The Queensland government has introduced further legislation into Parliament aimed at streamlining the State’s planning and development assessment laws.
Amendments to the Sustainable Planning Act 2009 (“SPA”) are proposed to further reduce regulatory requirements affecting businesses in Queensland. These proposed changes seek to promote timely and cost-effective processes for obtaining development approvals.
Key reforms introduced by the Sustainable Planning and Other Legislation Amendment Bill 2012 (“Bill”) on 13 September 2012 are outlined below.
New rules for costs of planning litigation
Currently, each party to a proceeding in the Planning and Environment Court (P&E Court) pays its own share of costs other than in exceptional circumstances (e.g. frivolous or vexatious proceedings).
The reforms propose that, unless the court orders otherwise, costs will follow the event. This means that the unsuccessful party will bear the costs of the proceedings.
The Bill’s approach regarding costs differs from the approach of other specialised courts resolving planning and environment disputes in other States.
In New South Wales (NSW) and Victoria, for example, the default position for a merits review continues to be that each party pays their own costs unless the court orders otherwise. Further, in NSW, a party to a proceeding in the Land and Environment Court may seek a ‘no costs order’ where a proceeding is brought in the public interest or an order specifying the maximum costs that may be recovered by one party from another.
Queensland’s P&E Court does not have a history of granting ‘no cost’ or ‘maximum cost’ orders. Although there is no specific provision for such orders to be sought under the Planning and Environment Court Rules or the Uniform Civil Procedure Rules, the discretion of the court in relation to costs appears to allow for such orders to be made.
Benefits of Queensland’s proposed reforms are said to include a predicted reduction in the number of appeals by commercial competitors fighting in court with the sole purpose of delaying development. The changes will also promote negotiation of approvals and conditions outside the court process, and mediation and dispute resolution processes.
As to submitter appeals, the new approach to costs may see fewer submitters deciding to commence appeals. However, the P&E Court may be called on more frequently to make ‘no cost’ or ‘maximum cost’ orders for submitter appeals.
A streamlined development assessment by the State
The Bill seeks to achieve efficiencies by enabling the Department of State Development, Infrastructure and Planning (DSDIP) to become the single assessment manager or referral agency for a development application.
The streamlined assessment by DSDIP is aimed at resolving issues arising out of the current multiple State-agency assessment including conflicting conditions and unwarranted refusals.
DSDIP is to represent all State agencies, although there is no indication as yet on how other agencies’ input will be sought or considered.
Criteria for the streamlined assessment will be included in the regulation and, unless the regulation provides otherwise, DSIP will not be bound by the codes, laws and policies currently applied by other agencies in their assessment.
The circumstances triggering the streamlined assessment and whether DSDIP will have an overriding decision power over other agencies will remain unclear until a regulation giving effect to such provisions is proposed.
Changes to requirements for properly-made applications
Development proponents have previously been frustrated by the need to satisfy detailed requirements before a development application can proceed to assessment. The Bill proposes two key changes to fast-track the assessment process.
First, evidence of resource entitlement or allocation concerning State land will no longer be a requirement for an application to be properly-made. This requirement currently causes significant delays as developers must wait until tenure or another authority has been granted by the State before the development application can progress to assessment.
Once the Bill passes, evidence of resource entitlement will be able to be sought prior to, concurrent with or after the assessment finishes.
There are risks associated with not seeking resource entitlement at an early stage. In particular, developers may risk investing resources into a development proposal which could ultimately fail to secure State tenure.
Second, the Bill allows the assessment manager to accept an application and commence assessment regardless of the application not containing all the supporting information stipulated as mandatory in the relevant form.
Other reforms proposed under the Bill include repealing master planning and structure planning provisions from SPA and replacing these with more focussed regional planning initiatives in the future.
The Bill has now been referred to the State Development, Infrastructure and Industry Committee (“Committee”) who is to report back by 13 March 2013. The Committee has invited submissions by Friday, 12 October 2012.
For further information about how to make a submission or on the Committee’s work on the Bill, click here.