The Regional Planning Interests Bill 2013 (Qld) (Bill) was passed with amendments by the Queensland Parliament on 20 March 2014. The Regional Planning Interests Act 2014 (Act) will commence on a date yet to be proclaimed.
HopgoodGanim’s Planning and Environment team previously published an Alert explaining how the Bill would cause some Queensland resource activities to be regulated under planning laws, and recommended that several aspects of the Bill be revised or made clear.
In this Alert, Partners David Nicholls and Sarah Macoun and Associate Olivia Williamson discuss how the matters identified in our previous Alert have been dealt with in the Act.
- The Act continues to provide an appeal right to “affected land owners”. Uncertainty surrounding the definition of “affected land owner” has not been resolved by the Act.
- The Act includes provisions about seeking declarations from the Planning and Environment Court and specifying which party must prove the case on appeal.
- There have been changes to the “exemption” provisions, however, not all pre-existing projects will qualify and there will undoubtedly be arguments about whether a project satisfies the criteria.
- A definition of “prescribed time frame” has been included, with time frames for the assessment and decision process to be prescribed by regulation.
- An exposure draft of the Regional Planning Interests Regulation 2014 has been released and includes detail such as the assessing agencies and their functions; the criteria for assessing and deciding a regional interest application and the prescribed time frames.
Our previous Alert recommended that the following aspects of the Bill be amended or clarified:
- the concept of “affected land owner” for a regional interests decision, in particular the uncertainty about whether the “affected land” needs be located within an area of regional interest;
- that consideration be given to removing the definition of “affected land owner” and that appeal rights be tied to whether a person makes a submission (like the process used in the Sustainable Planning Act 2009 (SPA));
- whether the Planning and Environment Court’s declaratory powers apply to matters done (or to be done) under the Bill, or to the construction of the Bill; and
- which party has the onus of proof in an appeal instituted regarding a regional interests decision.
The Bill was the subject of considerable scrutiny and comment, with some 99 submissions and supplementary submissions, and 44 witnesses, including the Deputy Premier, across two days of public hearings by the Parliamentary State Development Infrastructure and Industry Committee (Committee) in early 2014. Ultimately, the Committee’s Report (Report) on the Bill made 22 recommendations, including a recommendation that the Bill be passed, and raised 16 points for clarification. The Queensland Government accepted “in principle” all 22 recommendations and passed the Bill with 39 pages of amendments.
The matters identified in our previous Alert have been dealt with in the following manner in the Act.
Definition of “affected land owner”
In response to concerns about the appeal process, the Report includes the following statement from the Deputy Premier (given during the public hearing for the Bill held on 12 February 2014):
“In relation to affected persons, we have very deliberately limited that to people who are affected and, once again, it enlivens the debate about the definition of “affected” – who is actually affected - because we want to, not just in this instance but more broadly, put an end to the situation where somebody in California, Melbourne or somewhere else can unduly hold up the consideration of an assessment process here in Queensland, and that is happening. It is happening within the existing resource legislation ad we are considering ways of preventing it from happening. There is absolutely no intention, nor will we allow an outcome, that takes away the ability of a genuinely affected person to have their right of appeal, and that is consistent across all legislation. [Emphasis added]”
In the Report, the Committee requested clarification of the Deputy Premier’s assurance that the provisions of the Bill will provide appeal rights for a genuinely affected person.
Our previous Alert identified the possibility that after an “affected land owner” appeal is instituted, proponents will argue, based on the evidence, that the appeal is incompetent. The argument would be to the effect that the evidence discloses no adverse effect on the submitters’ land and therefore the appeal right never existed.
The points raised in our earlier Alert about appeal rights and affected land owners were noted in the Committee’s Report but not resolved. As passed, the Act continues to provide an appeal right to “affected land owners” which brings with it the inherent issues concerning how the Act’s provisions for establishing standing as an affected land owner will operate legally and practically.
The Act now confirms that that any person may start a proceeding in the Planning and Environment Court, seeking a declaration about any of the following:
- a matter done, to be done or that should have been done under the Act;
- the construction of the Act or a regional plan to the extent it relates to the Act; and
- the lawfulness, under the Act, of the carrying out of a resource activity or a regulated activity.
Onus of Proof
The Act now confirms who must prove the case on appeal:
- In an appeal instituted by the applicant for a regional interests decision, it is for the appellant to establish the appeal should be upheld.
- In an appeal instituted by either an owner of land or an affected land owner, it is for the applicant for a regional interests decision to establish the appeal should be dismissed.
Other noteworthy changes reflected in the Act
- Changes to terminology so that a proponent now makes an “assessment application” to be granted a “regional interests development approval”. Previous references to a “regional interests authority” have been replaced.
- Changes to the definitions of “resource activity” (to exclude certain minor authorities such as prospecting permits) and “regulated activity” (to clarify it is an activity likely to have a widespread and irreversible impact on the area of regional interest, as well as being prescribed under regulation for the area). Broadacre cropping is currently the only regulated activity prescribed in the exposure draft of the Regional Planning Interests Regulation 2014.
- Changes to the exemption for “pre-existing resource activities”, as well as the introduction of an exemption for “pre-existing regulated activities” . The change to the exemption for “pre-existing resource activities” removes the Bill’s requirement for the activity to be carried out in accordance with a “resource activity work plan”. However, the Act’s replacement criteria for determining the exemption for “pre-existing” resource activities is not as simple as the exemption being available where the resource activity has secured a resource authority or an environmental authority. The “pre-existing resource activity” exemption is available if, immediately before land becomes land in an area of regional interest, a resource activity may be carried out lawfully on the land.
- A resource activity may be “carried out lawfully” on land if:
- The activity may be carried out lawfully on the land –
- under a resource authority or an environmental authority; and
- without the need for any further authority or approval relating to the location, nature or extent of the expected surface impacts of the activity to be obtained under an Act or a condition of either authority; and
- information provided in, with, or in support of the application for the resource or environmental authority (or an amendment of the application) identifies the location, nature and extent of the expected surface impacts of the activity.
- Clarification that, while it continues in effect, a regional interests development approval attaches to the land despite any change in the land’s ownership or occupation.
- Reversing the stay of operation of decision provision. Previously, the Bill proposed that starting an appeal would automatically stay the operation of the regional interests decision. The Act has been amended so that an appeal does not stay the operation of the decision, unless the regional interests decision is stayed by the Court.
- Clarification that the holder of a regional interests development approval can request a “minor amendment”, or an amendment that the chief executive is satisfied would not adversely change the impact of the resource activity.
- Clarification that, as under the SPA, a condition cannot be imposed on a regional interests authority unless it is reasonably required to manage the impact of the activity on an area of regional interest, or is relevant to, and not an unreasonable imposition on, the resource activity or regulated activity.
- Clarification of the orders that a Court hearing a proceeding for an offence against the Act may make (in addition to, or in substitution for, any penalty the Court may otherwise impose). Such orders include to stop carrying out the resource activity or regulated activity, or to demolish or remove improvements or to restore land.
- Introduces a definition of “prescribed time frame”, with time frames for the assessment and decision process to be prescribed by regulation.
Draft Regional Planning Interests Regulation 2014
An exposure draft of the Regional Planning Interests Regulation 2014 (draft Regulation) was released on 20 March 2014. It is understood that there will be targeted consultation on this draft Regulation ahead of the Act commencing.
The detail of the draft Regulation includes:
- The assessing agencies and their functions for referrable regional interest applications.
- The criteria for assessing and deciding a regional interest application. There are different criteria for each of the areas of regional interest (ie priority agricultural areas, strategic cropping areas, priority living areas and strategic environmental areas). The criteria are framed in similar terms to codes contained in planning schemes. For instance, the activity must meet each of the required outcomes for the regional interests area to which the application relates, and a way of meeting the required outcomes is if the application demonstrates the matters listed in a prescribed solution.
- Interestingly, a number of the required outcomes are framed as “the activity will not result in a material impact on...”. “Material impact” is an undefined concept. It is to be hoped that clarity on this concept will be included in the finalised version of the Regulation.
- The prescribed time frames for various matters mentioned in the Act, including the assessment and decision timeframes (20 business days depending on the relevant trigger event) and also the timeframe for giving notice of the decision (five business days after deciding the application).
Regional Interests mapping
The Committee declined to recommend that the Bill be amended to enable challenges to mapping. Instead, the Committee sought clarification in relation to the mapping of areas of regional interest, including the accuracy of data used, the timeliness and ease of amending mapping, the ability to challenge maps, and the inclusion of soil criteria in the Act rather than the proposed regulation. This clarification is not addressed in the Act as passed or in the draft Regulation.
There is no information currently available as to when the regional interests mapping will be released. It is anticipated that this will be released ahead of the Act. The timing of its release will determine whether or not there will be an opportunity for public consultation.