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Australia – An Overview Of Key Changes To The Sustainable Planning Act 2009 (Qld).

 29 September, 2012

 

Legal News & Analysis – Asia Pacific – Australia – Environment

  

In brief

 

  • The Sustainable Planning and Other Legislation Amendment Bill will effect significant amendments to the Sustainable Planning Act 2009 (Qld).
  • We examine the key amendments that will be delivered by the Bill.

 

Introduction

 

The Sustainable Planning and Other Legislation Amendment Bill 2012 (Qld) ("SPA Amendment Bill") was introduced into State Parliament and received its second reading speech on 13 September 2012. The SPA Amendment Bill aims to improve efficiencies and certainty in the planning system.

 

This article overviews some of the key changes to be introduced to the Sustainable Planning Act 2009 (Qld) ("SPA"), including:

 

  • enabling the Department of State Development, Infrastructure and Planning ("DSDIP") to be the single State assessment manager and referral agency in specific circumstances;
  • removing inefficient master planning and structure planning arrangements;
  • removing unnecessary "red tape" in the assessment of development applications involving a State resource;
  • providing the assessment manager with flexibility in determining the relevance of supporting information;
  • reducing the level of assessment required for development applications involving certain low risk operational works;
  • giving the Planning and Environment Court discretion in relation to costs orders; and
  • introducing an alternative dispute resolution process for minor disputes and procedural applications.

 

Single State assessment and referral agency

 

Under the SPA Amendment Bill, the DSDIP is made a central point for referral and response. The DSDIP will become the single agency able to make State Planning Policies or test development applications against State interest and from a State perspective. By reducing the number of government departments involved, the change will reduce complexities and improve responsiveness and coordination in these processes. Importantly, the DSDIP will not receive development applications regarding building matters, nor will it replace the roles and responsibilities of local governments for relevant development applications.

 

Due to the various administrative and operational matters involved in making this amendment, these provisions will commence by proclamation at a future date.

 

Removal of master planning and structure planning arrangements

 

Inefficient master planning and structure planning arrangements will be removed from the SPA. However, the use and development rights established by existing structure plans and master plans will be preserved through transitional provisions.

 

According to the Explanatory Notes, the arrangements under existing structure plans and master plans can be addressed in other ways without further legislative arrangements, including:

 

  • ensuring strategic guidance at the regional level through clearer and more focused regional planning;
  • enabling local governments to carry out effective integrated strategic land use and infrastructure planning in their planning schemes using reformed and streamlined scheme making processes; and
  • a partnership approach with industry in development assessment in key growth areas, including the effective use of preliminary approvals under the SPA.

 

Red tape reduction – development applications involving State resources

 

The SPA Amendment Bill proposes to amend the current requirement that, where relevant, a State resource entitlement or allocation must be obtained and provided as evidence when making a development application.

 

The amendments to the legislation propose to "de-couple" development applications and State resource entitlements or allocations such that an application for a State resource allocation or entitlement may be made separately to a development application and its assessment process.

 

It is envisaged that this amendment will remove the "red tape" for development applications involving State resources. In addition, these changes are likely to extinguish submitter type appeals on preliminary issues that challenge the validity of a development application due to lack of the relevant State resource allocation or entitlement. In the past, this area has been fruitful for submitters who, in some cases, have been quite successful in challenging development applications on this basis.

 

Flexibility in determining relevance of information

 

The SPA Amendment Bill introduces greater flexibility for assessment managers to determine the relevance of information when deciding if an application is properly made.

 

While current mandatory informational requirements under the SPA will continue, there will be a change to the requirement for supporting information, which in some cases may be deemed unnecessary, particularly if it does not add to the value of the assessment of the development application.

 

Low risk operational works

 

The level of assessment currently required for low risk operational works is unnecessarily onerous. The SPA Amendment Bill sets a maximum level of assessment required for development applications concerning certain low risk operational works (for example, car parks and landscaping). The amending legislation proposes to make "compliance assessment" the highest form of assessment for development applications for low risk operational works. Despite this, however, lower forms of assessment may be adopted for these development applications, such as "self-assessment". No doubt, the level of assessment required will depend on the nature of the development application being made.

 

Planning and Environment Court costs discretion

 

Currently, the Planning and Environment Court is a cost free jurisdiction except in specific circumstances such as vexatious or frivolous litigation. The SPA Amendment Bill, if passed, will bring Planning & Environment Court costs in line with the Uniform Civil Procedure Rules ("UCPR"). That is, costs will follow the event, subject to the Planning & Environment Court's discretion.

 

The SPA Amendment Bill also amends the Planning and Environment Court Rules to specify how discretion is to be exercised where complying with the UCPR may result in unintended or unfair outcomes. A number of factors may be taken into account, including but not limited to a party's success in a matter.

 

In relation to existing proceedings, the proposed section 946 of the SPA Amendment Bill ensures that existing rules regarding costs will apply to any proceedings that have been brought before the commencement of the new provision.

 

Alternative dispute resolution process

 

The SPA Amendment Bill gives the Chief Justice of the District Court the power to direct that certain powers of the Court be exercised by the Alternative Dispute Resolution Registrar. This allows for minor disputes and procedural applications to be dealt with by mediation rather than lengthy and expensive Court processes. This change will increase efficiency, improve access to justice, and produce a faster resolution with reduced Court time.

 

  

For further information, please contact:

 

Peter Rowell, Ashurst

peter.rowell@ashurst.com

 

Sarah Stoddart, Ashurst

sarah.stoddart@ashurst.com

 

  

 

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