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HG Alert: The New State Planning Policy – 5 December 2013

Late last week, the Deputy Premier and Minister for State Development, Infrastructure and Planning, the Honourable Jeff Seeney, announced the release of the new single State Planning Policy (New SPP) which commenced on 2 December 2013.

The New SPP replaces the existing 14 State planning policies, which dealt with a range of discrete State interests and have been criticised for being confusing, contradictory and overly prescriptive.

The New SPP is a single document which is intended to provide “…efficiency, consistency and certainty in Queensland’s land use planning and development system”.1 It identifies 16 State interests, which are categorised into the following themes:

  • Liveable communities and housing;
  • Economic growth;
  • Environment and heritage;
  • Hazards and safety; and
  • Infrastructure.

Relationship with the Sustainable Planning Act 2009 (SPA) and other instruments

Under the SPA, the New SPP sits below State planning regulatory provisions and, as a result of amendments to the SPA (which are further discussed in a separate Alert), prevails over regional plans, standard planning scheme provisions and planning schemes.

The New SPP indicates that it has a “complementary” role to regional plans, as “…regional plans provide the basis for prioritising, qualifying or resolving the state interests in a particular region, as necessary”.2

Local governments are required to amend or replace their planning schemes so as to make them consistent with the New SPP. However, until that happens, the development assessment requirements contained in the New SPP will apply. It is therefore necessary to assess applications against the relevant provisions of the New SPP, until planning schemes are amended.

State interests
Identified State interests are all equal under the New SPP. It is the responsibility of a local government preparing its planning scheme to read the New SPP in its entirety and then determine which State interests are relevant and how to apply them. The planning Minister will then determine whether the planning scheme appropriately incorporates and “integrates” the New SPP and will assist in resolving conflict between any competing State interests.

How the New SPP operates
There are eight parts to the New SPP, some of which are entirely statutory and some others which contain material which is both statutory and non-statutory. These parts are applicable to particular activities, such as principles for making or amending a planning scheme, or interim development assessment requirements (IDAR) for local government development assessment.

The New SPP is also accompanied by the SPP Interactive Mapping System (SPP IMS), which relates to some State interests. It contains both statutory and guidance mapping. It is therefore necessary to read the SPP in conjunction with the associated mapping (which was available here from 2 December 2013) and to interpret the mapping in the context of the particular State interest in the SPP.

The SPP IMS provides two types of mapping systems – mapping for plan making and mapping for development assessment. The layers contained in the plan making mapping system are both statutory and advisory, and indicate to local governments the relevant State interests to consider when making or amending a planning scheme. It is considered “baseline” mapping and more accurate information (eg ground truthing) may prevail.

For example, the New SPP contemplates in relation to the State interest for agriculture that a local government may identify locally important agricultural areas in addition to the areas shown on the SPP IMS. Development assessment mapping is relevant to applicants wishing to make a development application and to local governments in assessing development applications. This mapping will not be relevant once the New SPP is appropriately integrated into a planning scheme.

The plan making mapping appears to contain more layers than the development assessment mapping, as the former includes additional categories such as Coastal Zone mapping. These layers appear to correlate to the State interests identified in the New SPP.

The New SPP notes that not all development is regulated by the SPA (eg mining activities and major infrastructure projects may be regulated under other legislation). In such cases, the New SPP indicates that “due regard and consideration” ought to be given to the State and local planning instruments (eg the New SPP and regional plans) “…to the extent provided for under that legislation”.3

Principles of the New SPP

Part C states that:

“An effective land use planning system must enable and facilitate the delivery of development that advances the social, economic and environmental needs of all Queenslanders.

It must do this while protecting our wellbeing and enhancing our natural environment, places, heritage and culture. It must always strive to make better places for people to live, work and enjoy. It must enhance, not degrade, our living environment and create the right conditions for appropriate change and growth”.4

It also contains the following Guiding Principles: outcome focused, integrated, efficient, positive and accountable. These principles are interdependent and of equal weight to State interests. They underpin planning and development decisions and processes, and must be considered by local governments when integrating State interests in a planning scheme.

State interest and plan making policy themes

Part D identifies the following State interests for making or amending a planning scheme and designating land for community infrastructure in respect of each theme:

  • Liveable communities and housing:
    • Liveable communities
    • Housing supply and diversity
  • Economic growth:
    • Agriculture
    • Development and construction
    • Mining and extractive resources
    • Tourism
  • Environment and heritage:
    • Biodiversity
    • Coastal environment
    • Cultural heritage
    • Water quality
  • Hazards and safety
    • Emissions and hazardous activities
    • Natural hazards
  • Infrastructure
    • Energy and water supply
    • State transport infrastructure
    • Strategic airports and aviation facilities
    • Strategic ports

Many of the plan making policies for each State interest are stated generally and broadly, in that local governments are to appropriately integrate State interests by “considering” and “facilitating” identified matters. This appears to be a reflection of the State’s intention that the New SPP is a broad document which informs regional plans and local planning instruments. The New SPP is therefore a significant departure from the previous State planning policies which were often prescriptive and detailed.

Some of the New SPP’s plan making policies have been stated so generally that they will be difficult to interpret when making or amending planning schemes (eg the liveable communities and development and construction State interests). It is therefore anticipated that the real effect of these more generally stated plan making policies for State interests will be more fully realised in regional plans, and when the State undertakes review of new, and amendments to, planning schemes.

Despite the overall general nature of the plan making policies in the New SPP, many of the State interests have more specific directions for local governments. Although the New SPP emphasises that it must be read in its entirety, we note for example that the State interest in agriculture requires that local governments appropriately integrate this State interest by protecting land identified as Agricultural Land Classification Class A and Class B in a planning scheme for sustainable agricultural use by (in summary):

  • avoiding fragmentation;
  • avoiding non-agricultural development on or adjacent to such land;
  • maintaining or enhancing land condition; and the biophysical resources of such land.

Further, local governments are required to appropriately integrate certain State interests by including a code contained in the New SPP (or similar development assessment requirements).

The State Government has published a range of non-statutory guidance material (including guidelines and fact sheets) to assist local government implement the state interests.

Interim development assessment requirements

Part E contains IDAR which apply to development assessment, in addition to requirements contained in a planning scheme, in circumstances where State interests have not yet been appropriately reflected in a planning scheme.

The New SPP does not contain IDAR in relation to all State interests, but requirements have been included for the following State interests:

  • Mining and extractive resources;
  • Biodiversity;
  • Coastal environment;
  • Water quality;
  • Natural hazards;
  • Emissions and hazardous activities;
  • State transport infrastructure; and
  • Strategic airports and aviation facilities.

In each case, the New SPP identifies development that the requirements apply to and will be assessed against. Overall the IDAR are more detailed than the New SPP’s plan making policies possibly because the requirements apply to specific development, have general application across the State, and have not been adapted to local circumstances. They may also be helpful to local governments when making or amending their planning schemes, to the extent that the requirements indicate the State’s preferred approach to development assessment in respect of those State interests.

While the IDAR apply to certain identified types of development, they do not appear to provide that development is exempt from the assessment requirements where the primary aspect of development has previously been assessed and approved under the IDAR. For example, if a development application for material change of use (MCU) is subject to the IDAR and results in a development permit, subsequent development applications for other aspects of development (eg reconfiguration of a lot (ROL)) may also be subject to assessment under IDAR. This may require applicants to consider the potential effect of the New SPP on all aspects of a project (including future applications which will be made for other aspects of development) at the outset. This omission could create some duplication.

It also appears that the IDAR does not contain transitional provisions which exempt what is commonly called “committed development”. This arises where development approvals were granted before the commencement of a new planning instrument, but other approvals necessary for the development to proceed would be subject to requirements of the new planning document. In such circumstances, later development applications (eg for operational works or ROL) may be “excused” from assessment under the new planning document requirements. As the New SPP does not provide for “committed development”, future applications relating to a development approved prior to the commencement of the New SPP may require assessment under the IDAR.

Because some of the State interests for plan making are not reflected in the IDAR, it is possible that some land will not be subject to IDAR, but will be impacted by local government planning scheme requirements once the relevant State interest is reflected in the planning scheme. For example, the IDAR for coastal management applies to applications for MCU, ROL and operational work within the coastal management district, whereas the same State interest for planning making applies to the coastal zone, which is a much broader area. The way in which this State interest is ultimately reflected in planning schemes will be significant and potentially contentious.

Self assessable development code

The New SPP also contains a code for self assessable development for operational work that is high impact earth works carried out for:

  • Government supported transport infrastructure in a wetland protection area; and
  • Electricity infrastructure in a wetland protection area.5

The New SPP’s code specifically concerns development in wetland protection areas in Great Barrier Reef catchments to “…prevent the loss or degradation of the wetland protection area and their environmental values, or to enhance their values” .6

The code consists of twelve performance outcomes and identifies acceptable outcomes for meeting those performance outcomes.

Conclusions

The New SPP adopts a consolidated approach to State interests, which replaces the fragmented, issue-specific array of former State planning policies. It sets out State interests clearly and is supported by the SPP IMS which makes it easier to identify all State interests in relation to land depending on whether the purpose is for making or amending a planning scheme, or development assessment.

It is important to keep in mind that the New SPP applies in addition to planning schemes until a new or amended planning scheme commences which has “integrated” the New SPP. In the meantime, the IDAR will be a relevant component of development assessment for development applications in all local government areas until the relevant planning schemes are amended.

Local governments which have recently adopted new planning schemes now face amending their scheme in order to “integrate” the New SPP. The complexity of this task and the effort required will largely depend upon the differences between the now repealed SPPs that have been reflected in those planning schemes, and the approach taken to the similar State interests in the New SPP. The State provides guidance to local governments in dealing with this issue by publishing a series of non-statutory guidance material.

A review of the South East Queensland Regional Plan is currently underway. A new regional plan is expected to be completed by the end of 2014. Under the new hierarchy of planning instruments, the new regional plan will be able to be reviewed against the New SPP rather than the repealed SPPs.

1 Page 4 of the New SPP
2 Page 8 of the New SPP
3 Page 12 of the New SPP
4 Page 13 of the New SPP
5 Items 6 and 7 of Schedule 3, Part 2, Table 4 of the Sustainable Planning Regulation 2009
6 Page 53 of the New SPP

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