Introduction

The Sustainable Planning and Other Legislation Amendment Bill 2012 was introduced to Queensland Parliament on 13 September 2012. The Minister’s media release stated that the Bill is aimed at “restoring efficiency and consistency” to Queensland’s planning and development system.

The Bill continues the current government’s push to reduce red tape and introduces seven key amendments to the Sustainable Planning Act 2009 (SPA).

Amendment 1 – State referral and assessment regime

The Bill seeks to reform the State’s role in assessing and deciding development applications either as a referral agency or as assessment manager.

Currently, one development application may trigger referral to a number of State agencies, each of which needs to assess the application. To streamline this process, the Bill introduces a new Chapter 6, Part 1, Division 4, Subdivision 2A of the SPA which allows the chief executive administering the SPA to play the role of single State assessment manager or referral agency in certain circumstances.

A subsequent amendment to the Sustainable Planning Regulation 2009 (SPR) will be necessary to prescribe the chief executive as the assessment manager, concurrence agency or advice agency for particular development applications. The amendment to the SPR will also identify the matters which the chief executive will be required to have regard to in assessing such application.

Although it is not yet clear in exactly what circumstances the chief executive will be triggered as a single assessment manager or referral agency, it seems that it is intended to be a different mechanism to the referral coordination process which applied under the repealed Integrated Planning Act 1997.

That is, instead of the chief executive coordinating State agencies’ assessment processes triggered in relation to a particular development application, which was the process under the Integrated Planning Act 1997, under the Bill the chief executive will effectively replace the agencies by undertaking the assessment of the application on their behalf.

However,the Bill states that the single State assessment manager and referral agency will not apply to building development applications or replace the responsibilities of the local government as either assessment manager or referral agency for development applications.

Transitional provisions set out in the Bill make it clear that the single State assessment manager and referral agency amendments will not apply to development applications made, but not decided, before the Bill is enacted as legislation.

Amendment 2 – Removal of master planning and structure planning provisions

The Bill removes the planning partnership provisions of Chapter 4 of the SPA, which provided for master planning and structure planning arrangements.

An amendment to s. 20 of the SPA removes the provisions for:

  1. making a State planning regulatory provision for the purposes of implementing a structure plan or proposed structure plan for a master planned area; and
  2. providing a regulated State infrastructure charges schedule for a master planned area.

Transitional provisions in the Bill provide for the phasing out of master planning and structure planning arrangements. Under these transitional provisions:

  1. a planning scheme or temporary local planning instrument may still apply, adopt or incorporate a structure plan or master plan;
  2. structure plans already in force will continue to have effect, except to the extent that they:
    1. dentify any master planning requirements;
    2. state a master plan may identify alternative levels of assessment
    3. state that development cannot be carried out in a master planned area until there is a master plan for the area; or
    4. state that a development application for a preliminary approval can not be made for development in the area.
  3. master plans already in force will continue to have effect, except to the extent that they require later master plans for the identified master plan area; and
  4. existing applications for master plans made, but not decided, when any Act giving effect to the Bill commences, will continue to be assessed and decided as if that Act had not commenced; and
  5. where a local government does not have a structure plan in effect for a declared master planned area, such a plan must be made or amended under that local government’s SPA planning scheme, or a temporary local planning instrument must be made which provides for an assessment regime in the area.

Amendment 3 – Removal of requirement for evidence of allocation or entitlement to State resource to accompany development application

The Bill proposes a significant reform to the requirements for making a development application by removing ss. 260(1)(f) and 264 of the SPA, which currently require a development application involving a State resource to be accompanied by evidence of an allocation of, or entitlement to, that resource.

The evidence requirement has often resulted in delays in the preparation of development applications and has also caused issues for developers where oversights in obtaining the necessary evidence have been identified during Court proceedings, resulting in the need to seek the Court’s excusal of the non-compliance.

The requirement for a development application to be accompanied by owner’s consent remains. It should follow that, while development applications will not be required to be accompanied by evidence of an allocation of or entitlement to a State resource, they may be required to be accompanied by the consent of the State as owner of land (for example, where the development application involves freehold land owned by the State, or unallocated State land).

Amendment 4 – Assessment manager to have power to accept development applications as properly made

Under the current provisions of the SPA, for a development application to be “properly made” under s. 261 of the SPA, it must be accompanied by any information identified as mandatory supporting information in the approved IDAS application form.

While it will still be necessary for the mandatory requirements part of the application form to be completed, the Bill provides the assessment manager for a development application with the discretion to accept an application as properly made where the mandatory supporting information is not provided.

The application will still need to satisfy the other requirements of s. 260(1) and (3) of the SPA, such as being accompanied by the relevant owner’s consent, in order to be properly made.

Amendment 5 – Maximum level of assessment for low risk operational works

The Bill introduces a new s. 55A into SPA, under which certain standard planning scheme provisions will apply to local planning instruments made under the repealed Integrated Planning Act 1997. The Explanatory Notes to the Bill state that the amendment is intended to ensure that maximum levels of assessment and codes for low-risk operational works to be identified in the standard planning scheme provisions (Queensland Planning Provisions) will apply to all local governments.

It is likely that the highest level of assessment for such low risk operational works under the Queensland Planning Provisions will be compliance assessment, with local governments retaining the ability to impose a lower level of assessment in their planning schemes.

Amendment 6 – Change to costs regime in Planning and Environment Court

The Bill introduces a significant reform to s. 457 of the SPA in relation to the Planning and Environment Court’s power to award costs.

Under the current version of the SPA, the general rule in relation to costs in the Planning and Environment Court is that each party bears its own costs. This long running costs regime was carried over from the Integrated Planning Act 1997 and the Local Government (Planning and Environment) Act 1990 before that.

Although the Court has had a discretion to award costs in certain circumstances (for example, where the Court considers that a proceeding was frivolous or vexatious), this power has rarely been exercised.

The Bill brings the costs regime of the Planning and Environment Court into line with the Supreme and District Court by providing that “costs follow the event”. This means that generally the losing party will pay an amount towards the winning party’s costs, subject to the Court’s discretion.

This is a significant departure from the current system. The Explanatory Notes for the Bill identify three main scenarios that the reform is aimed at addressing:

  1. the reluctance of applicants to challenge conditions due to high litigation costs;
  2. commercial competitor appeals being instituted to delay; and
  3. third party appeals being commenced on weak grounds.

The Bill provides that the Court may order that each party to a proceeding bear its own costs where parties participate early in a proceeding in alternative dispute resolution which is successful in resolving the appeal.

The Bill also provides that:

  1. if a proceeding is not resolved via alternative dispute resolution, the costs of the proceeding include the cost of the alternative dispute resolution process; and
  2. the costs of a proceeding will also include investigation costs (for example, a local government’s investigation costs incurred investigating a development offence prior to the commencement of proceedings).

The Bill provides for an amendment to be made to the Planning and Environment Court Rules 2010, to set out how the Court is to exercise its discretion as to costs.

Transitional provisions make it clear that the old costs regime will continue to apply to Court proceedings started prior to any Act giving effect to the Bill.

Amendment 7 – Court to have power to direct ADR Registrar to hear and determine proceedings

In line with the reform of the costs regime in the Planning and Environment Court, the Bill introduces a new Chapter 7, Part 1, Division 12A relating to the powers of the Alternative Dispute Resolution Registrar of the court.

A new s. 491B of the SPA provides the Chief Judge of the District Court with discretion to direct that specific powers of the Court be exercised by the Alternative Dispute Resolution Registrar of the Court. The Explanatory Notes to the Bill state that this reform is intended to allow minor matters to be resolved sooner without costs implications.

In particular, the Bill provides that the Chief Judge will be able to direct the ADR Registrar to hear and decide proceedings on the basis that each party bears its own costs.

A decision of the ADR Registrar may be reviewed by the Court. An application for review of a decision of the ADR Registrar will generally need to be made within 21 days after the decision is given.

The ADR Registrar will have the power to refer a proceeding back to the Court if it appears to the ADR Registrar to “be proper for the decision of the Court”.

Final Comments

It would seem that that the majority of the proposed amendments to the SPA will be welcomed by developers.

However, the significant change to the costs regime in the Planning and Environment Court will likely be of particular concern to community groups and self represented litigants and could result in a drop in the number of Court proceedings being commenced.

In addition, with the Court currently only having appointed one ADR Registrar, another may need to be appointed if the Court intends to regularly use its power to direct that matters be determined by the ADR Registrar.

With the Bill still to pass through parliament and further amendments to the SPR and the Planning and Environment Court Rules 2010 necessary to fully implement the changes, it remains to be seen exactly what form the amendments will take.