Another New Planning System for Queensland

The State Government’s Planning Act 2016 (‘the Act)’, passed by the Queensland Parliament last year, comes into force on the 3rd of July this year. The Act replaces the existing Sustainable Planning Act 2009 (‘SPA’) and the Government hopes that it will ‘facilitate an open, transparent and accountable planning system that delivers investment and community confidence’.[1]

This may invoke a sense of déjà vu for industry professionals, property developers and local governments alike who have all heard these sentiments expressed before (with Queensland’s planning legislation now having been overhauled three times within the last two decades).

The framework established by the Act will be familiar to those already accustomed with SPA; however, there are a number of key changes that are likely to be of interest. For the purposes of this note, we have focused on three changes that will have practical implications for those in the development industry.

New ‘Stop the Clock’ Provisions

Under SPA, after a decision notice is issued, an applicant is entitled to suspend their appeal period to make representations to the assessment manager. This typically occurs in circumstances where an applicant is seeking changes to conditions of a development approval. The appeal period would remain suspended until either:

• The applicant withdrew their notice suspending the appeal period;
• The applicant received notice that any change representations had not been accepted by the assessment manager; or
• The assessment manager issued a negotiated decision notice.

By contrast, under the Act, the applicant’s appeal period will automatically resume at the expiry of 20 business days after any change representations are made (whether or not any response is received from the assessment manager). [2] In other words, if change representations are made and the assessment manager does not respond, an applicant’s appeal period will automatically resume after the expiry of 20 business days. Those unaware of this change risk having their rights of appeal to the Planning and Environment Court unwittingly lapse. It should be noted, however, that there is a mechanism in the Act for the applicant and the assessment manager to agree on a longer period than 20 business days. [3]

Categories of Development Assessment

The categories of assessment have been streamlined under the new system. Under SPA, the following categories of development are used:

• Exempt development;
• Self-assessable development;
• Development requiring compliance assessment;
• Assessable development (consisting of both code and impact assessable development); and
• Prohibited development.

The Act simplifies this by using just three categories of development assessment (which all mean what their name suggests): [4]

• Prohibited development (development for which a development application may not be made);
• Assessable development (development for which a development approval is required); and
• Accepted development (development for which a development approval is not required).

Notably, the concept of compliance assessment has not been retained under the new Act. However, the transitional provisions of the Act ensure that development approvals issued under SPA which require compliance assessment will continue to be governed by the relevant provisions of SPA.[5]

Making Changes to a Development Approval

The Act expands on existing powers for changes to be made to a development approval. Under SPA, changes may only be made to a development approval if they are deemed to constitute a ‘permissible change’ (which refers to a change that ‘would not result in a substantially different development’ from that which was approved).

The Act allows for two different types of change applications to be made:

1. Applications for a minor change (which is equivalent to the existing ‘permissible change’ concept); and
2. Applications for changes other than minor changes (which is a new concept).

In terms of process, there will not be a great deal of difference between lodging an application for a change other than a minor change and lodging a fresh development application. For example, in circumstances where public notification would be required for the original development application including the change, in most cases the change application is required to be publicly notified and submissions may be made. [6]

However, there is a fundamental difference in the way a change application (as distinct from a fresh development application) is assessed. The Act expressly refers to an assessment manager deciding a change application ‘in the context of the development approval’. [7] It appears that the intention is neither for the proposed change to be considered in isolation from the existing approval nor for the entire development (including the change) to be re-assessed. The following example, taken from the explanatory notes to the Act, is helpful for understanding the correct approach that will be taken by an assessment manager in assessing a change application:

If there is a development approval for a 10 storey building, and an applicant seeks to change the approval to add a further 2 storey’s, the additional 2 storeys is intended to be assessed in the context of a 10 storey building, against the assessment benchmarks relevant to a 12 storey building in that locality.

Further Information

This note has examined just some of the changes introduced by the Act. It will be important for those affected by the changes to be aware of their rights and responsibilities under the new legislation before the 3rd of July. In the meantime, any development applications made before the commencement of the Act will continue to be assessed under SPA. [8] Only time will tell whether the changes – in practice – deliver Queensland the ‘open, transparent and accountable’ planning system that was intended by the Government.

If you would like to know more about the new laws please do not hesitate to contact Dan Morton or William McKenzie.

[1] Planning Bill 2015 (Qld).

[2] Planning Act 2016 (Qld) s 75(4).

[3] Planning Act 2016 (Qld) s 75(4)(b)(iii).

[4] Planning Act 2016 (Qld) s 44.

[5] Planning Act 2016 (Qld) s 316.

[6] Planning Act 2016 (Qld) s 82.

[7] Planning Act 2016 (Qld) s 82.

[8] Planning Act 2016 (Qld) s 288.