By David Nicholls, Partner and Sarah Persijn, Partner
Late last month, Queensland Premier Campbell Newman announced that the State government had started transferring planning powers back to 17 local governments from the Urban Land Development Authority (ULDA).
The Urban Land Development Authority Act 2007 (Qld) currently allows the ULDA to delegate its functions to the Chief Executive Officer or an appropriately qualified officer of a local government.
Here, partners David Nicholls and Sarah Persijn and trainee solicitor Peta Stephenson consider the legal and policy issues involved in the transfer of development assessment functions back to local governments.
- The Newman government proposes to initially delegate development assessment powers to the Councils of the 17 urban development areas in Queensland without amending the ULDA Act.
- While the UDLA may, by law, delegate its functions, the ultimate decision-making power will remain with the ULDA, unless the Urban Land Development Authority Act and the Sustainable Planning Act are amended.
- The ULDA system could be transitioned to local government so that urban development areas will be able to be declared in the future as special development areas under planning schemes, maintaining an efficient and shortened plan-making and development assessment process.
The Urban Land Development Authority Act
The Urban Land Development Authority Act 2007 (Qld) took effect from 21 September 2007. The purpose of the Act is to facilitate:
- the availability of land for urban purposes;
- the provision of a range of housing;
- ecological sustainability and best practice urban design; and
- the availability of affordable housing for low to moderate income households.
To achieve these goals, the Act establishes the Urban Land Development Authority, which represents the State and has the status, privileges and immunities of the State. The ULDA is set up to assess development within urban development areas.
The ULDA Act allows the State, by means of a regulation, to declare an area to be an urban development area. Such regulations must be tabled in the legislative assembly under the Statutory Instruments Act 1992 (Qld). These declarations may be revoked by means of a Ministerial amendment to the relevant local government's planning scheme. The State government has declared 17 urban development areas, with:
- eight in South East Queensland (Bowen Hills, Northshore Hamilton, Fitzgibbon, Woolloongabba, Greater Flagstone, Ripley Valley, Caloundra South and Yarrabilba);
- six in regional centres (Gladstone, Townsville, Mackay and Rockhampton); and
- three in rural towns (Roma, Moranbah and Blackwater, which are all experiencing or likely to experience population growth arising out of the continuing resources boom, especially in the gas industry).
Development assessment under the ULDA Act
The Sustainable Planning Act 2009 (Qld) and Sustainable Planning Regulation 2009 (Qld) provide that all aspects of development for an urban development area cannot be declared by a planning scheme to be assessable development, development requiring compliance assessment, prohibited development or self-assessable development. Therefore, the regulation of land use within urban development areas (including the assessment of development applications) belongs to the ULDA.
In order to carry out development in an urban development area, it is necessary to obtain a permit from the ULDA that authorises development to occur. An urban development area development approval attaches to the relevant land and binds its owner, the owner's successors in title and any occupier of the land.
The ULDA also has the power to impose conditions on a development approval. There is no requirement that the conditions are a relevant or reasonable imposition on the development (which is required under the Sustainable Planning Act).
The conditioning power is expressly stated to include power to:
- nominate a stated entity to be the nominated assessing authority for the condition; or
- require the surrender of land for infrastructure;
- require the making of any stated improvements to the land over which an application is made; and
- impose a condition or restriction on disposal of the land.
Development applications under the ULDA Act follow a truncated process, with no referrals, limited public notification, no submitter appeals and no lapsing of applications. The development assessment and decision process is considerably simpler and quicker than the IDAS procedure under the Sustainable Planning Act, which has been criticised for process delays and complexity. The purpose of the ULDA was explained by the then Deputy Premier Anna Bligh upon the introduction of the ULDA Bill into Parliament:
"These expanded direction powers allow the Planning Minister to ensure that Development Applications which can contribute significantly to regional land supply are not delayed through the development assessment system, and can be processed as quickly as possible to enable the land to be brought to market in a timely manner."
The Newman government proposes, for the time being, to delegate development assessment powers to the Councils of the 17 urban development areas without amending the ULDA Act, using the delegation powers contained in the ULDA Act. Statutory amendments are proposed at a later stage.
The delegation powers in the ULDA Act currently provide that the ULDA cannot delegate the function of making by-laws or development schemes. Because of this, without legislative amendment, local governments will not be afforded planning powers, nor any ability to assess and decide applications outside of the ULDA Act's framework, which will continue to be in place, and local governments will still be required to make decisions by applying the ULDA Act.
While the ULDA may delegate its functions, it cannot detract from them. Therefore, the ultimate decision-making power remains with the ULDA, unless the ULDA Act and the Sustainable Planning Act are amended.
Implications of the changes
What are the options for and implications of transferring urban development areas back to local government? Land owners who are in the midst of implementing approvals obtained from the ULDA are looking for certainty that they will not be retrospectively impacted, and that future stages of large projects will not be delayed by this policy change. Local governments, on the other hand, are seeking input, on behalf of the communities they represent, into the planning of these areas. The Newman government is responding to local government's wishes but is simultaneously being urged by the construction sector to manage the transfer of power in a way that retains the efficiency benefits of the ULDA Act's development assessment system.
There are ways in which this can be achieved so that the efficiency gains of the ULDA system are not lost. There will obviously need to be normal transitional arrangements which provide for ULDA development approvals to continue in force as if they are approvals under the Sustainable Planning Act, until they would normally have lapsed under the ULDA Act.
Existing land use plans and development schemes made under the ULDA Act could be transitioned as local area plans, under the relevant planning scheme. The land use plans and development schemes could provide for equivalent assessment levels, with referral requirements under the Sustainable Planning Act 'switched off' for a suitable transitional period. During the transitional period, local governments could develop amendments to their planning schemes to incorporate the key elements of the land use plans or development schemes. The idea would be to provide for an orderly transfer of the planning and development assessment arrangements so that the stimulus benefits of accelerated development of these areas is maintained.
The ULDA system, if transitioned to local government in a way that preserves its overall intent and structure, would enable urban development areas to be declared in the future as special development areas under planning schemes, where the truncated plan-making and development assessment process referred to above could continue to apply. This would be at least a partial solution to the problems of complexity and process delays affecting the IDAS system.
Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.