New amendments are proposed to the Planning Act 2016 to clarify a number of issues that have been identified in recent Court proceedings.
A number of issues have arisen in the operation of the planning framework since the commencement of the Planning Act 2016 on 3 July 2017. This has included:
- the validity of infrastructure charges notices (ICNs) and the requirement to include a ‘decision notice’; and
- the burdensome requirement for submitter appellants to serve all other submitters to a development application.
The Economic Development and Other Legislation Amendment Bill 2018 (EDOLA Bill) was introduced into Parliament on 19 September 2018. Much of the proposed amendments are mechanical in nature and seek to clarify the relationship between the various statutes that together regulate the planning framework in Queensland.
However, amendments have also been proposed to the Planning Act 2016 (Planning Act) to clarify the requirements for ICNs and submitter appeal service requirements. A new Part is also proposed that allows service of documents by reference to a website or other electronic medium.
Validity of infrastructure charges notice
In a recent decision of the Planning and Environment Court, the validity of a series of ICNs was challenged on the basis that they did not satisfy the technical requirements of the planning legislation.
Under the (repealed) Sustainable Planning Act 2009 (SPA), section 637(2) required that:
“The infrastructure charges notice must also include, or be accompanied by, an information notice about the decision to give the notice.”
This requirement has been carried through to section 121(3) of the Planning Act 2017, albeit with a slightly different wording:
“The infrastructure charges notice must also include, or be accompanied by, a decision notice about the decision to give the notice.”
In the Sunland case, Judge Kefford found that Gold Coast City Council had failed to provide an ‘information notice’ with the relevant ICNs as required by the SPA. The Court determined that ‘reasons’ for issuing the ICNs had not been given, as such reasons must “go beyond a mere explanation of how the charge has been worked out”. The effect was that the ICNs were held to be invalid.
Clause 165 of the EDOLA Bill proposes to amend section 121(3) of the Planning Act by removing the requirement to include ‘a decision notice’ with the ICN, which in turn removes the requirement to give reasons for issuing the ICN. The new section 121(3) will simply require that the ICN must:
- state the date of the ICN;
- state any appeal rights the recipient of the notice has in relation to the ICN; and
- include any other information prescribed by regulation.
This amendment provides clarity around the issuing of ICNs, and removes the requirement for local government to provide detailed reasons for issuing an ICN in circumstances where the calculation of the charges is usually an automatic / mechanical exercise.
Submitter appellant service requirements
In the Ayre case, the Court held that a submitter appellant in a Planning Act appeal must give notice of the appeal to all other submitters to the development application. The impacts of this requirement are that:
- it places an unreasonable imposition on submitter appellants to notify all other eligible submitters within 2 business days of filing the appeal; and
- submitters who have not filed their own appeal are afforded a ‘second bite of the cherry’ and can elect to join an appeal started by another submitter.
Clause 172 of the EDOLA Bill proposes to amend section 230(3) of the Planning Act to remove the requirement for a submitter who appeals a decision to give all other eligible submitters to the development application a copy of the notice of appeal.
Electronic service of documents
The EDOLA Bill also inserts a new Part 4A into Chapter 7, which enables service of relevant documents by giving a communication that refers to a stated website or other electronic medium where the relevant document can be viewed.
The current electronic service provision in section 279 of the Planning Act is to be removed, and instead replaced with a process that facilitates the use of electronic forms of communication in planning and development assessment.
The new provisions enable a person (Giver) to serve a document via a communication (e.g. a letter) which states a website or other electronic medium where the document can be viewed or downloaded. However, the recipient of the communication (Recipient) may still request a hard copy of the document at any time, and the Giver must provide a copy as soon as practicable.
Further, if the Recipient has already provided the Giver with an email address for service, the Giver may serve the relevant document electronically by sending an email to the Recipient with a link to where the document can be viewed or downloaded.
The new provisions also provide that the Recipient is taken to have been served with the document if it is able to be viewed by accessing the website at the time the communication was sent, and for a reasonable period afterwards.