Your Guide To The Planning Act 2016 - Framework

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Your guide to thePlanning Act 2016

The State of Queensland, July 2017. Published by the Department ofInfrastructure, Local Government and Planning, 1 William Street,Brisbane Qld 4000, Australia.Licence: This work is licensed under the CreativeCommons CC BY 4.0 Australia licence. To view a copyof the licence, visit http://creativecommons.org/licenses/by/4.0/. Enquiries about this licence or any copyright issuescan be directed to the department by email [email protected] or in writing to PO Box 15009, CityEast, Qld 4002.Attribution: The State of Queensland, Department of Infrastructure, LocalGovernment and Planning.The Queensland Government supports and encourages the disseminationand exchange of information. However, copyright protects this publication.The State of Queensland has no objection to this material being reproduced,made available online or electronically but only if it is recognised as the ownerof the copyright and this material remains unaltered.The Queensland Government is committed to providingaccessible services to Queenslanders of all cultural andlinguistic backgrounds. If you have difficulty understandingthis publication and need a translator, please call theTranslating and Interpreting Service (TIS National) on 131 450and ask them to telephone the Queensland Department ofInfrastructure, Local Government and Planning on13 QGOV (13 74 68).Disclaimer: While every care has been taken in preparing this publication,the State of Queensland accepts no responsibility for decisions or actionstaken as a result of any data, information, statement or advice, expressedor implied, contained within. To the best of our knowledge, the content wascorrect at the time of publishing.ii

Department of Infrastructure, Local Government and PlanningContentsBetter planning for QueenslandChapter 1: Preliminary18Chapter 2: Planning10Chapter 3: Development assessment15Chapter 4: Infrastructure22Chapter 5: Offences and enforcement24Chapter 6: Dispute resolution26Chapter 7: Miscellaneous28Chapter 8: Transitional provisions and repeal29Some key terms30

Department of Infrastructure, Local Government and PlanningBetter planning for QueenslandThis guide is a referencetool for navigating thePlanning Act 2016.Our planning system isframed by the PlanningAct, which replaced theSustainable Planning Act2009 (SPA) on 3 July 2017.The current planning lawsare the result of major reformand consultation, where everyplanning instrument in theframework was reviewed.The need for such reformarose because the systemunder SPA was found to becumbersome and did notprovide enough certaintyof outcomes to developersand the community alike.In response, the QueenslandGovernment worked extensivelywith the community, localgovernments and industry todevelop new planning lawsand instruments that wouldcreate a more transparentand accountable system,encourage meaningfulcommunity engagement,and be user-friendly.The new laws have removedmuch of the complexity of theprevious legislation and madethe planning system clearer,fairer and easier to navigatefor all Queenslanders.This section of the guideexplains the principal legislation,subordinate legislation, planninginstruments, and supportingstatutory instruments. Thesection concludes with acomparison of the currentand previous systems.Principal legislation The Planning Act 2016establishes the currentplanning system. The Planning andEnvironment Court Act 2016,which commenced with thePlanning Act, governs theconstitution, composition,jurisdiction and powers of thePlanning and EnvironmentCourt (P&E Court). The courtis where appeals can beheard about developmentassessment decisions.1

Your guide to the Planning Act 2016 The Planning (Consequential)and Other LegislationAmendment Act 2016has ensured that the linksbetween the differentpieces of state legislationhave been updated withthe commencement ofthe Planning Act.Subordinate legislation The Planning Regulation2017 supports the principallegislation by outliningthe mechanics for theoperation of the PlanningAct. It deals with practicalmatters such as: how development iscategorised who will assess adevelopment application the state interest mattersfor development.2Planning instruments –the ‘what’ of planningThere are two statutorystate planninginstruments. These are: State Planning Policy (SPP)This instrument setsout the state planningmatters (interests) criticalto responsible land-useplanning and developmentacross Queensland. Localgovernments must considerthe state interests that applyto their areas when making,amending and implementingtheir planning schemes. Regional plansA regional plan focuseson the growth anddevelopment of a definedpart of Queensland. Regionalplanning matters areidentified in collaborationwith local governments, keyindustry groups and thewider community. Where aregional plan exists, the localgovernment must considerit when making or amendingits planning scheme.

Department of Infrastructure, Local Government and PlanningIn addition, local governmentshave local planninginstruments. These are: Planning schemesEach local government inQueensland has a planningscheme stating how it intendsto manage land use anddevelopment into the future.The planning scheme alsooutlines how developmentapplications will be assessed,by categorising developmentinto types of assessment. Planning scheme policiesThese support the planningscheme and its administrationbut do not categorisedevelopment or types ofassessment. For example, aplanning scheme policy may: include details about howassessment matters underthe planning schemewill be applied, such astemplates for turning circlesand parking spaces, or outline the proceduresthe local government willfollow in administeringdevelopment applicationsin accordance with thePlanning Act, such asidentifying the locationswhere applications will beavailable for inspectionand purchase. Temporary local planninginstruments (TLPIs)These can be used tosafeguard an area in urgentor emergent circumstances(e.g. flood or fire risk) wheremaking an amendmentto the planning schemewould take too long.Supporting statutoryinstruments – the‘how’ of planning The Minister’s Guidelinesand Rules (MGR) sets outthe guidelines and rulesfor making and amendinglocal planning instruments,such as planning schemes.The MGR also outlinesthe public notificationrequirements to ensurelocal communities have theirsay in these instruments.3

Your guide to the Planning Act 2016 The DevelopmentAssessment Rules (DARules) sets the rules for howdevelopment applicationsare assessed in Queensland.The rules outline the processfor lodging, assessing anddeciding an applicationand the minimum publicnotification requirements. The State DevelopmentAssessment Provisions(SDAP) sets out the mattersof interest to the state andprovides the criteria forassessing developmentapplications where thestate government is theassessment manageror referral agency for adevelopment application.Comparison of currentand previous systemsThe Planning Act is a farmore straightforward piece oflegislation compared with theprevious legislation (SPA).This has been achieved by: rearranging provisionsso that similar matters4are grouped together, areexpressed more concisely,and ordered logically consolidating definitionsas much as possible, sothey are easier to find removing descriptive detailabout plan-making, like keyconcepts and core mattersfor planning schemes shifting process details toother instruments, such asthe Planning Regulation 2017or other statutory instruments.The basic systemremains the sameThe Planning Act retains manysimilar elements to SPA and sowill be familiar to many users. There are still stateplanning instruments andlocal planning instruments(which must reflect stateinterests). The PlanningMinister still approves theseinstruments and, for localinstruments, continuesto set the guidelines andrules for local governmentsto make or amend theirplanning schemes.

Department of Infrastructure, Local Government and Planning There is still an integratedapproach to developmentassessment set in thelegislation, along with theroles and responsibilitiesof the key players. Thedevelopment assessmentprocess, however, is nowfound in the DA Rules. The State Assessmentand Referral Agency(SARA) continues to bethe assessment manageror referral agency fordevelopment applicationswhere the state hasjurisdiction. SARA will usethe renewed SDAP to assessdevelopment applicationsState andlocal ute resolutionprocesseswhere the state governmenthas a role as assessmentmanager or referral agency. There are still disputeresolution processesincluding the P&E Court anda system for low-cost, speedydispute resolution throughthe Development Tribunal. There is still a hierarchy ofregulatory instruments: the Planning Actestablishes the system,including the rolesand responsibilities ofgovernment, industry andcommunity the Planning Regulationsupports the Planning Actby detailing how the Actoperates the state planninginstruments articulatesignificant statewide andregional planning interests the statutory instrumentsarticulate the rulesfor plan-making anddevelopment assessment.5

Your guide to the Planning Act 2016Benefits of thenew legislationThe new legislation establishesa system that offers: Greater transparencyand accountabilityDecision-makers, both stateand local government, arenow required to publish theirreasons for developmentdecisions. This makes thesystem more transparent forthe community and ensuresgreater accountability forassessment decisions. Greater certaintyThe new system retains thecode-assessable categoryof development from theprevious system, but hasstricter provisions. Previously,decision-makers could drawon other parts of a planningscheme outside the code tojustify a decision. Now theyare ‘bound’ to consider theassessment benchmarks(codes) alone. Further, ifan application meets all theassessment benchmarks,it must be approved.6 Continued flexibilityThere will always bedevelopment proposals thatare not anticipated by theplanning scheme. The newsystem, like the previous,takes this into accountby being ‘performancebased’, which means thatany application can bemade against the planningscheme unless it is prohibiteddevelopment. All developmentapplications that are impactassessable must involvepublic notification to allow thecommunity to have their say.Other benefits under the newplanning system include: Community memberscan appeal developmentdecisions without fear ofadverse cost orders. Community engagement isgiven greater prominence inall statutory instruments andpractical tools are providedto local governments toassist them in consultingwith their communities.

Department of Infrastructure, Local Government and Planning Local governments mustconsult with their communitiesfor longer when making anew planning scheme. State heritage places receivestronger protection. Thereis a new requirement thatthe Queensland HeritageCouncil review certaindevelopment proposals thatmay threaten the culturalheritage significance of a site. Local governments canincrease infrastructurecharges levied on newdevelopments to enable themto deliver critical communityinfrastructure – for example,parks and libraries. There is continuity with theprevious system by retainingthe role of SARA, whichprovides a one-stop-shopfor state assessment ofdevelopment applications. Ecological sustainabilityis now placed at the heartof the planning systemfor future generations.The remainder of this guideoutlines each chapterof the Planning Act. Land surrender arrangementsoffer greater protection forour pristine coastline. Formal recognition is givento Indigenous knowledge,culture and tradition. There is less red tape in thedevelopment applicationprocess, through a reductionin required forms.7

Your guide to the Planning Act 2016Chapter 1: PreliminaryChapter 1 of the Planning Actexplains that its purpose is ‘toestablish an efficient, effective,transparent, integrated,coordinated, and accountablesystem of land use planning,development assessmentand related matters thatfacilitates the achievement ofecological sustainability’.It defines ecologicalsustainability as a balancethat integrates: the protection ofecological processesand natural systemsat local, regional, stateand wider levels; and economicdevelopment; and the maintenance ofthe cultural, economic,physical and socialwellbeing of peopleand communities.8The Planning Act emphasisesthe coordination and integrationof planning at the three levels atwhich it occurs in Queensland,namely: state planning regional planning local planning.Planning at the local and statelevels is directly associatedwith the respective levels ofgovernment. Regional planningis primarily the responsibility ofthe state (as a regional plan isa state planning instrument);however, in practice, regionalplanning is a cooperativeactivity between local and stategovernments, through regionalplanning committees.Coordination of planningrefers to the linking of planningactivities within and betweenlevels of government and thelinking of different aspectsof planning, such as naturalresource planning, land-useplanning and infrastructure

Department of Infrastructure, Local Government and Planningplanning. Integration refersto the combination andrationalisation of planningoutcomes and to presentingthem in an integrated way. Localgovernment planning schemesremain the key instrument forintegrating state, regional andlocal planning outcomes. providing for integrateddevelopment assessment providing for integrateddispute resolutionand enforcement.The Planning Act coordinatesplanning by: providing for robustcommunication andconsultation within andbetween levels of governmentas part of the processesfor making and amendingplanning instruments establishing bodies, suchas regional planningcommittees, to coordinateplanning at a regional level establishing the scope ofplanning instruments in a waythat facilitates coordination ofdifferent aspects of planning establishing a clear hierarchyof planning instruments,allowing them to interactin a way that will result inintegrated planning outcomes9

Your guide to the Planning Act 2016Chapter 2: PlanningChapter 2 of the PlanningAct describes the planninginstruments (state and local)within the framework and howthey relate to each other. It alsocovers superseded planningschemes and compensation,as well as infrastructuredesignations.Part 1: PlanninginstrumentsPart 1 defines what the planninginstruments are and when theyhave effect.State planning instrumentsset out planning matters thatthe state has identified asneeding to be protected andpreserved. Local governmentsmust consider and contribute tothese, protecting and preservingthese matters through their localplanning schemes.There are two state planninginstruments in the new system: State Planning Policy (SPP) Regional plans.10Consultation and communityengagement arrangements,like public notification andregional planning committees,are carried forward under thePlanning Act.SPPThe SPP is a comprehensivedocument that sets out thosematters that are critical toresponsible land-use planningand development. Localgovernments must considerthose matters that apply tothem when developing andimplementing their planningschemes. The SPP hasprecedence if there is anyconflict between the two stateplanning instruments.Regional plansRegional plans focus on thegrowth and developmentof defined regions, withregional planning mattersidentified in collaborationwith local governments, keyindustry groups and the wider

Department of Infrastructure, Local Government and Planningcommunity. Where a regionalplan exists, local governmentsmust consider it when makingor amending their local planningschemes.Part 2: State planninginstrumentsPart 2 outlines how the stateplanning instruments aremade, amended and repealed;how temporary state planningpolicies are made; and howthe public is notified about anew or amended state planninginstrument so that they canmake written submissions, ifthey wish.Any person may make asubmission about a stateplanning instrument to thePlanning Minister. The periodsfor making a submission abouta state planning instrument are: 40 business days for a newstate planning policy or 20business days for amendmentto a state planning policy 60 business days for a newregional plan or 30 businessdays for amendment to aregional plan.The Planning Minister maymake minor amendments toa state planning instrumentwithout calling for publicsubmissions but must issuea public notice and give eachaffected local government acopy of the public notice andthe amendment. Examplesof minor amendments arecontained in section 11(3) ofthe Planning Act.Part 2 also states that whendeveloping and implementinga regional plan, the PlanningMinister may establish aregional planning committeeand must consider the advice ofthis committee.Part 3: Local planninginstrumentsPart 3 covers how localplanning instruments are madeand changed, and how theyrelate to other instruments. Thispart also includes the ministerialpower to direct action aboutlocal planning instruments andrelated matters.11

Your guide to the Planning Act 2016Local planning instruments are: planning schemes planning scheme policies temporary local planninginstruments.Processes for making andamending local planninginstruments are set out inthe MGR. Some statutorytimeframes apply to the makingand amending of instruments.Planning schemesThe core local planninginstrument in Queensland is theplanning scheme. Every localgovernment has a planningscheme, which is effectivelya statement of the localplanning framework againstwhich development proposalsare made and considered. Alocal planning scheme takesinto account both local policyintentions for areas and anystate interests prescribed bythe state government in theSPP or a regional plan (whereapplicable). Most developmentacross the state is assessedagainst local planning schemes.12Under the Planning Act,planning schemes may alsoinclude local governmentinfrastructure plans (LGIPs).An LGIP sets out a localgovernment’s plans for majorinfrastructure networks toservice the population growthand land uses anticipated inthe scheme.Since 1 July 2016, localgovernments have beenrequired to include an LGIP intheir planning scheme if theyintend to levy infrastructurecharges or impose conditionsfor trunk infrastructure.Trunk infrastructure isinfrastructure that is sharedby multiple developments.The state government reformedinfrastructure planning andcharging in 2014, and thereforeno significant changes aremade in the Planning Act.However, the Planning Actdoes allow for the maximumamount of the infrastructurecharge to be automaticallyindexed each year.

Department of Infrastructure, Local Government and PlanningPlanning scheme policiesA planning scheme policysupports the planning anddevelopment assessmentpolicies in a planningscheme for part or all of aplanning scheme area, byassisting with the practicalimplementation of objectives orrequirements contained in theplanning scheme.Temporary localplanning instrumentsA temporary local planninginstrument (TLPI) may beused to bring into effect urgentprovisions for a local areabefore the planning scheme canbe amended where there is arisk of serious environmentalharm, or where it gives rise toadverse cultural, economic orsocial conditions, and wherethe delay in bringing in suchprovisions would increasethe risk.Part 4: Supersededplanning schemesPart 4 explains how a personcan ask the local governmentto consider applying asuperseded planning schemeto a development proposal.The Planning Act provides forthe requirements and powersfor making and decidingthese requests.Compensation provisions, inrelation to adverse planningchanges, carry forward andnow sit with the provisions forsuperseded planning schemes.There are new arrangementsfor compensation in relation toplanning changes made to aplanning scheme as a result ofnatural hazards.13

Your guide to the Planning Act 2016Part 5: Designationof premises fordevelopment ofinfrastructurePart 5 provides for: who may designate premisesfor the development ofinfrastructure – this is eitherthe Planning Minister (achange from SPA underwhich any state ministercould designate) or thelocal government what the designation mayprovide for amendments to designations duration and extension ofdesignations the repeal of designations the requirement fordesignations to be noted inthe planning scheme.The MGR contains: guidelines for the process forenvironmental assessmentand consultation for makingor amending a ministerialdesignation, and the designation process rulesfor the local governmentwhen making or amending adesignation.14

Department of Infrastructure, Local Government and PlanningChapter 3: DevelopmentassessmentChapter 3 of the PlanningAct outlines the developmentassessment framework andcontains the most foundationalchanges to the planning system.The chapter: defines and describescategories of developmentand assessment explains how to make,change, assess and decidedevelopment applications,and provides the head ofpower for the DA Rules outlines the rights andresponsibilities fordevelopment approvals,including how to seekchanges and extensions todevelopment approvals clarifies the Minister’s powersin relation to the developmentassessment system concludes with variousmiscellaneous provisions.Who is involved indevelopmentassessment?The following are keystakeholders in the developmentassessment framework: applicant — the personthat makes thedevelopment application assessment manager —the entity responsible forassessing and deciding adevelopment application.This is usually the localgovernment that administersthe planning scheme forthe local area. In someinstances, the assessmentmanager may be the stategovernment. The PlanningAct does allow selectedassessment managers toestablish a list of alternativeassessment managers whomay become the assessmentmanager for certaindevelopment applications.15

Your guide to the Planning Act 2016 referral agency — an entitythat is required to undertakean additional assessment ofcertain types of developmentapplications during thedevelopment assessmentprocess. Referral agenciesare either concurrenceagencies (who can directthe assessment managerto refuse the application)or advice agencies (whocannot direct the decisionand are limited to providingthe assessment managerwith advice only) submitter — a personwho makes a properlymade submission about adevelopment applicationduring the public notificationperiod. Submitters maybe afforded the right toappeal the decision.Development andapproval typesCategories of developmentThere are three categories ofdevelopment outlined in the16Planning Act (as comparedwith five in SPA). They are: prohibited development —development that isnot allowed under anycircumstances. Onlythe Planning Regulationmay identify prohibiteddevelopment. A developmentapplication cannot be madefor prohibited development. accepted development —development that doesnot require a developmentpermit; however, it mustmeet any requirements setby the local government orthe state. Development thatis not otherwise categorisedas prohibited or assessableis accepted development. assessable development —development that requiresa development permitbefore it can occur. Thereare two categories ofassessable development:code assessable orimpact assessable.All properly made developmentapplications must be

Department of Infrastructure, Local Government and Planningassessed and decided,even if they are inconsistentwith the expectations of thecommunity (as outlined inthe planning scheme).Categorising andassessing developmentCategorising instruments underthe Planning Act can be thePlanning Regulation or a localcategorising instrument (beingeither a planning scheme,TLPI or a variation approval).Categorising instruments can: categorise developmentas either accepted,assessable or prohibited specify the category ofassessment required forassessable development set out assessmentbenchmarks and otherassessment matters thatthe application must beassessed against.Development approvalsAssessable developmentis development for whicha development approval isrequired. A developmentapproval can be either one orother, or a combination of: a development permit,which authorises thecarrying out of assessabledevelopment a preliminary approval,which approves thedevelopment but does notauthorise the carrying out ofassessable development.A preliminary approval mayinclude a variation approval,which can give approvalto vary the effect of a localplanning instrument. Whenmaking an application thatseeks to vary the effect ofthe planning scheme, this iscalled a variation request.Exemption certificatesExemption certificates maybe given by local or stategovernment (as assessmentmanagers) in a limited numberof circumstances. Exemptioncertificates certify that adevelopment approval is notrequired for development thatis otherwise stated assessabledevelopment. These generallyhave effect for two years and17

Your guide to the Planning Act 2016allow the development statedin the exemption certificateto be carried out without adevelopment approval.Developmentassessment processThe process for developmentassessment is not found in thePlanning Act but in theDA Rules.There are five parts to theDA process: application referral information request public notification decision.Depending on the developmentbeing applied for, the requiredsteps in each processmay vary. Not all parts willapply to all developmentapplications — for example,only impact-assessableapplications and applicationsinvolving a variation requestrequire public notification.18The DA Rules also establisharrangements for: changing a developmentapplication before ithas been decided dealing with missed referrals setting timeframes throughoutthe assessment process,including lapsing and revivalprovisions and the ability tostop the current period. determining what issubstantially differentdevelopment establishing requirementsfor giving public notice.The DA Rules and otherinformation supporting thedevelopment assessmentprocess under the PlanningAct can be accessed on thedepartment’s website:https://planning.dilgp.qld.gov.au/Properly madedevelopment applicationsFor each developmentapplication to be progressedthrough the developmentassessment process itmust be properly made.

Department of Infrastructure, Local Government and PlanningThis means it must: be made to theassessment manager be made in the approved form be accompanied by thedocuments required underthe approved form be accompanied bythe required fee include owner’s consent(where required).The Planning Act provides thatthe assessment manager maychoose to accept an applicationas properly made if it has notmet all the requirements relatedto the approved forms andsupporting material. However,the assessment managercannot accept an applicationas properly made withoutowner’s consent (where it isrequired) or the required fee.(both code assessable andimpact assessable).Exceptions are for developmentapplications that involveoperational works only, orbuilding works assessableagainst the buildingassessment provisions in theBuilding Act 1975. However,assessments managersmay still choose to do so.Publishing the reasons fordecisions helps the communityunderstand why they weremade and ensures assessmentmanagers (both local and stategovernment) are accountableThe Planning Act also requiresthe reasons for a decisionto change a developmentapproval to be published,as well as the responsesgiven by the state whenacting as a referral agency.Statement of reasonsTypes of assessmentThe Planning Act requireslocal and state governments,as assessment managers, topublish the reasons for theirdecisions. This is required formost development applicationsThe Planning Act establishesseparate rules for assessingcode-assessable development,impact-assessable developmentand variation requests.19

Your guide to the Planning Act 2016 Code assessment mustbe assessed only againstassessment benchmarks(stated in the categorisinginstrument) and havingregard to matters prescribedby the regulation. Theassessment manager mustapprove the developmentapplication to the extent itcomplies with assessmentbenchmarks, or, ifcompliance with assessmentbenchmarks cannot beachieved, by imposingdevelopment conditions. Impact assessment mustbe carried out against theassessment benchmarks andhaving regard to any mattersprescribed by regulation. Itmay be carried out againstor having regard to any otherrelevant matters, such as aplanning need, or the currentrelevance of the assessmentbenchmarks in the light ofchanged circumstances. a variation request mustconsider the consistency ofthe variations sought with therest of the planning schemeand the effect the variations20would have on submissionrights for later developmentapplications, as well as anyother requirements set outin the Planning Regulation.Types of decisionIn deciding a developmentapplication, the assessmentmanager must: approve all or part of thedevelopment application, approve all or part of thedevelopment application,with conditions, or refuse the developmentapplication.An assessment managermay also decide to givea preliminary approval, adevelopment permit, or both.Referral agencies (otherthan advice agencies)have the power to directthe assessment managerto refuse an application, orto direct that conditions beadded to any approval given.

Department of Infrastructure, Local Government and PlanningDevelopmentapprovalsThis chapter also prescribesthe effect and duration ofdevelopment approvalsand when they lapse, andhow they may be extended,cha

Planning Act 2016. Our planning system is framed by the Planning Act, which replaced the Sustainable Planning Act 2009 (SPA) on 3 July 2017. The current planning laws are the result of major reform and consultation, where every planning instrument in the framework was re

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