The Queensland Government has released a draft version of the Planning and Development Bill 2014 (Qld) (PD Bill) which, when commenced, will repeal the Sustainable Planning Act 2009 (Qld) (SPA) and introduce a new planning and development framework in Queensland. This article focuses on the key reforms relating to development assessment in the PD Bill.
The major changes introduced by the PD Bill include:
- the number of categories of development has been reduced from six to three, leaving 'accepted development', 'assessable development' and 'prohibited development',
- development which requires public notification must now be prescribed in a regulation, planning scheme or another categorising instrument,
- the scope of the community infrastructure designation (CID) framework has been broadened,
- the process for changing development approvals has been streamlined,
- two state planning instruments – the Queensland Planning Provisions and State Planning Regulatory Provisions – have been abolished,
- the legislation has been significantly reduced in size, from more than 700 pages in the SPA to 250 pages in the PD Bill (with much of the necessary detail to be relocated to a regulation or other instrument), and
- the Planning and Environment Court (P&E Court) is now to be established under a separate Act – the Planning and Environment Court Bill (P&E Court Bill).
The overall framework established by the PD Bill is very similar to that under the SPA.
A key structural change is the removal of the concept of 'stages' in the development application process, however a similar framework may be provided for in the development assessment rules prepared by the Minister, which are yet to be released.
The PD Bill also shifts from a focus on 'ecological sustainability' to 'prosperity', which involves balancing 'economic growth, environmental protection and community wellbeing'.
The PD Bill prescribes three categories of development:
- accepted development,
- assessable development, and
- prohibited development.
The 'self-assessable' and 'compliance assessable' categories of development under the SPA are not included in the PD Bill. As is the case in the SPA, there are two levels of assessable development in the PD Bill:
- standard assessment, and
- merit assessment.
The changes in terminology are set out in the table below.
Click here to view table.
The principle that all development is accepted (i.e. exempt) unless otherwise specifically identified is retained in the development assessment framework.
The principle behind the two streams of assessable development remains the same: the 'standard' category is intended to enable faster and more straightforward assessment against identified assessment benchmarks (e.g. codes), and the 'merit' category assesses projects with the potential for greater impacts. If a development application requiring standard assessment complies with the assessment benchmarks, it must be approved.
Only development applications subject to merit assessment can be required to undergo public notification (as is the case under the SPA). However, unlike impact assessment under the SPA, public notification is not mandatory for all merit assessable development. Instead, a 'categorising instrument' (i.e. a regulation, planning scheme, temporary local planning instrument or variation approval) may require public notification for certain types of development (other than where a regulation has prescribed that public notification is not required for a type of development). Where public notification is required, any person who makes a submission will have an appeal right, consistent with the SPA.
The PD Bill also extends the lapsing period for development approvals to:
- for a material change of use – six years,
- for the reconfiguring of a lot – four years, and
- for any other aspect of the approval – two years.
Between three and six months before a development approval is due to expire, the assessment manager must notify the applicant and owner of the relevant land that the development approval is due to lapse. If that notice is not given within the required period, the development approval does not lapse until three months after the notice is given.
Changes to development approvals
The process for changing development approvals under the PD Bill is similar to that under the SPA.
The PD Bill provides for two types of change applications:
- minor changes, and
- changes other than minor changes.
The definition of a 'minor change' is similar to the definition of a 'permissible change' under the SPA, focusing on whether the change results in a 'substantially different development'. The requirement for the responsible entity to determine whether an objection might be made to the proposed change has however been removed.
For changes which are not minor changes, the responsible entity assesses the application under the original assessment provisions in the PD Bill. This means that the application will be assessed as if the original application had included the change, rather than requiring a new development application to be made (public notification is however not required where the change is not a minor change only because it triggers additional referral agencies). Where a development approval has been granted by a court order, this has the effect of making the P&E Court the assessment manager where a non-minor change is sought. Further detail is needed to properly understand how this process will work in practice.
If an applicant requires a determination as to whether a change is minor, they can apply to the Building and Development Dispute Resolution Committee, and presumably to the P&E Court under its broad discretionary jurisdiction under the P&E Court Bill.
The 'responsible entity' who assesses and decides a change application under the PD Bill is:
- for a change to a development condition imposed under a Ministerial direction or if the development application was called in – the Minister,
- for a minor change to a development condition imposed by a referral agency – the referral agency,
- if the development approval was given because of a P&E Court order, and there were properly made submissions for the application – the P&E Court, or
- otherwise – the assessment manager.
The introduction of a requirement that the P&E Court will be the responsible entity only where there were properly made submissions for the development application, has the potential to reduce the number of change applications required to be assessed by the Court, which is likely to result in reduced costs for relevant applicants. However, given that the majority of P&E Court appeals relate to development applications for which submissions were made, the practical benefits may be marginal.
The PD Bill retains the negotiated decision notice process which exists under the SPA.
Community infrastructure designations
The CID framework supports the delivery of key community infrastructure, allowing the development application process for certain projects to be significantly streamlined. Under the SPA, when a project receives a CID it is exempt from requirements under a local planning scheme and from approval to reconfigure a lot, but is still subject to assessment against relevant state requirements.
The PD Bill renames CIDs to 'designations', and significantly expands their scope, providing for a 'true one-stop-shop assessment process'. Designations may be made where the Minister is satisfied that:
- the infrastructure will satisfy statutory requirements, or budgetary commitments, for the supply of the infrastructure,
- there is or will be a planning need for the efficient and timely supply of the infrastructure, and
- adequate environmental assessment and consultation has taken place.
Development which is the subject of a designation under the PD Bill is accepted development (except to the extent that it is building work under the Building Act 1974 (Qld)) and accordingly does not require a development approval. The Minister for State Development, Infrastructure and Planning is able to consider all relevant local and State interests in making a designation, providing for a single assessment process.
The ability for local governments to designate land under the SPA is not carried over to the PD Bill.
The PD Bill broadens the scope for Ministerial involvement in the development assessment process, providing for:
- Ministerial directions,
- call in powers, and
- step in powers.
The Ministerial direction powers and call in powers remains the same as under the SPA, however the requirement for public submissions before the Minister decides to call in a development application has been removed.
The PD Bill introduces new 'step in' powers, which allows the Minister to deal with applications for a change, extension or cancellation of a development approval. The step in powers operate in the same way as the call in power.
A decision of the Minister under the PD Bill is non-appealable, meaning it may not be challenged, appealed against, or reviewed.
The infrastructure charges framework under the PD Bill reflects the changes introduced to the SPA by the Sustainable Planning (Infrastructure Charges) and Other Legislation Amendment Act 2014 (Qld) in July 2014, please see our previous updates.1 To replace the Adopted Infrastructure Charges State Planning Regulatory Provision, the PD Bill provides that maximum infrastructure charges may be prescribed under a regulation.
State planning instruments
The SPA established a framework of four state planning instruments:
- State Planning Regulatory Provisions (SPRPs),
- State planning policies (SPPs),
- Regional Plans, and
- Queensland Planning Provisions (QPP).
The PD Bill retains SPPs and Regional Plans, but not SPRPs or the QPP. The key elements of the QPP (including standard planning scheme definitions) and existing SPRPs are expected to be retained in a regulation or other instrument.
Planning and Environment Court
The P&E Court, which is currently established under the SPA, will instead be established under a separate Act by way of the P&E Court Bill. This is a reflection of the expansion of the jurisdiction of the P&E Court beyond just planning matters. The P&D Bill is otherwise similar to the current provisions relating to the P&E Court under the SPA.
With the introduction of the PD Bill, Queensland will have replaced its planning legislation four times in two and a half decades. While the full extent of the reforms will only become clear with the release of the relevant regulations and other supporting instruments, the overall framework established by the PD Bill appears largely the same as the SPA. For the most part, life under the PD Bill will remain ‘business as usual’, or so it seems at the present time.