Understanding The New Planning Laws In Queensland

You are among a group of final year Business Law students who were fortunate to be selected for a graduate program with a well-respected Sunshine Coast Property Development firm, PropDev Partners. When you and your colleagues commence the graduate program, the partners brief you to undertake the following task:

The partners are aware that their clients have little knowledge about the new planning law legislation. Therefore, they have decided to ask you to prepare materials suitable for informing the firm’s clients about the nature of the planning law regime. The firm also wishes you to highlight any features of the new legislation which are different to the procedures associated with the previous legislation and to give reasons for the differences.

The partners want the graduates to harness their creativity as well as their knowledge, to design communication outputs that will be attractive, engaging and helpful to the target audience. A diversity of outputs will enable the firm to reach its clients in different ways. For example, some clients may attend a seminar or an open day, some will prefer to glean information online, while others may prefer print media.

Accordingly, the firm leaves it to the graduates to choose the type of output. For example, students may wish to write text for a client newsletter, a brochure, a display poster, a speech, a website, a youtube video presentation with transcript, a newspaper or journal article. As the partners wish to check the accuracy and the correct attribution of all information appearing in the output, students are required to complete a reference list (although this list will not be in the version seen by the clients). Legal and technical jargon should be avoided, but correct terminology must be used and explained if necessary. 
The partners sternly caution the graduates not to contact any professionals and administrators engaged in the planning law industry. Information is to be collated from published materials, particularly from government sources, professional journals and primary documents.

The Three Sets of Reforms

According to Jackie Trad, the planning minister’s views, the new law in Queensland concerning planning creates transparency as well as accountability.  It is anticipated that the new laws will be user-friendly and accommodate new changes in our society. This is in line with what the 2015 government directions paper provided by stating that the planning system will be transparent, open and very accountable to ensure that the industry and the community have confidence in many decisions that are made. In the new, law there are three sets of reforms which are clearly brought out. One, restoration of the rule where each party that litigates in a court process will pay its own costs. This new rule reverts the amendment that was passed by the Newman Government, (Beatty & Marshall, 2018, 55). The second reform entails the need for councils to provide tangible reasons for all decisions they make. Lastly, public consultation periods have been extended for ten days. A close look at these reforms indicates that they are laudable and can work well for the common man. However, there are some factors that have to be understood well. These include the wider scope given to councils, priorities of the planning scheme and the review grounds that are available to the public.

There are two forms of assessable development in Queensland. One, the assessable development which is known to be consistent with the planning schemes that local councils have and the impact assessable development. This is a development that has more significant impacts or is not compatible to a larger extent. Development that is code assessable has to be assessed against a planning scheme that is applicable. As such, the public has to be notified about the planning agenda of development in that region, (England, 2017, 404). In these changes, the local council has the duty of approving code assessable developments and the applications made so that they comply with the planning codes that have been put in place. The council also has the power to make an approval of any development that is non-compliant as long as the developer complies with the conditions for development. The other opportunity that has been presented is the use of Code assessable developments which have a close relationship with the goals set by planning schemes. In instances where the issue of contention comes into play, decision makers, as per the Planning Act, can approve applications despite a few conditions that have not been met. This is alongside evaluations of how these conditions will not adversely affect the development. This, as a result, shows how flexible the new legislation is especially when it comes to the application processes.

Assessable Development in Queensland

An impact assessment has been set as a major factor in this legislation. The exercise has also been set to become discretionary with the need for impact assessments to be done in order to establish assessable developments. This is done against the available planning schemes and the strategic objectives. In situations where relevant issues may come up, one has to also raise them for consideration

Previously, local councils were constricted to avoiding conflicts with planning schemes. This hindered development especially in instances where impact assessments were needed. Decisions made by the local councils had to be justified thus preventing the institution to carry out its duties diligently, (England, 2018). As a result, the planning scheme was given priority and as an implication, departing from essential terms was not a norm. In the new Act, there are no requirement for planning schemes to be set as a priority. Any alterations or departure that arises too does not need any form of justification especially when there are no specific and sufficient grounds. As a result, decision-makers have to assess all development applications presented to them with the help of economic considerations at hand and planning instruments that are made available to them.

The review Grounds available are few.

The decision-making rules that have been subjected to changes, especially for development that needs to be assessed, will create a greater effect on the Planning and Environmental Court. In Queensland, Courts have more merits when it comes to reviewing powers given t such developments, (Frohlich, 2018, 2).  It is this aspect that gives courts the upper hand in making decisions that surround development. This is in accordance with the applicable laws and consideration of the facts that have been presented before it.

On the other hand, courts have great respect for the decisions made by the Local councils as long as they are in line with regulations, (Lane et al., 2017, 38). This also relates to how the council used its mandate by relying on statutory mechanisms of making decisions. As such, the councils and the courts of law are almost at the same level especially when it comes to determination of issues and applications before them. Reasons have to be given by the councils to justify the decisions made in the line with its duty. This makes it hard for the court to challenge these decisions as long as they were done in accordance with law.

Impact Assessments

A closer look at the Planning Act 2016

The main aim of this new legislation is to remove complexities and give the common man a better understanding of the legislation in a fairer, easier and clearer manner. This makes it easy for anyone to go through the Act without any difficulty. The main parts of the Act contain Principle legislations, subordinate legislation, planning instruments as well as supporting statutory instruments, (Langbein, 2017, 13).

This is mainly what the Act was based on with the Planning and Environmental Court Act 2016 governing the composition, constitution, jurisdiction and powers given to the Planning and Environmental Court. In the court, appeals about developments can be heard especially when they concern assessments decisions that were made.  

Comparison between the previous and Current Systems.

The current Planning Act has been noted to be more elaborate and straightforward compared to the past Act. This simplicity has been achieved through the rearrangement of provisions so that matters that are similar are put together and explained in a concise way. Definitions have also been arranged logically so that readers can find them easily. In addition, descriptive details that were used previously have been removed especially those that had a lot of details about plan making. They included core matters and concepts commonly used in planning schemes, (Lovan, 2017, 129).  Most importantly, process details have been shifted to different instruments like the Planning regulation 2017.

There are many items that remain the same just like the previous Act. To start with, local planning and State planning instruments still exist. A planning Minister still retains his duty of making approvals of the instruments, (Macintosh et al., 2018, 95). He also sets guidelines to be used by local governments in making or amending their planning schemes. Also, an integrated approach in development assessment was retained with responsibilities and roles of main players being retained too. However, the development assessment processes are found with the Development Assessment Rules.

Another element that was retained is the role of the State Assessment and Referral Agency. It is still tasked with the assessment of the referral agencies, especially in development t applications. This also covers the use of the state development Assessment Provisions in assessing development applications, (O’Neil, 2018, 6). Most importantly, dispute resolution processes still exist. This is headed by the P&E court and the Development Tribunal which provides speedy and transparent dispute resolution services.

Comparison between the Previous and Current Systems

Benefits brought by the new legislation

This new legislation will be essential in developing systems which are accountable and transparent. First, the decision makes in the local government and the state will be required to give detailed accounts of their decisions by publishing them. As such, everyone in the process will be made aware of the decisions. Secondly, certainty will prevail more. This will be realized by the maintenance of the code-assessable categories of development which existed in the past system. In the past, decision-makers could make a drawing on existing parts hence not justifying their decision, (Reside et al., 2017, 220). Presently, they have the duty to use the assessment codes and benchmarks that have been established clearly by this Act. Similarly, applications that meet the assessment criteria will be approved without delay. Flexibility is essential for all organizations and actions. This is catered for in the new legislation. By focusing on performance, (Wamken and Mosandeghi, 2018, 76). Applications can be made alongside the planning schemes as long as they do not violate any regulations. Public notifications have to be presented especially when development applications are impacted assessable.

In a nutshell, legislations are subject to change especially with the advent of time and technology, (Watson, 2017, 16). Public participation in the process is essential especially because they are stakeholders and their views are essential. By understanding new legislation, the public is able to present their views and show satisfaction or dissatisfaction of what their leaders and legislators present to them.

References

Beatty, A.R., and Marshall, S.J., 2018. Coastal adaptation-towards a statutory reconciliation of private rights and public interests. In Proceedings of the 4th Practical Responses to Climate Change Conference: (p. 55). Engineers Australia.

England, P. and McInerney, A., 2017. Anything goes? Performance-based planning and the slippery slope in Queensland planning law. Journal of Planning Education and Research, Issue  4, p.404.

England, P., 2018. Transparency and Accountability in the Planning Act, 2016 (Qld).

Frohlich, M., Jacobson, C., Fidelman, P. and Smith, T., 2018. The relationship between the adaptive management of social-ecological systems and law: a systematic review. Ecology and Society, 23(2).

Lane, R., Bettini, Y., McCallum, T., and Head, B.W., 2017. The interaction of risk allocation and governance arrangements in innovative urban stormwater and recycling projects. Landscape and Urban Planning, Issue 164, pp.37-48.

Langbein, J.H., 2017. Absorbing South Australia's will act dispensing power in the United States: Emulation, resistance, expansion, issue 4, pp. 12-35

Lovan, W.R., Murray, M, 2017. Participatory governance: planning, conflict mediation and public decision-making in civil society. Routledge. Issue 14 pp. 129

Macintosh, A., Gibbons, P., Jones, J., Constable, A. and Wilkinson, D., 2018. Delays, stoppages, and appeals: An empirical evaluation of the adverse impacts of environmental citizen suits in the New South Wales land and environment court. Environmental Impact Assessment Review, 69, pp.94-103.

O'Neill, M.E., 2018. " A Completely New Approach" to Indigenous Cultural Heritage: Evaluating the Queensland Aboriginal Cultural Heritage Act. The International Indigenous Policy Journal, 9(1), p.6.

Reside, A.E., Beer, J., Cosgrove, A.J., Evans, M.C., Seabrook, L., Silcock, J.L., Wenger, A.S. and Maron, M., 2017. Ecological consequences of land clearing and policy reform in Queensland. Pacific Conservation Biology, 23(3), pp.219-230.

Warnken, J. and Mosadeghi, R., 2018. Challenges of implementing integrated coastal zone management into local planning policies, a case study of Queensland, Australia. Marine Policy, issue 91, pp.75-84.

Watson, K., 2017. Queensland's industrial relations act 2016: Is there really anything new?. Proctor, The, 37(4), p.16.