26 May 2015

Rebooting Queensland's planning reform: the Better Planning for Queensland Directions Paper

The next steps in delivering planning reform for Queensland have been revealed with the release of a Government Directions Paper, Better Planning for Queensland. The paper comes after the suite of planning Bills introduced by the previous Government lapsed upon the calling of the State election in January 2015.

What will the reform look like?

The proposal is for a new Planning Act that will repeal and replace the current Sustainable Planning Act 2009.

It is proposed that the reform will be effected by a package of three bills:

  • a main planning bill;
  • a bill to separately provide for the establishment and jurisdiction of the Planning and Environment Court; and
  • a third bill to deal with technical and consequential amendments.

Much of the detail that is process-oriented (such as plan-making and development assessment processes) is not intended to be part of the Act and will be dealt with in other instruments.

Proposals for planning instruments

  • Simplify the hierarchy for State planning instruments by having 2 types of State instruments - regional plans and the single State Planning Policy (SPP) - with the State Planning Regulatory Provisions and Queensland Planning Provisions to be removed. Matters regulated by discontinued State planning instruments (such as the urban footprint and koala protections) will be moved to the regulation or other instruments;
  • Move the process for making planning schemes out of the Act, allowing local governments greater flexibility in the plan-making process (with a default "minimum" path and community engagement standards);
  • Extend the maximum life of Temporary Local Planning Instruments from 12 months to 2 years and allow them to be amended.

Proposals for the development assessment process

  • Change the categories of development to "accepted", "assessable" and "prohibited" development. Further consultation will occur about whether to change the levels of assessment for assessable development (currently "compliance", "code" and "impact" assessment);
  • Introduce exemption certificates that, in certain circumstances, will exempt inappropriately categorised development;
  • Simplify the requirements for properly made development applications to reduce the risk of technical non-compliances;
  • Retain the State Assessment and Referral Agency (SARA) and State Development Assessment Provisions (SDAP);
  • Simplify the rules for development assessment, with assessable development to be either approved (or conditioned) using established benchmarks or decided against policy and other relevant public interest matters;
  • Move processes such as the development assessment process out of the Act to a statutory instrument.

Proposals for community involvement

  • Continue submitter appeal rights for notifiable development;
  • Restore previous costs rules in the Planning and Environment Court.

Proposals for enforcement and offences

  • Increase penalties to bring them in line with similar offences;
  • Make enforcement notices attach to the land and be recorded on title.

Proposals for other planning processes

  • Simplify community infrastructure designations, with new arrangements enabling the Planning Minister to assess against a single set of state assessment criteria, with development for a designated purpose to be exempt from State and local planning instruments;
  • Continue the ability for local governments to designate land for community infrastructure using a planning scheme amendment;
  • Simplify Ministerial powers and make them more consistent.

What to look out for

Reform legislation always faces a number of common challenges in its implementation, particularly in transitional provisions. Key things to look out for are:

  • how the new legislation will impact existing use rights, development approvals and planning instruments;
  • how existing applications are to be processed;
  • how existing appeals, and rights to appeal, are continued.

For proponents of new development, and the community, important features will include:

  • public notification obligations and submission rights;
  • costs provisions.

The timetable

Key dates set out in the Directions Paper are:

  • Draft legislation to be produced for broader community consultation;
  • New legislation to be introduced to Parliament by October 2015;
  • New planning legislation to commence in the second half of 2016.

A more detailed timetable is to be released in the coming months.

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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.