In this Alert, Partner David Nicholls discusses key aspects of the draft Planning and Development Bill 2014 (PD Bill), and Planning and Environment Court Bill 2014 (PEC Bill) which have been released for public consultation by the State government.  The Bills are the final plank in an extensive raft of planning and development reforms made by the Newman government since coming to office.  Submissions on the Bills may be made by the public until 26 September 2014.  Subject to any changes made in response to public submissions the Bills are expected to be introduced into the November sittings of the Queensland Parliament.

Key points

  • The process for making and amending planning schemes will be streamlined to assist local governments to respond to the needs of their communities;
  • Code assessment is to be renamed “standard assessment” and combined with compliance assessment;
  • Standard assessment has been reformulated according to the Integrated Planning Act 1997 (IPA)’s original approach to code assessment involving a presumption in favour of approval for compliant development;
  • Standard assessment will not require public notification and will not give rise to third party appeal rights;
  • Impact assessment is to be renamed “merit assessment”;
  • Applications requiring merit assessment may require public notification and trigger third party appeal rights if provided for in a planning scheme;
  • “Assessment benchmarks” are the matters a scheme prescribes against which development must be assessed;
  • Standard assessment may only be against assessment benchmarks and matters prescribed by regulation;
  • Merit assessment may be against assessment benchmarks, matters prescribed by regulation and other relevant mattes not prescribed;
  • “Relevant matters” cannot include a person’s personal circumstances, financial or otherwise;
  • There is no requirement that an application which conflicts with a planning scheme be refused in the absence of sufficient grounds.  Assessment against the relevant benchmarks will guide approval or refusal;
  • The Planning and Environment Court will operate under its own Act, the rationale being that the Court now exercises jurisdiction under several environmental statutes and is no longer only a planning appeal court;
  • In conducting proceedings the Court is required to facilitate the just and expeditious resolution of the real issues, and must avoid undue delay, expense and technicality.

Discussion

The Sustainable Planning Act 2009 (SPA) and its predecessor the IPA have been in effect for approximately 15 years and is in need of review.  In a government discussion paper concerning how the legislation might be reformed it was said:

            “Planning Policy is best expressed through flexible, simple, clearly articulated instruments, not legislation, that can respond effectively to changing circumstances and accommodate continuous improvement.  Given Local Governments’ experience in scheme making since the introduction of IPA, there is a widely held view that the key elements and core matters of planning schemes in SPA should be reviewed, and significantly reduced or removed.”

The draft Bill proposes to do away with the existing detailed provisions which specify the content of planning schemes.  Any required content will be left to regulation.  Workability, clarity and state interest content will be handled administratively.  This is intended to allow local governments to make schemes which meet the needs of their communities through a more flexible approach rather than “top down” prescription, while simultaneously trying to achieve a reasonable level of consistency in key elements of scheme drafting.

In relation to development assessment the discussion paper said:

            “Consistent, transparent and accountable processes are critical to protecting the integrity of the system and underpinning confidence in the ‘bankabillity’ of approvals.  However, over-prescriptive and unresponsive processes can foster a prescriptive regulatory culture among assessment managers and referral agencies.”

In response, the PD Bill has sought a workable balance between processes and the achievement of good outcomes, bearing in mind that planning and development must respond to changing circumstances over time.

In evaluating the draft Bills it is important to keep in mind the current level of sophistication and detail in both state and local planning instruments.  This means that the enabling legislation can and should be streamlined.  This PD Bill applies greater focus to the achievement of balanced planning outcomes and reduced emphasis on procedural formality.

This alert looks at the core aspects of the new legislation.  Other provisions will be covered in later alerts.

Assessment of development applications

Assessment benchmarks

“Assessment benchmarks” are the matters set out in a planning scheme, or a regulation, that a development application must be assessed against.  Assessment benchmarks that cannot be changed by a planning scheme may be identified in a regulation.

Standard assessment

Code assessment is proposed to be renamed “standard assessment”, combined with compliance assessment, and reformulated according to the original intent of the IPA, in that there will be a presumption in favour of approval for compliant development.  Like code assessment, standard assessment will not require public notification and will not give rise to third party appeals to the court.

Where a planning scheme prescribes standard assessment the application can only be assessed against the assessment benchmarks.  This is similar to code assessment.  The application must also be assessed against any matters that are prescribed by regulations.

To the extent that development complies with the assessment benchmarks (in the current language, the applicable codes) it must be approved.  It can only be refused if it doesn’t comply, and compliance cannot be achieved by imposing lawful conditions.  This reverts to the way in which the IPA originally intended code assessment to operate.

Merit assessment

The new equivalent of impact assessment is proposed to be called “merit assessment”.  Merit assessment may require public notification if provided for in a planning scheme, and may give rise to third party appeals, also if provided for in the planning scheme.  In that way, public notification and appeal rights will be decoupled.  They will be linked in respect of particular development if both public notification and a third party appeal right are provided for under a planning scheme.

Third Party appeals

As things presently stand, third party appeal rights attach to properly made submissions in respect of impact assessable development applications.  Local governments decide which applications require impact assessment and thus are presently the “gatekeepers” regarding the availability of third party appeal rights.  The changes merely provide greater flexibility so as to allow development that, for example, is expected in a zone to be processed through merit assessment while not automatically giving rise to third party appeal rights.  So, local governments will remain the “gatekeeper” in conferring third party appeal rights.

Assessment rules

As with standard assessment a planning scheme may state the benchmarks against which applications requiring merit assessment are to be assessed.  Accordingly, merit assessment may be undertaken against particular benchmarks of the planning scheme, or more broadly against strategic benchmarks, in addition to specific ones.  Assessment must be carried out against those matters as well as any prescribed mandatory matters, and may also be carried out against any prescribed discretionary matters.  Additionally, assessment may be carried out against other relevant matters that are not prescribed.  However, “relevant matters” cannot include a person’s personal circumstances, financial or otherwise.  This is in line with the present laws under the SPA, and with judicial decisions, that make private economics irrelevant to planning decisions.

Decision rules

A decision in respect of an application requiring merit assessment must be based upon the assessments described above and may be refused, approved in whole or in part, or approved with conditions.  As long as the assessments are carried out within the prescribed boundaries, decisions based upon them will not usually be open to third party legal challenge, except through a merits appeal, if available, under the relevant planning scheme.  It would be otherwise if the boundaries are not observed, for example, where private economic circumstances have been taken into account, or relevant assessment benchmarks have not been considered, in making a decision.  In those circumstances a declaration could be sought if a merit appeal right does not exist.

It is not proposed to carry forward the existing statutory “rules” that preclude approval of a development application where it would “conflict” with a relevant State or local planning instrument, in the absence of “sufficient grounds’.  An open merits based assessment against the relevant assessment benchmarks and prescribed, or relevant, matters is proposed.

This change in approach has been prompted by the legal complexity of the conflict test under the current legislation.  A recent example of these complications is discussed in the Westlink paper.  The existence of conflict involves interpreting the text of a planning scheme and is a legal question, whereas a planning assessment should be undertaken by comparing the performance of proposed development against the policy intent of the relevant scheme provisions.

The current statutory test requires refusal in the absence of a sufficient ground, which must be a matter of public interest.  The most common ground supporting approval is economic and planning “need” for a proposal.  Economic need is proven where there is an unsatisfied community demand for the products or services the development will provide that is not being  satisfied. Planning need arises where the planning scheme does not make adequate provision to satisfy the proven need.  There may be other public interest grounds for supporting a development that is in conflict with a planning scheme, such as environmental enhancements that will result if the development proceeds.

In such instances it is not enough to establish that the planning purpose behind the relevant scheme provisions is not offended.  It isn’t enough to show that a proposal is completely benign.  The absence of negative impacts, without more, will not constitute sufficient ground.  The conflict test requires the applicant to prove that there are tangible positive public interest grounds favouring approval.  This usually imposes a substantial hurdle for most forms of development, but more particularly for residential development.

These complexities will be removed by the PD Bill.  There will no longer be a preoccupation with looking for technical “conflict”.  Instead proposed development will simply be assessed against the true policy intent of the planning scheme.  All things being equal, development that offends the policy intent would be refused.  However consideration of other relevant matters may tip the balance in favour of approval.  Thus there will be greater scope under the PD Bill to properly balance competing factors.

Dispute resolution

The Planning and Environment Court (PEC) is a court which hears and applies expert evidence given by specialists in a range of environmental and planning disciplines.  Judges of the PEC have to resolve differences of opinion between experts in the same field by evaluating their evidence against planning instruments.  This is a difficult endeavour which requires experience and specialised knowledge.  The reforms recognise the need for the development of specialisation amongst this group of judges to the same extent as that specialisation occurs in the wider professions relevant to the court’s jurisdiction.

Specialisation drives efficiency in the running of cases, reduces delay and costs, promotes general consistency in approach to interpretation of planning instruments and hence consistency with outcomes, and it has obvious benefits in terms of public confidence in the planning and development system.

The key driving principles in the way the court will be required to operate are placed front and centre in the Bill in that it must:

  • facilitate the just and expeditious resolution of the real issues; and
  • avoid undue delay, expense and technicality.

The Bill imposes an implied undertaking on parties to proceedings in the PEC to proceed in an expeditious way.

Conclusions

The Bills, when enacted, will significantly improve Queensland’s planning and development system by facilitating quicker and more responsive plan making, improving the workability and efficiency of development assessment and emphasising the need for efficient and cost-effective resolution of disputes.  The Bill will remove, in large measure, much of the process inefficiency and heavy handed prescription that has been a feature of the IPA and the SPA, and it does this without taking away the public’s right to make submissions and participate in appeals.  Conferring these rights remains in the hands of local governments.  Those who would criticise the PD Bill as reducing third party participation in development assessment would be wrong.  The policy intent of the Bill is not to remove those rights but rather to increase local governments’ flexibility in setting the levels of assessment by allowing merit assessment without automatically generating third party appeals.  Critics would do well to remember that in comparison to most other Australian jurisdictions Queensland has very generous third party appeal rights.  Western Australia, for example, does not have such appeals.

The PEC Bill will foster continued emphasis on alternative dispute resolution and encourage efficiency and cost reduction in the hearing of appeals and other proceedings by the court.

The proposed changes are overdue and welcome and ought to attract bi-partisan support in the community.