment and decisions and strongly endorses leading practice 8 of the DAF Report "Leading Practice Model for Development Assessment".

The Institute reiterated its view that infrastructure charging is one of the most profound issues with respect to housing affordability in Queensland and is critical of the government’s lack of progress and failure to engage with that issue in the discussion paper. The continuing current transitional arrangements which lack accountability and transparency are unacceptable. In terms of dispute resolution the Institute would support procedural disputes being resolved by a Registrar of the Planning & Environment Court rather than splitting the jurisdiction between the Court and a Tribunal. Increased use of alternative dispute resolution mechanisms is strongly supported.

The Institute supports a return to the higher order, or bigger picture, assessment of impact assessable development applications focusing on the strategic elements of planning schemes. Conflict with strategic elements without sufficient grounds to justify the conflict should ground refusal of applications rather than the current arrangements whereby conflict with any provision of a scheme can justify refusal.

The IPA aims to achieve ecological sustainability which is a balance between protection of ecological processes, economic development and maintenance of cultural, economic, physical and social wellbeing of communities. Certain State agencies have prioritised the ecological side of the equation such that there is now an imbalance. This is especially so in South East Queensland. The development industry’s contribution to ecological enhancement and sustainable solutions must be recognised. The Government should reinstate this balance.

The IPA’s attempt at microeconomic reform which was intended to simplify the development assessment process and make it more efficient has failed. The costs associated with this failure are ultimately reflected in the price of development products which in turn impacts on housing affordability. This needs to be addressed urgently and the submission calls for a more thorough and professional evaluation of the regulatory system with a view to achieving one of the Act’s original key objectives – an efficient planning system.

The detailed submission can be viewed on the Institute’s website at www.udiaqld.com.au.

© Hopgood Ganim

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