Publications / Planning and Environment
On 13 November 2012, the Sustainable Planning and Other Legislation Amendment Bill 2012 (Qld) (Bill) was passed by Parliament giving effect to the recommendations of the State Development, Infrastructure and Industry Committee (Committee). The Committee made six recommendations for the amendment of the Bill to address stakeholder concerns and improve clarity.
The Bill received royal assent on 22 November 2012 as an Act. Most of the provisions of the new Act commenced on assent, with the remaining provisions to commence on a date to be fixed by proclamation.
This edition of Focus will deal with the changes made to the Bill as they relate to the Sustainable Planning Act 2009 (Qld) (SPA).
Our Focus circulated on 17 September 2012 summarises the amendments that the Bill originally proposed to the Act.
Single State assessment and referral agency
The Act now provides two additional provisions to support the role and efficiency of the chief executive of the Department of State Development Infrastructure and Planning (Chief Executive) as the single State assessment and referral agency, namely:
- discretion for the Chief Executive to nominate an entity to have jurisdiction for administration and enforcement matters relating to a condition of development to which a development approval relates, and
- an exception to the application of the requirements of Acts, other than the SPA, to the Chief Executive where those Acts require that certain matters may, or must be regarded, or applied by a State agency as the assessment manager or referral agency.
These provisions allow the Chief Executive to delegate the Chief Executive’s administrative enforcement functions to reduce the administrative burden and cost of the single State assessment and referral agency. The second provision seeks to address internal State conflicts between laws, codes and policies where the Chief Executive would otherwise be bound to apply to those laws, codes and policies.
The proposed amendment to the costs provisions in the Planning and Environment Court in the Bill as originally introduced provided a general discretion to the Planning and Environment Court but with a presumption that costs ‘follow the event’ unless the Court orders otherwise. Those provisions have been revised following a number of stakeholder submissions. This was arguably the most contentious aspect of the Bill, and the Committee took on board the submissions from the profession, development industry, local government and environmental interest groups.
The Act reinstates the Planning and Environment Court’s general discretion as to costs and provides a transparent framework for the making of costs orders through a non-exhaustive list of discretionary factors, including:
- the relative success of the parties
- the commercial interests of the parties
- whether a party commenced or participated in the proceeding:
- for an improper purpose
- without reasonable prospects of success
- where conflict with a planning instrument is found but matters such as ‘grounds’ exist
- where a change to an application on which the decision being appealed has been made
- where a party has acted unreasonably in the proceeding or in the lead up to a proceeding
- where the proceeding involves an issue that affects, or may affect, a mater of public interest
- where a party has incurred costs because another party has:
- introduced, or sought to introduce new material
- not complied with, or not fully complied with, a provision of the Act or another Act relating to a matter the subject of the proceeding, or
- defaulted on the Court’s procedural requirements
- where a party should have taken a more active part in the proceeding and did not do so.
The exception to the rule lies with enforcement proceedings brought under section 601 of the SPA. Costs of enforcements proceedings, including investigation costs will now follow the event unless otherwise ordered by the Court.
The Act retains the discretionary provision that the Court may order that the parties bear their own costs where, early in the proceedings, the parties participate in an alternative dispute resolution process under the Planning and Environment Court Rules and the proceedings are resolved during the dispute resolution process or shortly thereafter. This seeks to encourage the early resolution of proceedings in the absence of judicial intervention in line with the expanding role and powers of the ADR Registrar.
Declared masterplanned areas
As discussed in our previous Focus, a large number of the provisions of the Act are consequential amendments to give effect to the complete repeal of chapter 4 in SPA, however transitional arrangements are prescribed for existing masterplanned areas and structure plans.
A number of the changes to the Bill as first presented to parliament relate to the transitional provisions for declared masterplanned areas, namely:
- clarification where an application for a section 242 preliminary approval meets certain technical requirements, public notification requirements are to be waived
- the introduction of a transitional provision to clarify that the definition of a structure plan applies to a ‘declared’ masterplanned area and not other types of masterplanned communities, and
- an additional clause clarifying the policy intent that a local government has three years to amend its SPA planning scheme or make a new SPA planning scheme to include future planning intentions for the declared masterplanned area.
With the Bill having taken effect as an Act, significant changes have been introduced into Queensland’s planning system. It will be important to watch this space as the Government continues its reform agenda, including future amendments to regulations and the Queensland Planning Provisions.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.