Upcoming Mallesons seminarsAll land owners and developers of commercial and residential land in Queensland, their advisers and agents.
What do you need to do?Review how the proposed key changes in the Bill impact upon your pending and future development applications.
Danny O'Brien
Senior Associate
Holly Monks
Solicitor
Matthew Austin
Special Counsel
T +61 7 3244 8108
David Bell
Partner
T +61 7 3244 8051
Sydney
David O'Donnell
Debra Townsend
Melbourne
Stephen Davis
Perth
Laurence Iffla
Brisbane
David Bell
Scott Budd
David Colenso
Canberra
Chris Wheeler
The long awaited and much anticipated, Sustainable Planning Bill 2009 (Qld) (“SPB”) was recently introduced into State Parliament. Eleven years after introducing significant reforms to Queensland’s development regulation and assessment processes, the Integrated Planning Act 1997 (Qld) (“IPA”) will be completely replaced by the SPB.
While introducing a number of new concepts and taking a more simplified approach to drafting, the SPB does not completely throw out the frameworks created under the IPA. The overall framework for regulating development will be retained, including the Integrated Development Assessment System (“IDAS”) with modifications aimed at improving its efficiency and effectiveness.
The SPB does continue a recent trend towards providing the State with greater powers to coordinate and shape planning and development in Queensland.
Even though both the IPA and the SPB state a common purpose of achieving ecological sustainability, the SPB does place greater emphasis on climate change and sustainable development principles which are likely to flow into key planning instruments developed into the future. Decision making processes under the SPB will need to take into account “the effects of development on climate change”.
Some of the key features of the SPB and the practical implications arising are outlined below.
Outline of new key concepts
Many existing concepts under the IPA are to be carried over into the SPB albeit in modified forms. These modifications are aimed at streamlining processes, providing greater clarity around planning controls and more efficient development assessment and regulation processes.
Various new concepts and key amendments under the SPB include:
- Standardisation of planning scheme provisions - these provisions will provide the State with the power to develop and impose standard planning scheme provisions in planning schemes prepared by local authorities.
- Deemed approvals for certain code assessable applications - certain development applications will be deemed to be approved where they have not been decided within set decision making periods.
- Introduction of a new level of development assessment “compliance assessment” - to assist with streamlining development assessment, certain types of development are to be identified in regulations (or planning instruments/schemes) and will be assessed against specified criteria (with no referral agency involvement).
- Introduction of “prohibited development” as a category of development assessment - certain forms of development may be specified as “prohibited’ under the SPB and future planning instruments/schemes, which is a departure from the IPA’s performance based approach to development assessment.
- Correcting referral agency errors - a simple mechanism is proposed so that a missed referral agency can be added to avoid a lapsed development application.
- Planning and Environment Court’s powers - extension of the Court’s jurisdiction to hear appeals about compliance assessment, extension of discretionary powers to award costs against commercial competitors and to determine whether procedural non-compliance can be excused; and
- Replacement of the Building and Development Tribunal - a new Building and Development Dispute Resolution Committee will be established under the SPB and will act as an alternative to having certain procedural matters dealt with by the Planning and Environment Court. The Committee will be comprised of up to 5 general members appointed by the Minister who may have a range of qualifications and expertise.
What does the SPB mean for development applications lodged under IPA?
Once the SPB is passed and comes into force, existing IPA development applications (not yet decided) will continue to be processed under the IPA regime subject to some exceptions including:
- referral agencies and assessment managers can take into consideration new planning instruments made under the SPB,
- the issue of acknowledgment notices for development inconsistent with priority infrastructure plans has been removed, and
- the Minister’s powers under the SPB in relation to giving ‘directions’ and ‘call ins’ apply to existing IPA applications.
How does the SPB effect existing development approvals?
On commencement of the new Act, development approvals under the repealed IPA will continue in force as if it were approval under the Act. Any agreements made under IPA in relation to development conditions will continue to apply as if they were agreements under the new Act.
Changing IPA development approvals
The SPB provides that an application to change an IPA development approval or condition of approval made before commencement of the new Act will continue to be processed under the IPA.
After commencement of the new Act, an application to change an IPA development approval can be made but will be subject to the processes under the new Act. The SPB provides that “Permissible changes” to a development approval can be sought.
This concept consolidates into one section of the SPB the IPA requirements governing changes to approvals and conditions. In addition, the SPB introduces some new terminology allowing a change to a development approval to be made including where the change would not result in a ‘substantially different development’ to replace the concept of “minor change” under the IPA.
Will future development application processes be quicker?
A key objective of the SPB is to reduce existing development assessment timeframes experienced under the IPA. Some of the changes to timeframes proposed in the SPB include:
- an applicant now has only 6 months to respond to an information request by the assessment manager - previously applicants had 12 months to respond;
- requests for applications to be assessed under a superseded planning scheme have been reduced from 2 years to 1 year (where the planning scheme or amendment takes effect after commencement of the new Act); and
- for applications requiring public notification, the timeframe for giving the assessment manager a notice of compliance has been reduced from 3 months post notification period to 20 business days.
The SPB also provides for a 5 year timeframe after commencement of the new Act in which transitional regulations can be made. This timeframe has been proposed to assist with the identification and resolution of unanticipated legal issues which may arise after the commencement of the new Act.
Moving forward
We anticipate that Parliament will consider the SPB during the July/August sittings.
The SPB will need to be supported by substantial regulations and statutory guidelines to assist in the operation of the new Act (the regulations and guidelines are yet to be released). On commencement of the new Act and on the release of regulations, these requirements and transitional provisions will need to be examined carefully.