Today, the 2nd of December 2013 is a big day in Queensland for State planning. Today is the day that the following happens:
- The (single) State Planning Policy takes effect (‘the SPP’);
- Version 1.1 of the State Development Assessment Provisions commence;
- The un-commenced provisions of the Local Government and Other Legislation Amendment Act 2013 will commence (which will amongst other things, re-order the hierarchy of State planning instruments under the Sustainable Planning Act 2009 (SPA)); and
- The existing 10 State planning policies cease to have effect.
Aside from the ‘tinkers around the edges’ that arose out of the Sustainable Planning and Other Legislation Amendment Act 2012, we should take this as the true start of the Government’s overhaul of Queensland’s planning system.
The SPP is different from its draft version which we wrote about on 3 May 2013. Accordingly, it is worth dissecting the entire SPP afresh here.
How it looks
The SPP is divided into eight parts, namely:
- Part A: Introduction and policy context
- Part B: application and operation
- Part C: principles
- Part D: the state interests and plan making policies
- Part E: interim development assessment requirements
- Part F: self-assessable development code
- Part G: glossary
- Part H: appendices
Part A confirms the status in the hierarchy of State planning instruments of the SPP as being third only to the SPA (1st) and State planning regulatory provisions (2nd). Accordingly, as and from the 2nd of December, the SPP will take priority over regional plans, the standard planning scheme provisions and local planning instruments (care of changes to the SPA brought about by the Local Government and Other Legislation Amendment Act 2013 which will also commence on 2 December 2013).
Part A also advises the relationship the SPP is to have with the State Assessment and Referral Agency (SARA). Since 1 July 2013, SARA has been the recipient of all development applications involving matters of interest to the State. Operationally this has been triggered via the referral agency trigger under Schedule 7 of the Sustainable Planning Regulation 2009 (SPR), or via the assessment manager provisions under Schedule 6 of the SPR.
Whenever SARA receives a development application for the chief executive as a referral agency or assessment manager, the SPA (together with section 10A of the SPR) tells the applicant that it may have regard to the State development assessment provisions (SDAPs).
The 224 page document that is version 1.1 of the SDAPs which will commence on 2 December 2013, interacts with the SPP - explained via a helpful matrix on page 7. That matrix allows for a navigation between the 19 modules (or matters of state interest) for which the SDAPs have created 28 state codes, and the five themes (under which sixteen matters of state interest have been created under the SPP).
Whilst initially it might seem frightening that the features of the SPP do not match exactly with the modules in the SDAPs, upon reflection the lack of immediate interplay is not all that critical. This is because the SPP will largely work to influence the content of local government planning schemes in so far that State interests are concerned. Versus the SDAPs which represent the State codes for development the State is still interested in seeing applications for. Whilst related, they are kind of like cousins – a marriage between them is probably achievable, but perhaps not desirable.
At page 9, the SPP confirms that it officially applies to the:
- Making or amending of a planning scheme; and
- Designation of land for community infrastructure by a Minister; and
- Making or amending of a regional plan; and
- Assessment of a development application mentioned in Part E (but only to the extent the SPP has not been identified in the planning scheme as being appropriately integrated in the planning scheme); and
- Carrying out of self-assessable development mentioned in Part F (which at this stage is limited to operational work that is high impact earth works carried out for either government supported transport infrastructure, or for electricity infrastructure, both in a wetland protection area).
In addition, the SPP further advises that the planning Minister could use the SPP when they are to identify relevant State interests in performing functions under the SPA (e.g. in attending to Ministerial call-ins, considering the joining of appeals by the State and the like).
The SPP makes it very clear that it does not operate so as to prioritise one State interest over another at a statewide level. It throws this job back to local governments via their planning schemes. Whilst three objectives are specified under the heading of ‘managing competing state interests’, these objectives are rather benign and unlikely to really assist local governments achieve in a methodological sense, an order of competing state interests in their planning scheme areas.
Interestingly, in so far that the designation of land for community infrastructure by the State is concerned there is a requirement imposed in Part B on the Minister to consider the ‘overall public benefit of well-located community infrastructure delivered in an efficient, cost-effective and affordable way’. If the comfort follow up sentence which reads “while there may be sufficient grounds for departing from a particular provision in the SPP, plans for developing community infrastructure must still demonstrate that the guiding principles of the SPP have been achieved” was not included, one might be forgiven for thinking that in the case of community infrastructure designations, the infrastructure itself might be likely to win out over any matters of State interest identified in the SPP.
Finally, Part B contains some operational directives confirming what parts do and do not form statutory components of the SPP. It also tells us of the associated mapping, guidance and supporting material associated with the SPP. It is fair to say that there is a lot of material which falls into the category of ‘guidance and supporting material’ (some of which contain mandatory requirements, so will be well worth investigating in the application of the SPP).
The principles are contained in Part C of the SPP. There are five categories of principles (outcome focussed, integrated, efficient, positive and accountable) – each with their own short statement, and associated three provisions. Frankly, this part of the SPP is the feel good section of broad statements which in practice, are unlikely to be reverted to much.
Part D is where it is all at. It contains the sixteen State interests, which are now described as follows:
- Liveable communities: planning delivers liveable, well-designed and serviced communities that support wellbeing and enhance quality of life;
- Housing supply and diversity: diverse, accessible and well-serviced housing and land for housing is provided;
- Agriculture: planning protects the resources on which agriculture depends and supports the long-term viability and growth of the agricultural sector;
- Development and construction: planning supports employment needs and economic growth by facilitating a range of residential, commercial, retail and industrial development opportunities, and by supporting a strong development and construction sector;
- Mining and extractive resources: mineral, coal, petroleum, gas, and extractive resources are appropriately considered in order to support the productive use of resources, a strong mining and resource industry, economical supply of construction materials, and avoidance of land use conflicts wherever possible;
- Tourism: tourism planning and development opportunities that are appropriate and sustainable are supported; and the social, cultural and natural values underpinning the tourism developments are protected to maximise economic growth;
- Biodiversity: matters of environmental significance are valued and protected, and the health and resilience of biodiversity is maintained or enhanced to support ecological integrity;
- Coastal environment: the coastal environment is protected and enhanced, while supporting opportunities for coastal-dependent development, compatible urban form, and safe public access along the coast;
- Cultural heritage: the cultural heritage significance of heritage places and heritage areas, including places of indigenous cultural heritage, is conserved for the benefit of the community and future generations;
- Water quality: the environmental values and quality of Queensland waters are protected and enhanced;
- Emissions and hazardous activities: community health and safety, sensitive land uses and the natural environment are protected from potential adverse impacts of emissions and hazardous activities, while ensuring the long-term viability of industrial development, and sport and recreation activities;
- Natural hazards: the risks associated with natural hazards are avoided or mitigated to protect people and property and enhance the community’s resilience to natural hazard;
- Energy and water supply: planning supports the timely, safe, affordable and reliable provision and operation of electricity and water supply infrastructure;
- State transport infrastructure: planning enables the safe and efficient movement of people and goods across Queensland and encourages land use patterns that support sustainable transport;
- Strategic airports and aviation facilities: planning protects the operation of strategic airports and aviation facilities, and enables the growth and development of Queensland’s aviation industry;
- Strategic ports: planning protects the operation of strategic ports and enables their growth and development.
For each of the above State interests, the SPP tells us why it is a matter of State interest (non-statutory), and also advises the ways a local government’s planning scheme is to appropriately integrate the particular State interest (which double as the guiding principles the designation of land for community infrastructure by a Minister should achieve) (statutory).
Six of the sixteen State interests come with interim development assessment requirements under Part E of the SPP. The affected State interests are:
- Mining and extractive resources;
- Coastal environment;
- Water quality;
- Natural hazards;
- Emissions and hazardous activities;
- State transport infrastructure; and
- Strategic airports and aviation facilities.
The material in Part E of the SPP makes it clear when the interim development assessment requirements apply to development, and what the development application must be assessed against.
They only apply to the extent the SPP has not been identified in the planning scheme as being appropriately reflected, and are in addition to the other relevant requirements of the planning scheme. The interim development assessment requirements in the SPP do not alter the level of assessment prescribed for development by a local government in its planning scheme.
Part F of the SPP contains a self-assessable development code for self-assessable development mentioned in Schedule 3, part 2, table 4, items 6 and 7 of the SPR (i.e. operational work that is high impact earth works carried out for either government supported transport infrastructure, or electricity infrastructure, in a wetland protection area). Accordingly – the self assessable development code contained in Part F is entitled ‘Self-assessable code: Wetland protection areas in Great Barrier Reef catchments’. It is a statutory code for IDAS under the SPA.
Part G contains a glossary of the terms and list of abbreviations used in the SPP. The appendices follow in Part H including:
Appendix 1 – SPP code: Ship-sourced pollutants reception facilities in marinas;
Appendix 2 – SPP code: Water quality;
Appendix 3 – SPP code: Land use and transport integration;
Appendix 4 – SPP code: Strategic airports and aviation facilities;
Appendix 5 – management areas – acoustic and air quality objectives.
So, what do we think of the SPP?
It was always going to be a big project to front load information into the planning system in Queensland at the State level, to help bring about a more transparent system. However – this SPP, together with the SDAPs certainly go a long way towards achieving this goal. There is still a great body of material which sits behind these instruments in the form of SPP ‘guidance material’. Some of this material is still in a draft form (and feedback in relation to it is still welcome). The use of the guidance material is being pitched as ‘optional’ – which is a relief given that in many instances, it would seem that its contents lend itself to ongoing updates and refinement.
However, as some of the statutory statements made in the SPP for how local government planning scheme’s are to appropriately integrate State interests are quite broad – recourse by local government’s to the guidance material, in making/amending their planning schemes will likely remain prudent practice. In this sense, there will be no real change from how things worked in the State planning policy space pre-2 December 2013.
As to the SPPs likely impact on the scope of Ministerial call-ins (and other instances where State interests are a determining factor in State intervention/involvement in the system) - well, it will form a succinct basis upon which such decisions can be grounded. But, given the all encompassing nature of some of the State interests (e.g. liveable communities), it seems unlikely that the SPP itself would re-wire the outcome of affected decisions which would have been made under the pre-2 December 2013 regime.