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17 Sep 12
Sustainable Planning and Other Legislation Amendment Bill 2012

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On 13 September 2012, the Sustainable Planning and Other Legislation Amendment Bill 2012 (SPOLAB 2012) was introduced into parliament.  The SPOLAB 2012 proposes to make seven significant changes to the Sustainable Planning Act 2009 (SPA) noted in the Explanatory Notes as follows:

  • ‘improve the coordination and responsiveness of state government in dealing with particular development applications (proposing development within or partially within state jurisdiction)
  • remove ineffective master planning and structure planning arrangements
  • reduce regulatory ‘red tape’ for development applications involving a state resource
  • provide some flexibility in the requirements for supporting information accompanying a development application
  • provide that certain provisions within the Queensland Planning Provisions also apply to local government planning schemes made under the Integrated Planning Act 1997 (repealed)
  • give the Planning and Environment Court general discretion in relation to costs, and
  • introduce an alternative dispute resolution process in the Planning and Environment Court for minor disputes.’

State coordination

The SPOLAB 2012 proposes changes to the decision rules for cases where the chief executive of the Department of State Development, Infrastructure and Planning (DSDIP) is the assessment manager for a code or impact assessable application, and where the chief executive of DSDIP is assessing the application as the referral agency.  In those circumstances, the chief executive is not constrained by the usual requirement that the assessment manager or referral agency only consider matters within its jurisdiction. 

The purpose of these amendments is to enable the chief executive of DSDIP to coordinate all State responses to a development application and to resolve any inconsistencies that may arise by the requirements of different jurisdictions within the State.  The single State assessment and referral agency will provide a single point of State referral and response.

Specifically, if the chief executive is the assessment manager, it is not prevented from considering concurrence agency codes, that do not form part of its assessment manager jurisdiction.  Also for code assessable applications, the chief executive is not required to only consider the laws and the policies within its assessment manager jurisdiction relevant to the application. 

The matters that the chief executive may have regard to, and give weight to, will be prescribed under a regulation that is yet to be published, as will the circumstances in which State coordination will be available.

Equivalent provisions apply where the chief executive is assessing the application as a referral agency. 

These proposed changes do not relate to development applications for building matters, nor do they relate to the responsibilities of local government as assessment manager or a referral agency for the development application.

Abolition of Master Planning and Structure Planning Provisions

A large number of the provisions of SPOLAB 2012 are consequential amendments to give effect to the complete repeal of Chapter 4 (Planning Partnerships) in SPA.

Transitional arrangements are prescribed for existing master planned areas and structure plans.

Properly made requirements

The SPOLAB 2012 removes some of the rigidity around the properly made requirements in SPA.  Currently in order for a development application to be ‘properly made’ it must:

  • be made to the assessment manager
  • be in the approved form
  • include the mandatory supporting information
  • be accompanied by the relevant fee, and
  • be accompanied by the owner’s consent, or State resource evidence, where necessary.

A development application that is not properly made cannot progress to the next stage of IDAS.

The SPOLAB 2012 removes the requirement for a development application to be accompanied by evidence of State resource entitlement in order for the development application to be properly made.  Developers will still be responsible for obtaining the relevant allocation or entitlement to a State resource under other legislation (such as Fisheries Act 1994 or the Land Act 1994), but this process need not be completed prior to the making of a development application.

The other significant proposed amendment relating to the properly made requirements of SPA is that a development application need not contain all of the mandatory supporting information in order for the assessment manager to accept it as being properly made.  The amendment is put forward on the basis that there has been an improvement to practices and greater clarity on what is required for an adequate application and the mandatory supporting information is often the barrier to the efficiency of the development application process.

The SPOLAB 2012 amends section 261 of SPA to provide that an application is properly made if it:

  • complies with the properly made requirements, or
  • alternatively, where the development application is only deficient in providing mandatory supporting information and the assessment manager has considered the failure to provide the mandatory supporting information, the assessment manager may decide to accept the application in any event.

Previously under the repealed Integrated Planning Act 1997 (Qld) (IPA), the assessment manager did retain a discretion to accept a not properly made application.  That discretion was removed under SPA.

Planning and Environment Court costs

Under the current legislation, each party to a proceeding in the Planning and Environment Court generally bears its own costs unless specific circumstances apply.  For example, the Court currently has power to award costs against a party where:

  • the matter has been frivolous or vexatious
  • where the Court considers the proceedings was instituted, or continued by the party primarily to delay or obstruct, or
  • where there has been a default in the Court’s procedural requirements.

The Explanatory Notes to the SPOLAB 2012 state that it is rare for cost orders to be made under the frivolous or vexatious head of power, even where the opponent is a commercial competitor.  The Explanatory Notes describe a number of unsatisfactory outcomes arising from the current costs provisions:

  • ‘applicants being reticent to challenge conditions placed on development because the cost of litigating outweighs the benefit of a successful outcome
  • commercial competitors fighting in Court for the purpose of delay - knowing that even if the cases is unsuccessful they will not be penalised in costs yet will have achieved their desired outcome
  • developments approved by the council being litigated by third parties on weak town planning grounds - even though these grounds might not fall into the category of ‘frivolous or vexatious.’

In response to these ‘identified’ anomalies, the Bill proposes to amend the costs provision of SPA to provide that costs of the proceeding (including an application in a proceeding) are to be awarded at the discretion of the Court, but follow the event unless the Court orders otherwise.  This essentially reverses the current position, and returns it to the position under the repealed Local Government Act and City of Brisbane Act from 1986 until 1991 when the Local Government (Planning & Environment) Act 1990 commenced.

The proposed amendments specifically provide that if, 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, the Court may order each party to the proceeding bear its own costs.  This is intended to encourage parties to avail themselves of mediation processes and will enable minor disputes to be heard and determined by the Alternative Dispute Resolution Registrar on the basis that each party bears their own costs.

The SPOLAB 2012 also changes the costs rules in respect of proceedings regarding the lawfulness of land use or development.  If the enforcing authority is successful in enforcement proceedings relating to land use or development, then that party may claim its costs relating to investigations or gathering of evidence.  This change more closely mirrors the costs provisions available for prosecution in the Magistrates Court and we expect that it is something that local governments and regulators will utilise.

Expanding role of the ADR Registrar

The SPOLAB 2012 expands the powers of the ADR Registrar by providing that the Chief Judge of the District Court may issue directions about the matters in which the ADR Registrar may exercise a power of the Court.  For these matters, each party will bear their own costs for the proceedings. 

The purpose of these provisions is to enable relatively simple, straightforward disputes to be resolved quickly, cheaply and efficiently without the burden of an expensive trial.  These provisions are also intended to be available for routine procedural applications which need to be dealt with on an ongoing basis.

Where the ADR Registrar is hearing and deciding a proceeding, he or she is obliged to act as quickly and with as little formality and technicality as is consistent with a fair and appropriate consideration of the issues and may inform himself or herself in the way the Registrar considers appropriate.  The SPOLAB 2012 does not require the ADR Registrar to give reasons for his decisions.

The decision, direction or acts of the ADR Registrar may be reviewed by the Planning and Environment Court by an application made within 21 days of that matter or another period allowed by the Court.

The ADR Registrar also has powers to refer a matter to the Court where he or she considers it appropriate.  The Court may then dispose of the matter or refer it back to the ADR Registrar with any direction the Court considers appropriate.

Queensland Planning Provisions (QPPs)

SPOLAB 2012 also provides for some amendments to SPA to allow certain provisions (yet to be prepared) of the QPPs to apply to IPA planning schemes.  The effect of these amendments are not yet able to be fully appreciated.

Significant changes

The proposed amendments, if passed by Parliament, will significantly change the procedures associated with the assessment of development applications and resolution of disputes.  In some respects, the proposed reforms represent a ‘back to the future’, particularly in relation to properly made application discretions and Court discretions in relation to costs.

Until the form of the amendments to regulations, Court rules, and the QPPs are released, the full extent and likely impacts of the changes cannot be fully known.

The proposed amendments will be considered by a Parliamentary Committee and will then return to Parliament for further debate.

 

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.

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