Something old… something new: the Sustainable Planning Bill 2009

The Minister for Infrastructure and Planning tabled the Sustainable Planning Bill in the Queensland Parliament on Friday.

The Bill will repeal and replace the Integrated Planning Act 1997 (“IPA”) and, if passed, is expected to commence concurrently with the new Local Government Act 2009 in December this year.

The Bill is the culmination of the IPA Reform Project which commenced in February 2006. The key objective of the Bill is to achieve a more timely and streamlined land use planning and development framework.

The Bill retains many of the core features of IPA in a similar form, including:

• the Integrated Development Assessment System (“IDAS”), with some process amendments and the addition of the new “compliance stage”;
• community infrastructure designations;
• structure planning and master planning for declared master planned areas, however structure plans must be made as required by a guideline prepared by the Minister. The Bill sets out the content for the guideline;
• the requirement for a resource allocation for State resources for development applications;
• the general rule that each party bears its own costs in an appeal is retained, however the Planning and Environment Court’s discretion to award costs is intended to be broadened, particularly for appeals lodged on the basis of commercial interests;
• preliminary approvals, including preliminary approvals that seek to vary the effect of a local planning instrument.

Some of the key changes proposed by the Bill are outlined below:

Superseded planning scheme applications

The process for a superseded planning scheme application has been changed, with the period within which to make an application reduced from 2 years to 1 year.

Planning schemes

A process for the Minister to make and implement standard planning scheme provisions is introduced, with those provisions prevailing over a local planning instrument to the extent of any inconsistency with the local planning instrument.

The process for making or amending planning schemes, temporary local planning instruments and planning scheme policies is to be determined by the Minister by guidelines, however the Bill sets out the core matters for the guidelines.

Assessable development and process for assessment

In addition to the existing categories of assessment, two new categories of assessment - compliance assessment and prohibited development - are proposed.

Compliance assessment requires a compliance permit in place of a development permit. Development requiring compliance assessment will be determined by regulation.

A development application or a request for compliance assessment cannot be made for prohibited development. Prohibited development includes:

• development in a wild river area - including development to which a property development plan applies and operational works for tidal works or works completely or partly within a coastal management district;
• assessable development for clearing native vegetation that is not for a relevant purpose under s.22A of the Vegetation Management Act 1999 (this in effect does not change the existing situation).

“Schedule 8” of IPA has been removed, and whether or not development is assessable development requiring a development permit will be determined by:

• a regulation; or
• a State planning regulatory provision; or
• a planning scheme; or
• a temporary local planning instrument; or
• a master plan for a declared master planned area; or
• a preliminary approval.

A process is provided to revive lapsed applications within 5 business days where the applicant has not provided referral agencies with the application within time, where the response to the information request is not provided within time, or where public notification requirements are not satisfied within time.

A process for deemed approvals is introduced for code assessable applications other than for:

• an application for a preliminary approval; or
• an application that a concurrence agency has directed the assessment manager refuse or approve in part only; or
• an application for development in a wet tropics area, in a wild river area, on a Queensland heritage place or in a protected area under the Nature Conservation Act 1992; or
• a vegetation clearing application under the Vegetation Management Act 1999; or
• a building development application; or
• certain aquaculture developments; or
• an application in an iconic place under the Iconic Queensland Places Act 2008.

Where the application is not decided within the decision making period, the applicant may give a “deemed approval notice” in the approved form. The assessment manager is taken to have decided to approve the application on the day the deemed approval notice is received, subject to standard conditions that are made by the Minister.

The time for responding to an information request is reduced from 12 months to six months unless a further time is agreed between the applicant and the entity making the request. The timeframe for responding to an information request for an application required by an enforcement notice or show cause notice remains three months.

The public notification period for a development application is retained at 15 business days generally, but will be 30 business days if:

• there are 3 or more concurrence agencies;
• the development is assessable under the planning scheme and prescribed under a regulation;
• the application is for a preliminary approval that varies the effect of a local planning instrument.

Preliminary approvals will lapse after five years unless otherwise specified where the development is started but not completed within the five year period.

The process for changing approvals has been streamlined. Significantly, the Bill clarifies that the change to approvals process can be used even if additional referral agencies would be triggered if the application were remade, if it is not the change that triggers the additional referral agencies.

Ministerial powers

For Ministerial call-ins, the Minister may, if the Minister considers it appropriate in the circumstances, assess and decide or reassess and re-decide the application having regard only to the State interest for which the application was called in.

The timeframes for the exercise of a Ministerial call-in are expressed differently, with the time period for call in including the latest of 15 business days after the day the chief executive receives notice of an appeal or 50 business days after the day the decision notice is given to the applicant.

Although the general provision that the Minister’s decision on a call in cannot be appealed remains, an assessment manager may bring a proceeding for a declaration if the application was called in before the assessment manager decided the application, or if the assessment manager had refused the application.

Ministerial directions have been expanded to give the Minister power to give a direction in the following circumstances, where the matter involves a State interest:

• to an assessment manager requiring a copy of all applications for particular development or for development in a particular area;
• to an assessment manager not to decide an application until the end of a stated period;
• to an assessment manager to decide an application within the decision making period;
• to an assessment manager to decide whether to give a negotiated decision notice within a stated period;
• to an assessment manager to take an action under IDAS;
• to an assessment manager to attach stated conditions to a decision notice;
• to a concurrence agency to resolve inconsistent responses, require reissue of the concurrence agency’s response or to take an action under IDAS;
• to an applicant to take stated action to ensure compliance with IDAS.

Building and Development Dispute Resolution Committee

The jurisdiction of the Building and Development Dispute Resolution Committee is expanded compared to the existing Building and Development Tribunal, including to hear applications for declarations about whether an application is properly made, the giving of an enforcement notice, and infrastructure charges notices.

Where an appeal to the Planning and Environment Court involves a matter within the jurisdiction of a building and development committee, the Court can remit the matter to the committee for decision.

Conclusion

If the Bill is passed, it will have significant implications for assessment managers, concurrence agencies, local governments and developers, both in terms of process and planning outcomes. However, many of the key operative provisions of the Bill (the process for structure plans and planning scheme amendments and what is assessable development) are deferred to guidelines and regulations which have not yet been published.