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HG Alert: A new hierarchy of planning instruments – 5 December 2013

On 2 December 2013, sections of the Local Government and Other Legislation Amendment Bill 2013 (Amending Act) commenced, which amend certain provisions of the Sustainable Planning Act 2009 (SPA).

The Amending Act’s main changes to the SPA deal with de-amalgamation of certain local governments, the status of certain development control plans made under the repealed Local Government (Planning and Environment) Act 1990 and the relationship between planning instruments in the SPA. This Alert focuses on the latter amendments.

The SPA currently provides that State planning regulatory provisions prevail over all other planning instruments to the extent of any inconsistency. The next planning instruments in the SPA hierarchy are regional plans, followed by State planning policies (SPPs) and local planning instruments (eg local planning schemes). The Amending Act maintains State planning regulatory provisions at the top of the planning instrument hierarchy, but alters the hierarchy so that SPPs are elevated above regional plans and will now prevail over regional plans and any local planning instruments to the extent of any inconsistency.

Previously there were a number of SPPs which dealt with a wide range of matters. However, the State has now released a consolidated single SPP (New SPP). Parliament’s first reading of the Amending Act referred to the single SPP as follows:

“The bill supports the government’s commitment to reforming Queensland’s planning and development assessment system by elevating the State Planning Policy to a more authoritative role in the hierarchy of planning instruments. The State Planning Policy is a broad and comprehensive policy which replaces various narrow, issues based matters to provide a single expression of all the state’s interests in planning and development. The amendments reverse the current relationship between the State Planning Policy and regional plans so that the State Planning Policy prevails over regional plans to the extent of any inconsistency”.

Similarly, the Explanatory Notes to the Amending Act describe the New SPP as “…also inform[ing] the development of all other planning instruments, including regional plans”. The New SPP is therefore intended to be a significant departure from the repealed SPPs, and the amendments to the SPA hierarchy of planning instruments reflect this change in approach.

The Amending Act also contains specific transitional arrangements for development applications made but not decided before 2 December 2013 (when the above amendments to the SPA commenced) which depart from the standard formula contained in section 317(1) of the SPA. A development application must be dealt with and decided as though these amendments to the SPA had not commenced, but an assessment manager or referral agency may apply the amendments to the extent considered appropriate.

The Explanatory Notes indicate that “A relevant consideration in deciding to apply the new or old hierarchy would include whether the application of the new hierarchy may adversely affect the applicant”. At Committee stage, it was recommended that, in the interests of procedural fairness, this provision be amended so that it was only by agreement with an applicant that a Council could apply the amended hierarchy of planning instruments. However, the Committee’s recommendation was not subsequently adopted.

The Amending Act does not contain any transitional arrangements for an appeal commenced but not resolved before 2 December 2013. This is likely due to Section 495(2) of the SPA which provides that, where an appeal is by an applicant or submitter for a development application, the Planning and Environment Court “…must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate”.

While the Explanatory Notes identify fairness as one relevant consideration, the Planning and Environment Court has indicated that there are other relevant considerations where new laws or planning instruments come into effect after a development application is made, but before it is decided by the assessment manager or the Court. Case law indicates that the period of time between when the development application is made and when a new planning scheme commences is a relevant consideration1, as is whether the new document represents more detailed planning for a particular area.2

In the present context, it seems unlikely the New SPP would be given decisive weight in determining applications which are well advanced under IDAS or have reached the decision stage, particularly where such applications have already addressed similar State interests under the repealed SPPs. It may be speculated that where a prescriptive provision of a repealed SPP was engaged previously (adversely to an application’s prospects) and is repealed or replaced with provisions that are not adverse to the application, that would likely be a ground for departure from the old, and the giving of weight to, the New SPP where a development application has been made but not decided before 2 December 2013. 

Take Home Points

  • The New SPP is elevated above regional plans and local planning instruments in assessing and deciding development applications.
  • The new planning instruments hierarchy arrangements may be given weight in assessing development applications made but not decided before 2 December 2013. The weight likely to be given to the new hierarchy is likely to depend upon the “age” of the development application, with more weight being given to the new arrangement for development applications lodged recently.
  • There is potential for the new planning instrument hierarchy to be beneficial to a development application lodged but not decided before 2 December 2013, given the removal of the prescriptive requirements that were present in some of the repealed SPPs.

HopgoodGanim’s Planning and Environment team have prepared an alert on the New SPP which commenced on 2 December 2013, which can be accessed here.

1See for example, Family Assets Pty Ltd v Gold Coast City Council [2008] QPEC 003 and Rainbow Shores Pty Ltd v Gympie Regional Council & Ors [2013] QPEC 26
2 See for example, Andrews & Hansen Pty Ltd v Gold Coast City Council [2008] QPEC 4 and Baskerville & Ors v BCC & Anor [2010] QPEC 143

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