Recent amendments to Queensland’s town planning laws have extended the type of special protection from prosecution and civil actions that was formerly afforded exclusively to the Milton Brewery to a wider class of premises, including other forms of manufacturing, as well as, potentially, major sporting facilities, or transport infrastructure such as port facilities and rail, to name but a few.1
The system aims to protect existing uses from encroachment by, and the intensification of, other development. It does this by preventing occupiers of nearby premises (including from residential areas) from initiating civil proceedings for nuisance, or a criminal proceeding relating to a local law, in respect of the emission of aerosols, fumes, light, noise, odour, particles or smoke from existing premises. The extended regime is a significant step towards protecting important land and infrastructure uses from urban encroachment.
These types of measures were considered necessary to counter increasing pressure which is being placed on existing lawful uses due to population intrusion as a result of urban consolidation in particular. However, the regime does not apply to mining activities or chapter 5A activities (which comprise petroleum activities and the like).
On 17 February 2012 the Planning (Urban Encroachment—Milton Brewery) Act 2009 (“Urban Encroachment Act”) was repealed upon the enactment of the Sustainable Planning and Other Legislation Amendment Act 2012, which also amended Queensland’s primary planning statute, the Sustainable Planning Act 2009 (“SPA”) by creating a new Chapter in SPA, Ch.8A–Provisions about urban encroachment.
Chapter 8A of the SPA preserves and transitions the rights and immunities that were created pursuant to the Urban Encroachment Act in respect of the Milton Brewery specifically, but also creates a new class of premises generally, called registered premises. Under these provisions, the Minister is able to approve the registration of premises that are significant to the economy, heritage or infrastructure of the State, a region or locality in which the area is situated for a period of at least 10 years. The new provisions are therefore potentially applicable in a wide range of contexts.
Once premises are registered, the registered premises cannot, despite the Environmental Protection Act 1994, be the subject of proceedings of the type described above. To put it another way, upon registration, a person cannot initiate a proceeding against any person in relation to the lawful use being carried out at the registered premises.
In order for registered premises to continue to enjoy this immunity, it is necessary for the registered premises to comply with the development approval or any applicable code of environmental compliance for the registered premises. The immunity is lost if the development approval that applied at the time of registration is consequently amended, or a new development approval is issued, in circumstances where, in each case, greater emissions become authorised at the registered premises than was the case when the premises became registered premises. Identical provisions apply in respect of any change to a code of environmental compliance.
Chapter 8A incorporates detailed provisions regarding the registration of premises and renewal of registration. In this regard, there are numerous formal requirements that an applicant must adhere to and any failure to comply with these requirements will potentially result in the application for registration being refused, registration cancelled, or a substantial fine imposed.
The Minister may amend conditions of registration on the Minister’s own initiative, although notice to the owner of premises must be provided and the owner has the ability to make written representations in respect of a proposed amendment.
Register of Premises
The chief executive administering the SPA must keep a register of all registered premises and publish the register on the department’s website which must be kept available for inspection, free of charge, by members of the public.
The new laws provide owners of a conceivably wide class of premises with an opportunity to secure protection for their tenants, or themselves, from civil proceedings for nuisance, or a criminal proceeding relating to a local law, in respect of the noise, light or other emissions from their premises. However, the formal requirements in respect of registration are somewhat complex and onerous therefore anyone that is contemplating making an application for registration should approach the exercise in a considered manner.