Planning and Development. State Government Control of Planning Law in Queensland: A gradual creep towards domination?

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1 State Government Control of Planning Law in Queensland: A gradual creep towards domination? Robyn Lamb, Solicitor r.lamb@hopgoodganim.com.au NOVEMBER 2010 INGRAINED INTELLIGENCE

2 State Government Control of Planning Law in Queensland: A gradual creep towards domination? The State has traditionally played a strategic role in the planning of development in Queensland, but has had marginal involvement in detailed aspects of planning and individual development applications. Local governments have essentially been the work horses of the planning system in Queensland, as they have largely assumed responsibility for the planning of development and the assessment of development applications. It has generally been accepted that local governments are better suited to dealing with such matters, as they have local knowledge of their local government area and of community expectations of development. The balance of power between local governments and the State has been slowly shifting as the State has expanded its role in the planning and assessment of development. The Integrated Planning Act 1997 (IPA) enabled greater State involvement in development, which seems to have kicked off with regional planning, particularly in the South East Queensland region, and the promulgation of State planning policies (SPPs). The new Sustainable Planning Act 2009 (SPA) further expands the State s planning powers by providing it with a broad suite of powers which enable it greater control of planning of development and development assessment, from both a strategic planning perspective and on an ad-hoc, case-by-case basis. This paper will consider the various powers under the SPA and other legislation that give the State power to control, influence and be involved with planning and development processes in Queensland. Specifically, this paper will examine the State s planning and decision-making powers under the SPA, and powers under the Urban Land Development Authority Act 2007 (ULDA Act). While the State also plays a role under the SPA in respect of other matters, such as in relation to the preparation and promulgation of planning schemes, these roles will not be the subject of this paper. State planning powers History State planning powers have gradually evolved over the last 20 years, and the regulation of high-level strategic planning by the State is not new. By way of background, the Local Government (Planning and Environment) Act 1990 (P&E Act) provided for little State involvement in the planning assessment process, with the exception of the requirement to obtain Governor in Council approval and the power to develop SPPs. The Explanatory Notes to the P&E Act s successor, the now repealed IPA, state: IDAS, by its nature, will involve greater direct State input. This part establishes reserve powers for the State to influence the outcomes of development application involving a State interest. These powers are in addition to other specific powers that the State has under the Bill (such as concurrence agency powers. Historically the State has been involved in planning and development in Queensland in a number of ways. There were provisions in the P&E Act which enabled the State to develop and implement SPPs regarding matters that were of State significance. However, SPPs as we know them today were introduced first by the now repealed IPA and continued by the SPA. In addition to retaining SPPs, the now repealed IPA introduced two other types of State planning instruments during its time in force regional plans and State planning regulatory provisions. While voluntary regional planning had been occurring in South East Queensland since the early 1990s, 1 the first statutory regional plan did not take effect until That statutory regional plan followed the amendment in 2004 of the then-in-force IPA to allow for making regional plans under a statutory framework in respect of South East Queensland and for introducing State planning regulatory provisions. 2 The regional planning provisions in the IPA were subsequently expanded to provide for making statutory Integrated Planning and Other Legislation Amendment Act 2004 No. 20 commenced on 17 September 2004 Page 2

3 regional plans in respect of designated areas, which were identified as areas including and outside of South East Queensland. 3 The IPA also introduced Ministerial direction powers and Ministerial call in powers, which were described by the Explanatory Notes, respectively, as follows: there will be occasions where an application affects a State interest in a way that could have adverse consequences for the State as a whole. Rather than attempt to identify all of these possible situations and create concurrence referrals for each situation on the chance that an adverse effect may result, the Bill creates a reserve power for the Minister to exercise a form of concurrence power in situations where a concurrence does not already exist. This division provides a power for the Minister to call-in a development application and decide (or if necessary redecide) the application in the place of the nominated assessment manager.. It must be stressed this is a reserve power of the State. It is not intended to be used routinely or often. However, occasions may arise where a State interest (such as an important environmental value) could be severely affected by the implementation of a development approval. In these situations, exercising the reserve power to call the application in and reassess and redecide the application provides the Minister with an ability to redress what otherwise could become a serious problem for the community as a whole. Finally, the introduction of the Urban Land Development Authority (ULDA) in further increased the State s power to control and direct development and planning in Queensland by enabling the ULDA to effectively become the entity responsible for planning and assessing development in urban development areas (UDAs). Current legislative framework The SPA came into effect following the repeal of the IPA. 5 The SPA retains the State powers that were available under the IPA and provides the State with additional planning and development powers. Chapter 2 of the SPA deals with State planning instruments. There are currently four different types of State planning instruments under the SPA: State planning regulatory provisions; regional plans; SPPs; and standard planning scheme provisions (SPSPs). In addition to the strategic planning powers, the State continues to be empowered with the ability to call in development applications and to give directions, albeit in an enlarged set of circumstances. Under the ULDA Act, the State is also able to control and regulate development in declared UDAs, the number of which has recently increased from three, which were declared in 2008, to Urban Land Development Authority Act 2007 No. 41 commenced on 21 September Urban Land Development Authority Act SPA commenced on 18 December 2009 Page 3

4 Each of the State planning instruments will now be discussed. Regulatory provisions What are regulatory provisions? Regulatory provisions are instruments made for an area to advance the purpose of the SPA by: providing regulatory support for regional planning or master planning; providing for a charge for the supply of infrastructure; or protecting planning scheme areas from adverse impacts. 6 This type of State planning instrument is a statutory instrument and is not subordinate legislation. 7 If there is a conflict between regulatory provisions and any other State planning instrument or any other plan, policy or code under an Act, the regulatory provisions prevail to the extent of the inconsistency. 8 Regulatory provisions are taken to be a State interest 9 and are, essentially, the highest level of planning control in the State. Under the IPA, for a development application to be properly made, the development must not have been contrary to regulatory provisions. 10 It was not open to the assessment manager to accept the application in the event that this requirement was not satisfied. 11 This requirement was the subject of judicial consideration by the High Court in the prominent case of Chang & Anor v Laidley Shire Council. 12 The SPA does not contain a provision equivalent to Section 3.2.1(7) and (10) of the IPA in respect of development contrary to regulatory provisions. Instead, the SPA defines prohibited development to include development declared under a regulatory provision to be prohibited development, 13 and provides that a development application or request for compliance assessment cannot be made for prohibited development. 14 There are three circumstances in which the Minister for Planning may make regulatory provisions. 15 Firstly, the Minister may make regulatory provisions for the State (or part of the State) where the provisions are necessary to implement a regional plan or a structure plan for a declared master planned area, 16 to prevent a compromise of the implementation of a proposed regional plan or a structure plan or proposed structure plan, 17 or to provide for a regulated infrastructure charges schedule for the supply of trunk infrastructure 18 or a regulated State infrastructure charges schedule for a master planned area. 19 The Minister may also make regulatory provisions where there is a significant risk of serious environmental harm or serious adverse cultural, economic or social conditions happening in a planning scheme area and a direction to the local government to take action in relation to its planning scheme 20 would not be the most appropriate way to address the risk. The third circumstance in which the Minister for Planning may make regulatory provisions is jointly with an eligible Minister if it relates to a matter administered by the eligible Minister 21 and the Minister for Planning is satisfied that 6 Section 16 of the SPA 7 Section 17 of the SPA 8 Section 19 of the SPA 9 Section 18 of the SPA 10 Section 3.2.1(7)(f) of the IPA 11 Section 3.2.1(10(b) of the IPA 12 [2007] HCA Schedule 3 of the SPA 14 Section 239 of the SPA and Explanatory Notes to the SPA 15 Section 20 of the SPA 16 For a declared master planned area 17 For a declared master planned area 18 Under section 640 of the SPA 19 Under section 667 of the SPA 20 Under section 126 of the SPA Page 4

5 there is a significant risk of serious environmental harm or serious adverse cultural, economic or social conditions happening in a planning scheme area and a direction to local government would not be the most appropriate way to address the risk. Regulatory provisions may have a variety of consequences for planning and development. They may: declare development to be prohibited, assessable, requiring compliance assessment or self-assessable; require impact or code assessment (or both) for assessable development; include a code for IDAS or other criteria for the assessment of development applications; otherwise regulate development (eg stating aspects of development that may not take place until a structure plan or other planning instrument has been made, a master plan has been approved, or a stated development application has been approved); set out transitional arrangements for development applications or master plan applications; and provide for the matters permitted to be the subject of regulatory provisions. 22 Current regulatory provisions The following table details the current regulatory provisions in force and summarises the purpose of each document: 23 State planning regulatory provisions Description of purpose Date Far North Queensland Regional Plan State Planning Regulatory Provisions 2009 South East Queensland Regional Plan State Planning Regulatory Provisions Draft Wide Bay Burnett State Planning Regulatory Provisions Guragunbah State Planning Regulatory Provision Implements the Far North Queensland Regional Plan Implements the South East Queensland Regional Plan Manages regional growth and development in the Wide Bay Burnett region by implementation of an interim planning measure in the form of regulatory provisions to prevent compromising the implementation of a statutory regional plan for Wide Bay Burnett Relating to a specific parcel of land, this document sets certain levels of assessment for development within a specific area at Gurangunbah to address a significant risk of serious adverse economic and social conditions occurring in the Gold Coast City Council planning scheme area Feb 2009 Jul 2009 Dec 2009 Dec That is, a Minister other than the planning or regional planning Minister: Schedule 3 of the SPA 22 Section 21 of the SPA 23 Page 5

6 State planning regulatory provisions Description of purpose Date South East Queensland Koala Conservation State Planning Regulatory Provisions - commences 31 May 2010 (superseded South East Queensland Koala State Planning Regulatory Provisions) State Planning Regulatory Provisions (Adult stores) Off-road motorcycling facility on State-owned land at Wyaralong Controls development in certain, critical koala habitats in South East Queensland Manages the location of new adult stores to avoid close proximity to existing sensitive uses (which include a childcare centre, place of worship, kindergarten and all educational institutions that cater for primary and secondary school ages) Regulates the development of a motor sport facility for off-road motorcycling on specific land and the development of a noise sensitive place within a defined zone around that land May 2010 Jul 2010 Oct 2010 The most well known regulatory provisions are likely to be the provisions which support the South East Queensland Regional Plan and its predecessor, the South East Queensland Regional Plan These provisions allocate land to particular areas (eg Urban Footprint, Regional Landscape and Rural Production Areas) and restrict development (eg reconfiguration of a lot) in particular areas, especially in the case of inappropriate urban development on land outside the Urban Footprint. These regulatory provisions have had a significant effect on development in Queensland, namely in respect of development on land outside the Urban Footprint, and have been considered by the Courts, which have confirmed the paramount role of regulatory provisions in the development assessment framework. 24 Regional plans What are regional plans? The Department of Infrastructure and Planning (DIP) states that regional plans reflect and balance SPPs as they provide an agreed spatial expression of the state interests addressed by those SPPs at the regional level. 25 A regional plan is an instrument made by the regional planning Minister for the region and which advances the purpose of the SPA by providing an integrated planning policy for the region. 26 The regional planning Minister is required to make a regional plan for each designated region. 27 Designated regions are those prescribed under regulation and can comprise multiple local government areas or parts of local government areas. At this stage, the Sustainable Planning Regulation 2009 (SP Regulation) identifies the following designated regions: 28 South East Queensland (SEQ) region, comprising Brisbane, Gold Coast, Ipswich, Lockyer Valley, Logan, Moreton Bay, Redland, Scenic Rim, Somerset, Sunshine Coast and part of the Toowoomba Region (as identified on maps SEQ RP 16 and SEQ RP 21); Far North Queensland region, comprising Cairns, Cassowary Coast, Tablelands, Wujal Wujal and Yarrabah; 24 For example, Chang & Anor v Laidley Shire Council [2006] QCA Department of Infrastructure and Planning, State Planning Instruments Program Policy Paper at 4 26 Section 23 of the SPA 27 Section 27 of the SPA 28 Schedule 1 of the SP Regulation Page 6

7 North West region, comprising Cloncurry, Flinders McKinlay, Mount Isa and Richmond; Central West region, comprising Barcaldine, Barcoo, Blackall Tambo, Boulia, Diamantina, Longreach and Winton; South West region, comprising Bulloo, Murweh, Paroo and Quilpie; Maranoa-Balonne region, comprising Balonne and Maranoa; Wide Bay Burnett region, comprising Bundaberg, Cherbourg, Fraser Coast, Gympie, North Burnett and South Burnett; and Whitsunday, Hinterland and Mackay region, comprising Isaac, Mackay and Whitsunday. Regional plans are statutory instruments which are taken to be State interests. 29 A regional plan must: 30 identify the desired regional outcomes for the region and the policies and actions for achieving the desired regional outcomes; identify the desired future spatial structure of the region including: - a future regional land use pattern; - provision for regional infrastructure to serve the future land use pattern so as to inform local governments when preparing priority infrastructure plans and the State, local governments and other entities about infrastructure plans and investments; - key regional environmental, economic and cultural resources to be preserved, maintained or developed (including regional landscape areas); - the way resources are to be preserved, maintained or developed; and - any other relevant regional planning matter for the SPA. The SPA requires that any entity who is responsible for preparing or amending a planning instrument, plan, policy or code (except regulatory provisions) that may affect one of the above matters must, in doing so, state in that document how it will reflect the regional plan. 31 Further, if there is an inconsistency between a regional plan and another planning instrument or any other plan, policy or code under an Act, the regional plan will prevail to the extent of the inconsistency. 32 This effectively establishes regional plans as second in the planning hierarchy, only usurped by regulatory provisions. Local governments must amend their planning schemes to reflect any applicable regional plan (unless the regional planning Minister gives a written direction to the contrary). 33 If a local government fails to do this within 90 business days of the gazetting of the regional plan, the regional planning Minister is empowered to amend the local planning scheme on behalf of the local government. 34 The regional planning Minister for a designated region must establish a regional planning committee for that region. 35 However, if there is already a regional planning committee that covers an area that is substantially the same as the 29 Sections 24 and 25 of the SPA 30 Section 28 of the SPA 31 Section 26(2) of the SPA 32 Section 26(3) of the SPA 33 Section 29(1) and (2) of the SPA 34 Section 29(3) of the SPA 35 Section 31(2) of the SPA Page 7

8 designated region, then that regional planning committee is taken to be the regional planning committee for that designated area. 36 It is also possible for the Minister to establish a regional planning committee in respect of a region which is not a designated region 37. However, before doing so, the Minister must prepare draft terms of reference, identify the proposed region and local governments likely to be affected and consult with the local governments and interest groups. 38 In establishing any such committee, the Minister must give the committee a name, nominate the membership of the committee, identify the area covered by the region for which the committee is established and state the committee s terms of reference. 39 Current status of regional planning in Queensland The DIP states that regional planning plays a key role in helping Queensland meet the challenges associated with managing rapid growth, population change, economic development, and protecting the environment and infrastructure provision across multiple local government areas. 40 A number of non-statutory plans have been developed for different regions in Queensland. These non-statutory plans have been prepared in consultation with local governments, the community and other stakeholders, but do not have the same effect as regional plans made under the now repealed IPA or SPA (eg such regional plans do not prevail over other planning instruments). A regional plan made under the repealed IPA retains its status as a regional plan under the SPA. 41 The current status of the various regional plans is as follows: 42 Region Type of regional plan Year of commencement Central Queensland Regional Plan Central West Regional Plan Far North Queensland Regional Plan Gulf Regional Development Plan Maranoa Balonne Regional Plan North West Regional Plan South East Queensland Regional Plan South West Regional Plan Non-statutory 2002 Statutory (no regulatory provisions) 2009 Statutory 2009 Non-statutory 2000 Statutory (no regulatory provisions) 2009 Statutory (no regulatory provisions) 2010 Statutory 2009 Statutory (no regulatory provisions) Section 31(4) of the SPA 37 Section 31(5) of the SPA 38 Section 31(5) of the SPA 39 Section 31(6) of the SPA Section 786 of the SPA 42 Department of Infrastructure and Planning, Regional Planning Projects in Queensland May 2010 Page 8

9 Region Type of regional plan Year of commencement Whitsunday, Hinterland and Mackay Regional Plan Wide Bay Burnett Regional Plan Draft Surat Basin Regional Planning Framework Non-statutory 2006 Non-statutory (Draft Regional Plan being prepared) (Draft regulatory provisions took effect on 1 October 2010) 2007 Non-statutory 2010 Of the current regional plans and planning projects, only three (including the Draft Wide Bay Burnett Regional Plan) have the teeth of regulatory provisions which facilitate implementation of the regional plans and prevent development which would compromise implementation of those plans. There are a further four statutory regional plans which are not supported by regulatory provisions and four (excluding the Draft Wide Bay Burnett Regional Plan) non-statutory regional plans (one of which is in draft form). In addition, the State has announced preparation of a statutory regional plan in respect of the Whitsunday, Hinterland and Mackay region, which will ultimately replace the existing non-statutory plan. 43 State Planning Policies What are SPPs? The DIP states that SPPs articulate single matters of state interest and specifiy outcomes for land use planning and development for that particular matter for the whole or part of the state. 44 An SPP may consist of a strategic statement along with a code. Under the SPA, an SPP is a statutory instrument with the force of law that advances the purpose of the SPA by stating the State s policy about a matter of State interest. 45 SPPs prevail, to the extent of inconsistency, over local planning instruments but, in the hierarchy of State planning powers, are subservient to regulatory provisions and regional plans. 46 A State interest is defined in the SPA as: (a) an interest that the Minister considers affects an economic or environmental interest of the State or a part of the State, including sustainable development; or Example of an interest the Minister might consider for paragraph (a) a tourism development involving broad economic benefits for the State or part of the State. (b) an interest that the Minister considers affects the interest of ensuring there is an efficient, effective and accounting planning and development assessment system. This definition clearly casts a wide net for things that may fall within the scope of a State interest, and it should be noted that the definition has been broadened under the SPA to include sustainable development. Further, the definition has been changed to allow the interest to affect part of the State rather than a region. Arguably, this means that the interest can concern areas smaller than a region, which may also broaden the scope of the definition Department of Infrastructure and Planning, State Planning Instruments Program Policy Paper 45 Sections 40 and 41 of the SPA 46 Section 43 of the SPA Page 9

10 The Minister (or the Minister and an eligible Minister jointly) may make SPPs. 47 SPPs have a lifespan of 10 years (unless repealed earlier or there is a prescribed ending date). 48 The Minister (or the Minister and an eligible Minister jointly) 49 may also make a temporary SPP if the Minister considers the policy is urgently required to protect or give effect to a State interest. 50 A temporary SPP, which has a lifespan of one year (or a lesser period if stated), 51 may suspend or affect the operation of a SPP, but does not amend an SPP. 52 The introduction of State powers in relation to temporary SPPs may provide greater power to State government officials trying to address political problems with knee-jerk reactions. Although temporary SPPs are constrained in the sense that they are to be used in circumstances where the Minister considers that the policy is urgently required to protect or give effect to a State interest, the power may be hastily used where political pressures arise in relation to a particular development or type of development. A local government must reflect SPPs in their planning schemes. 53 An assessment manager must assess code and impact assessable development applications against SPPs to the extent the policies are not appropriately reflected in a relevant regional plan or planning scheme. 54 An assessment manager s decision must not conflict with a relevant instrument 55 unless one of the departure rules is available. 56 The position under the SPA in respect of SPPs therefore differs to that under its predecessor, the IPA, which identified SPPs as one of a range of instruments taken into account in an assessment, but did not mandate refusal of a development application in the event of conflict with an SPP. 57 Therefore, SPPs have an elevated role in the SPA s assessment and decision process. Each referral agency must, to the extent relevant to the development and within the limits of its jurisdiction, assess a development application against SPPs applied by the referral agency to the extent those policies are not identified in a relevant regional plan or in a planning scheme as being appropriately reflected. Further, each referral agency must have regard to SPPs that are not applied by the referral agency to the extent those SPPs are not appropriately reflected in a relevant regional plan or planning scheme. 58 Current SPPs There are currently 12 current or draft SPPs. Those SPPs in chronological order of commencement date are: SPP 1/92: Development and the Conservation of Agricultural Land 1.0 (comprising Guideline 1 The Identification of Good Quality Agricultural Land 1.0, and Guideline 2 Separating agricultural and residential land uses 1.0), which commenced on 18 December 1992; State Coastal Management Plan (which commenced on 27 February 2002) and the Regional Coastal Management Plans, all of which have effect as SPPs, and will be replaced by the Draft Queensland Coastal Plan (currently in draft form) later this year or early next year; Section 44 of the SPA 48 Section 45(1) of the SPA 49 If the State interest addressed by the SPP is a matter administered by the eligible Minister 50 Section 46 of the SPA 51 Section 49 of the SPA 52 Section 48 of the SPA 53 Sections 88 and 90 of the SPA 54 Sections 313 and 314 of the SPA 55 That is, a matter or thing mentioned in Section 313(2) or Section 314(2) (eg SPPs) against which code or impact assessment is carried out 56 For example, where sufficient grounds justify the decision despite the conflict or where a conflict arises because of a conflict between two or more relevant instruments of the same type and the decision best achieves the purposes of the instruments: Section 329(1) of the SPA 57 Sections and of the IPA 58 Sections 282(1)(a) and 282(2)(a) of the SPA 59 l_coastal_plans.html Page 10

11 SPP 1/02: Development in the Vicinity of Certain Airports and Aviation Facilities 1.0, which commenced on 3 August 2002; SPP 2/02: Planning and Managing Development Involving Acid Sulfate Soils 1.0, which commenced on 18 November 2002; SPP 1/03: Mitigating the Adverse Impacts of Flood, Bushfire and Landslide 1.0, which commenced on 01 September 2003; SPP 1/09: Reconfiguration of a lot code for land in Indigenous local government areas to which a local planning scheme does not apply, which commenced on 20 November 2009; SPP 2/09: Acceleration of compliance assessment (temporary), which commenced on 18 December 2009; SPP 1/10: Protecting wetlands of high ecological significance in Great Barrier Reef catchments (temporary SPP), which commenced on 30 April 2010; SPP 2/10: South East Queensland Koala Conservation, which commenced on 31 May 2010; SPP 3/10: (Open for consultation) Draft State Planning Policy 3/10 Acceleration of Compliance Assessment, for which submissions closed on 15 October 2010; SPP 1/07: Housing and Residential Development including Guideline 1.0, which commenced on 29 January 2007; and SPP 2/07: Protection of Extractive Resources and Guideline, which commenced on 3 September SPSPs What are the SPSPs? The concept of SPSPs was introduced by the SPA and provides the planning Minister with a new power which is intended to overcome the complexity, uncertainty and inconsistency associated with many local planning schemes. 60 In respect of SPSPs, the Explanatory Notes to the SPA state that: This is a new type of State planning instrument which takes a prescriptive approach to facilitate consistency across schemes and greater certainty for users who interpret local planning schemes. The standard planning scheme provisions may contain both mandatory and non-mandatory components, such as a mandatory structure and format, standardised use and administrative definitions, a suite of standard zones, limited prescribed levels of assessment, a suite of standard overlays, standardised infrastructure planning provisions, and standardised codes. The standard planning scheme provisions can also be used to effectively integrate State interests. The standard planning scheme provisions may also include provision for limited prohibitions. A local government may specify in its planning scheme that development is prohibited development, but only to the extent that the standard planning scheme provisions state that a planning scheme may do so. In general terms, development may be specified as prohibited development where it is clearly detrimental to the strategic objectives and where the impact of such development cannot be mitigated. The use of prohibitions will, however, remain limited to retain Queensland s performance-based planning system Department of Infrastructure and Planning, From IPA to SPA a comprehensive guide to what s changed (published November 2009) page Pages 33 and 34 Page 11

12 SPSPs are made by the Minister to advance the purpose of the SPA by providing for a consistent structure for planning schemes and standard provisions for implementing integrated planning at the local level. 62 The SPSPs are a statutory instrument and have the force of law. 63 The Explanatory Notes provide that: They will be progressively reflected in local government planning schemes as new schemes are made under the Bill. Local governments must amend planning schemes made under the Bill to reflect standard planning scheme provisions, however existing IPA planning schemes are not required to be consistent with the standard planning scheme provisions. Standard planning scheme provisions prevail over local planning instruments, to the extent of any inconsistency. The standard planning scheme provisions do not regulate or affect development in their own right. Standard planning scheme provisions only have effect once they are incorporated into a local planning instrument. However, if a local planning instrument is inconsistent with the standard planning scheme provisions, the standard planning scheme provisions take effect in place of the local planning instrument to the extent of the inconsistency. 64 Local governments must ensure that each of their local planning instruments are consistent with the SPSPs. 65 In the event that the SPSPs are amended, local governments must also amend their planning schemes. 66 The Minister has power to amend a planning scheme where a local government has not amended its planning scheme within 90 business days after the day that the SPSPs were amended. 67 What are the Queensland Planning Provisions? The Queensland Planning Provisions (QPPs) are the standard planning scheme provisions made under the SPA for use by all local governments. The QPPs contain a standard set of definitions and higher level provisions, along with a suite of zones for each local government to adopt as designations within its local government area. Version 2.0 is the current version of the QPPs prepared by DIP. It is not difficult to argue that the standard format, definitions and zones in the QPPs will give rise to greater efficiency across the planning system for applicants, and broader applicability of certain judgments of the Planning and Environment Court (where in the past there have been some limits on the application of judicial decisions arising from differences between planning schemes). However, there is some potential scope for local governments to attempt to develop local area specific requirements and performance criteria. Given that QPPs are in their infancy, it will be useful to observe the evolution of the document, its use by local governments and its interpretation in the judicial process. 62 Section 50 of the SPA 63 Section 51 of the SPA 64 See Sections 52 and 53 of the SPA 65 Section 55(1) of the SPA 66 Section 55(2) of the SPA 67 Section 55(3) of the SPA Page 12

13 State Planning Instruments Program The State Planning Instruments Program (SPIP) commenced on 1 July The DIP states that the SPIP establishes an ongoing program for articulating State interests through State planning instruments. It is said that these instruments articulate the state government s position on planning and development related issues of state interest. 68 The SPIP Policy Paper identifies the following recommendations that form the basis of this report: make state planning instruments.the only way of expressing state interests streamline the process for making SPPs including removing the requirement for one of the two stages of public consultation impose a time limit of 10 years on the life of a SPP legislate to better identify and strengthen the mechanism to create temporary SPPs for situations where there is an urgent need to express or protect a state interest development and implement an SPP program in consultation with other agencies. 69 The Policy Paper indicates the State s likely intention to be more involved in the planning of its cities and towns, with less public consultation. This document signals a new, more strategic approach to the State s attitude to planning regulation. Specifically, the Policy Paper states that SPP preparation has sometimes been considered reactive, responding to a particular issue as the need arises, rather than reflecting a planned and endorsed framework or strategic approach to prioritised state interests A form ongoing SPI Program addresses this concern by offering the structure opportunity to drive the development of a suite of planning policies based on prioritised state interests. Is this a utopian dream or something that the State can actually bring to reality? The Policy Paper suggests that the manner in which the state articulates its state level interests offers greater certainty to industry, local government and communities about the outcomes the state seeks to achieve through land use planning and development decisions. 70 Given the centralised, co-ordinated approach that the government proposes to take in relation to planning at the State level, it is not difficult to see that State control of planning is likely to dramatically increase over the coming years. The timetable for 1 July 2010 to 30 June 2011 foreshadows the preparation or finalisation of the following State planning instruments: SPP Healthy Waters, with a code under the QPP to possibly be developed SPP Coastal Protection SPP Air, Noise and Hazardous Materials, with a code under the QPP to possibly be developed SPP Protecting Wetlands of High Ecological significance in GBR Catchments (which will replace temporary SPP1/10) SPRP Motor Sport Activity Facilities (Trail Bike) on State owned land at Wyaralong Possible SPP and/or SPRP in relation to ensuring safety and operational integrity of ports and environmental impacts of emissions from ports Department of Infrastructure and Planning, State Planning Instruments Program Policy Paper at 3 70 Department of Infrastructure and Planning, State Planning Instruments Program Policy Paper at 7 Page 13

14 SPP relating to the acceleration of compliance assessment (which will replace temporary SPP1/09) SPP reconfiguration of a lot for land in Indigenous local government areas to which a local planning scheme does not apply (which will replace temporary SPP1/09) Possible SPP in relation to supplying suitable land for industrial development of regional significance SPRP Yerongpilly TOD Possible State planning instrument to facilitate the Statewide roll-out of fibre-to-the-premises infrastructure to support the implementation of the Commonwealth Government s National Broadband Network Review of the appropriateness of the State planning instruments which preserve the State s finite cropping land Review of SPP1/03 Mitigating the adverse impacts of flood, bushfire, and landslide While having strategic documents at a State level to provide a co-ordinated and uniform approach to particular issues provides greater uniformity for development across the State, these documents are only going to add to the already large breadth of material that project proponents will need to consider when making development applications. State decision powers Referral jurisdiction Under the SPA and SP Regulation, relevant State departments are provided with referral agency jurisdiction in relation to certain development applications. This provides the State with a limited range of decision-making powers in the Integrated Development Assessment System (IDAS). While an advice agency may only make recommendations to the assessment manager about matters within the limits of its jurisdiction, 71 a concurrence agency is empowered under the SPA to direct the assessment manager that: certain conditions must attach to any development approval; any approval must be granted for only part of the development; any approval granted must be a preliminary approval only; a different relevant period must be imposed on any development approval; or the application must be refused. 72 Ministerial IDAS powers The SPA also contains a set of powers which enable the Minister to make certain directions and to take certain actions in relation to specific development applications or types of development applications. Part 11 of Chapter 6 of the SPA sets out these powers. The DIP notes that the SPA has expanded the State s powers to better complement the call in powers and enable the Minister to intervene in the IDAS process Section 292 of the SPA 72 Sections 287 and 325(4) of the SPA 73 Department of Infrastructure and Planning, Proposed changes to planning and development in Queensland (published 19 June 2009) page 3 Page 14

15 The Minister s IDAS powers can be summarised as follows: Directions about future applications The Minister may give a direction to an assessment manager requiring a copy of all applications for particular development or for development in a particular area to be given to the Minister. 74 Such directions may only be given in relation to development or an area involving a State interest. 75 The direction is to be given by publishing a notice (in a State newspaper and the gazette) that contains details of the relevant development or area, the reasons for giving the direction, the State interest giving rise to the direction, the point in the IDAS process when the Minister must be given a copy of the development application, and any other material that must be given to the Minister. 76 As discussed above, the definition of State interest in the SPA casts a broad net and provides a wide direction-making power in this regard. Directions about the processing of current applications The Minister may give a written direction to an assessment manager in relation to a particular development application. The potential scope of such a direction is broad and includes the following directions to assessment managers: - To not decide the application until the end of a stated period 77 if the application has not yet been decided and the development involves (or may involve) a State interest - To decide an application within a stated period of at least 20 business days if the application has not been decided by the end of the decision-making period (including any extensions) - To decide the application within the decision-making period if the development involves a State interest - To decide whether to give a negotiated decision notice within a stated period of at least 20 business days where the assessment manager has not made a decision in relation to representations made by an applicant - To take an action under IDAS within the reasonable period stated in the direction if the assessment manager has not otherwise complied with the statutory period for doing so - To take an action under IDAS within the reasonable period stated in the direction if the Minister is satisfied the development involves a State interest 78 The notice must give reasons for deciding to give the direction and, where necessary, identify the State interest involved. 79 Additionally, a notice directing the assessment manager to not decide a development application must state that the Minister may within the stated period decide to call in the application or give further directions. 80 Directions about imposing certain conditions The Minister may give a written direction to an assessment manager requiring that the assessment manager impose certain conditions in relation to a development application involving a State interest that has not been decided 81 where the matter the subject of the direction is not within the jurisdiction of a concurrence agency for the 74 Section 417(1) of the SPA 75 Section 417(2) of the SPA 76 Sections 417(4) and 417(5) of the SPA 77 but which cannot be longer than 20 business days 78 Section 418(1) of the SPA 79 Sections 418(2)(a) and (c) of the SPA 80 Section 418(2)(b) of the SPA 81 and no deemed approval has taken effect under section 339 of the SPA Page 15

16 application. 82 The notice must give reasons for deciding to give the direction and identify the State interest giving rise to the direction. 83 The assessment manager must comply with the direction. 84 If the Minister gives a direction about conditions, they are required to prepare a report about the decision which includes a copy of the development application, the direction given and the Minister s reasons for giving the direction. 85 This report must then be tabled in the Legislative Assembly within 14 sitting days after the Minister s decision to issue a direction. 86 Directions to concurrence agencies The Minister may give a written direction to a concurrence agency for a development application to reissue its concurrence agency response in a variety of circumstances or to take other action. By way of summary, the Minister can make such a direction if the Minister is satisfied that: - there are inconsistencies between two or more concurrence agency responses, to reissue the concurrence agency response to address the inconsistency; - conditions contained in a concurrence agency s response are unlawful (eg conditions are not relevant or reasonable), to reissue the concurrence agency response modifying or removing the unlawful condition; 87 - the concurrence agency response is outside of its jurisdiction, to reissue the concurrence agency response in a stated way to ensure it is within the limits of its jurisdiction; or - the concurrence agency has not assessed an application under the SPA, to reissue the concurrence agency response in a stated way to ensure that the application has been assessed under the SPA. 88 Additionally, the Minister can make a direction requiring a concurrence agency to: - take an action within the reasonable period stated in the direction if the Minister is satisfied that the concurrence agency has failed to comply with the reasonable period for taking an action under IDAS; or - take an action under IDAS within the reasonable period stated in the direction if the development application involves a State interest. 89 The Minister may give such a direction even where the referral agency s assessment period has ended. 90 The notice must state the reasons for giving the direction 91 and the assessment manager is prevented from deciding the development application until the concurrence agency has complied with the requirements of the direction (eg a concurrence agency s response is reissued). 92 A concurrence agency must comply with the direction. 93 Directions to applicants 82 Section 419(1) of the SPA 83 Section 419(2) of the SPA 84 Section 419(3) of the SPA 85 Section 422 of the SPA 86 Section 422(3) of the SPA 87 Not in accordance with sections 345 or 347 of the SPA 88 Section 420(1) of the SPA 89 Section 420(1) of the SPA 90 Section 420(5) of the SPA 91 Section 420(2) of the SPA 92 Section 420(6) of the SPA 93 Section 420(4) of the SPA Page 16

17 The Minister may also give a written direction to an applicant who has not complied with a stage (or aspect of a stage) of IDAS to take stated action in relation to the stage to ensure compliance with IDAS. 94 The notice must state the reasons for deciding to give the direction and the reasonable period in which the action must be taken. 95 It may also state the point in the IDAS process from which the process must restart. 96 The directions powers under the SPA are significantly wider than those powers previously available to the State under the IPA and, in conjunction with the broad definition of State interest, would seem to potentially enable significant State government involvement in the IDAS process for a variety of development applications for major projects and developments. These powers provide the State with a broad range of tools to influence and impact upon development applications, without actually being the entity responsible for deciding the development application. Furthermore, these powers enable the State to deal with some situations which an applicant could only have dealt with by way of recourse to the Planning and Environment Court (eg a concurrence agency s response which is outside of its jurisdiction or inconsistent concurrence agency responses) and with circumstances that impede timely processing of development applications (eg a direction to an assessment manager to decide whether to give a negotiated decision notice within a stated period). Ministerial call-in powers Ministerial call-powers are another arrow in the State s armoury of powers. Generally speaking, a call in allows the Minister to decide (or even re-decide) certain types of development applications even in circumstances where the development application has become the subject of an appeal to the Planning and Environment Court. The Explanatory Notes to the SPA makes the following comment in relation to the call in power: This is a reserve power of the State which allows the Minister to protect the interests of the State in relation to development applications and approvals. This power is intended to allow the government to intervene in the development assessment process, where State interests are involved, and to be the final arbiter on State interest matters. This power is not intended to be used routinely or often. However, occasions may arise where a State interest (such as an important environmental value) could be severely affected by the implementation of a development approval. In these situations, exercising the reserve power to call the application in and assess and decide, or reassess and re-decide, the application allows the Minister to redress what otherwise could become a serious problem for the community. There are, however, specific threshold questions that must be met before a development application may be called in. Firstly, a development application may only be called in by the Minister if it involves a State interest. 97 In terms of timing, the call in may occur at any time during the IDAS process (starting when the application was made) until after the development application has been decided. The final day to call in a development application is the latest of: 98 if there were submitters, 50 business days after a decision notice (or negotiated decision notice) was given to the applicant; if there were no submitters and a decision notice or negotiated decision notice is given, 25 business days after the day a decision notice (or negotiated decision notice) was given the applicant; if the application is deemed to be approved and the assessment manager has not given a decision notice (or negotiated decision notice), 25 business days after the day the decision notice was required to be given to the applicant; or 94 Section 421(1) of the SPA 95 Section 421(2) of the SPA 96 Section 421(3) of the SPA 97 Section 424 of the SPA 98 Section 424(b) of the SPA Page 17