Queensland is currently experiencing an infrastructure boom, with many of the infrastructure services (such as the drought contingency projects) being on the critical path. To ensure necessary approvals are obtained within the required timeframes, careful strategic planning and tight controls over approval timeframes is required.
There are a range of mechanisms available under the State Development and Public Works Organisation Act 1971 (Qld) ("SDA"), the Integrated Planning Act 1999 (Qld) ("IPA") and the Water Act 2000 (Qld) that may assist with facilitating approvals and managing approval timeframes. In this article, we will overview some of the mechanisms that are available to control approvals timeframes.
A regulation may direct either a local body or the Coordinator-General to undertake certain "approved works". A "local body" includes a local government, a Government-owned corporation and a corporation whose shares are wholly owned by the State or the State and local government.
The main advantage of approved works regulations is that development for those works cannot be made assessable against the relevant planning scheme. In addition, the approved works regulation triggers the Coordinator-General’s compulsory acquisition powers, and certain powers in relation to entry to land, investigations and early works.
There are a number of existing approved works regulations in force at present, including for many of the water supply emergency projects.
Prescribed projects and critical infrastructure projects
The Minister for Infrastructure can declare a project to be a prescribed project and can also declare that project to be a critical infrastructure project. The projects that can be declared include "significant projects", "approved works", infrastructure facilities or other projects that are economically or socially significant to the State or the region.
For a prescribed project, the Coordinator-General has power to issue notices to facilitate efficient decision-making for applications, including:
- a Progression Notice to progress an administrative process or to complete a process. This may be given for example in a stage in IDAS before the decision stage where there is delay.
- a Notice to Decide which is a direction to a decision-maker to make a decision.
- a Step-in Notice which is a notice that the Coordinator-General has "stepped in" to the decision process, and will assess and decide the application. A Step-In Notice can generally be given at any time after the Coordinator-General is satisfied that the decision-maker has not complied with a progression notice or a notice to decide, however in certain cases can be given after a decision has been made.
Significantly, these notices are not limited to decisions under IPA - the notices can be used in relation to a broad range of approvals.
The declaration of a project as a critical infrastructure project primarily enables the creation of "critical infrastructure easements". Critical infrastructure easements may include terms that allow the easement holder to build, own and operate infrastructure in or on land already burdened by public utility easements.
Five of the South East Queensland water supply projects have been declared prescribed projects and critical infrastructure projects.
State development areas
A State development area, together with the required development scheme, can regulate land use in a State development area to the exclusion of the planning scheme. A State development area can only be declared if the Governor in Council is satisfied that the public interest or general welfare of persons resident in that part of the State would be benefited by the declaration of a State development area.
Community infrastructure designation
A community infrastructure designation ("CID") can be made for "community infrastructure" (which includes "water cycle management infrastructure") where the designator is satisfied that the community infrastructure satisfies a public need.
A CID can be made by either the relevant local government or a Minister. A local government CID is made through the planning scheme amendment process. A Ministerial CID can only be made if the Minister is satisfied that, for the development the subject of the designation, there has been adequate environmental assessment and public consultation.
Development under the CID is exempt development for the relevant planning scheme (ie. planning scheme approvals are not required); and is also exempt for reconfiguration of a lot. In assessing future development applications over the land the subject of the CID, a referral agency must assess the application having regard to the designation. In this way, the CID provides some protection for the land against inconsistent land use.
Ministerial call in
Ministerial call in powers may be exercised by the Minister for Local Government and Planning, or the Minister for Infrastructure. A development application may be called in only if the development involves a State interest. The development application may be called in at any time after the application is made until 10 business days after the day the chief executive receives notice of an appeal against the application or the relevant appeal periods end.
A call in allows the Minister to assess and decide the development application. There is no appeal against the Minister’s decision.
Deemed refusal process
A deemed refusal means a refusal that is taken to have happened if a decision is not made for a development application by the end of the decision making period. This means that if the assessment manager fails to make a decision within the prescribed time frame, an applicant has the right to lodge an appeal against the deemed refusal.
Direction by regulation
In some situations, a regulation such as the Water Amendment Regulation 2006 (Qld) made in August 2006 can direct that works be undertaken. That regulation stipulates drought contingency measures, service providers for those measures and deadlines by which the measures must be delivered.
Because the Regulation is a direction that a service provider must carry out the works, development for the defined measures cannot be made assessable against the relevant planning scheme.
For time critical projects, detailed approvals planning is required to ensure that necessary approvals are obtained within the required time. As part of that approvals planning, for significant and critical projects, consideration should be given to the various options for managing approval time frames. These mechanisms will assist in ensuring that major or critical projects are assessed and approved in a timely manner.
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.