Australia: Changes to temporary local planning instruments to provide interim protection measures in Queensland

What you need to know

• A temporary local planning instrument can override the provisions of a planning scheme for a limited period.
• Jackie Trad MP has indicated there will be a change to temporary local planning instruments which would allow them to come into effect prior to consideration by the State.
• This change will need to be considered carefully as it may not be beneficial in every situation.

The untimely approval of demolition of a pre-1900 home in Highgate Hill last month has raised the need for temporary local planning instruments (TLPIs) to take effect immediately following proposal by a local government.

The TLPI that was put in place to protect the dwelling, and others in Highgate Hill, was still under consideration by the State when a permit for its demolition was issued by a private certifier.

The Honourable Jackie Trad MP, Deputy Premier and Minister for Infrastructure, Local Government and Planning, has recently indicated that this type of occurrence highlights the need to give TLPIs interim force and effect once they are proposed by council. This would ensure the swift protection of local government areas immediately following TLPIs being proposed.

Ms Trad indicated that she has ensured this change is a feature of the government's current planning bills that are to be considered in Parliament this week.

What is a temporary local planning instrument?

Under the provisions of the Sustainable Planning Act 2009 (Qld), a TLPI is a statutory instrument created by a local government that aims to protect all or part of a planning scheme area from adverse impacts.

Currently, a TLPI can either suspend or otherwise affect the operation of a planning scheme for up to one year. It is seen as an interim solution to protect matters of regional significance, pending a permanent change to the planning scheme.

A TLPI may change the level of assessment for development in the area covered by the TLPI, including prohibiting certain development.

How are temporary local planning instruments made?

TLPIs must be prepared by the local government then progressed to the Minister for consideration before coming into effect.

The Minister must be satisfied that:

• there is a significant risk of serious environmental harm to the identified planning scheme area or serious cultural, economic or social conditions occurring in the area
• any delay in using the normal planning scheme amendment process would increase risks
• state interests would not be harmfully affected by the TLPI
• the proposed TLPI appropriately affects the standard planning scheme provisions.

The local government must then formally decide whether to adopt the TLPI and publicly notify it. This process can take up to three months.

What is the proposed change?

According to Ms Trad, the proposed change would allow an interim TLPI to take effect immediately after being proposed by council. This change would give TLPIs provisional force prior to State approval being granted.

What practical implications will the change have?

The proposed change may be advantageous in circumstances where instant implementation of TLPIs is essential. However, there will likely be scenarios where the change may be unsuitable.

Such a change may no doubt have been beneficial in the Brisbane City Council's response to the 2011 floods. This would have allowed a very fast response to an emergency situation in terms of changed building requirements in flood-affected areas.

A change of this type may not have been appropriate in the 2014 TLPI adopted by the Sunshine Coast Regional Council to override Maroochy Plan 2000 for development of the Sippy Downs Town Centre. In that scenario, development may have been able to be started prior to the consideration of State interests.

This article is intended to provide commentary and general information. It 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 article. Authors listed may not be admitted in all states and territories