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Planning and Environment Alert: Planning Reform in Queensland: The first instalment - 20 Sep 2012

With over a decade of mounting complexity, road blocks and delays in the development assessment process, the new LNP government’s first major legislative planning reform - the Sustainable Planning and Other Legislation Amendment Bill 2012 - aims to kick start its election commitment of stimulating the construction sector by making seven significant changes to the Sustainable Planning Act 2009 (SPA).

Partners David Nicholls and Sarah Persijn discuss the impact of the Bill on Queensland’s development industry.

Key points

  • The Sustainable Planning and Other Legislation Amendment Bill 2012 is expected to be enacted in December.
  • The Bill does away with the previous “silo” approach of State agencies and provides a significant change in policy away from the current single issue focus of agencies in favour of facilitating balancing competing State interests.
  • The Bill removes the master planning and structure planning components of the SPA, while providing for those parts to continue to operate transitionally for existing structure and master planned areas.
  • State resource allocations are to be “de-coupled” from the application process, and will no longer be a pre-requisite for a “properly made” development application. In addition, failing to supply mandatory supporting information will no longer automatically lead to an application being not properly made.
  • The Planning and Environment Court will no longer be a jurisdiction in which parties may litigate at will without fear of an adverse costs order, bringing it into line with the usual approach taken in the Supreme and District Courts.

The first of many reforms

The Sustainable Planning and Other Legislation Amendment Bill 2012 was introduced into the Queensland Parliament on 12 September 2012, the first of a number of reforms to the planning system. The Bill is expected to be in the committee stage for the next few months and be enacted in December. Another Bill is proposed for later this year or early next year, which will deal with reforms to, among other things, the Urban Land Development Authority Act 2007. A new single State Planning Policy replacing the existing 12 policies is proposed to be in place by March 2013. Reforms related to infrastructure charging and further fine tuning the development assessment system will follow next year.

Balancing State interests

A key concern of stakeholders, particularly development proponents, is the tendency of State agencies to operate in “silos”, without reference to broader planning and economic imperatives. The new Bill addresses this by enabling the Chief Executive administering the Sustainable Planning Act to be the single State assessment manager, and to give appropriate weight to the matters relevant to the application, in determining a concurrence agency’s response. An amendment to the Sustainable Planning Regulation will prescribe matters relevant to assessing particular development. It seems the intention is to do away with the “silo” approach, providing real coordination of agencies and appropriately balancing State interests. This is consistent with the intent of Temporary State Planning Policy No. 2 of 2012, Planning for Prosperity, which seeks to facilitate the State’s economic growth through the assessment of development applications by referral agencies, among other mechanisms.

This is a significant change in policy away from the current single issue focus of agencies in favour of facilitating balancing competing State interests. However, it needs to be supported by reforming the way the Sustainable Planning Act’s decision rules for development applications operate for State instruments. As the decision rules stand, conflict with a State instrument - for example, a State Planning Policy - mandates refusal of a development application unless one of the limited exceptions is available. When a single State planning policy is introduced, arguments about conflict with the various provisions related to different aspects of State interest are likely to be complex and time-consuming. A return to the decision rules under the repealed Integrated Planning Act 1997, where State planning policies were relevant to an assessment of development applications, but did not feature as a mandatory basis for refusing an application where conflict arose, would be consistent with the government’s intention that the new State planning policy provides the State’s strategic input on matters of State interest to guide the content of local planning instruments and decisions.

Incorporating flexibility and balance in local government planning schemes

It will also be important for the State to oversee new planning schemes to ensure they are developed consistently with the State government’s approach to balanced outcomes. Local planning instruments are where the “rubber hits the road” in terms of development outcomes. If the next generation of planning schemes includes provisions such as a requirement for impact assessment, even though the development is consistent with the local government’s strategic intent (eg impact assessment for medium density development around public transport) and carefully crafted overall outcomes and performance criteria which effectively prohibit alternative solutions, the system will remain complex and risky for stakeholders. The State government’s emphasis on flexibility and balance must filter through local planning schemes if the government’s aim to stimulate the construction industry is to succeed.

The Bill removes the master planning and structure planning components of the SPA, while providing for those parts to continue to operate transitionally for existing structure and master planned areas. The rationale for the change is that the current provisions are heavy on process and have not delivered effective outcomes efficiently.

State resource allocations and “properly made applications”

State resource allocation has proven to be a major bugbear for the development industry, being an impediment to lodging development applications and a potential legal pitfall which may not surface until well down the track in the application or appeal process. State resource allocations are to be “de-coupled” from the application process, and will no longer be a pre-requisite for a “properly made” development application. This will be achieved by repealing Section 264 of the Sustainable Planning Act. A resource allocation may still be required from the State to facilitate development, but it may be obtained before, during or after a development application is processed.

In addition, failing to supply mandatory supporting information will no longer automatically lead to an application being not properly made. Local governments may receive and decide to accept an application that is lodged without mandatory supporting information.

Certain low risk operational works - for example, car parks and landscaping - are to be restricted to an assessment level of compliance assessment or lower. This will be achieved through amending the Queensland Planning Provisions.

Dispute resolution in the Planning and Environment Court

The Planning and Environment Court will no longer be a jurisdiction in which parties may litigate at will without fear of an adverse costs order, should their case ultimately be unsuccessful. The Bill proposes to alter the costs rules so that costs will “follow the event”. This is the usual rule applied in the Supreme and District Courts - that the losing party pays the other party’s legal costs. The Bill proposes only limited exceptions to this rule. One such proposed exception is where the parties to a proceeding in the P&E Court participate in alternative dispute resolution through the Court’s ADR processes and the proceedings are resolved through that process. There may be other limited qualifications to the rule, which are yet to be worked out. Clearly the government’s intent is that all parties who litigate in the P&E Court will do so knowing that they are likely to be required to pay the costs of all other parties should the Court reject their appeal or proceeding. The new rule will serve to inhibit litigation in the Court by all participants in the development assessment process.

The Court’s ADR Registrar is also to be given extended jurisdiction to hear minor disputes and routine procedural matters. For example, instead of having to go before a Judge for an application to make a permissible change to a development approval granted previously by the Court, the developer may approach the ADR Registrar instead. The changes to the Court Rules and Practice Directions can be expected to flesh out these new arrangements.

Overall, the changes the Bill introduces should be beneficial to the development industry, although the altered costs powers of the Court will undoubtedly make it riskier for developers to engage in litigation in the Court. The prospect of paying three sets of costs, rather than one, increases the financial risks and will cause parties to carefully evaluate the strength of their case before commencing proceedings, or taking them past the ADR steps. The new costs powers will undoubtedly change the way planning cases are run, and will put increased emphasis on effective use of the ADR processes.

For more information on the Sustainable Planning and Other Legislation Amendment Bill 2012 or Queensland’s upcoming planning reform, please contact HopgoodGanim’s Planning and Environment team.