The Minister for Infrastructure and Planning tabled the Sustainable Planning Bill in Queensland Parliament on 19 June 2009.
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.
Many of the core features of IPA are retained by the Bill, including:
the Integrated Development Assessment System, 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 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.
Key changes proposed by the Bill are outlined below:
While the purpose of the Bill includes "ecological sustainability" (consistent with IPA), advancing the Bill's purpose and the definition of ecological sustainability have been broadened to include reference to climate change, amongst others. In addition, advancing the Bill's purpose includes consideration of urban congestion, and housing choice and diversity. These objectives will be reflected through future planning instruments.
Superseded planning scheme processes
The process for a superseded planning scheme application has been changed, with the period within which to request a superseded planning scheme approval reduced from two years to one year. Local governments are deemed to have agreed to such a request if they do not deliver a formal decision within 30 business days or an extended period.
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 purpose for the standard planning scheme provisions is to provide for a consistent structure for planning schemes and standard provisions for implementation. New planning schemes (with the exception of transitional planning schemes) must be consistent with the standard planning scheme provisions. Where there is inconsistency between a standard planning scheme provision and a planning scheme, the standard planning scheme provisions prevails to the extent of the inconsistency. This is the only way a planning scheme can provide for prohibited development.
New types of assessment
In addition to the existing categories of assessment, two new categories of development - compliance assessment and prohibited development - are proposed, and a process for deemed approvals is introduced.
Compliance assessment requires a compliance permit in place of a development permit. A new Integrated Development Assessment System stage is therefore introduced whereby compliance assessment is undertaken by the relevant local government, a public sector entity or an entity nominated by the local government. Compliance assessment is intended for simple or technical proposals and to speed up assessment processes for these proposals.
A development application or a request for compliance assessment cannot be made for prohibited development. A development may be made a "prohibited development" by Schedule 1 of the Bill, by a State planning regulatory provision, a structure plan and by the Standard planning scheme provisions. The concept of prohibited development being outlined within a legislative framework is a shift back to the pre-IPA regime.
A process for deemed approvals is introduced for code assessable applications, other than:
where concurrence agency states should be refused;
Wet Tropics, Wild Rivers, Heritage places; iconic places
vegetation clearing applications.
Under the deemed approvals process, where an assessment manager fails to decide whether to approve an application during the decision-making period, the applicant may give a deemed approval notice to the assessment manager. The assessment manager is taken to have decided to approve the application on the day the deemed approval notice is received, but may choose to apply conditions to the approval. If no conditions are advised then the standard conditions made by the Minister apply.
Ministerial powers expanded
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 from IPA, 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.
The general provision that the Minister’s decision on a call-in cannot be appealed remains intact. The Bill however now provides that an assessment manager may bring proceedings 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 also been expanded to give the Minister power to give a direction in specific circumstances where the matter involves a State interest.
Building and Development Dispute Resolution Committee established
The Bill provides for the Building and Development Dispute Resolution Committee. The Committee's jurisdiction is wider than 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 the Committee, the Court can remit the matter to it for decision.
Schedule 8 of IPA, outlining whether development is assessable development requiring a development permit, will be contained in Regulations or planning instruments rather than the body of the Act;
A process to revive lapsed applications is introduced, which may be triggered by giving notice within five business days;
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 process for changing approvals has been streamlined;
The public notification period for a development application is retained at 15 business days generally, but will be 30 business days if:
there are three 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.
The great unknowns
If the Sustainable Planning 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 and a standard planning scheme provision) are deferred to guidelines, regulations and later decisions which have not yet been published.