18 Feb 2011

New Queensland Reconstruction Authority will have broad planning powers

Broad new planning powers will be vested in the Queensland Reconstruction Authority under the Queensland Reconstruction Authority Bill, which was passed by State Parliament on 17 February 2011.

The new Authority will co-ordinate reconstruction and recovery caused by disaster events, and the Bill gives powers to declare projects and reconstruction areas, to impose development schemes, to undertake works and to compulsorily acquire land.

Although the Bill will only remain in effect for two years, it could have a very significant effect upon planning and development in Queensland.

What events trigger the Authority's intervention?

The disaster events are defined as:

  • the floods caused by heavy rains in December 2010 and January 2011;
  • severe tropical cyclone Yasi; or
  • another disaster, within the meaning of the Disaster Management Act 2003, prescribed under a regulation.

The power to declare certain projects and development reconstruction areas

The Bill enables the Minister to:

  • declare a project for proposed development to be a declared project if the project is to be undertaken in a part of the State that has been directly or indirectly affected by a disaster event, and the declaration is necessary to facilitate flood mitigation or the protection, rebuilding and recovery of affected communities;
  • recommend to the Governor in Council that a regulation declare a part of the State to be a reconstruction area;
  • declare a declared project or particular development in a reconstruction area to be a critical infrastructure project if it is critical or essential for the State or for economic, environmental or social reasons. A critical infrastructure project declaration is not subject to judicial review.

Speeding up the decision on a development application

The Authority would be able to issue a "notice to decide" or "progression notice" to prevent delays to the decision-making process on a development application for a declared project or a project within a reconstruction area. The Authority may also issue a “step-in notice” to assess and decide or, in some cases, reassess and re-decide an application.

The power to impose development schemes

The Authority may make a development scheme for a declared project, a reconstruction area or part of a reconstruction area. A development scheme replaces the relevant planning scheme, and includes a land use plan regulating development for the project or in the reconstruction area. It will prevail where there is an inconsistency with a State planning instrument or State plan, policy or code.

Development applications made for projects which fall within an area to which a development scheme applies must be assessed against the development scheme. The assessment manager's decision on a development application may be inconsistent with a State planning regulatory provision if the conflict is necessary to comply with the development scheme.

The power to undertake works

The Authority may be directed by regulation to undertake particular work. In addition, some powers of the Coordinator-General under the State Development and Public Works Organisation Act 1971 have been applied to work authorised to be undertaken by the Authority, such as entry to land and certain early works and works on foreshores.

The Authority also has special powers in relation to works in a reconstruction area, including to close roads.

The power to compulsorily acquire land

The Authority will be able to compulsorily acquire land:

  • to carry out authorised works;
  • to implement a development scheme for a declared project or a reconstruction area; or
  • to carry out the authority's reconstruction function.

The process under the Acquisition of Land Act 1967 applies for the taking of land and paying of compensation.

The exemption from the provisions of the Sustainable Planning Act

Any action undertaken by the Authority or its Chief Executive Officer in relation to a power or function conferred by the Bill is not subject to the provisions of the Sustainable Planning Act 2009. Accordingly, development approval requirements under that Act do not apply.

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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.