26 Nov 2009

A new era for Queensland planning law - the Sustainable Planning Act 2009

by Karen Trainor, Kathryn Pacey, Xavier McMahon

The Sustainable Planning Act brings in four key changes affecting planning schemes, categories of development, development applications and deemed approvals.

The Sustainable Planning Bill 2009 (Qld) was passed by the Queensland Parliament on 16 September and is expected to commence in December 2009, at which point it will repeal and replace the Integrated Planning Act 1997 (Qld) ("IPA") as Queensland's core planning legislation.

While the Act introduces a number of new concepts and aims to improve some existing processes, it does retain many of the core features of IPA.

In this article, we focus on four key changes: the introduction of Standard Planning Scheme Provisions, two new categories of development, the new decision rules for code and impact assessable development applications, and deemed approvals.

Standard Planning Scheme Provisions

The Act provides a process for the Minister to make and implement standard planning scheme provisions. This new type of State planning instrument originates from a recommendation of the reform agenda adopted by the State government back in August 2007 that planning schemes be standardised.

Draft standard planning scheme provisions, which have been called the draft "Queensland Planning Provisions", were released by the State for public consultation until 23 November 2009.

The draft provisions contain both mandatory and optional components including a mandatory structure for planning schemes, a standard suite of zones and overlays, a mandatory structure for codes and a suite of mandatory standard planning scheme definitions.

In order to achieve a degree of standardisation across the State, local governments will be required to ensure that their planning schemes and other local planning instruments are consistent with the Queensland Planning Provisions. Importantly, this requirement will not apply to local planning instruments that were made under IPA and are in force when the Act commences.

Although standard planning scheme provisions will be able to prohibit particular types of development, the current draft Queensland Planning Provisions do not identify any development as prohibited.

Compliance assessment

In addition to the existing categories of development (exempt, self-assessable and assessable) under IPA, the Act introduces two new categories of development: compliance assessment and prohibited development.

Compliance assessment is intended to provide a bounded “technical” assessment for development for which:

  • clear technical standards are available;
  • the exercise of broad discretion in determining compliance is unnecessary; and
  • integrated referral arrangements are unnecessary.

It is expected that many existing code assessments may be moved into compliance assessment, particularly in light of the new decision rules for code assessment.

Although compliance assessment will involve a bounded assessment, the decision rules are as yet unknown. They will be prescribed by a forthcoming regulation.

Local governments will be able to outsource compliance assessment to a "suitably qualified entity".

Prohibited development

The Act introduces, to a limited extent, the ability to expressly prohibit certain types of development.

While the performance-based planning system introduced under IPA purported to remove any such prohibitions, in practice there have been a number of effective prohibitions arising pursuant to other legislation as well as state planning regulatory provisions.

A consolidation of existing prohibitions under other legislation has been inserted as Schedule 1 of the Act including, for example the clearing of native vegetation that is not for a relevant purpose under the Vegetation Management Act 1999 and tidal works in a wild river area.

Existing prohibitions under state planning regulatory provisions have not been included in the consolidation, but will remain in effect once the Act commences.

The Act will also allow prohibitions to be included in planning schemes, temporary local planning instruments and structure plans. The State has been careful to ensure that it retains control of prohibitions. Local governments will only be able to identify prohibited development if the standard planning scheme provisions provide that the development can be prohibited. If local governments wish to include further prohibitions in their planning schemes, it appears that their only option will be to lobby the Minister for an amendment to the standard planning scheme provisions.

If any part of a development application is for development that is prohibited, the development application will be taken not to have been made. Further, it will be an offence to carry out prohibited development.

New decision rules for code assessment and impact assessment

The decision rules for code and impact assessment have been combined into a single set of rules.

The requirement to approve a code assessable development application that complies with applicable codes has been removed.

Although assessment managers will retain the ability to make a decision conflicting with an instrument against which an application is assessed (other than a State Planning Regulatory Provision), this will only be permissible where:

  • the conflict is necessary to ensure the decision complies with a State Planning Regulatory Provision;
  • there are sufficient grounds to justify the decision; or
  • conflict arises because of a conflict between two or more relevant instruments of the same type and the decision best achieves the purposes of the instruments; or two or more aspects of any one relevant instrument and the decision best achieves the purposes of that instrument.

Desired environmental outcomes, which are to be replaced with "strategic outcomes", will have the same status as other planning scheme provisions for the purpose of the decision rules. Desired environmental outcomes under existing planning schemes will automatically be taken to be strategic outcomes under the Act.

Deemed approvals

The Act introduces deemed approvals for certain types of code assessable development applications if they are not decided within IDAS timeframes.

A number of code assessable applications will not qualify for deemed approval, including applications for preliminary approval varying the effect of a local planning instrument, applications for development on a Queensland heritage place, vegetation clearing applications under the Vegetation Management Act 1999 and building development applications.

The deemed approval will not be automatic. Before an application can be deemed approved, an applicant must give a "deemed approval notice" to the assessment manager after the decision-making period ends, but before the application is decided. The assessment manager will then have 10 business days in which to impose conditions on the deemed approval.

Watch this space…

There is still a lot of detail to come. For example, the following have not been included in the Act:

  • the process for making or amending planning schemes;
  • the process for making structure plans;
  • the decision rules for compliance assessment; and
  • development that is assessable, self-assessable or exempt against a planning scheme under the Act.

These matters will be the subject of a forthcoming regulation.

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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 communication. Persons listed may not be admitted in all States and Territories.