The Economic Development Bill 2012 (Qld) was introduced into the Queensland Parliament on Thursday 1 November 2012.
Purpose of the Bill
The purpose of the proposed Act is to facilitate economic development and development for community purposes in Queensland.
While the new Act will repeal the Urban Land Development Authority Act (2007) (ULDA Act), but then goes on to reapply very similar provisions in various contexts, it would be a mistake to think the Bill is just replacing one authority with another entity dealing with urban land use and development areas. The purpose of this Bill clearly goes much further than the purposes of the ULDA Act.
The main purpose of the Bill is to facilitate economic development, and development for community purposes, in the State.
Neither “economic development” nor “development for community purposes” are defined, allowing them to be interpreted broadly, consistent with their ordinary meaning.
The main purpose of the Bill is to be achieved primarily by:
- establishing the Minister for Economic Development Queensland (MEDQ) as a corporation sole established under the Act; and
- providing for a streamlined planning and development framework for particular parts of the State (Priority Development Areas) to facilitate economic development and development for community purposes.
The changes introduced by the Bill will:
- create the “Minister for Economic Development Queensland” (MEDQ) as a corporation sole with planning responsibility for priority development areas;
- repeal the Urban Land Development Act 2007 (ULDA Act) the Industrial Development Act 1963 (Industrial Development Act);
- establish the Commonwealth Games Infrastructure Authority for the planning and development of the Commonwealth Games village and other venues;
- provide for the transition of planning powers from the South Bank Corporation to Brisbane City Council;
- make amendments to the Environment Protection Act 1994 (EP Act), the Environment Protection (Greentape Reduction) and other Legislation Amendment Act 2012 (Greentape Act); and State Development and Public Works Organisation Act 1971 (SDPWO Act).
For our article dealing with significant changes to the SDPWO Act concerning EIS and infrastructure facilities of significance, and to EPA Act changes introducing Temporary Emission Licences click here.
This article deals mainly with how the Bill sets up the corporation sole to be known as “The Minister for Economic Development Queensland (MEDQ)”, the MEDQ’s role in relation to priority development areas (PDAs) and the relationship between planning and development arrangements in PDA’s and planning and development issues under the Sustainable Planning Act 2009 (SPA).
The Minister for Economic Development Queensland (MEDQ)
The Bill proposes the establishment of a new entity, the Minister for Economic Development (MEDQ). This entity’s functions are to be directed at the main purpose of the Act, and will have responsibility for planning for, developing and managing land in PDAs. The MEDQ will also have the ability to deal in land and other property.
The Bill proposes to repeal the ULDA Act and Industrial Development Act. While repealing those Acts, and dismantling the entities that those Acts created, the ULDA and Minister for Industrial Development, the proposed Act does not discard the work of those entities. Rather the entities will be subsumed into the MEDQ, with MEDQ being the successor to those entities.
All assets and liabilities of the ULDA will become assets and liabilities of the MEDQ. Existing urban development areas will become PDAs under the new Act, under the control of the MEDQ. Interim Land Use Plans and Planning Schemes for former urban development areas will become comparable plans and schemes under the new Act.
To the extent the MEDQ has power to “deal in land or other property generally”, this includes power to:
- acquire land or other property for proposed development;
- develop land, including by providing or contributing to the provision of infrastructure on the land, to facilitate the use of the land for economic development or development for community purposes; or
- dispose of, lease, license the use or occupation of, or sublease land or other property held by MEDQ to another entity for development by that entity.
In performing its functions, the MEDQ may act alone or in conjunction with public sector units, local governments, agencies or instrumentalities of the Commonwealth and other persons.
There does not appear to be any limitation on “other persons”. In addition to specific powers associated with its legal capacity, the MEDQ will be given a “catch all” power to:
do anything necessary or convenient to be done in the performance of its functions, or exercise of its powers, under this or another Act.
It must however, to the extent practicable carry out its functions on a commercial basis.
The MEDQ will not have compulsory acquisition powers but it will be able to dispose of surplus property at its market value by public tender or auction or by private treaty or to a Commonwealth or State entity or to a local government, in priority to all other entities.
The previous Estates Construction Fund constituted under the repealed Industrial Development Act will be continued and renamed as the Economic Development Fund (the Fund).
The Fund will be added to through special rates and charges received by MEDQ, any amounts appropriated to the Fund by Parliament and any amounts received by MEDQ arising from its dealings with land or fees received for development applications.
As with the ULDA Act, the Economic Development Bill preserves definitions of development that apply under the SPA.
Priority Development Areas (PDAs)
The Bill provides for two types of PDAs in relation to which the MEDQ will perform its functions.
First of all, provisional PDA’s can be declared by regulation (a declaration regulation).
The Explanatory Notes to the Bill make it clear that provisional PDA’s will be used infrequently. Their purpose is to assist development being brought to the market quickly where the development is consistent with community expectations.
Provisional PDAs can only be made where:
- the area is a discreet site proposed to be used for a discreet purpose; and
- the type, scale, intensity and location of the development on the site is consistent with the relevant local government planning scheme for the area; and
- there is an overriding economic or community need to start the proposed development quickly.
The declaration regulation for a provisional PDA must make a provisional land use plan regulating development in the area.
The land use plan must be consistent with the relevant local government’s planning scheme for the area and it must require public notice of each PDA development application concerning reconfiguring a lot or making a material change of use of premises in the area.
A declaration regulation for a provisional land use plan can incorporate all or parts of another document (for example the local planning scheme) by referencing relevant parts of that other document. These are then called adopted provisions.
It is intended that provisional PDAs will have effect for no more than three years. During that time it is contemplated that the MEDQ may, by notice to the relevant government either approve or make an amendment of the local government’s planning instruments by providing for land in the provisional PDA.
Such a change is taken to have been made by the local government under the SPA.
Section 117 of the SPA which sets out the procedures for making or amending a planning scheme will not apply to such an amendment.
If the MEDQ initiates the amendment of the local government’s planning scheme it must first give notice of the proposed change to the local government concerned and invite comment within 40 business days after the notice. The MEDQ must then consider any submissions made in relation to the proposed change.
A provisional PDA will cease at the same time as the planning instrument change takes effect.
There is a need therefore to get the planning scheme change right “first time around” otherwise it might be necessary to recreate the provisional PDA.
A provisional PDA may be amended or revoked however.
PDAs other than provisional PDAs
A declaration regulation can also declare part of the State to be a PDA.
A PDA which is not a provisional PDA does not need to be consistent with the local authority planning scheme for the area. Nor does the area to which it relates need to be in relation to a discrete site for a discrete purpose.
A declaration area for a PDA though must make an interim land use plan regulating development in the PDA.
The interim land use plan can provide for any matter mentioned in section 57(2)(a) or (3). These matters include:
- regulating development in the area;
- providing for anything about which a planning instrument may provide;
- identifying PDA assessable development or PDA self assessable development;
- prohibiting the carrying out of PDA assessable development;
- state that particular development is consistent or inconsistent with the interim plan; and
- require public notice of PDA development applications for state PDA assessable development.
They do not include developing a ‘plan for infrastructure”, which be the province of a PDA development scheme.
The interim land use plan will have effect until the earlier of a development scheme for the area takes effect or an interim land use plan expires (generally within 12 months after it commences unless there is a caretaker period during that 12 months in which case the 12 months can be extended for the caretaker period plus 20 business days).
In making a development scheme which replaces the interim land use plan for a PDA, the MEDQ must consider but is not bound by the local government’s planning instruments or any plan, policy or code made under the SPA or another Act for that area.
In developing the development scheme though the MEDQ must consult with the relevant local government and make reasonable endeavours to consult with those the MEDQ considers will be affected by a development scheme for the area.
The MEDQ must then publish the proposed scheme on its website and in a gazette notice allowing for a submission period of at least 30 business days.
The development scheme will take effect once it has been approved under a regulation. It can subsequently be amended.
The relevant local government and each person who made a submission in relation to the scheme must also receive a notice confirming the scheme has been approved and also confirming that the MEDQ’s report about the scheme can be inspected on the department’s website.
If there is a conflict between a development scheme for a PDA and a local government planning instrument or a planning policy or code made under the SPA the PDA development scheme prevails to the extent of the inconsistency.
This could give rise to contentious questions of what constitutes an inconsistency between a PDA planning scheme and a local government planning instrument.
A PDA development scheme must also include a plan for infrastructure in the area. The MEDQ will have power to set and levy infrastructure charges in a PDA, but there are no specific provisions about how it should set infrastructure charges.
Some clarification of the appropriate role of councils’ or state infrastructure charging arrangements (such as Councils Adopted Infrastructure Charges Resolution), in connection with infrastructure charges for PDAs would be useful. The Bill seems to be silent on this issue.
In relation to both provisional PDAs and PDAs that are not provisional, the MEDQ will have power to create by-laws that apply to the area.
If land ceases to be in a PDA a regulation may make a local law (the interim local law) for the land about any matter provided for under those MEDQ by-laws.
Such a regulation though can only be made if the relevant local government agrees to the making of the regulation. The interim local law will expire 12 months after it commences.
A council local law will no longer apply to a matter within a PDA if the MEDQ by-law provides that the local law does not apply. The by-law can also provide that the local law continues to apply with stated changes.
Community infrastructure designations under the SPA cannot be made for land in a PDA. However any such designations in force before the creation of a PDA continue in force for the land.
Development and uses in PDAs
Carrying out what a PDA planning scheme will identify as “PDA assessable development” will require a PDA development permit.
However, if before the declaration of an area as a PDA, a SPA development application has been made for the land it must be decided under the SPA and the SPA will continue to apply as if the land was not in a PDA.
Similarly, if immediately before the declaration of a PDA a SPA development approval is in effect that approval will continue to be in effect as a SPA development approval.
The carrying out of development under those SPA approvals will be lawful and is protected pursuant to lawful use provisions of the Bill.
PDA development applications made to the MEDQ need to be accompanied by the consent of the owner of the land (but not for operational work).
The MEDQ can, however, waive non-compliance with formal requirements of an application and accept the application as properly made.
The MEDQ may make an information request but this must be done within 20 business days of the making of the application.
An applicant for a PDA development application may be required to give public notice of the application. That notice must state that the making of a submission does not give rise to a right of appeal against a decision about the application. A submission period must be at least 20 business days and must not include any business day from 20 December in a particular year to 5 January in the following year.
The MEDQ may give a preliminary approval. It can also approve only part of an application in which case the balance of the application is taken to have been refused.
The MEDQ cannot grant a PDA development approval if the relevant development would be inconsistent with the relevant development instrument (PDA planning scheme) for the area unless:
- a SPA preliminary approval is in force for the relevant land and the development would be consistent with the preliminary approval; or
- a PDA preliminary approval is in force for the land and the development would be consistent with that preliminary approval; or
- for a PDA other than a provisional PDA – there is a proposed development scheme and the relevant development would be consistent with that proposed scheme.
In deciding an application the MEDQ must consider the purposes of the Act, any relevant State interest, any submissions made and relevant land use plans or development schemes or proposed development schemes for the area.
The MEDQ must also consider any PDA or SPA preliminary approval in force for the land.
“State Interest” is defined in the Bill for these purposes as:
- an interest relating to the main purpose of this Act; and
- an interest that, in MEDQ’s opinion, affects an economic, community or environmental interest of the State or a region.
The State has recently released a draft State Planning Policy (Part 1) entitled “Proposed State Interests”.
There is no specific connection made in the draft State Interest SPP with the Bill but it is likely to be relevant in connection with PDA development applications.
The PDA development conditions may:
- nominate a stated entity to be the nominated assessing authority for the condition;
- relate to infrastructure and the payment of contributions or the surrender of land for infrastructure;
- require the making of improvements to the land; or
- impose conditions or restrictions on disposal of the land.
If a PDA development condition includes a nominated assessing authority for a condition the applicant may appeal to the Planning & Environment Court about that condition.
A PDA development approval attaches to the land in the normal way.
PDA development approvals can be amended and will apply for the duration of the currency periods in the usual way. Applications can be made to extend the currency period.
The Bill contains specific provisions with respect to plans of subdivision and compliance assessment.
If under an Act, a subdivision plan requires MEDQ’s approval before it can be registered and the plan would ordinarily be required to undergo compliance assessment under the SPA then the plan must undergo compliance assessment under the SPA.
In that case, the SPA compliance provisions apply and any reference in the relevant SPA provisions to the compliance assessor or the local government are to be taken as a reference to MEDQ.
Enforcement provisions in the Bill relating to PDA development approvals and development offences are generally similar to that contained in the SPA.
Special rates and charges
The Bill allows MEDQ to make and levy special rates or charges on owners or occupiers of rateable land in a PDA.
These rates and charges may be made and levied on the basis MEDQ considers appropriate.
Special rates or charges collected for a particular service or activity must be used for that purpose.
PDAs and infrastructure agreements
The MEDQ can enter into infrastructure agreements in relation to development in a PDA.
Where land ceases to be in a PDA and an infrastructure agreement exists in relation to the land to which the MEDQ is a party, the public sector entity that takes over from the MEDQ is taken to be a party to the infrastructure agreement in place of MEDQ.
Where the MEDQ proposes to enter into an infrastructure agreement, and the agreement is likely to continue after the land is no longer in a PDA, the MEDQ must first consult about the terms of the agreement with the entities the MEDQ considers will eventually take over.
MEDQ roads and infrastructure
The Bill contains specific provisions about construction of roads and road closures.
The MEDQ may construct a road for achieving its functions and purposes. In relation to such a road the Governor in Council may, by gazette notice fix a day (the fixed day) after which the Local Government Act 2009 applies to the road.
Until that day the Local Government Act 2009 will not apply to the road and MEDQ’s responsibilities and obligations with respect to the road are the same as they would be for a local government.
After the fixed day, the Local Government Act will apply to the road as if the road had been constructed by local government. After that point the MEDQ will have no further duty or obligation in respect of the road.
MEDQ may also perform all functions or powers for a road that MEDQ considers necessary or desirable to perform its other functions in relation to a PDA. That includes permanently or temporary closure of all or part of roads (local roads or State controlled roads).
If the MEDQ permanently closes a road, the land comprising the former road will vest in the MEDQ.
If MEDQ performs a function in relation to a road or former road in a PDA it must give the relevant local government relevant information to enable the local government to comply with its mapping functions with respect to roads under the Local Government Act 2009.
More generally with respect to maintaining infrastructure, the MEDQ may give a written direction to a government entity or local government to provide or maintain stated infrastructure in or relating to a PDA.
Such a direction can only be given if the MEDQ is satisfied the provision and maintenance of the infrastructure is necessary for the proper planning development and management of the PDA.
Economic Development Board
The Bill establishes the Economic Development Board (Board).
The functions of the Board are to advise and make recommendations to the MEDQ about giving effect to the main purpose of the Act and to provide an oversight function in relation to the governance and management of the MEDQ.
The MEDQ can delegate its functions to the Board. It can also delegate functions to Local Government.
The Board is to consist of:
- the chief executive of the department;
- the chief executive of the department administering the Auditor-General Act 2009;
- the chief executive of the department administering the Financial Accountability Act 2009; and
- no more than three other members appointed by the Governor in Council.
Commonwealth Games Infrastructure Authority (Authority)
The Bill also establishes the Commonwealth Games Infrastructure Authority.
The main function of the Authority is to facilitate the planning and development of the Commonwealth Games village and other venues.
The Authority is to consist of:
- the chief executive of the department;
- the chief executive of the department at which the Commonwealth Games Arrangements Act 2011 is administered;
the following members appointed by the Governor in Council:
- chief executive of the Gold Coast City Council;
- chairperson of the Gold Coast 2018 Commonwealth Games Corporation;
- other members the Governor in Council considers appropriate.