In November 2014, the Queensland State government introduced the Planning and Development Bill 2014 (Bill). The Bill was the culmination of nearly two years of extensive consultation between the State government and stakeholders, with UDIA (Qld) representatives committing unprecedented resources to attending workshops and meetings, reviewing working papers, drafting submissions and presenting seminars to industry participants. Undoubtedly other stakeholders, including the Local Government Association of Queensland and many local government councillors and officers, dedicated similar resources. The Bill automatically lapsed upon the Legislative Assembly being dissolved.
Given the level of participation by stakeholders, and general goodwill displayed during the process, it would be a significant missed opportunity to bring about much needed reform for a sector that is crucial to the State's economy if the Bill was not re-introduced under a new State government.
During the election campaign, concerns were expressed about certain aspects of the Bill that were characterised as taking away local residents' rights. Chief concerns related to the perceived removal or reduction of community participation through the process of public notification of development applications and third party appeals. Another concern related to changes to owner's consent requirements proposed by the Bill.
In this alert, which has also been published in the recent edition of UDIA (Qld) establish magazine, Partner Sarah Macoun will demonstrate why those concerns are not supportable on a proper reading of the Bill.
Does the Bill remove or reduce public notification and third party appeals in relation to development applications?
Under the Sustainable Planning Act 2009 (SPA), development applications that require impact assessment are subject to public notification requirements and third party submitter appeals. Whether development requires impact assessment is established, chiefly, by the local planning scheme and by regulation. Where the planning scheme is inconsistent with a regulation, it is of no effect.
The Bill proposes three categories of development, namely prohibited, assessable or accepted, and two categories of assessment for assessable development, namely standard and merit assessment.
Public notification can not be required for standard assessment, nor for accepted development. It follows that there would be no third party appeal rights for standard assessment or accepted development. Similarly, under the SPA there is no public notification or third party appeal rights in the case of exempt development, self-assessable development or development requiring compliance assessment. In the case of code assessable development, there is, generally speaking, no public notification. Some local governments (most notably the Brisbane City Council) have, however, required a type of notification, coined "code notifiable", for code assessable development (relying on section 256 of the SPA which allows an assessment manger to ask any person for advice or comment about an application, including by publicly notifying the application). Where such applications are notified, although a person may make a submission, no third party appeal rights arise.
Development requiring merit assessment is proposed to fall into two categories – merit assessment for which public notification is required and merit assessment not requiring public notification. Under clause 48 of the Bill, public notification may only be required if merit assessment is required for the application and the application includes a variation request. Note, however, that clause 48 appears to contain a typographical error. It is likely that the clause was intended to read that public notification may only be required if merit assessment is required or the application includes a variation request. There does not seem to be a provision equivalent to section 256 of the SPA, which suggests that local governments will not be entitled to identify development as "standard notifiable".
What determines whether public notification is required for particular merit assessable development? A "categorising instrument" may require an applicant to give notification of the application requiring merit assessment. A "categorising instrument" is a regulation or "local categorising instrument" – being a planning scheme, TLPI or variation approval.
In other words, whether or not development requires public notification will depend, chiefly, on whether:
- It is made merit assessable development by the planning scheme; and
- Notification of the merit assessable application is required by the planning scheme.
Thus, it is largely the local government planning instrument1 that will determine whether or not public notification, and in turn third party submitter appeals, is required for development.This is precisely the situation that exists at present under the SPA.
It should also be pointed out that the transitional arrangements provide that anything presently identified as requiring impact assessment under a local government planning scheme will be transitioned as development requiring merit assessment for which public notification is required.
Under the SPA, the UDIA has consistently encouraged local government to ensure that development is allocated to a category of assessment that is appropriate having regard to its consistency with the policy of the planning scheme.For instance, in a medium density zoned area, townhouse development would not be expected to be subject to public notification or third party appeal rights because the use is consistent with the intent of the zone.Indeed many local governments have made important inroads into ensuring that development is appropriately categorised according to its consistency with the intent for the particular zone and the likelihood of impacts.The UDIA's approach to planning schemes would be the same if the Bill replaced the SPA.
It might be argued that some rights have been removed because the Bill does not contemplate notification (albeit without appeal rights) for standard assessment.In that regard, it should be noted that an inherent difficulty with "code notifiable" assessment under the SPA is that it tends to give rise to false community expectations and frustration for stakeholders.For example, a right to make a submission often brings with it the expectation that concerns or objections will play a determinative role in the decision making process and, moreover, that there will be a right to take the matter further if the decision is unfavourable.In the case of "code notifiable" development, an approval is reasonably expected if the development complies with the applicable codes, notwithstanding any community concerns, and there is no avenue of appeal against that decision.Indeed it is notable that Brisbane City Council's City Plan 2014 does not include "code notifiable" development.
In short, it is inaccurate to suggest that the Bill removes or reduces public notification requirements and third party appeals.As is the case under the SPA, the local government planning scheme will be largely responsible for whether or not a development application requires public notification and, of course, the planning scheme itself is the subject of community consultation.
What changes does the Bill propose to owner's consent requirements?
Under the SPA, consent of the owner of the land the subject of a development application is required, generally, if a development application involves a material change of use of premises or reconfiguring a lot. Owner's consent is required for the making of the application and the State may, of course, be an owner of land.
The Bill proposes on two changes to the SPA's owner's consent regime:
In the case of freehold land, the assessment manager may agree to accept and process a development application notwithstanding that owner's consent is not provided at the time of making the development application. However, if owner's consent is required, the assessment manager may not give a development approval unless the applicant has given evidence of the consent to the assessment manager. In other words, the Bill's intention is to create a "floating" owner's consent requirement. If owner's consent is not provided up front, the applicant may provide it at some later time but there can be no development approval given until the consent is provided. Further, clause 70(2) makes it clear that a development approval does not confer or imply any proprietorial rights to land or a resource (which has always been the case).
The Bill proposes on two changes to the SPA's owner's consent regime:
- In the case of freehold land, the assessment manager may agree to accept and process a development application notwithstanding that owner's consent is not provided at the time of making the development application. However, if owner's consent is required, the assessment manager may not give a development approval unless the applicant has given evidence of the consent to the assessment manager. In other words, the Bill's intention is to create a "floating" owner's consent requirement. If owner's consent is not provided up front, the applicant may provide it at some later time but there can be no development approval given until the consent is provided. Further, clause 70(2) makes it clear that a development approval does not confer or imply any proprietorial rights to land or a resource (which has always been the case).
- In the case of State land, the State's consent as landowner will not be required for the making of a development application. This change "is intended to remove what can be a time-consuming step in the process; and overcome current operational issues that the owner's consent step may now be inappropriately relied upon as a substitute for the parallel state resource allocation process which was de-coupled in 2012 from the development assessment process". Of course, where the applicant does not own the land, or has not secured rights to any State land or resource, a development approval itself does not confer any proprietorial rights or make it any more likely that such rights will be obtained. If the requisite rights are not acquired, the applicant will unable to benefit from any rights conferred by the development approval.
Footnote
1Subject to its consistency with a regulation
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