This article examines the Iconic Queensland Places Act 2008 (IQP Act) and discusses its likely impacts in relation to development assessment and planning appeals.
The term icon and its adjective iconic are overused and misused words. Derived from the Greek words ikon and eikon, they originally referred to a likeness or image and were used to refer to a figure or representation in the form of a statue or painting, usually of some sacred religious person. Today the term seems to be used to describe places and people, deserving of consideration above all others, but there is an emerging trend to indiscriminately use the word pejoratively to add emphasis to an assertion or statement.
The Iconic Queensland Places Bill 2008 was introduced on the first sitting day of Queensland's Parliament in 2008 and was assented to commence on 6 March 2008. The IQP Act uses the adjective iconic in the context of places but redefines the meaning of the term in the context of Queensland's character. According to the IQP Act, a place is iconic if the Minister for Infrastructure and Planning thinks that it has characteristics or qualities in its natural or built environment that reflect or contribute in a substantial way to that character.1 However the IQP Act does not attempt to explain what is meant by Queensland's character.
The Deputy Premier and Minister for Infrastructure and Planning, the Honourable Paul Lucas MP said "This is a fair dinkum watchdog to protect fair dinkum iconic values".2 It is difficult to identify what values the Minister was referring to as fair dinkum, because at the date of his speech none had been identified. An analysis of the Act suggests that describing the protection it affords as fair dinkum is quite tenuous, apart from the further torture of the English language involved. Indeed the meaning of iconic under the Act is quite different from ordinary English usage.
An analysis of the Act should begin with a discussion of the policy underpinning it. The policy rationale for the Act is set out in the Explanatory Notes relevantly as follows: "The Bill supports the preservation of Queensland's iconic places. A declaration of an iconic place ensures that decisions of and within the new regional local governments will take into consideration the distinctive character of unique communities which contribute substantially to Queensland's character.
Legislation is required to identify iconic places and ensure protection of those features of the planning, development assessment framework, local laws and general policies which contribute to the iconic values of those places."3
The objectives of the Act were said to be achieved by:
"1. providing for the declaration of iconic places; their iconic values and the relevant planning and local law instruments that currently protect those values;
2. modifying laws and procedures about local law development; planning and development assessment and policy making by local governments to ensure consideration of the iconic values of the declared iconic places."4
The Act has the effect of declaring the present Shires of Noosa and Douglas as iconic places.5 It also provides for the Minister to make declarations to the effect that other presently existing local government areas, or parts of those areas, are iconic places for the purposes of the legislation.6
The political impetus for the legislation arose out of the State Government's reform of the local government sector whereby local governments throughout Queensland, including the Noosa and Douglas Shire Councils, will be amalgamated with adjoining local governments on 15 March 2008.
What is an iconic value?
At the core of the Act is the issue of what constitutes iconic values. It is a curious concept and defined in two places by the Act. The first definition relates to Noosa and Douglas Shires, and the second to local government areas that may subsequently be declared, but the definitions are effectively the same. Iconic values are the characteristics or qualities of the place's natural or built environment which the Minister is satisfied reflect or contribute in a substantial way to Queensland's character. As already mentioned, Queensland's character is not defined, so its form and content reposes in the Minister's mind. One can only speculate as to what tests must be satisfied to achieve iconic status. Contrast this with the particularity in the Queensland Heritage Act 1992 with respect to the identification of heritage values.7 However, the Minister is required to identify the relevant characteristics or qualities that qualify as iconic and link them to the provisions of the place's planning instruments which the Minister considers protects those values. So, if such a characteristic or quality is the built form in and around Hastings Street (taking Noosa as an example), the Minister might identify the provisions of the planning scheme which protect that built form by, for example, limiting the height of buildings.
How does the Act operate?
The discretionary nature of the Minister's powers under this Act would be of some concern were it not for the Act's structural limitations on the effect of declared iconic status. The legislation does not, in truth, provide any additional protection to those iconic qualities or characteristics. Rather, it merely introduces some interim filters with respect to potential changes to planning instruments and local laws and an additional development assessment filter, without any change to the underlying State and local laws and policies with respect to planning. The filter on changes to laws and policies is found in the requirement for impact statements regarding proposed changes to laws and policies8 and the duties and discretion reposed in the Minister to disallow proposed changes which would be inconsistent with protecting the place's iconic values9. The additional filter with respect to development assessment is the insertion of a development assessment panel appointed by the Minister, into the IDAS decision-making process, which has a discretion to opt-in to the IDAS process in relation to development applications in iconic places.10 These panels will have the opportunity to substitute their decisions for those of the relevant regional council.
What is the Policy rationale for the Act?
The policy rationale for these filters appears to be appeasement of those constituents of merging local governments who fear that the new regional councils will change their planning schemes or local laws, or will not enforce their planning schemes in response to development applications. Thus the legislation is a response to fears and concerns expressed by some members of the community in consequence of the Local Government Reform Commission's work in June and July 2007 and the introduction of the Local Government Reform Implementation Act 2007. The reaction to these reforms was variable across the State. There was certainly a great deal of very vocal opposition, but whether it represented the views of the majority is not known. It is fair to say, though, that the legislation is a response to an emotionally charged set of circumstances. The policy behind the legislation rests on the assumption that the professional officers of the new regional councils will not discharge their duties professionally and responsibly and/or that the councillors who will be elected on 15 March 2008 will make irresponsible decisions in relation to development applications. That is to say, decisions will be made which conflict with planning schemes for the declared areas in circumstances where there are no grounds which appropriately justify such decisions. Neither of these assumptions have any basis in reality, and they plainly ignore the requirements of the Integrated Planning Act 1997 (IPA) with respect to decision making on development applications, including the possibility of applications conflicting with a planning scheme where there are sufficient planning grounds.
The truth is that the local government amalgamation process is not a threat to the application and enforcement of planning schemes of component councils. The transitional arrangements which will apply under the Local Government Reform Implementation Regulation 2008 require existing planning schemes to continue in force and be administered by the new councils. Those new councils are required to apply the component planning schemes for the amalgamated local government area according to law, under the IPA and under companion legislation which operates under the IDAS framework, until those planning schemes are ultimately replaced by new planning schemes for the new areas.11 Moreover, the Planning and Environment Court is required to enforce the existing planning schemes and, for impact assessable applications, concerned citizens may, as submitters, be involved through the appeal process in ensuring that the new regional councils do, in fact, enforce the existing schemes. In this context to enforce means to apply according to the statutory framework which recognises a degree of sensible flexibility in the application of development parameters in the interests of public benefit and good design.
My fundamental objection to the IQP Act is that it attempts to single out particular local government areas for special consideration on the grounds that only they contain natural and/or built features of importance to the State. The legal system in Queensland applies to all areas equally and gives equal protection to the relevant parts of those areas, and to their residents, under the mosaic of laws relating to environmental protection12, vegetation management13, coastal protection14, heritage protection15 and planning.16 The diversity and strength of these laws and policies makes it unnecessary to single out particular local government areas as worthy of an additional level of protection over others. The legislation is particularly unsatisfactory given that the consequence is a significant increase in IDAS timeframes through the addition of more than 40 business days for a decision in circumstances where a development assessment panel decides to intervene with respect to a development application.17
Taking Noosa as an example, because most readers will be familiar with it, there are certainly aspects of that local government area which are important in terms of natural environmental values and scenic beauty. Much of that land is situated in national parks or on coastal foreshore areas owned by the State and protected under the Coastal Protection and Management Act 1995. The Vegetation Management Act 1999 protects significant areas of mapped vegetation across the Shire, and is having a limiting effect on development. The absence of Gold Coast style high rise buildings in Noosa is notable. Noosa's 2006 Planning Scheme, and predecessor schemes, add to the mosaic of protective laws and policies through the identification of land near rivers, lakes and waterways as open space for conservation and waterway protection purposes. Added to this are limitations on the extent of development of unconstrained land through height and plot ratio limitations. All of those laws, both State and local, are required to be applied, but underpinning the IQP Act is an assumption that, for Noosa, that will not happen.
Development Assessment Panels
In combination, ss 33 and 45 of the Act provide development assessment panels with discretion in relation to the making of a reference decision. This is a decision a panel makes as to whether it wishes to decide a particular development application. The panel is merely required to consider any substantial effect that the development the subject of the application may have on a place's iconic values having regard to the protected planning provisions for the place. We will have to wait to see how declarations of iconic values and protected planning provisions are structured, but if one assumes that a genuine attempt is made to identify only those features and characteristics which are truly special, a reference decision in circumstances where there is no link to iconic values and protected planning provisions could be manifestly unreasonable and possibly unlawful.
The composition of panels under s. 34 of the legislation is of some concern. A councillor of a regional council may be a member of a panel, but councillors may not make up a majority of the members of a panel. Despite this, there is nothing to stop one or two councillors, out of a maximum panel of 5 members, forming a voting block with another member of the panel from the category a person with community or environmental experience or expertise. It would be inappropriate for such panels to operate along political lines by way of an alliance between elected and unelected community representatives. A wholly professional panel completely independent of political interference would be preferable.
Where a development assessment panel opts-in in respect of a development application, the regional council is precluded from issuing a decision notice in respect of the development application. The regional council is required to go through all steps up to the making of a decision, but the decision can only operate as a recommendation to the panel.19 The Act does not specify the form a decision is to take, but clearly it cannot be a decision notice which is precluded by s. 49. Presumably the regional council should resolve that it proposes to approve on conditions, or to refuse an application, and the giving of a copy of such a resolution to a panel which has made a reference decision will satisfy s. 51(1).
The panel is required to make a decision on the development application as if it were the assessment manager.20 This means that from the time the regional council's decision is given to the panel, the panel will have a period of 20 business days, plus at its option a further period of 20 business days, to make a decision on the application. The provisions of the planning scheme and of the IPA apply to the panel in the same way as they would apply to the regional council as assessment manager for the application. The panel is not required to have regard to the regional council's decision or recommendation. Rather, the panel is bound by the decisional framework under the IPA. The panel must assess development applications against the material referred to in ss 3.5.4 (for code assessment) and 3.5.5 (for impact assessment) of the IPA. There is nothing in the IQP Act that allows the regional council's recommendation to be considered. Rather, the IQP Act in combination with the IPA requires the panel to make a completely fresh assessment of the application and a decision in accordance with the statutory framework under Chapter 3 Part 5 of the IPA. In other words there will be two assessments and two decisions for a development application the first of which is statutorily irrelevant.
Appeals in respect of panel decisions
However, the regional council's assessment and decision in these circumstances is not entirely irrelevant, because the legislation gives such councils appeal rights against a decision to approve by a panel. Section 54(3) says that such councils may appeal to the Court as if they had been a submitter for the application. In all appeals where a panel has made a decision, the panel will be the respondent for the appeal. Effectively, for regional councils to intervene in the appeal process, they have to start a separate appeal and can only do so in accordance with s. 4.1.28 of the IPA against approval of a development application by a panel, and only in respect of impact assessable development applications, or the aspects of an application that are impact assessable. Councils have no right to elect to become a corespondent in an appeal by the applicant. Consequently regional councils are prevented from supporting as a party to an appeal development applications which they believe should be approved. Despite this an applicant would not be prevented from placing evidence before the Court of the regional council's recommendation, nor from calling evidence from a representative of the Council. Whether the Court would place any weight on such evidence, given that appeals are de novo hearings remains to be seen. In the case of refusals by panels the State (representing the panel) will be running a case against approval and in the absence of the Council as a party the Court may be deprived of a wider regional planning perspective. This should not matter if panels operate independently and professionally, but it will be a problem if they behave in a parochial way. In the longer term a regional view of planning must be taken and the panel system has the potential to inhibit such an approach.
The transitional arrangements under the IQP Act will exempt development applications decided before 15 March 2008 from intervention on the part of development assessment panels.21 However, for development applications which are not decided before 15 March 2008, development assessment panels still have the opportunity to opt-in by making a reference decision provided they are within the time frame which permits that to occur.22 This is the consequence of s. 74(3) which allows a panel to nevertheless choose to make a reference decision for the application as if Part 4 Division 3 did apply to the application. The structure of Part 4 Division 3 is such that a local government must give a copy of an application to the panel within the information request period,23 and the panel is required to make a reference decision within 20 business days after the local government has complied with that requirement or within 20 business days after the information request period ends, whichever is the earliest.24 If the panel does not comply, the reference decision is taken to be one to the effect that the panel has decided not to deal with the development application.25 Consequently where a development application has by 15 March 2008 passed the stage in the IDAS process after the end of the information request period, there is no obligation on the regional council to give a copy of the application to the panel and no opportunity for the panel to make a reference decision. The same result is arrived at where by 15 March 2008 a period of 20 business days has elapsed after the end of the information request period. This seems to be the effect of s.74(3) which only provides for a panel to make a reference decision for a pre 15 March 2008 development application where it could do so had Part 4 Division 3 applied to it.
While there is no sunset period for the legislation, the Minister is required within 3 years after the date of assent of the Act to carry out a review of the operation and effectiveness of the legislation.26 Section 71 implies that there may be no need to continue the panel system in the longer term. It is also worth noting that strict time limits have been placed on the Minister's ability to declare further iconic places beyond Noosa and Douglas Shires. The Minister has indicated thathe will only act on requests for further declarations of iconic places that are made prior to 15 March 2008 and the IQP Act contains an absolute prohibition on the making of any such declarations after 30 June 2008.27
The IQP Act is tokenistic legislation. It will unnecessarily complicate the IDAS process, and the process of appealing to the Planning and Environment Court. The additional so called protection which it offers to the designated places is an illusion. The legislation will merely add process requirements but will not fundamentally alter the substantive elements of the law applicable to decisions on development applications. Despite this, the creation of development assessment panels which are made up of local politicians and members of the community, to undertake assessment of development applications, seems potentially destined to politicise the application process. The work of the professional officers of the regional council is effectively wasted and the new regional councils are given no right of audience in appeals in support of development which they believe should be approved.
The Act is an example of environmental legislation which is driven by perceived public opinion and which purports to respond to threats that are more imagined than real. It will be interesting to see whether the Act will still be in force when the new councils set about drafting replacement planning schemes for the new regional local government areas, which will happen over the next four or five years. If the Act is in force when those new planning schemes are developed it could well impede the achievement of appropriate regional planning outcomes where the iconic values declarations are drafted as a precise of the relevant planning scheme.
The State Government exercised its constitutional right to amalgamate local governments throughout Queensland. On every occasion when this has previously happened, it has been opposed. Subsequently, the affected communities have accepted the decision and moved on. The best outcome for the communities of Noosa and Douglas would be for the regional Council areas of which they will form part to be the first local government areas in Queensland to prepare new regional planning schemes. The State Government should provide the resources to ensure that this happens in a timely fashion and that the process involved is a model for consultation and drafting which can be followed in other amalgamated local government areas.
As a fair dinkum watch dog, the legislation depends entirely on how the so called iconic values are declared. This is an executive rather than legislative act and could be intensely political. The declarations will determine the scope of the Minister's ability to overrule planning scheme changes and the ability of panels to opt-in to the development assessment systems. A restrained approach by the Minister is warranted in both the scope of the declarations and the composition of panels, to avoid massive process duplication and the creation of de facto sub-regional planning councils. Neither of those outcomes would assist to achieve either cohesive communities or ecologically sustainable development at a regional level.
1 Section 5 of the IQP Act.
2 Queensland, Hansard, 12 February 2008, p.66.
3 Explanatory Notes, Iconic Queensland Places Bill 2008 (Qld) 2.
4 Explanatory Notes, Iconic Queensland Places Bill 2008 (Qld) 3.
5 Schedule 1 of the IQP Act.
6 Section 6 of the IQP Act.
7 Part 4 of the Queensland Heritage Act 1992.
8 Ss 13, 21, 26 & 62 of the IQP Act.
9 Ss 16,19, 23, and 29 of the IQP Act.
10 Part 4, Division 2 of the IQP Act.
11 Division 6 of the Local Government Reform Implementation Regulation 2008.
12 Environmental Protection Act 1994 (Qld).
13 Nature Conservation Act 1992 (Qld); Vegetation Management Act 1999 (Qld).
14 Coastal Protection and Management Act 1995 (Qld).
15 Aboriginal Cultural Heritage Act 2003 (Qld); Queensland Heritage Act 1992 (Qld).
16 Integrated Planning Act 1997 (Qld).
17 Part 4, Divisions 3 & 4 of the IQP Act.
18 Section 34(3) of the IQP Act.
19 Section 50 of the IQP Act.
20 Section 52 of the IQP Act.
21 Section 73 of the IQP Act.
22 Section 74 of the IQP Act.
23 Section 44 of the IQP Act.
24 Section 45 of the IQP Act.
25 Section 45(2) of the IQP Act.
26 Section 71 of the IQP Act.
27 Section 6(2) of the IQP Act.
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