The Summer of Sorrow
‘The summer of 2010/11 will be remembered as our summer of sorrow.’ So began the condolence address of Premier Anna Bligh in the Queensland Parliament on Tuesday. She continued to recount the ‘story of devastation and of horror, a story of fragility and vulnerability, but also a story of hope and inspiration.’ That hope can be seen in what can almost be described as a war cry: ‘we will rebuild Queensland’.
Ensuring that Queensland will be rebuilt as efficiently and smoothly as possible will be the job of the Queensland Reconstruction Authority (QRA)1. On Wednesday 16 February 2011, the Queensland Reconstruction Authority Bill 2011 (QRA Bill) was introduced into Parliament. This article provides an overview of the QRA Bill and considers some of the implications for stakeholders, including developers, infrastructure providers and local governments.
Scope of the QRA Bill
The purpose of the QRA Bill is ‘to provide for appropriate measures to ensure Queensland and its communities effectively and efficiently recover from the impacts of disaster events. Disaster events are defined to cover the floods caused by the heavy rains in December 2010 and January 2011 and Tropical Cyclone Yasi (TC Yasi).
Despite the fact that the scope of the QRA Bill may be expanded to cover other disasters, the QRA Bill includes a two year sunset clause. After that time, the relevant powers and responsibilities of the QRA will be transferred to the Coordinator-General under the State Development and Public Works Organisation Act 1971 (State Development Act).
The Premier has announced that she will be the Minister responsible for the administration of the QRA Act (when passed) as the Minister for Reconstruction.2
Role of the QRA
The purpose of the QRA is to coordinate and manage the rebuilding and recovery of affected communities, including the repair and rebuilding of community infrastructure and other property. The QRA will be based in based in Brisbane. However, it will also establish a dedicated office in North Queensland, headed by Chief Superintendent Mike Keating, to support communities affected by TC Yasi3.
The QRA must (amongst other things):
- decide priorities for community infrastructure and community services needed for the protection, rebuilding and recovery of affected communities
- coordinate and distribute financial assistance for affected communities
- be responsible for the collection of relevant information by working closely with affected communities, collecting and collating information about affected community infrastructure, other property and community services and developing an arrangement for sharing data across all levels of government to ensure effective and efficient exchange of information, and
- facilitate flood mitigation for affected communities and ensure that the protection, rebuilding and recovery of affected communities is effectively and efficiently carried out and appropriate.
While the role of the QRA is clearly not to investigate or determine potential causes of the flooding, it must (if asked by the Minister) give the Minister advice about putting into effect the recommendations of the Commission of Inquiry set up by the Government in the aftermath of the floods. In particular, it will be asked to advise on recommendations about flood mitigation or land use planning.
The chief executive officer of the QRA is former Coordinator-General Graeme Newton and staff may also be seconded into the QRA from other State government departments, government owned corporations or local governments.
An overview of the main powers of the QRA is set out below.
Queensland Reconstruction Board
The QRA Bill also establishes the Queensland Reconstruction Board, the functions of which are to:
- set the strategic priorities for the QRA
- make recommendations to the Minister about various matters under the QRA Bill, and
- ensure the QRA performs its functions and exercises its powers in an appropriate, effective and efficient way.
The membership of the Queensland Reconstruction Board was announced on 13 February 2011. It will be chaired by Major General Mick Slater and comprise the following:
- Kathy Hirschfield, former BP executive
- Jim McKnoulty, an expert in local government, planning and development matters
- Steve Golding, a former Director-General, Main Roads Queensland
- Brian Guthrie, former CEO of Townsville City Council as nominee of the Local Government Association of Queensland, and
- Two Commonwealth Government nominees: Mr Brad Orgill (Head of The Building the Education Revolution (BER) Implementation Taskforce) and Ms Glenys Beauchamp, Secretary of the Department of Regional Australia, Regional Development and Local Government4.
Powers of the QRA
The QRA represents the State of Queensland and has the status, privileges and immunities of the State. It can enter into contracts, acquire and dispose of property, engage consultants and do anything else necessary or convenient to be done in the performance of its functions.
Under the QRA Bill, it has three broad categories of powers:
- Power to intervene in and fast track approval processes for affected areas
- Independent planning powers to prepare development schemes and require local governments to amend planning instruments, and
- Power to undertake reconstruction or development works itself.
These will be dealt with in turn. However, it is worth noting that the QRA does not have the power to stop the construction of approved development. Existing lawful use rights and otherwise lawful development are also preserved.
Fast Tracking Processes and Approvals
Under the QRA Bill, the Minister can:
- declare by notice in the Government Gazette that a proposed development is a ‘declared project’
- recommend to the Governor in Council that a regulation should be made declaring a part of the State to be a ‘reconstruction area’
- declare by notice in the Government Gazette that the undertaking of a declared project, or particular development in a reconstruction area is critical or essential for the State for economic, environmental or social reasons (called a ‘critical infrastructure project’).
Declared projects and reconstruction areas will only be declared (or recommended for declaration) if the Minister is satisfied that:
- the relevant area has been directly or indirectly affected by a disaster event, and
- the declaration is necessary to facilitate flood mitigation for affected communities, or the protection, rebuilding and recovery of affected communities.
The Minister must have regard to the responsibilities of the relevant local government for matters about land use, and the giving of development approvals for the local government area.
However, such declarations (and the implications that flow from them) have a significant impact on local governments. The performance of the relevant local government’s functions and the exercise of its powers in relation to land the subject of the declared project or land in the reconstruction areas is subject to the QRA’s functions and powers.
Where it is necessary to acquire part of the reconstruction area in order to carry out the QRA’s reconstruction function, the regulation for the reconstruction area may also declare that part of the area is ‘acquisition land’. This means the owner of such land may only sell the land to the QRA (or a local government, if this is stated in the regulation) and if the owner decides to sell the acquisition land, the QRA or local government must buy it. Where land is declared to be acquisition land, the QRA must notify the register of titles about the declaration. The fact that the land is acquisition land under the QRA Bill will be noted on the title for that land.
The QRA Bill confers powers on the QRA to intervene in the assessment and decision making processes in relation to declared projects or developments in reconstruction areas, including (but not limited to) processes and decisions under the integrated development assessment system (IDAS) under the Sustainable Planning Act 2009 (SPA).
The QRA Bill provides for the following:
- Progression Notice – allows the QRA to give a notice to a decision maker (such as an assessment manager) requiring it to undertake any administrative processes required to complete a relevant process within a stated period (eg. giving an acknowledgement notice).
- Notice to Decide – allows the QRA to give a notice to a decision maker to make a particular decision within a stated period (at least 20 business days after the notice is given or shorter period if the decision maker would have been required to do so under the relevant law). Where the decision relates to a development application under SPA, the notice to decide may only be given after the decision stage has commenced.
- Step-in Notice – allows the QRA to make an assessment and a decision itself where a Progression Notice or Notice to Decide has not been complied with or has been complied with but the applicant requests that the QRA issue a Step-in Notice. A Step-in Notice can also be given within 10 business days after the start of an appeal against the prescribed decision or after the appeal period expires. The QRA Bill sets out the effects of a Step-in Notice in detail. However, in effect, the QRA stands in the shoes of the original decision maker and has all the powers of that decision maker under the relevant law for the prescribed process or prescribed decision.
If the matter relates to a development application under SPA, the assessment manager and each concurrence agency are taken to be an advice agency until the QRA makes its decision. If an appeal was made in relation to the decision, the appeal is of no further effect.
The QRA can decide the matter, impose conditions it considers necessary or desirable, send back the decision or process to the decision maker (with or without conditions) or decide aspects of the decision and send back undecided aspects of the decision to the decision maker.
The decision of the QRA is taken to be that of the original decision maker (although no appeal rights lie from this decision). Any conditions imposed by the original decision maker must be consistent with conditions imposed by the QRA. If the original decision maker makes future decision in relation to the relevant development (e.g. development permit amendment), it must be consistent with the QRA’s decision.
Appeal Rights/Judicial Review
As stated above, no appeal rights lie from the QRA’s decision after issuing a Step-in Notice.
Further, it is not possible to judicially review:
- a decision of the Minister to declare a declared project or development in a reconstruction areas to be a critical infrastructure project
- a decision of the Minister to declare a declared project if the project is a critical infrastructure project
- a decision of the QRA to give a Progression Notice, Notice to Decide or a Step-in Notice for a critical infrastructure project
- the QRA’s decision resulting from the Step-in Notice for a critical infrastructure project, or
- a decision or conduct leading up to or forming part of the process of making any of these decisions.
Decisions not relating to critical infrastructure projects appear to be subject to judicial review.
The QRA (but not a third party) may seek a declaration in the Planning and Environment Court in relation to matters under the QRA Bill, its interpretation or the lawfulness of land use or development for a declared project or in a reconstruction area.
The QRA may make a development scheme for a declared project, a reconstruction area or part of a reconstruction area, which can include ‘any matter that the [QRA] considers will promote the proper and orderly planning, development and management of the declared project or reconstruction area’.
The development scheme must include:
- a land use plan regulating development for the project or in the area
- a plan for infrastructure for the project or in the area, and
- an implementation strategy to achieve the reconstruction function of the QRA to the extent it is not achieved by the land use plan or the plan for infrastructure.
It appears from the QRA Bill, that the land use plan is intended to operate in a similar way to a planning scheme (but is certainly not required to do so). It may:
- identify levels of assessment for particular development or categories of development
- include a code for IDAS, and
- state that particular development is consistent or inconsistent with the land use plan.
The development scheme can provide that assessable development prescribed under SPA is not assessable for the declared project or reconstruction area. It can provide that a referral agency under SPA is not a referral agency for the declared project or reconstruction area. The development scheme prevails to the extent of any inconsistency with a planning instrument and a plan, policy or code made under SPA or another Act.
All relevant development applications must be assessed against the development scheme and the decision may be inconsistent with a State regulatory provision if the conflict is necessary to ensure the decision complies with the development scheme. The assessment manager cannot grant a development permit if the development would be inconsistent with the land use plan unless a preliminary approval under SPA was in force for the land and the development would be consistent with the preliminary approval.
Community infrastructure designation
A community infrastructure designation cannot be made for land to which a development scheme applies. However if a community infrastructure designation is in force immediately before a development scheme takes effect, it continues in force for the land. Development on land under a community infrastructure designation that is in force immediately before a development scheme takes effect is exempt development under SPA, to the extent the development is self assessable development, development requiring compliance assessment or assessable development under the development scheme.
Existing uses and approvals
Existing lawful uses are protected despite the declaration of a development scheme for the area. Further, where a building has been lawfully constructed or work lawfully carried out, neither a development scheme nor the amendment of the scheme can require the building work to be altered or removed. In addition, where a development approval or compliance permit exists for premises immediately before a development scheme or an amendment to a development scheme commences, the scheme cannot stop or further regulate the development or otherwise affect the approval or permit (to the extent the approval or permit has not lapsed).
Power to take action about local planning instruments
If the Minister is satisfied that it is necessary in order to ensure the main purpose of the QRA Bill, the Minister may direct a local government to take an action in relation to a local planning instrument, a proposed local planning instrument or a proposed amendment of a local planning instrument, including (but not limited to):
- review its planning scheme
- make a planning scheme or amend its planning scheme
- make or repeal a temporary local planning instrument, or
- make, amend or repeal a planning scheme policy.
Notice must first be given to the relevant local government and the local government may make submissions about the proposed action, which the Minister must take into account.
Power to undertake works and acquire land
The QRA may undertake works, where the Minister is satisfied that, for the effective and efficient carrying out of the QRA’s reconstruction function, it is necessary or desirable for the particular works to be carried out. If this occurs, relevant similar provisions of the State Development Act apply and the works may also be transferred to the relevant State authority upon completion.
The QRA may also acquire land for the following purposes:
- to carry out authorised works
- to implement a development scheme for a declared project or a reconstruction areas
- to carry out the QRA’s reconstruction function
- if required to under the QRA Bill, where the owner of ‘acquisition land’ decides to sell that land.
The relevant processes (including in relation to compensation) of the Acquisition of Land Act 1967 (Qld) (ALA) apply to the taking of the land. However, the QRA Bill declares that the taking of the land is not a taking of land under the ALA, even though the process for taking the land and paying compensation is that provided for under the ALA.
Other relevant provisions
The QRA Bill also seeks to amend the Building Act 1975 to include a six month exemption period from 8 January 2011 for various pool safety certificate requirements and amends the Land Valuation Act 2010 to delay the date of issue of 2011 annual valuation notices to a date between 31 March 2011 and 30 June 2011. This appears to apply State-wide and not just to areas affected by floods or TC Yasi.
The QRA Bill will be debated during the course of the week and it is possible that amendments will flow from this debate. However, in practice, the QRA is already up and running – so there can be little doubt that the QRA Bill will be passed. Judging by the addresses today by both sides of the House, there is bipartisan support for such an authority. The extent of its powers and the manner in which they are carried out remain yet to be finally determined.