Late on the 13th of November 2012, Parliament passed the Sustainable Planning and Other Legislation Amendment Bill 2012 (the Bill), with amendments. Although certain provisions will only commence on a date to be fixed by proclamation, the remainder will commence on assent.
Like our previous pieces on this Bill, this article concentrates on its implications for the Sustainable Planning Act 2009 (SPA). Our more detailed article on the Bill as initially proposed can be seen here, and can be read together with a Thinking Piece regarding the cost provisions.
Upon its presentation to Parliament on 13 September 2012, the Bill was also referred to the State Development, Infrastructure and Industry Committee for consideration. The report by that committee back to Legislative Assembly, which included six recommendations, can be seen here. In two of its recommendations, the committee formed the view that:
- Clause 61 of the Bill (regarding costs) be amended to remove the words ‘but follow the event, unless the court orders otherwise’; and
- Proposed section 491B(4)(b) of the SPA be omitted in order to avoid unintended consequences in the exercise of power by the Alternative Dispute Resolution Registrar.
These recommendations, which formed the basis of the majority of the 124 submissions made to the committee, were adopted by Parliament in passing the Bill, such that:
- Clause 61 (section 457 of the SPA) will provide that the “costs of a proceeding or part of a proceeding, including an application in a proceedings, are in the discretion of the court”;
- A list of the matters the court may have regard to in making an order for costs will also feature in section 457 of the SPA. In certain instances, that list is reflective of existing circumstances identified in section 457(2) of the SPA. However, the non-exhaustive list will also feature matters such as “the relative success of the parties in the proceeding” and “the commercial interests of the parties in the proceeding”. The inclusion of this list, circumvents the need for changes to the Planning and Environment Court Rules (as initially proposed via clause 59 of the Bill);
- Costs will still follow the event as a default (subject to a contrary order of the court) in applications mentioned in section 601 of the SPA (concerning enforcement orders);
- The ADR registrar, under a new section 491B of the SPA, will (in exercising a power of the court under this provision) be required to “act as quickly, and with as little formality and technicality, as is consistent with a fair and appropriate consideration of the issues”. The amendments therefore remove the opportunity for the ADR registrar to also inform himself/herself in a way they consider appropriate, in exercising a power of the court;
- Clauses 61 and 67 (which concern the above) will commence on assent.
Other amendments of interest concern (but are not limited to):
- The provisions relating to the single state assessment and referral agency – and in particular, the ability for the chief executive to nominate an entity to be the assessing authority for a development approval, for the administration and enforcement of a matter relating to its conditions; and
- The transitional provisions regarding structure planning – and in particular, what special requirements will exist where no structure plans are in effect yet for declared master planned areas.
The Member for Mansfield and Assistant Minister for Planning Reform, in standing in support of the Bill and its amendments as passed, reminded Queenslanders that “this is only the start of the (planning) reform process”. He foreshadowed that the inaugural planning forum will likely take place during February 2013, and that “there is a lot more to be done”. With this in mind, we can be assured that the planning system we know now, may well be radically different this time next year.