Historical background

The Queensland Planning Provisions (Version 4) (QPP) dated January 2016 were the template for many Local Government Planning Schemes that were introduced prior to the commencement of the Planning Act 2016 (PA). They were introduced under the now repealed Sustainable Planning Act 2009 (SPA) under which they were referred to as the “Standard Planning Scheme Provisions”, and were declared to be a statutory instrument having the force of law, which prevailed over any inconsistent provision of a local planning instrument.

The statutory provisions supporting the QPPs were repealed by the PA and replaced by regulations made under it. S16(2) of the PA provides that a regulation may prescribe the contents of a local planning instrument and the Planning Regulation 2017 (PR) prescribes the zones, use terms and administrative terms that may be adopted under local planning instruments. These provisions do not apply to local planning schemes in force or under preparation at the commencement of the PR on 3 July 2017.

The transitional provisions in chapter 8, part 1, Division 2 of the PA have the effect of continuing the QPP’s in force in relation to the local planning instruments to which they apply. The QPP’s required, where planning schemes contained overlays, that a provision be inserted to the following effect:

“Overlays prevail over all other components (other than the strategic framework and state‑wide codes) to the extent of the inconsistency.”

Resulting difficulties

Thus overlays sit in the hierarchy of assessment criteria above local planning codes and zone codes respectively.

Overlays are predominantly used as a planning tool based upon broad scale digitised mapping and satellite imagery (e.g. flood, vegetation and biodiversity mapping). They are sometimes used as a tool with respect to ground based information, such as heritage listed properties or character areas. Overlay mapping may be the same as, or more extensive than, state mapping of the same subject matter.

Scheme amendments to introduce, extend or alter overlay mapping are invariably put forward through a “whole of scheme” amendment processes, where community consultation follows the standard statutory scheme making public consultation methodology. This involves merely a public notice in a newspaper and/or on a website followed by a period within which the public may make submissions, which must in turn be considered by both the Local Government and the Minister. This may be contrasted with local plan making and amendment which is usually accompanied by more detailed direct consultation with local communities for the purpose of developing the draft local plan or amendment.

A difficulty with overlays is that they can have the effect of neutralising aspects of local or neighbourhood plans, and zonings, about which there will have previously been detailed consultation, yet the local community, and local property owners, will not know about the proposed changes unless they have read a public notice and then searched out the proposed changes and associated mapping through the Council’s website. Affected land owners are not required under the law as it presently stands to be given any direct notice of proposed changes that may affect them.

Another difficulty is that depending upon the database and satellite imagery used to generate the mapping, the mapping may be factually wrong. Even worse, the mapping may reflect policy as to a future intended outcome, such as a strategic corridor required for a particular purpose, which bears no relationship to the situation on the ground. The latter type of overlay mapping particularly calls for more direct and detailed consultation so as to enable affected land owners to interrogate the proposed mapping and conduct their own surveys. Transparency is particularly important in this regard.

Incorrect mapping and legal remedies

A recent decision of the Supreme Court of Queensland highlights the fallibility of overlay mapping and potential injustice that can result in not adequately consulting with affected land owners before mapping is put in place. The decision is Trask Development Corporation No 2 Pty Ltd v Moreton Bay Regional Council [2018] QSC170 [2019] 2 Qd R 82 and is summarised below.

Facts

The Moreton Bay Regional Council (Council) had provided on its website as part of its “continued improvement of customer service” a “new service” coinciding with commencement of the “new” planning scheme which was called a “request for mapping change”. It was said to enable a person to request a review of overlay mapping if it is believed the mapping is “incorrect”. It was said to allow for requests for changes to environmental, as well as bush fire, erosion, storm tide and landslide hazards, overland flow paths and wetland setback mapping. The land owner requested amendment of the environmental overlay mapping in respect of a parcel of land because the vegetation mapped on the land had apparently been previously lawfully removed. The Council refused the request by letter. The land owner applied to the Supreme Court for a statutory order for review of the Council’s decision under the Judicial Review Act 1991(JRA).

Outcome

The landowner’s application was summarily dismissed by the Supreme Court. This essentially happened because the process the Council had set up could not displace the statutory scheme amendment process under the PA, which had not yet been commenced. The Council’s decision was, in effect, that it was unwilling to commence that process. Ryan J held that the Council’s decision was not one which was made “under an enactment” as required by the JRA.

Relevance of decision

It should be stressed that this was not a case where the landowner was unaware of proposed mapping changes. Its relevance is that once the mapping is in force any change to it is entirely at the local government’s discretion and must follow the statutory scheme amendment process.

This decision highlights the importance of scrutinising proposed overlay mapping carefully and challenging it by way of a submission where it is erroneous, because once it is in place it will have important consequences such as the application of specific codes, or level assessment triggers. Once lawfully adopted by a local government there is no legal mechanism available to a land owner to have the mapping corrected. This may be contrasted with the PMAV process that is available in relation to State vegetation mapping.

Public consultation should be improved

Consequently, if the public consultation that is embodied in the PA’s purpose is to operate properly, proposed overlay mapping must be readily accessible and open to challenge.

The informal facility for seeking changes to mapping offered by the Council in the Trask case is a clear acknowledgment of the fallibility of such mapping and shows a willingness by the Council to correct erroneous mapping. Unfortunately no legal process is available to give effect to that intent.

BCC’s proposed Biodiversity Overlay mapping

The Brisbane City Council’s proposed biodiversity overlay mapping is a case in point in relation to difficult to interpret mapping and inadequate public consultation. In the first instance when the mapping was proposed as part of an overall scheme amendment, affected local communities were given limited opportunities because only the bare minimum of statutory requirements had been followed. That is, there had been a public notice placed in a newspaper and on the Council’s website. Land owners whose properties were proposed to be mapped with strategic corridors that were to be the subject of future revegetation, were neither informed nor consulted.

The proposed biodiversity overlay mapping is broad scale, difficult to interpret and does not adequately differentiate between native and exotic vegetation, including weeds. It includes areas that have been largely cleared of trees and are used for livestock or cultivation that are intended to be revegetated and become a future biodiversity corridor. The overlay’s potential effect on property values is very significant.

In an era in which the Council possesses significant digital information and communication power, where it has the addresses of every rateable property in the city in its database, and routinely communicates at least monthly by letter with all residents, the level of consultation involved in alerting property owners to the proposed mapping and explaining it to them, was unsatisfactory.

Conclusions

The use of overlays and associated codes is now a significant and powerful planning tool which is able to fundamentally alter the development rights attached to property, and hence its value. It is of the essence of planning that it must evolve to meet new environmental challenges and demographic changes. But it also means that the goalposts in relation to land use can be legally moved. That is why the legislation enshrines lawful existing use rights, provides for superseded planning scheme applications, and allows for compensation applications where a new or amended scheme injuriously affects property. This represents a balance that is sought to be struck between ownership rights and forward planning.

It follows logically that the process involved in proposing new overlay mapping ought to be open, transparent and accountable to evidence based submissions about any lack of accuracy in the proposed mapping. Where mapping is erroneous there should be a process that will facilitate correction which, where error is demonstrated, will give rise to a legitimate expectation that the scheme will be amended so as to fix the error. The existence of a request or application for amendment supported by appropriate evidence should be a relevant fact or circumstance that can be taken into account in dealing with development applications.

Overlays are now the planning regulator’s trump card and where used, the card must be dealt openly and fairly.