Australia: Getting to know the new Queensland Planning Act 2016: Planning instruments and the Ministers powers

Last Updated: 20 February 2017
Article by Kathryn Pacey and Nicole Besgrove

Most Read Contributor in Australia, November 2017

While the Planning Act sets out new powers for the Minister, much of the fine detail on planning will be in a future Planning Regulation.

This article is the second in our series examining the key provisions of the new Planning Act, which is expected to commence on 3 July 2017.

State and local planning instruments

Similarly to the Sustainable Planning Act 2009 (Qld) (SPA), the Planning Act provides for two types of planning instruments:

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

To the extent of an inconsistency between the planning instruments, the following hierarchy applies:

Where a TLPI is made, it has effect for two years (currently one year under the SPA) after the effective day, or a shorter period stated in the TLPI, unless repealed sooner.

The State planning regulatory provisions (SPRPs) and Queensland Planning Provisions (QPPs) will no longer exist under the Planning Act. It is expected that the current SPRPs (including koala conservation in South East Queensland and maximum adopted infrastructure charges) together with parts of the QPPs will be reflected in the Planning Regulation 2017.

The detailed process for making or amending local planning instruments will be contained in the Planning Regulation 2017 and the Interim Minister's Guidelines and Rules.

The Regulation (currently in draft) will prescribe the zones and use terms that may be adopted and the definitions for planning schemes.

The Minister's Guidelines and Rules (currently available as an interim version) contains the:

  • guidelines setting out the matters that the chief executive must consider when preparing a notice about making or amending planning schemes;
  • rules for making and amending a local planning instrument;
  • rules for making a planning change to a planning scheme to reduce a material risk of serious harm to persons or property on premises from natural events or processes (for example bush fires, coastal erosion, flooding or landslides); and
  • rules for reviewing, making or amending local government infrastructure plan.

Minister's powers under the Planning Act

Similarly to existing SPA provisions, under the Planning Act the Minister will have the power to direct a local government to take action to amend a local planning instrument or designation to ensure it is consistent with the regulated requirements, or to protect, or give effect to, a State interest.

The Ministerial powers apply to a development application, and also to change representations, a change application, an extension application or a cancellation application. The Minister may:

  • direct a decision-maker to give copies of all future applications of a specified type to the Minister at a stated time;
  • direct a decision-maker in relation to an undecided application (such as to exercise one of the decision-maker's functions, to decide or not decide an application within a stated period of at least 20bd, to impose stated development conditions on any development approval given or to give a preliminary approval for all or part of the application);
  • direct a local government or the chief executive in relation to alternative assessment managers (for example, a direction not to keep a list of persons who are appropriately qualified to be an assessment manager in relation to particular type of that development, or to remove a person from that list); and
  • in relation to a development application or a change application other than for a minor change ?direct the referral agency to reissue the referral agency's response or to take an action under the process for administering the application within a stated reasonable period where the referral agency has contravened a period for taking that action.

Under the new Planning Act, the Minister administering the State Development and Public Works Organisation Act 1971 (currently the Minister for State Development) will also have the power to make the directions outlined above.

Similar to the SPA, the Planning Act allows both the Planning Minister and the Minister for State Development to call in an application to either:

  • assess and decide all or part of the application; or
  • if the call in notice is given before the decision-maker decides the application - direct the decision-maker to assess all or part of the application and decide the application, or part of the application, based on the decision-maker's assessment.

Under the Planning Act, the Minister can also call in a cancellation application and cancel the development approval.

Designations of land for development of infrastructure prescribed by regulation may be made by the Planning Minister, or by a local government. The current ability under the SPA for any Minister to designate land is not continued. Similar to the SPA, to designate land, the designator of land must be satisfied that:

  • the infrastructure will satisfy statutory requirements, or budgetary commitments, for the supply of infrastructure; or
  • there is or will be a planning need for the efficient and timely supply of infrastructure.

To make or amend a designation, the Minister1 must also be satisfied there has been adequate environmental assessment and consultation in carrying out the environmental assessments. The Minister may be satisfied where:

  • the Minister is satisfied that the guidelines for the process for environmental assessment and consultations currently contained in the draft Interim Minister's Guidelines and Rules is followed; or
  • another way.

Development in relation to infrastructure identified in a designation is accepted development (does not need a development permit), except to the extent the development is building work under the Building Act. Unlike the position under the SPA, development under the designation is exempt from both State and local planning instruments, with the exception of building work.

Existing designations made under the SPA will be continued, however development under that designation that was categorised as assessable development by a planning scheme or involves reconfiguring a lot will be accepted development. Otherwise, the category of development stated in the categorising instrument that is a regulation will apply.

Footnote

1If the designation is proposed by a local government, the local government is required to follow designation process rules. These rules are included in the draft Interim Minister's Guidelines and Rules.

RELATED KNOWLEDGE

Getting to know the new Queensland Planning Act 2016 – an introduction

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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