It has been said that the rule of law means "...that government in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge" (FA Hayek in "The Road to Serfdom"). In Queensland, is it possible to foresee with fair certainty how the State is likely to act under its legislative powers regarding citizens' ability to use or develop privately owned land? Considering current planning and development laws, is it reasonably possible for land owners to plan their individual affairs regarding land use and development?

These are fair questions in the context of today's complex planning laws, given the widely held view that the regulatory and political systems have combined recently to put the development of privately owned land beyond the capacity of most people. As was evident from the High Court's decision in Lloyd v. Robinson in 1962, statutory development control overrides private proprietary rights in the interests of the overall well-being of society. These statutory controls have increased in volume, complexity and detail, especially over the last six years.

It is interesting to note that with the Integrated Planning Act 1997 (IPA), the Queensland Parliament legislated to subject itself, with some limited exceptions, to development control laws. The State was previously under the shield of the Crown and immune from their operation. Under both the IPA and the Sustainable Planning Act 2009, the State has started to move away from subservience to its own laws for land development. It is a curious irony that the planning system has reached a level of sophistication and complexity that to achieve an appropriate level of land supply that meets the needs of the growing population, the State finds it necessary to work outside the statutory planning system.

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This paper first appeared as an article in Urban Developer magazine.