Protecting Queensland's iconic places

By Karen Trainor.

Key Points:
The Iconic Queensland Places Act gives greater protection to the State's nationally and internationally recognised natural icons located in the areas of the new regional councils.

The recent local government reform process in Queensland which has seen the amalgamation of various local government areas to form larger regional councils has also prompted the introduction of the Iconic Queensland Places Act 2008 ("IQP Act") which commenced on 6 March 2008.

A concern regarding the recent local government mergers is that unique and distinguishing characteristics of local government areas could be overlooked by the larger regional councils. The IQP Act is intended to address this concern by giving greater protection to the State's nationally and internationally recognised natural icons located in the areas of the new regional councils.

The IQP Act purports to protect established iconic places by modifying laws and procedures about planning, development assessment and local law development by local governments. In particular, it establishes a new regime for the determination of applications for development in an iconic place.

What is an Iconic Place?

Upon commencement, the whole of both Noosa Shire (which merged with Maroochy Shire and Caloundra City) and Douglas Shire (which merged with Cairns City) were identified as iconic places under the IQP Act. The Minister is also empowered until 30 June 2008 to declare other iconic places provided the place is, as a result of the local government reforms, in a new local government area. (Thus, for example, places within the Brisbane City local government area, which was not part of the local government reform, or adjusted local government areas such as the Gold Coast, cannot be declared iconic places.)

Nominations can be made to the Minister for the declaration of an iconic place, however, a place may be declared an iconic place only if the Minister is satisfied that:

• the characteristics or qualities of the place's natural or built environment reflect or contribute in a substantial way to Queensland's character; and
• the place is under pressure from population growth and new development; and
• there is a demonstrated threat to the characteristics or qualities; and
• local planning instruments for the place contribute in a substantial way to the protection of the characteristics or qualities; and
• there is substantial support by the local community in the place to make an iconic place declaration.

Effect of an Iconic Place declaration

Significantly, a consequence of an iconic place declaration is that any development application for premises within the iconic place, for which the local government would ordinarily be the assessment manager, must be referred to the development assessment panel for that place, for a decision on whether the panel or the local government will decide the application.

Another effect of an iconic place declaration is that increased scrutiny will be placed on any modifications to planning schemes which would or may have effect in an iconic place or would change or replace a "protected planning provision" (that is, a provision of a local planning instrument the Minister is satisfied protects the place's iconic values) relating to the place. Similarly, increased scrutiny will be placed on proposed temporary local planning instruments and planning scheme policies which may have an impact on iconic places.

Referral to the development assessment panel

Development assessment panels must be established by the Minister for each iconic place. The Minister must appoint the chairperson and members of the panel which may comprise up to five people but must include:

• a person with community or environmental experience or expertise
• a person with professional or technical qualifications appropriate to assessing development applications
• a councillor of the relevant local government (however councillors of the relevant local government must not make up a majority of the members of the panel);

Any development application for premises which are wholly or partly in an iconic place, and for which the relevant local government is the assessment manager, must be referred to the relevant development assessment panel.

This referral must be made during the information request period of the development application. The function of the panel is to decide whether or not it should decide a development application in an iconic place instead of the local government, as if it were the assessment manager. This is known as the "reference decision" and applies to all development applications where the local government is the assessment manager.

Note, however, that any development applications made to a local government and decided before the changeover day for its local government can not be affected by the panel decision making process under this new Act. Where an application has not been decided before the changeover day, the panel may choose to make a reference decision for the application.

Reference decision

In making the reference decision the panel must consider the substantial effect that the development the subject of the application has, or may have, on the place's iconic values, having regard to the protected planning provisions for the place. The Minister has the power to reverse the panel's reference decision at any time up until the panel, or the local government, gives a decision notice for the development application.

If the panel determines it should decide the application, the local government must still continue to decide the application as it ordinarily would, but its decision about the application becomes merely a recommendation to the panel. Upon receipt of the local government recommendation, the decision stage under IDAS commences and the panel must decide the application under IDAS as if the panel were the assessment manager for the application. Accordingly, it must assess the application against the same legal criteria as would normally apply.

The usual appeal rights in relation to a decision made on a development application remain. The panel represents the State in these decisions and therefore the State is the respondent for any appeal. The local government may also appeal the panel's decision, as if it were the submitter of the development approval.

Effectiveness of IQP Act

Already, commentary on the IQP Act is quite critical of the Act's application. One noted difficulty is that the whole of a local government area, such as Noosa and Douglas, can be an iconic place. While in itself it is difficult to accept that a whole local government area can in fact be an iconic place, the flow-on consequence that all relevant development applications for development in that local government area must be referred to the relevant panel seems, at the outset, unworkable.

The criteria for declaring additional iconic places also lend a level of uncertainty. For example, how does one define "Queensland's character"?

In any event, the Act is scheduled to be reviewed in three years for its operation and effectiveness which will include a review of the effectiveness of the development assessment panels.

Thanks to Peter Snedden for his help with this article.

For further information, please contact Karen Trainor.