Sustainable Planning & Other Legislation Amendment Act 2012
Recently the Sustainable Planning & Other Legislation Amendment Bill 2012 (“the Bill”) was passed by the Queensland Parliament. First introduced back in September, the Bill proposed a number of key reforms to the Sustainable Planning Act 2009 (“the SPA”), including:
- giving the Planning and Environment Court (“the Court”) general discretion in relation to costs;
- introducing an alternative dispute resolution process in the Court for minor disputes;
- reducing regulatory ‘red tape’ for development applications involving a state resource;
- improving the coordination and responsiveness of state government in dealing with particular development applications (proposing development within or partially within state jurisdiction); and
- removing ineffective master planning and structure planning arrangements.
These reforms have previously been discussed in our paper “Sustainable Planning Amendment”.
The Bill was subsequently referred to the State Development, Infrastructure and Industry Committee (“the Committee”) which prepared a report for Parliament based upon consultation with stakeholders. This report advised that the Bill be passed, however it did note a number of recommendations.
One of the main issues raised by stakeholders was concern regarding the changes to the way the Court deals with the matter of costs. It was thought that the adoption of a “costs follow the event” regime would disadvantage smaller scale applicants, like residents and community interest groups, by increasing the risk of costs being awarded against them should they be unsuccessful in the Court. It was also submitted that the new regime would be confusing, leading to considerable legal debate over what “event” the costs would follow. As an alternative, a number of the stakeholders noted that many of the objectives of the proposed reform could be achieved by widening the Court's discretion to award costs, rather than sweeping changes to the regime. As a result, the Committee recommended that the relevant clause be amended to remove the words ‘but follow the event, unless the court orders otherwise’.
Another issue raised by a number of stakeholders related to the proposed expansion of the powers of the ADR Registrar. There was strong support for this amendment, with a general agreement by stakeholders that the ADR process contributed positively to the resolution of proceedings. The Committee recommended that the planned changes go ahead, however they did recommend that steps be taken to ensure that the ADR Registrar of the Court is provided with the necessary additional resources to fulfil its proposed expanded functions.
It was also recommended that the provision allowing the ADR Registrar to “inform himself or herself in the way the ADR registrar considers appropriate” be omitted in order to avoid unintended consequences in the exercise of power by the ADR Registrar. There were concerns raised by stakeholders that this provision gave the ADR Registrar a broad power to consider evidentiary matters usually the subject of a full hearing.
Amendments to the Bill
As a result of the report a number of changes were made to the Bill before it was passed. These included minor changes, such as:
- giving the chief executive the power to shift responsibility for enforcing compliance with conditions imposed or recommended by the chief executive to a nominated entity;
- including a clarification that development applications for preliminary approvals under s 242 of the SPA within a master planned area are not required to undergo public notification in most circumstances; and
- requiring the ADR Registrar, in exercising a power of the Court, to “act as quickly, and with as little formality and technicality, as is consistent with a fair and appropriate consideration of the issues”.
There were however, major changes to the provisions regarding the Court’s new costs discretion. The Bill as passed now provides that the “costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court.” Also included in the Bill as passed is a non-exhaustive list of matters that the court may take into consideration when deciding whether to award costs. These matters include such things as whether a party:
- commenced or participated in the proceeding for an improper purpose or without reasonable prospects of success;
- has acted unreasonably leading up to the proceeding or in the conduct of the proceeding;
- has incurred costs because another party has introduced, or sought to introduce, new material, or has not complied with a provision of the SPA; and
- should have taken a more active role in a proceeding and did not do so.
The Bill as passed also provides that:
- the only instance where costs will generally follow the event, unless otherwise ordered by the Court, is that of enforcement proceedings; and
- each party to a proceeding must bear its own costs where parties participate in an early alternative dispute resolution process which is successful in resolving the matter, unless the Court orders otherwise.
Impact on You
The true impact of these most recent amendments to the SPA is unlikely to be felt for a significant period of time. For clients with matters currently before the Court, transitional provisions ensure that the old costs regime will continue to apply to proceedings commenced before the amended costs provisions take effect. However, any matters commenced after the date of assent will be governed by the new costs regime. Similarly, the Court’s power to direct the ADR Registrar to hear and determine proceedings will only take effect at the date of assent.
In relation to the Bill’s intention to establish a single state assessment and referral agency for particular development applications in an effort to simplify the approvals process, further amendments to the Sustainable Planning Regulation 2009 will still be required before this vision can be fully realised. It was indicated, in response to issues raised before the Committee, that there is intended to be an ongoing