PLANNING Alert: The new Planning Bills – 10 greatest hits

Sep 23 2015

Publications

On 10 September 2015, the Queensland Government released its draft Planning Bill 2015. The public submission period ends on 23 October 2015. Overall, the draft Bills do not radically alter the existing legislative framework. However, there are ten significant changes to be aware of:

1. Simplify: Following the change of government in early 2015, there has been an emphasis on simplifying the planning legislative framework. The draft Planning Bill 2015 has attempted to achieve this by reducing the amount of duplication and moving the more complex and procedural provisions into the regulations. This has resulted in an increase in the amount of supporting legislative instruments such as:

a. Planning Regulation 2016;

b. Development Assessment Rules;

c. Minister’s Rules and Guidelines for Making or Amending Local Planning Instruments; and

d. Infrastructure Designation: Statutory Guideline for Local Government.

2. Retain: The draft Planning Bill 2015 retains the fundamental structure of the present legislative framework. This is demonstrated in the way the draft Planning Bill 2015 has retained a development assessment system, State and local planning instruments, a hierarchy of regulatory instruments, and dispute resolution processes.

3. New Development Tribunal: The proposed draft Planning Bill 2015 will replace the Building and Development Dispute Resolution Committee with the Development Tribunal. This aims to further facilitate the use of alternative dispute resolution processes before a matter progresses to the Planning and Environment Court. 

4. Non Appealable Decisions: The draft Planning Bill 2015 has introduced the concept of a “non-appealable” decision. However, at this stage of the drafting process the practical effect that this provision will have on appeal rights is unclear.

5. Less State Planning Instruments: There will be a reduction of State planning instruments to just two. This will result in the single State Planning Policy and Regional Plans being the only two State planning instruments.

6. Compensation for Planning Scheme Changes: Under the Sustainable Planning Act 2009, a land owner is not entitled to compensation for planning scheme changes that negatively affect the value of their land, where the change is intended to prevent development that would otherwise cause a “significant risk to person or property from natural processes (including flooding, land slippage or erosion) and the risk could not have been significantly reduced by conditions attached to a  development approval“. Under the revised compensation provisions found in the Planning Bill 2015, this test is eased (to the benefit of Councils and the detriment of affected land owners) to apply to any change that simply reduces the risk (rather than ‘significantly reduces’), with no consideration of how conditions of approval may alleviate any risks. This is likely to limit the ability for land holders to claim compensation when protective measures adversely affecting development rights (e.g. stricter flood protection) are introduced into planning instruments. This change has been specifically acknowledged by the State Government as one that is open to further consultation before the Planning Bill 2015 is finalised.

7. Assessment Rules: The most significant change resulting from the draft Planning Bill 2015 involves the way in which a development is assessed. 

a. The following concepts will be introduced under the proposed legislative framework:

i. Exemption certificates: if an exemption certificate is issued, it will prevent an assessable development requiring a development approval. 

ii. Assessment benchmarks: are matters that a development will be assessed against.

iii. Categorising instrument: outlines whether the development is categorised as accepted, assessable or prohibited. 

b. Further, the draft Planning Bill 2015 proposes the introduction of three categories of assessment:

i. Accepted: includes all developments other than assessable or prohibited developments. The accepted category is effectively a combination of the exempt and self-assessable categories under the Sustainable Planning Act 2009 (Qld).

ii. Assessable: applies to developments which can only be carried out with a development approval. Additionally, subject to the feedback in the public submission period, the code/impact assessment categories may be changed to standard/merit assessment. 

iii. Prohibited: is a development where no application can be made.  


8. Minor Change: The draft Planning Bill 2015 has altered the process for making a change application for a development approval. This has resulted in the replacement of the term “permissible change” with “minor change”. The term “minor change” has a broader scope as it applies to development applications as well as development approvals. However, the term “minor change” has a different meaning when it is applied to development applications in comparison to development approvals.


9. Longer Currency Periods but No More ‘Roll Forward’: The currency periods for development approvals will be extended:
a. Material Change of Use Development Approval: is extended from four to six years.
b. Reconfiguring a Lot Development Approval (without works): is extended from two to four years.

Together with these changes it is also proposed to abolish the current ‘roll forward’ provisions, removing the ability of approval holders to extend approvals by applying for (and obtaining) ‘related approvals’.

10. Costs in the P&E Court: There has been a restriction in the discretionary factors available when evaluating costs. This demonstrates a legislative intent to return to the principle that each party bears its own costs. However, a party will be liable for costs where the proceedings have been initiated for an improper purpose or are considered to be vexatious. This reform is aimed at promoting the appeal rights of third parties. This is in response to the government’s goal of increasing public participation and engagement. 

The proposed Planning Bills are still in the preliminary stages and will be subject to further amendment. Nonetheless, it is critical that applicants, Councils and law firms are aware of the proposed reforms. If you have any queries relating to the draft Bills please do not hesitate to contact:

Michael Marshall | Partner | +61 7 3338 7525 | mmarshall@tglaw.com.au