Australia: Queensland's Regulatory Quagmire: The Dark Side of Planning - Part 1
Planning and Environment paper

By David Nicholls, Partner

Introduction

Urban planning has been described as "a technical and political process concerned with the control of the use of land and design of the urban environment, including transportation networks, to guide and ensure the orderly development of settlements and communities. It concerns itself with research and analysis, strategic thinking, urban design, public consultation, policy recommendations, implementation and management." ¹ The purpose of urban planning is to provide a well functioning urban environment which meets the communities' needs. Does Queensland's regulatory system satisfy that purpose?

Until the enactment of the Integrated Planning Act 1997 (IPA), planning legislation in Queensland did not attempt to identify the purpose of land use regulation. While the IPA used the term "planning" extensively, and the Sustainable Planning Act 2009 (SPA) continues to do so, it did not attempt to define the concept. It is necessary to delve into the provisions of the IPA and the SPA concerning the content of planning schemes to appreciate what, in the statutory context, "planning" seeks to achieve and thus its meaning. The IPA introduced as part of the Act's purpose, a primary goal of ecological protection. ² This formally introduced a new dimension into the concept of planning. While planning has traditionally in one way or another promoted nature conservation where appropriate ³ , that objective mainly fell to other State legislation. ⁴ The IPA, and subsequently the SPA, incorporated objectives of economic development and ecological protection which in a pure sense are mutually exclusive. This inconsistency is sought to be resolved through a balancing exercise whereby one will give way to the other in appropriate circumstances. ⁵ The balancing of these competing concepts has come to be seen as achieving "sustainable" planning outcomes.

The third element of the statutory purpose, under both IPA and the SPA, is "maintenance of the cultural, economic, physical and social well being of people and communities". ⁶ That is, in substance, the original purpose of "planning". The first two objectives can be seen as potential outcomes of the third.

The reason for raising the general concept of planning and the purpose of planning regulation is that the performance of regulation should be tested against the purpose it is intended to serve. If regulation fails the purpose test then it merely creates pointless process.

Taylor's formulation of urban planning identifies that it is a technical and political process. The question at the heart of this paper is whether the regulatory process has reached the point where it is no longer properly aligned with the purpose of urban planning, and works against achievement of sustainable planning outcomes. This question will be examined with respect to the following:

• Regional plans;
• State planning policies; and
• Standard Planning Scheme Provisions.

The observations resulting from that examination will be further considered in relation to discretionary decision making and performance based planning.

Regional plans

The following principles should be kept in mind when considering regional plans.

1. A regional plan is a statutory instrument and has the force of law.⁷
2. A regional plan is taken to be a state interest.⁸
3. Unless the relevant Minister issues a dispensation, local governments must amend their planning schemes to reflect a regional plan.⁹ The relevant Minister may himself amend the local government's planning scheme if it has not within 90 business days of the day notice of the making of a regional plan was gazetted made the relevant amendment or complied with the guidelines in that regard.¹⁰
4. An entity responsible for amending any plan, policy or code under an Act must take the relevant regional plan into account.¹¹
5. If there is an inconsistency between a regional plan and a planning scheme or planning instrument, or any plan, policy or code of a planning nature under any Act, the regional plan prevails.¹²
6. The regulatory provisions under a regional plan, which are also a statutory instrument and have the force of law,¹³ regulate development where they apply by, in combination with the SPA, precluding the making of certain development applications, changing the assessment criteria so as to reduce the prospects of approval or giving the relevant department administering the regional plan a concurrence role.¹⁴
7. To the extent that a regional plan has not been reflected in a planning scheme, the regional plan must be considered when assessing both code and impact assessable development applications.¹⁵
8. An assessment manager's decision on a development application must not be contrary to a regional plan's regulatory provisions (if applicable to the application).¹⁶ Accordingly, approval in the event of such an inconsistency is not permitted.
9. For both code and impact assessable applications, the assessment manager's decision must not conflict with a regional plan unless necessary to ensure the decision complies with a State planning regulatory provision, or unless there are sufficient grounds to justify the decision, despite the conflict.¹⁷
10. Where conflict with the provisions of a planning scheme is an issue, weight may be given to a regional plan as a later law or policy, and may thus be a sufficient ground for overcoming conflict with the planning scheme.¹⁸

These statutory rules are quite complex when applied for the purpose of testing whether development conflicts with a planning scheme and a regional plan.

Using the SEQ Regional Plan 2009-2031 as an example, its purpose is to manage growth in the region in the most sustainable way to protect and enhance quality of life in the region. ¹⁹ The emerging regional growth issues are said to be population growth, housing affordability, transport congestion, climate change and employment generation. ²⁰ The current SEQ Regional Plan continues the themes of the previous regional plan of promoting compact urban forms and controlling urban expansion through the urban footprint, allocating land to accommodate future urban growth in a targeted way, supporting growth in the Western Corridor and providing for planning the provision of infrastructure by State and local governments ahead of urban expansion. In some respects the current SEQ Regional Plan now contains more detail and expands the influence of the State over matters of general planning and design.

A regional plan is said to enhance the purposes of the SPA by providing an "integrated policy" for the relevant region ²¹ and identifies desired regional outcomes and the policies and actions to achieve those outcomes. ²² It is intended to identify the future spatial structure in terms of future regional land use patterns and infrastructure provision ²³ and the key environmental, economic and cultural resources to be preserved, maintained or developed. ²⁴

Turning again to the SEQ Regional Plan, it has been in force since October 2004 in various iterations, including the original draft SEQ Regional Plan. Yet it has not been fully reflected in the region's planning schemes. The former State government did not actively require planning schemes to be amended to reflect regional plans and, generally speaking, only those SEQ local governments that adopted new planning schemes after the regional plan commenced attempted to reflect the regional plan in their planning schemes. The focus of the SEQ Regional Plan, at least in the early versions, was to set the urban footprint boundary, by largely following existing zonings, and otherwise to replicate existing planning scheme zonings at a coarser scale through two zones.

As mentioned above, a planning scheme cannot be inconsistent with a regional plan, regardless of how it states the way in which the scheme has attempted to reflect the regional plan. To the extent that there is any inconsistency between a regional plan and a planning scheme, the former prevails to the extent of the inconsistency. ²⁵ In theory there are two basic inverse consequences of such inconsistency. On the one hand, development that is contrary to a regional plan but consistent with a planning scheme should not be supported. Conversely, development that is contrary to a planning scheme but consistent with a regional plan should be supported. However, it is not as simple as that in practice. In the first place regional plans, through their associated regulatory provisions, are very specific in proscribing urban land uses outside of the urban footprint boundary, but on the other hand are very general in encouraging the establishment of urban uses within the urban footprint boundary. The broad categorisation of "urban footprint" covers a multitude of urban land uses including public open space. Regardless of what the highest and best "urban" land use might be, designation of land within the urban footprint can be satisfied by a lower order urban zoning in a planning scheme, even one which precludes development or proposes a land use that is unlikely to ever be economically feasible or practical. Experience with the regional plan suggests that the inclusion of land in the urban footprint for the obvious purpose of promoting greenfield residential expansion, does not necessarily provide any certainty that such development can in fact be achieved.

Accepting that part of a regional plan's role is to manage growth, there is also a responsibility on the part of the State government to drive changes to constituent planning schemes in accordance with the very clear intent of the SPA. Unless this role is taken seriously, regional plans will operate as an impediment to, rather than as a facilitator of, economic growth and the associated physical cultural and social benefits.

Against the above background the SPA promotes regional plans as the highest order planning instrument and makes the consequence of conflict with a regional plan, obligatory refusal on the development application, unless there are sufficient reasons in the public interest to warrant approval. This is the test which operates through the SPA's decision rules for development applications in respect of land within the urban footprint. Outside the urban footprint, for those applications that are able to achieve "properly made" status, the test for overcoming conflict with the regional plan is more onerous. ²⁶

Focusing then on land within an urban boundary under a regional plan, does the regional plan serve any useful planning purpose, or does it merely mirror the planning which has already been undertaken by local governments? Single State interest issues are supposed to be driven forward into local planning instruments through the State Planning Policies (SPPs). The former Department of Infrastructure and Planning stated that "regional plans reflect and balance SPPs asthey provide an agreed spatial expression of the state interests addressed by those SPPs at the regional level". ²⁷ To date the State interests promoted through SPPs have mainly been concerned with environmental or natural resource conservation. There has not been a single SPP concerned with promoting particular forms of development in any part of the State, save for the extractive industry SPP.

Greater Brisbane has the largest local government planning area in Australia. The Brisbane City Council is well resourced with strategic planners and has a sophisticated program of ongoing local planning reform within its urban areas. Does the regional plan assist in planning for greater Brisbane? Do the SPA's decision rules relating to conflict with the regional plan assist Brisbane City Council in dealing with development applications?

If regional plans are intended to drive top down planning to ensure that State's interests are properly coordinated and applied in local planning instruments, that outcome will not be assisted by the SPA's decision rules. The outcome can only be achieved by vigorous practical action at the State level. Regional plans are drawn at a large scale and, for the most part, employ language that is usually aspirational. Looking to a regional plan for assistance in supporting a development application within the urban footprint usually results in disappointment. Conflict with the regional plan is more often used as a reason for refusing an application than the reverse.

Development of land outside the urban footprint boundary is strongly controlled through state planning regulatory provisions. The regulation of development within the urban footprint through a regional plan is unlikely to serve a useful purpose unless the regional plan adopts a finer grained approach with respect to urban land uses. That has not however been the political intent of regional planning which defers to local government for the allocation of land uses within the urban footprint.

In summary, regional plans have been successful in immediately preventing the development of land outside the urban footprint, through those plans' regulatory provisions. However they have not had the same impact in reverse in promoting the development of land within the urban footprint. Regional plans are strongly anti-growth outside the urban footprint but growth neutral or only weakly pro-growth within the urban footprint. If providing housing at affordable prices or rents to people on average incomes is seen as a key element of sustainable planning regional plans are not necessarily achieving that outcome.

State planning policies

As already noted, at a policy level, SPPs are taken into account when making regional plans. Local governments are required to reflect both regional plans and SPPs in their planning schemes. ²⁸

An assessment manager must assess code and impact assessable development applications against SPPs to the extent the SPP is not identified in a regional plan as being appropriately reflected in the regional plan. ²⁹ One would expect to find a clear, prominent statement within regional plans indicating the SPPs which are appropriately reflected in the plan. An examination of the recent Wide Bay Burnett Regional Plan, for example, failed to identify such a statement.

Under the SPA, an SPP is a statutory instrument with the force of law that advances the purposes of the SPA by stating the State's policy about a matter of State interest. ³⁰ SPPs prevail, to the extent of any inconsistency, over local planning instruments but, in the hierarchy of State planning instruments, are subservient to regulatory provisions and regional plans.31 Three new SPPs commenced in the last six months. ³²

The position under the SPA in respect of SPPs differs from that under its predecessor, the IPA, which identified SPPs as one of a range of instruments taken into account for assessment, but did not mandate refusal of a development application in the event of conflict with an SPP.33 Therefore SPPs now have an elevated role in the SPA's assessment and decision process.

Under the SPA, regulatory provisions and regional plans are pre-eminent, followed by SPPs, and then by planning schemes. The lower order instruments in theory reflect the higher order instruments. This hierarchy however does not contemplate that SPPs influence higher order instruments such as regional plans nor that SPPs would become prescriptive regulatory instruments.

The Department of Infrastructure and Planning issued a guideline relating to the State planning instruments program. ³⁴ This guideline provides information in relation to the making of State planning instruments. In respect of regional plans and SPPs it states as follows:

Thus an SPP can override a planning scheme but will cease to do so if and when it is "neutralised" by a regional plan.

SPP 3/11: Coastal Protection includes a requirement that is presumably meant to strongly influence, if not bind, the State when the State is making a regional plan. It states:

SPP 3/11 also states that it is intended to:

And also:

SPP 4/11: Protecting Wetlands of High Ecological Significance in Great Barrier Reef Catchment and SPP 1/12: Protection of Queensland's Strategic Cropping Land each contain provisions about achieving their respective policy outcomes through regional plans. ³⁹ These SPPs envisage that they will be implemented by regional planning instruments and that the SPP will inform the preparation of any amendments to existing or preparation of future regional plans under the SPA to align the regional plan policies with the outcomes sought by the SPP. ⁴⁰ However, like SPP 3/11 these SPPs acknowledge that the regional plans need not fully reflect the policy outcome of the SPP in consequence of section 26(3) of the SPA.

These recent SPPs clearly purport to strongly influence, if not control, the content of regional plans but at the same time acknowledge that the regional plans prevail.

These provisions concerning the influence of SPPs on regional plans need to be considered in the context of the prescriptive nature of the new generation of SPPs. They are no longer broad policy instruments but instead are very detailed and quite prescriptive to the point of proscribing development in defined localities.

The concept of "State interest" is very wide. ⁴¹ The State, as maker of regional plans, considers all State interests, but importantly the overarching purpose of making the regional plans is the cultural, economic, physical and social wellbeing to the people of Queensland. The three most recent SPPs, which emanated from the same State department, evince a strident desire for recognition, even supremacy. This is at odds with the "balance" required under purpose of the SPA and the true nature of urban planning which is not concerned with the promotion of single environmental or social issues, but rather with balancing a wide range of issues in the overall public interest.

From that perspective, the idea that an assessment manager's decision on a development application cannot conflict with an SPP without sufficient grounds, where the SPP is one dimensional and proscriptive in its policy approach, must be questioned. In looking for public interest grounds to overcome conflict with single issue SPPs, are economic factors even relevant? In this regard it should be noted that the three SPPs discussed above, have incorporated their own conflict rules which are much tougher than those contained in the SPA. They expressly spell out what amounts to conflict and how it can be overcome and thus purport to displace the standard test in SPA for overcoming conflict with a relevant instrument. The validity of this approach is obviously open to question. It is a reflection of the single minded stridency of the new generation of SPPs.

The idea that conflict between an SPP and a local plan will be resolved by the State through regional planning is fine in theory but in practice it creates a legal minefield.

Footnotes

¹ Taylor, Nigel 2007 Urban Planning Theory since 1945, London, Sage
² Sections 1.2.1 and 1.3.3
³ eg Through the provision of parks and open space
⁴ eg Nature Conservation Act 1992; Vegetation Management Act 1999; Brisbane Forrest Park Act 1977; Marine Parks Act 2004; Environmental Protection Act 1994; Coastal Protection and Management Act 1995; Fisheries Act 1994
⁵ Sustainable Planning Act 2009, Section 8(a) and (b),;Integrated Planning Act 1997, Section 1.3.3(a) and (b)
⁶ Ibid, Section 8(c) and Section 1.3.3(c)
⁷ SPA, section 24
⁸ SPA, section 25
⁹ SPA, section 26(2) and section 29(2)
¹⁰ SPA, section 29(3)(b)
¹¹ SPA, section 26(2)
¹² SPA, section 26(3)
¹³ SPA, section 17(1)
¹⁴ SPA, section 21 and, for example, the South East Queensland Regional Plan 2009-2031 State Planning Regulatory Provisions
¹⁵ SPA, section 313(2)(b) and 314(2)(b)
¹⁶ SPA, section 324(3)
¹⁷ SPA, section 326(1)
¹⁸ SPA, section 317(1) and 326(1)(b) operating in combination with sections 26 and 29
¹⁹ South East Queensland Regional Plan 2009-2031, Part A – Introduction, page 4
²⁰ South East Queensland Regional Plan 2009-2031, Part A – Introduction, page 4
²¹ SPA, section 23(b)
²² SPA, section 28(a)
²³ SPA, section 28(b)
²⁴ SPA, section 28(b)(iii)
²⁵ SPA section 26(3)
²⁶ SEQ Regional Plan 2009-2031 regulatory provisions schedule 3
²⁷ Department of Infrastructure and Planning, "State Planning Instruments Programme – Policy Paper" page 4
²⁸ SPA, sections 88 and 90
²⁹ SPA, section 313(2)(b) and 314(2)(d)
³⁰ SPA, sections 40 and 41
³¹ SPA, section 43
³² SPP 4/11 – Protecting wetlands of high ecological significance in Great Barrier Reef Catchments (25 November 2011); SPP 1/12 – Protection of Queensland's Strategic Cropping Land (30 January 2012); and SPP 3/11 – Coastal Protection (3 February 2012)
³³ IPA, section 3.5.13 and 3.5.14
³⁴ Department of Infrastructure and Planning, State Planning Instruments Program Guideline, undated
³⁵ Department of Infrastructure and Planning, State Planning Instruments Program Guideline, undated, page 7
³⁶ SPP 3/11, part E.1
³⁷ SPP 3/11, part A – Implementing the State planning policy
³⁸ SPP 3/11, part A – Reflecting regional plans in designated region
³⁹ SPP 4/11 part 3.1, SPP 1/12 part 3.1
⁴⁰ SPP 4/11 explanatory statement
⁴¹ "State Interest means – (a) an interest that the Minister considers affects an economic or environmental interest of the State or a part of the State, including sustainable development; or – Example of an interest the Minister might consider for paragraph (a) – 'a tourism development involving broad economic benefits for the State or a part of the State; (b) an interest that the Minister considers affects the interest of ensuring there is an efficient, effective and accountable planning and development assessment system. SPA, schedule 3

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