Member Article

On 1 August 2014, the Queensland government released consultation drafts of the Planning and Development Bill 2014 (P&D Bill) and the Planning and Environment Court Bill 2014 (PEC Bill). The draft Planning Bills are proposed to replace the Sustainable Planning Act 2009 (Qld) (SPA) and seek to implement a new land-use planning and development assessment system that promotes prosperity through balancing economic growth, environmental protection and community wellbeing. The government's stated aim is to develop Australia's best planning system, and the release of the draft Planning Bills follows an extensive consultation process with industry over a period of more than 12 months. The P&D Bill is considerably shorter than SPA, at 237 pages in comparison to the 725 pages of SPA.

Importantly, the Planning Bills represent a positive step in the developing maturity of the Queensland planning system. Many concepts that underpin the current regime are retained, such as the integrated development assessment system, but there are some changes to terminology and removal of sections that are underused or redundant.

Key Concepts

Repealing SPA

The P&D Bill repeals SPA and the associated Sustainable Planning Regulation 2009 (Qld) (Sustainable Planning Regulation). The new regulatory framework comprises:

• the Planning and Development Bill 2014 (Qld);
• the Planning and Environment Court Bill 2014 (Qld); and
• the Planning and Development Regulation 2014 (Qld) (P&D Regulation).

The jurisdiction of the Planning and Environment Court is addressed under the PEC Bill, while the P&D Bill (and the P&D Regulation) deals with the rest of Queensland's planning regime; planning schemes and planning instruments, development assessments, infrastructure charging, the State's role in the planning process through step in powers and State planning instruments, compensation, and community infrastructure designation.

The P&D Bill will operate as a 'skeleton act', providing an overarching framework to be supported by the P&D Regulation, which will contain the development assessment benchmarks and the mechanics for the operation and implementation of the planning and development assessment system, and a range of planning instruments. This method of legislative drafting - used recently for the Regional Planning Interests Act 2014 (Qld) and the Environmental Offsets Act 2014 (Qld) - is becoming more common in Queensland, giving flexibility to government but potentially reducing certainty for stakeholders. For example, as the draft P&D Regulation has not yet been released, it is impossible now to determine how the Planning Bills will impact on any particular development or project.

Prosperity as a central tenet

The stated purpose of the P&D Bill is to 'facilitate Queensland's prosperity', with the concept of prosperity encompassing balancing economic growth, environmental protection and community wellbeing. There will no longer be a reference to 'ecological sustainability' which was a fundamental concept under SPA and the Integrated Planning Act 1997 (Qld).

A simplified planning hierarchy

In an effort to establish a simplified and consistent planning framework, the P&D Bill removes two of the four State planning instruments, namely State Planning Regulatory Provisions (SPRPs) and the Queensland Planning Provisions (QPPs). Although not specifically provided for in the draft P&D Bill, some matters previously contained within SPRPs and QPPs (including standard definitions) will be relocated to the P&D Regulation and guidance material. This follows last year's introduction of a single State Planning Policy, replacing a number of policies.

The removal of the QPPs means that local governments should be given greater flexibility in making and amending planning schemes. The P&D Regulation will prescribe the mandatory requirements for local planning schemes and non-mandatory requirements will be contained within guidelines.

Development assessment - more than just a change in terminology

The State government has indicated that the P&D Bill will implement the government's reform initiative of lowering the level of assessment for development generally. To achieve this, three (or four) categories of development streams will replace SPA's six development assessment categories:

• accepted development (comprising both exempt and self-assessable development under SPA) - no development approval required;
• assessable development (divided into 'standard assessment' and 'merit assessment') - development approval required; and
• prohibited development.

'Exemption certificates' will also be available for some assessable development. The P&D Regulation will prescribe a set of 'assessment benchmarks' against which standard applications must be assessed. It is intended that this will promote speedier and more predictable assessment for the bulk of applications, leaving the broader and more complex 'merit assessment' for projects that represent a stronger departure from the relevant planning scheme. Unlike impact assessment under SPA, public notification (and hence third party appeal rights) is not mandatory in respect of merit assessment and the P&D Regulation may restrict when a local government can require notification.

Dispute resolution and the Planning and Environment Court Bill 2014

Provisions regarding the establishment, jurisdiction and overarching philosophy of the Planning and Environment Court are set to be moved to the PEC Bill. A key concept here is that the court's excusatory powers will also be broadened, giving the court more flexibility to excuse non-compliance with statutory requirements - an emphasis of substance over form.

Reducing red tape

The P&D Bill removes a number of SPA provisions including:

• Environmental Impact Statements (EIS);
• the requirement to obtain an owner's consent prior to lodging a development application and in respect of most state owned land, servient tenements or acquisition land;
• acknowledgement notices; and
• community infrastructure designation by local government.

Community Infrastructure Designation will be known as infrastructure designation and will become a 'true one-stop-shop assessment' with the Planning Minister to consider the relevant state interests, hence removing the need for separate or additional approvals. The Planning Minister will operate as the sole designator under the legislation and the P&D Bill permits amendment of an infrastructure designation, removing the need for a new designation.

Transitional arrangements - a blank page

The P&D Bill contains very few transitional provisions. This will need to be a an important focus of submissions during the consultation period. For example, the P&D Bill does not deal with the interface between important Queensland legislation that deals with ports, airports and railways, nor with the all-important interface with the Environmental Protection Act 1994 (Qld). The exemptions from the new regime are unclear because the current exemptions (such as some exemptions for major infrastructure, and mining and petroleum activities) are contained in the Sustainable Planning Regulation, which will be replaced by the new P&D Regulation in time.

Next Steps

The Information Paper released by the government is available to guide readers through the draft Bills and to provide an outline of the proposed content of the P&D Regulation. The government has indicated that the draft P&D Regulation will be available to coincide with the introduction of the draft bills to Parliament.

The submission period is open until 26 September 2014, which gives industry plenty of time to carefully review the draft bills, especially in relation to any transitional issues likely to be experienced for their projects. Industry will need to monitor when the draft P&D Regulation is available, together with any draft guidelines, as much of the practical impacts for industry will be contained in those instruments.

 

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