Housing Availability and Affordability Bill – The State led development charge
The Queensland Government has introduced the Housing Availability and Affordability (Planning and Other Legislation Amendment) Bill 2023 (Qld) (Bill) to improve the planning framework’s response to housing supply challenges. It includes a raft of measures intended to cut barriers and get more affordable and diverse homes off the ground without delay.
Some of the key reforms we have identified include:
- a proposed State facilitated application process to provide for streamlined assessment of development applications for matters of priority to the State;
- allowing local government to introduce an urban investigation zone in a planning scheme; and
- allowing temporary accepted development.
State facilitated application process to provide a streamlined assessment of development applications for matters of priority to the State
The introduction of a State facilitated application process is an alternative development assessment pathway to deliver development that is a priority to the State (for example affordable housing). To be a State facilitated application, the application must be a development application or change application involving a material change of use or reconfiguring a lot under the Planning Act 2016 (Qld) in which the Minister or the Chief Executive is not the decision maker. No appeal rights will exist under this process for proponents and the community.
There is currently little guidance on key criteria that must be met prior to an application being declared a State facilitated application with such criteria to be set out in a regulation that is not currently available in a draft form. The term ‘identified priority for the State’ is not defined or consistent with terminology used in the Queensland planning framework. It is also not presently clear what relationship a relevant application must have to the identified priority for the State to meet the criteria. The current proposed drafting of section 106D(2)(a) states that the Minister may only make a declaration where the application is considered to ‘assist in delivering development that is for an identified priority for the State’ However, the explanatory notes state that ‘these powers are intended to deal with occasions that may arise where a State priority could be severely affected by the implementation of a development approval’. It seems that these two statements seem to create some uncertainty on the factors of an application that will give rise to an application being an identified priority for the State. The criteria for the assessment of these applications is broad and is intended to be quite different to what presently exists for an assessment manager.
Introducing an urban investigation zone
Under the Bill, local government will be permitted to introduce the urban investigation zone (UIZ) into a planning scheme. The UIZ is a transitional zone intended to allow local governments to put land in a holding pattern until the decision maker completes the detailed land use and infrastructure planning for the affected land. The UIZ is not intended to remain in place indefinitely, and a local government intending to use the UIZ must undertake several steps, including drafting and amendment to their planning scheme, to use this zone.
Concerns have been raised about the success of this zone, in circumstances where amending a planning scheme (i.e. a major amendment) will highlight to landholders within an area that their potential development plans will be put on hold (prohibited from being lodged). By the time the amendment process is undertaken and adopted it may be the case that years have passed. In the meantime, there will likely be a flurry of development applications lodged in the respective area to avoid the upcoming prohibition. The Bill also provides that a landowner who faces an adverse change to the zoning of land will not be able to claim compensation if the change is to include land in the UIZ in accordance with the Minister’s rules. We will be interested to see if any further advancements are made with this issue. In our view, the concept has merit, but the process of declaring a UIZ will take a fair amount of time to implement. Also, the UIZ has the potential to be mistreated as a way to prohibit development from occurring (for an unspecified period) without any promise to introduce a greater utilisation of the UIZ area.
Introducing temporary accepted development
The Bill establishes a framework that allows for a material change of use of a premises to be declared ‘temporary accepted development’ for a stated period, and therefore does not require a development approval. This provides a mechanism through which the government can respond to urgent and emerging issues to achieve positive community outcomes in a timely manner. Notably an ‘urgent or emerging issue’ is not defined.
There are concerns that temporary accepted development will create uncertainty for local governments, developers and the community by allowing planning change with no prior notice or transition period.
There are also concerns raised by local government stakeholders in the parliamentary inquiry into the Bill. For example, after the fact, ‘temporary uses’ will create a compliance burden with respect to both uses and building requirements. There is the possibility that at the end of the stated period, many developments (i.e. uses and building works) will continue to operate without a development approval (or are unable to obtain one), which a local government will need to manage, creating significant resourcing impacts and uncertainty.
The Bill also proposed a number of other changes. For example, the ability for land or easements to be compulsorily acquired by the State has been expanded. Transitional related provisions to deal with development control plans in existing relevant areas are proposed. The powers of the Minister to direct a local government to amend its planning scheme to protect or give effect to a State interest has been expanded.
While the Bill has the wholesome objective of responding to the current housing crisis, the defining method does embrace a centralised planning mode. There are a number of key considerations that will be addressed in a regulation which does make it difficult to fully assess the true implications of the reforms proposed. Whether this model will deliver upon its objectives remains to be seen but it does seem apparent that the broad nature of the State powers may give rise to some unintended consequences.
If you would like to discuss the Bill in more detail, please contact our Planning and Environment team here.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It 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.