I am often asked whether the Planning Act 2016 will make any difference to Queensland’s planning and development landscape. To answer this question, one must look both backwards and forwards. The rear-view mirror allows honest and objective assessment of the present landscape. Looking forward requires an informed prediction based upon a belief that the underlying purpose of the reforms will be embraced.
Today the planning and development landscape is affected by many competing tensions. These tensions are often underpinned by opposing political and philosophical positions. The planning legislation over the past 15 or so years has changed significantly, and on many occasions, largely in response to environmental issues. On many occasions, there has been a legislative overreaction to a particular issue, and then a subsequent correction usually involving a furious reaction from either the housing or the conservation lobby, followed later by reinstatement of the original position. The IPA/SPA era can clearly be seen as a period of volatility in planning reflected by the numerous and substantive changes to the legislation since 1998. That volatility has been magnified through the integration and coordination of all regulation affecting development under the umbrella of the planning legislation. Politics has largely driven this volatility.
The see-saw effects of regular changes to the system and the resultant costs and consequences have on the whole been economically debilitating, mainly because of reduced land supply and upward pressure on the costs of development. Perhaps the most obvious proof that the planning system became dysfunctional lies in the fact that governments of both political persuasions have adopted a mechanism to facilitate development outside the planning system, namely the ULDA / EDQ. There is no doubt that planning and development reached the point where such a circuit breaker was necessary
The most important change to the planning framework will be the new “decision rules”. The Planning Act 2016 is an earnest attempt to resuscitate what the IPA originally intended to deliver, namely balanced performance based planning decisions. It is hoped this will be achieved when the present “conflict / sufficient grounds” approach to decision making is repealed upon commencement of the new legislation. Many lawyers love the “conflict / sufficient grounds” rules and will no doubt miss them. The word “conflict” portrays the planning system as a battleground. Contextually, its original birthplace was in decisions of the Court when developing jurisprudence around re-zoning applications. Privately initiated re-zoning was sanctioned by the planning legislation and involved changing the planning scheme by taking land out of one zone and putting it into another zone. It is self-evident that what was proposed by re-zoning applications involved removing the “conflict” with the scheme as it stood at the time the re-zoning application was made.
The concept of conflict has been extended over the years to cover all types of planning applications through its codification in the planning legislation, more particularly in the IPA and the SPA. “Conflict” is not an appropriate word to use when interpreting planning schemes. Why it has come to be used by the courts, and subsequently codified in the legislation, is a good question. The courts for many years have said that one should not construe planning schemes as if they were acts of parliament. Rather they should be read as a whole with an eye to discerning their true planning objectives. Instead, for many years we have been driven by a legislative directive to search for “conflicts”. This seems counter-intuitive.
With the word “conflict” eradicated from the statutory language, hopefully it will also be removed from the lexicon of planning lawyers. What will replace it? Time will tell but it is hoped that in the courts cases will turn upon the degree of “inconsistency” between a development proposal and the true intent and objectives of a planning scheme, while balancing internal competition between a scheme’s measures and standards. This next phase of the reform process will play out in the drafting of planning schemes and the approach taken by planning lawyers and the Court to the new rules.
While the Court will no longer be compelled by the statute to refuse development applications, its resulting “discretion” will remain constrained by the language of planning schemes. Difficulties will arise at the margins where a planning scheme is either prescriptive, almost to the point of prohibition, or where it is obscure and unhelpful. Ideally there ought to be improvements in scheme drafting which avoid these extremes and adopt genuine measurable or observable performance standards. At least the planning statute will no longer encourage scheme drafting designed to effect de facto prohibition by precipitating “conflict”.