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1
Integrated Planning and Other Legislation
Amendment Bill 2004
Integrated Planning and Other Legislation
Amendment Bill 2004
Explanatory Notes
Introduction
This Bill includes provisions to facilitate effective regional planning in
South-East Queensland. The Bill also includes amendments to other
provisions of the Integrated Planning Act 1997 (IPA) designed to clarify or
improved its operation.
Before many of the amendments in this Bill commence, it is expected the
bulk of the remaining uncommenced provisions of the Integrated Planning
and Other Legislation Amendment Act 2003 (IPOLAA 2003) will
commence. Some IPA provisions proposed to be amended by this Bill are
also amended by IPOLAA 2003.
Consequently, it is necessary to read the Bill together with the current
reprint version of the Integrated Planning Act 1997 and the Integrated
Planning and Other Legislation Amendment Act 2003. The sections in this
Bill also affected by amendments in the IPOLA Act are--
· s 3.2.1 Applying for development approval)
· s 3.4.2 (When notification stage applies)
· s 3.5.15 (When is a development permit necessary);
· s 3.5.4 (Code assessment);
· s 3.5.5 (Impact assessment);
· s 3.5.5A (Assessment for s 3.1.6 preliminary approvals that override a
local planning instrument);
· s 3.5.11 (Decision generally)
· s 3.5.13 (Decision if application requires code assessment);
· s 3.5.14 (Decision if application requires impact assessment); and
· s 3.5.14A (Decision if application under s 3.1.6 requires assessment).
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Integrated Planning and Other Legislation
Amendment Bill 2004
General Outline
The Bill consists of:
· Amendments to the Integrated Planning Act 1997 to facilitate regional
planning in South-East Queensland;
· Other amendments to the Integrated Planning Act 1997 to improve
and clarify its operation;
· An amendment to the Integrated Planning and Other Legislation
amendment Act 2003 to clarify its relationship with Coastal
Management Plans under the Coastal Management and Protection Act
1995;
· Amendments to the local Government Act 1993 to further clarify the
relationship between the Integrated Planning Act 1997 and local laws
under that Act;
· Amendments to the Queensland Heritage Act 1992 to further clarify
the operation of approvals under the Integrated Planning Act 1997 for
that Act; and
Policy Objectives of the Legislation
The objectives of the legislation are to:
· Facilitate effective regional planning in South-East Queensland by
establishing processes for making a regional plan for the region;
· Ensuring effective implementation of the regional plan through
changes to the planning and development assessment processes in the
IPA; and
· Clarify and improve the operation of other aspects of the IPA and
related legislation.
Reasons for the Bill
The Bill is necessary to give effect to government commitments concerning
effective regional planning in South-East Queensland.
Achieving the Objectives
The objectives of the Bill are achieved primarily by:
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Integrated Planning and Other Legislation
Amendment Bill 2004
· Establishing a Regional Coordination Committee (RCC) to advise the
Government through the Regional Planning Minister on implementing
the regional plan;
· Requiring the Regional Planning Minister to prepare a regional plan,
including requirements for consultation with the RCC and the
community generally;
· Requiring State agencies and local governments to account for the
regional plan in their planning and development assessment activities;
and
· Establishing functions and powers for the Regional Planning Minister
to ensure effective implementation of the regional plan, including
extending powers of direction about making planning schemes, and
Ministerial call-in powers.
Administrative Costs
The Government has established an Office of Urban Management within
the Department of local Government, Planning, Sport and Recreation.
Approximately $3.4 million has been allocated for the OUM in the 2004/
2005 State Budget.
All other administrative costs associated with implementing the legislation
can be met from within existing allocations.
Fundamental Legislative Principles
The legislation is consistent with fundamental legislative principles.
However it should be noted the legislation makes provision for the regional
plan to have a component with regulatory affect. This component could for
example have the effect of prohibiting specified development. For
development that has already been carried out, the regulatory provisions of
the regional plan can have no further effect, because the regional plan is
characterised under the Bill as a planning instrument, and Chapter 1 Part 4
of the IPA protects existing uses and works from further regulation under
planning instruments. However the regulatory provisions could have an
effect for development that is the subject of a development application at
the time the provisions come into effect. Clause (8) (Section
2.5A.12(2)(e)) of the Bill provides for the regulatory provisions to include
transitional arrangements for such development applications. It should
also be noted that the regulatory provisions will themselves be subject to
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Integrated Planning and Other Legislation
Amendment Bill 2004
Parliamentary scrutiny through the ratification requirements under Clause
(8) (Section 2.5A.18).
Consultation
Consultation about the Bill has been carried out with the Local
Government Association of Queensland (LGAQ), Urban Development
Institute of Australia (UDIA), Property Council of Australia (PCA), and the
18 local governments in the South East Queensland Region. Consultation
has also been carried out with State agencies whose activities are likely to
be affected by the Bill.
Notes on Provisions
Part 1 Preliminary
Short Title
Clause 1 states the short title of the Bill.
Commencement
Clause 2 States the Bill commences on a date fixed by proclamation.
Numerous provisions in the Bill, in particular those affecting the IDAS
process in Chapter 3 of the IPA, and Schedules 8, 8A and 9, are drafted on
the basis that the remaining provisions of the Integrated Planning and
other Legislation Amendment Act 2003 (IPOLAA 2003) will have
commenced before the relevant provisions in this Bill.
However the core provisions in this Bill, to be contained in chapter 2, Part
5A of IPA, are unaffected by IPOLAA 2003, and could be commenced
earlier than the balance of the Bill. Commencement of Chapter 2 Part 5A
will also be accompanied by a change to the current administrative
arrangements for the administration of the IPA, to provide that part is to be
administered by the honourable the Deputy Premier, Treasurer and
Minister for Sport
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Integrated Planning and Other Legislation
Amendment Bill 2004
Part 2 Amendment of Integrated Planning Act
1997
Act amended in pt 2 and sch
Clause 3 states this part amends the IPA.
Amendment of section 1.3.5 (Definitions)
Clause 4 amends the definition of `operational works' in two respects to
address an unintended consequence of recent amendments made to that
definition by the Vegetation Management and other Legislation Amendment
Act 2004 (VMOLA). Before the commencement of that Act, all vegetation
clearing on freehold land was defined as operational work under section
1.3.5. Vegetation clearing on State land was regulated under the Land Act
1994.
VMOLA changed the vegetation clearing arrangements in Queensland by
including all native vegetation clearing throughout Queensland.
Consequently, section 1.3.5 of IPA was amended to refer to all vegetation
clearing to which the VMA applies, and excluding vegetation clearing to
which the VMA does not apply. Section 8 of the VMA defines
"vegetation" as only specified native vegetation. This, together with the
changes to section 1.3.5 had the unintended effect of excluding the clearing
of non-native vegetation from the definition of development under IPA. It
has always been intended to allow for local governments to control
vegetation clearing (including non-native clearing) through their planning
schemes. The amendments in this clause are designed to reflect this intent.
Insertion of new 2.1.8A
Clause 5 inserts a new section 2.1.8A in the IPA. This new section allows
the Minister to give a written notice to a local government that the Minister
is satisfied a specified State planning policy is reflected in the local
government's planning scheme.
Presently, the only opportunity for the Minister to give such a notice (with
the effect that the State planning policy is no longer an independent
consideration under IDAS for the relevant local government area) is during
the process for making a planning scheme (Schedule 1, Section 18(5)).
However some planning schemes have recently been prepared to reflect
draft state planning policies before they finally come into effect. The
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Integrated Planning and Other Legislation
Amendment Bill 2004
amendment will allow for these planning schemes to be recognised as
reflecting the State planning policy without the need to wait for a future
amendment of the planning scheme.
Subsection 1 provides for the arrangements under this section to be
triggered if the Minister gives a local government a notice stating the
Minister is satisfied the local governments planning scheme reflects a
specified State planning policy.
Subsection (2) allows for the local government to amend its planning
scheme to include a statement that the planning scheme reflects the State
planning policy.
Subsection (3) provides that the process for making or amending a
planning scheme under schedule 1 of IPA does not apply for an amendment
made under this section (on the basis that both the State planning policy
and the planning scheme reflecting it have already been subject to public
consultation).
Subsection (4) establishes the commencement date for a scheme
amendment under this section. The effect of the commencement is that
from the commencement date, the State planning policy "falls away" as a
consideration under IDAS in the relevant local government area.
Amendment of s 2.1.23 (Local planning instruments have force
of law)
Clause 6 inserts a new paragraph in section 2.1.23 providing further
guidance about the role of planning scheme policies. The paragraph states
a planning scheme policy may include guidance or advice about satisfying
assessment criteria in the planning scheme. "Assessment criteria" refers to
planning scheme provisions such as performance requirements or "deemed
to comply" provisions under codes, or scheme provisions with wider effect,
such as statements of intent for precincts or zones, against which
development applications may be assessed.
Amendment of s 2.5.1 (What are regions)
Clause 7 amends section 2.5.1 in response to the inclusion in IPA of
regional planning arrangements for South-East Queensland. Section 2.5.1
currently states there are no fixed regions in Queensland (on the basis that
when constituting a Regional Planning Advisory Committee the Minister
would identify a region relevant to that committee's purpose).
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Integrated Planning and Other Legislation
Amendment Bill 2004
However, the new Chapter 2, Part 5A (Regional Planning in the SEQ
region) does spatially define the SEQ region. The amendment to section
2.5.1 provides for consistency between the provisions of Chapter 2 Part 5
and Chapter 2 Part 5A.
Insertion of ch 2, pt 5A
Clause 8 inserts a new chapter 2 part 5A, "Regional planning in SEQ
region". This is a new part to establish a regional planning framework for
SEQ. The region is defined to comprise the 18 local government areas
listed in clause 2.5A.2 and adjacent Queensland waters.
Division 1 Preliminary
2.5A.1 Application of part
This section provides that this part applies only to the SEQ region.
2.5A.2 What is the SEQ region
Subsection (1) lists the 18 local government areas comprising the SEQ
region.
Subsection (2) provides the SEQ region also includes Queensland waters
adjacent to any of the local governments listed in subsection (1).
Division 2 Regional coordination committee
2.5A.3 Establishment of regional coordination committee
This section requires the regional planning Minister to establish a regional
coordination committee.
2.5A.4 Functions of regional coordination committee
This section provides the function of the regional coordination committee
is to advise the State government, through the regional planning Minister
about the development and implementation of the regional plan.
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Integrated Planning and Other Legislation
Amendment Bill 2004
2.5A.5 Membership of regional planning committee
Subsection (1) provides the regional coordination committee will have the
membership decided by the Minister.
Subsection (2) states limitations to the membership of the regional
coordination committee. The committee may include only a State
Minister, a mayor or councillor of a local government of the region, or an
appropriately qualified person decided by the Minister. An inclusive
definition of "appropriately qualified" has been included in schedule 10
(Dictionary) by this Bill.
2.5A.6 Dissolution of regional coordination committee
This section provides for the regional planning Minister to dissolve the
regional coordination committee. The procedures for dissolving the
committee would be the same as those for establishing it.
2.5A.7 Quorum
This section provides a quorum for a meeting of the regional coordination
committee is one more than half its membership.
2.5A.8 Presiding at meetings
Subsection (1) states the regional planning Minister presides at all
meetings of the regional coordination committee.
Subsection (2) provides in the absence of the regional planning Minister, a
member of the Minister's choosing must preside.
2.5A.9 Conduct of meetings
Subsection (1) provides for meetings of the regional coordination
committee to be held at the time and place decided by the regional planning
Minister.
Subsection (2) provides for the regional coordination committee to conduct
its business in such a manner as it decides.
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Integrated Planning and Other Legislation
Amendment Bill 2004
Division 3 The regional plan
2.5A.10 What is the regional plan
This section introduces the concept of a regional plan for the SEQ region.
The regional plan will be a statutory instrument. Planning schemes,
planning scheme policies, temporary local planning instruments and State
planning policies are all statutory instruments. The Statutory Instruments
Act 1992 sets out general provisions applicable to statutory instruments and
their interpretation. The regional plan will not be subordinate legislation
for the Statutory Instruments Act 1992.
The regional plan will also be a "planning instrument" for the IPA. This
means the regional plan, and in particular the regulatory provisions of the
regional plan, will be subject to the same use right and development
approval protections under Chapter 1 Part 4 of IPA as other planning
instruments.
2.5A.11 Key elements of the regional plan
This section identifies the key elements of the regional plan. The Bill
establishes a subjective criterion for the sufficiency of the regional plan's
content (ie the regional planning Minister must be satisfied the regional
plan contains the elements listed in this section.
The key elements centre around three structural elements consistent with
an over-arching set of desired regional outcomes. The three structural
elements are a land use plan, infrastructure to service anticipated land use,
and the identification of key regional resources, and the proposed means of
preserving, maintaining or developing them.
The structural elements of the regional plan reflect at a regional level the
"core matters" for planning schemes identified in section 2.1.3A.
2.5A.12 The regional plan may include regulatory provisions
This section provides for the regional plan to contain regulatory provisions.
These provisions include the capacity to directly regulate development, by,
for example, prohibiting aspects of development in specified locations. In
this sense, the regulatory provisions are an independent and direct aspect of
regulation in the region, separate from other planning instruments in
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Integrated Planning and Other Legislation
Amendment Bill 2004
Chapter 2 of the IPA. The regulatory provisions are given effect through an
offences provision (section 4.3.5A) included in the Bill.
Consequently, the regulatory provisions are different in character from the
other provisions of the regional plan, which are intended to have effect
through scheme amendment and development assessment processes
already contained in the IPA. However it is anticipated the regulatory
provisions will support, rather than supplant the other provisions of the
regional plan, by, for example, providing certainty about development
outcomes in proposed regional landscape areas under the regional plan.
Apart from the ability to directly regulate development, this section also
provides for the regulatory provisions to have the same effect as a
temporary local planning instrument (TLPI) by, for example, making
development assessable or self assessable, or including codes. Unlike a
TLPI however, these provisions have effect not for twelve months, but until
a planning scheme is amended to reflect the regional plan.
Finally, subsection 2(e) provides that the regulatory provisions may contain
transitional arrangements for development applications made but
undecided at the time the regulatory provisions come into effect. Including
such arrangements in the regulatory provisions rather than the Bill itself is
one of a number of legislative and non-legislative actions designed to
discourage speculative development applications prior to the completion of
the regional plan. These transitional arrangements potentially have
important implications for the rights of applicants, however it should be
noted that, even though they will not be contained in the Bill itself, they
will nevertheless be subject to Parliamentary scrutiny, as the regulatory
provisions must be ratified by Parliament. (See section 2.5A.18).
Division 4 Making the Regional Plan
2.5A.13 Regional planning Minister to prepare draft regional
plan
This is a directory provision requiring the regional planning Minister to
prepare a draft regional plan. The regional planning Minister is required to
consult the regional coordination committee about preparing the draft plan,
before the draft plan is notified for public submissions.
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Integrated Planning and Other Legislation
Amendment Bill 2004
2.5A.14 Notice of and public consultation on draft regional plan
This section establishes the public consultation requirements for the draft
regional plan. These are intended to be minimum requirements only, and
do not prevent more extensive consultation, including for example, the re-
notification of the draft regional plan if it is substantially changed as a
result of public consultation.
The consultation period for the draft regional plan is at least 90 business
days (or approximately four months). For this period, the regional
planning Minister must keep a copy of the regional plan available for
inspection and purchase.
2.5A.15 Making regional plan
This section requires the regional planning Minister to consider every
properly made submission and consult the regional coordination committee
before taking action about making the regional plan.
Subsection (2) of this section provides that after public notification and
consulting the regional coordination committee, the regional planning
Minister may make the regional plan as notified, or make an amended
regional plan. The regional planning Minister does not have an option of
not making the regional plan under this section.
2.5A.16 Notice of making of regional plan
This section requires notice to be given of the making of the regional plan,
and also establishes when the regional plan has effect.
2.5A.17 Regulatory provisions to be ratified by Parliament
This section requires the regional planning Minister to table a copy of the
regulatory provisions in the Legislative assembly within 14 days of the day
the regional plan is made. The requirement applies only to the regulatory
provisions (due to the potentially important effect of these on the rights of
individuals, and planning outcomes in the region generally), but does not
prevent the tabling of the balance of the regional plan.
Subsection (2) provides the regulatory provisions lapse if not ratified by
Parliament within 14 sitting days of their tabling. This would effectively
cancel any regulatory effect of the regulatory provisions.
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Integrated Planning and Other Legislation
Amendment Bill 2004
Division 5 Amending or replacing regional plan
2.5A.18 Regional planning Minister may amend or replace
regional plan
This section provides for the regional planning Minister to amend or
replace the regional plan.
2.5A.19 How regional plan is amended or replaced
This section states that the regional plan may be amended or replaced using
the same process by which it was originally made, and establishes when the
amendments, or replacement have effect. For a proposed amendment or
replacement regional plan, subsection (4) allows the regional planning
Minister to decide not to proceed with the amendment or replacement, after
having considered public submissions.
2.5A.20 Minor amendments to regional plan
This section allows the regional planning Minister to make minor
amendments to the regional plan without the need for following the
processes under Division 4 of this Part. ("Minor amendment" is a term
already defined in the IPA).
Division 6 Effect of regional plan
The regional plan establishes the future land use pattern for the region and
identifies key environmental, economic and cultural resources. How the
plan is implemented is of fundamental importance, as are the relationships
between the regional plan, planning schemes and other plans and policies
applying in the SEQ region. This division deals with those relationships
and obligations.
2.5A.21 State interest
This section provides the regional plan is a State interest for the IPA.
2.5A.22 Local governments to amend planning schemes to
reflect regional plan
This section requires local governments to amend their planning schemes
to agree with the regional plan (including subsequent amendments). As the
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Integrated Planning and Other Legislation
Amendment Bill 2004
primary land use management instrument, planning schemes will play a
fundamentally important role in implementing the regional plan.
Accordingly, it is important that planning schemes be brought into line
with the regional plan as soon as possible after the regional plan is made (or
amended).
The Bill assumes local governments will commence the amendment
process quickly. A specific time frame is not identified in the Bill as this
will depend on the nature and complexity of the amendments. However, a
reserve power is provided to the regional planning Minister to intervene to
amend a planning scheme if necessary amendments have not been
submitted to the Minister under section (9) of schedule 1 within 90
business days of the regional plan coming into effect.
Subsection (1) allows for the regional planning Minister to waive the
requirement for a planning scheme to be amended to agree with the
regional plan. As it is expected the regional plan will be completed before
all IPA planning schemes currently under preparation in SEQ are
completed, it would be appropriate to allow affected local governments to
complete their IPA schemes consistent with the regional plan, rather than
require them to amend their transitional schemes.
2.5A.23 Effect of regional plan on other plans, policies or codes
This section establishes the relationships between the regional plan and
other plans or policies applying in the region that affect one or more of the
key elements of the regional plan identified in section 2.5A.11. The scope
of plans or policies affected by this subsection is potentially broad. Any
statutory plan, policy or code affecting at a regional scale land use,
infrastructure or regional resources is potentially affected. There are many
State or local statutory plans and policies affecting these factors in the SEQ
region.
At present, there is little statutory guidance about how potentially
conflicting or competing priorities and proposals under this broad range of
instruments are to be reconciled. The regional plan represents a potentially
important medium for identifying and reconciling these issues. However
while this section seeks to integrate regional planning by requiring entities
to consider and reflect the regional plan in their own plans, the regional
plan only has a direct prevailing effect on the implementation of any
policies or plans when they are implemented under IPA (for example
through IDAS).
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Integrated Planning and Other Legislation
Amendment Bill 2004
Subsection (1) requires an entity preparing such an instrument to take
account of the regional plan, and to report in the instrument how the
instrument reflects the regional plan.
Subsection (2) provides that for this Act the regional plan prevails to the
extent of any inconsistency with such an instrument.
2.5A.24 Effect of draft regulatory provisions
This section establishes the effect of the draft regulatory provisions of the
proposed regional plan. "Draft regulatory provisions" is a defined term
encompassing not only any proposed regulatory provisions of the original
regional plan, but also any proposed amendments to the regulatory
provisions of the regional plan, and any proposed regulatory provisions of a
proposed replacement regional plan.
For all three of the above cases, subsections (1) to (3) respectively provide
the draft regulatory provisions have effect from the day they are publicly
notified, until they are replaced by the final regulatory provisions of the
plan, amendment or replacement. In the case of an amendment or
replacement, the original regulatory provisions again apply if the regional
planning Minister decides not to proceed with the amendment or
replacement.
The key reason for the regulatory provisions to have effect is to ensure that
the provisions can implement a "holding pattern" with respect to key
regional development outcomes pending the finalisation of the regional
plan, amendment or replacement.
Subsection (4) allows the Minister to amend the draft regional provisions at
any time during the consultation period for the regional plan. This
provision is designed to address any errors or unintended consequences of
the draft regulatory provisions. Without such a provision, it would be
either be necessary for the regional planning Minister to withdraw and
recommence consultation about the proposed regional plan, or wait until
the regional plan is finally made.
Subsection 5(a) provides, as indicated above, that in the case of an
amendment or replacement, the original regulatory provisions again apply
if the regional planning Minister decides not to proceed with the
amendment or replacement under section 2.5A.20(4).
Subsection 5(b) confirms the draft regulatory provisions may include
transitional arrangements for development applications that are "live"
when the draft regulatory provisions take effect. Although it can be
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Integrated Planning and Other Legislation
Amendment Bill 2004
implied from this section that the draft regulatory provisions can do
anything the regulatory provisions of the final regional plan can do under
section 2.5A.12, the wording of subsection 2(e) of that section is difficult to
apply in the context of this section, as it refers specifically to the regulatory
provisions (not the draft regulatory provisions).
Amendment of s 3.1.4 (When development permit is necessary)
Clause 9 includes two amendments to section 3.1.4 of the IPA.
The first amendment excludes the regulatory provisions of the regional
plan from the effect of subsection (3)(b). That subsection provides that a
planning instrument cannot regulate exempt development. It is intended
that the regulatory provisions have independent regulatory effect,
notwithstanding whether development is exempt, self-assessable or
assessable.
The second amendment confirms that, even though exempt development
cannot be regulated directly under a planning instrument, nothing stops
such development being affected by a development approval or planning
instrument if the effect is directed at addressing the impacts of another
related aspect of development which is itself assessable or self assessable.
The Bill includes an example of works (e.g. building or operational works)
that are the natural and ordinary consequence of a material change of use.
The change of use may be expected to have impacts such as traffic
generation, noise, light, or drainage impacts from buildings constructed to
accommodate the proposed use.
Such works have often been made assessable in their own right under IPA
planning schemes, leading to additional processes and costs in their
assessment under IDAS. This amendment is designed to confirm that such
development can be managed through approvals processes or codes for the
related assessable development without the need to make it assessable in its
own right. These amendments are linked to the compliance assessment
arrangements contained in IPOLAA 2003 (section 3.5.31A), which
establish clearer assessment paths for such development when included as
a condition of approval for related assessable development.
This amendment is designed to encourage streamlined assessment
procedures, particularly for works associated with assessable material
changes of use, by confirming arrangements that have always been
available to assessment managers and concurrence agencies, and do not
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Amendment Bill 2004
constitute a substantive change to the status of exempt development under
IPA.
Amendment of s 3.2.1 (Applying for development approval)
Clause 10 amends section 3.2.1 of the IPA to establish that a development
application is not properly made under that section if the development the
subject of the application would be contrary to the regulatory provisions or
the draft regulatory provisions. Subsection 10 of that section has also been
amended to establish that, even if an assessment manager accepts such an
application, it is not taken to have been properly made
Amendment of s 3.3.15 (Referral agency assesses application)
Clause 11 amends section 3.3.15 to introduce the SEQ regional plan as a
consideration for concurrence agencies assessing development applications
in the SEQ region. As with State planning policies, development
applications must be assessed against the regional plan unless the regional
plan has been appropriately reflected in the relevant planning scheme. The
procedures for establishing that the regional plan has been appropriately
reflected in a planning scheme is included in schedule 1, section 18.
Proposed section 2.5A.24 (see clause 8 above) provides that, for the IPA, in
the event of an inconsistency between the regional plan and any other law
or policy, the regional plan prevails.
Amendment of s 3.4.2 (When the notification stage applies)
Clause 12 includes a minor amendment to section 3.4.2 to add to the
circumstances in which a development application made in relation to a
preliminary approval under section 3.1.6 of the IPA need not be publicly
notified.
Section 3.1.6 allows a preliminary approval to establish a unique scheme
for the development of a site, by including in the approval provisions which
vary the effect of the planning scheme for that site for the life of the
approval. All initial applications under section 3.1.6 must be publicly
notified under Chapter 3 Part 4 of the IPA, because they effectively propose
to amend the planning scheme. However section 3.4.2 states subsequent
applications for more detailed development of the site need not be publicly
notified if they meet several criteria stated in that section, including that the
level assessment is not changed (or changed only from code assessment to
self assessment), and that any new codes are consistent with earlier codes.
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This amendment adds a further circumstance for which further public
notification is unnecessary, namely that the subsequent development
application actually increases the level of assessment. Applicants may seek
to increase the level of assessment for development under a preliminary
approval in order to encourage a desired development outcome for the site
(such as a particular mix of retail and commercial development for a
proposed shopping complex).
Amendment of s 3.5.4 (Code assessment)
Clause 13 amends section 3.5.4 to introduce the SEQ regional plan as a
consideration for assessment managers undertaking code assessment. As
with State planning policies, development applications must be assessed
against the regional plan unless the regional plan has been appropriately
reflected in the relevant planning scheme. The procedures for establishing
that the regional plan has been appropriately reflected in a planning scheme
are included in schedule 1, section 18. (See clause 30 below). Proposed
section 2.5A.24 (see clause 8 above) provides that, for the IPA, in the event
of an inconsistency between the regional plan and any other law or policy
(including another planning instrument), the regional plan prevails.
Amendment of s 3.5.5 (Impact assessment)
Clause 14 is similar to clause 13, and introduces the SEQ regional plan as a
consideration for impact assessment.
Amendment of s 3.5.5A (Assessment for s 3.1.6 preliminary
approvals that override a local planning instrument)
Clause 15 is similar to clause 14, and introduces the SEQ regional plan as a
consideration for development applications made under section 3.1.6.
Amendment of s 3.5.11 (Decision generally)
Clause 16 amends section 3.5.11 to require that in deciding a development
application, in addition to the other requirements of that section, the
assessment manager's decision must not be contrary to the regulatory
provisions or draft regulatory provisions.
Amendments to section 3.2.1 of IPA (see clause 10 above) are intended to
ensure development applications for development contrary to the
regulatory provisions may not be made. However it would still be possible
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Amendment Bill 2004
for an assessment manager's decision about a properly made development
application to result in development contrary.
Amendment of s 3.5.13 (Decision if application requires code
assessment)
Clause 17 amends section 3.5.13 to require an assessment manager to
consider the regional plan in the event the assessment manger's decision
will conflict with the applicable code or codes.
Amendment of s 3.5.14 (Decision if application requires code
assessment)
Clause 18 amends section 3.5.4 to introduce the regional plan as a
consideration under that section. Section 3.5.14 allows for an assessment
manager's decision about a development application requiring impact
assessment to conflict with the relevant planning scheme so long as the
decision does not compromise the desired environmental outcomes
(DEO's) for the planning scheme area. However subsection (4) makes an
exception in the event that the decision would further the outcomes of any
relevant State planning policy. This clause expands that subsection to
include a reference to the regional plan.
Amendment of s 3.5.14A (Decision if application under s 3.1.6
requires assessment)
Clause 19 amends section 3.5.14A in a similar way to section 3.5.14 (see
clause 18 above).
Amendment of s 3.6.7 (Effect of call in)
Clause 20 amends section 3.6.7 to provide the regional planning Minister
with additional Ministerial call-in powers in relation to the regional plan.
The main purpose of the additional powers is to address speculative
development applications made before the draft regulatory provisions or
the final regional plan take effect.
In addition to direct administrative responsibility for Chapter 2 Part 5A
(Regional planning in the SEQ region), the regional planning Minister is
afforded through the Bill (in particular through changes to the definition of
"Minister" under schedule 10 see clause 32 below) additional powers and
functions to facilitate effective regional planning in the SEQ region. These
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include ministerial call-in powers in relation to matters under Chapter 2
part 5A.
The call-in powers require the Minister to continue the IDAS process for a
"live" application that has been called in from the point at which the call-in
took effect. For an application called-in after a decision has been made, the
Minister must recommence the IDAS process.
Although decisions about Ministerial call-ins are subject to neither appeal
nor review under Chapter 4 of the IPA (including on the basis that a
"deemed refusal" has occurred if IDAS timeframes are not met), the
current provisions of Chapter 3 Part 6 imply a general obligation to meet
IDAS timeframes.
Consequently in the case an application called in by the regional planning
Minister due to concerns about the effect of the development the subject of
the application on the regional plan or draft regulatory provisions before
those documents are finalised, the current arrangements imply a general
obligation to decide such an application in the absence of the final regional
plan or draft regulatory provisions.
The amendments in this clause address these matters by allowing the
regional planning Minister to call in and "hold" an application until a stated
time nominated by the regional planning Minister at the time the
application is called in. Furthermore, the provision allows the regional
planning Minister, after the nominated time has expired, to either decide
the application in the normal way under Chapter 3 Part 6, or alternatively
return the application to the assessment manager for a decision.
In both cases, subsection (8) of this section suspends the effect of section
3.5.3 to require the draft regulatory provisions or regional plan to be a
substantive consideration in assessing the application, despite the fact these
instruments were not in effect when the application was made.
Insertion of new 4.3.5A
Clause 21 introduces a new section establishing an offence for carrying out
development contrary to the regulatory provisions or draft regulatory
provisions. The term "subject to chapter 1 part 4" at the beginning of the
section is intended to confirm that a person does not commit an offence by
continuing an existing use, acting upon a valid development approval, or
carrying out a material change of use implied by a development approval
under sections 1.4.2 to 1.4.5, even if that activity would, but for those
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sections, be contrary to the regulatory provisions or draft regulatory
provisions.
Insertion of new s 5.6.3A
Clause 22 introduces a new section designed to create consistency between
development under Chapter 5 Part 6 for public housing and community
infrastructure under Chapter 2 Part 6 (section 2.6.6), with respect to
payment of infrastructure charges.
Amendment of s 5.7.2 (Documents local government must keep
available for inspection and purchase)
Clause 23 amends section 5.7.2 to require local governments in the SEQ
region to keep a copy of the regional plan publicly available.
Amendment of s 5.7.6 (Documents chief executive must keep
available for inspection and purchase)
Clause 24 amends section 5.7.6 to require the chief executive to keep a
copy of the regional plan publicly available.
Amendment of s 5.7.9 (limited planning and development
certificates)
Clause 25 amends section 5.7.9 to require local governments in the SEQ
region to keep a copy of the regional plan publicly available.
Amendment of s 5.8.1A (Delegation by Minister)
Clause 26 amends section 5.8.1A by inserting a delegation power for the
regional planning Minister.
Amendment of s 5.8.3 (Application of State Development and
Public Works Organisation Act 1971)
Clause 27 inserts a new subsection (2) in section 5.8.3 clarifying the
relationship between the new chapter 2 part 5A and the State Development
and Public Works Organisation Act 1971.
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Amendment of s 6.1.25 (Effect of commencement on certain
applications in progress)
Clause 28 inserts additional transitional arrangements for applications in
progress at the commencement of the IPA, to afford any subsequent
approvals the same implied rights arrangements as exist for development
under section 1.4.5.
Amendment of s 6.1.35C (Future effect of approvals for
applications mentioned in s 3.1.6)
Clause 29 amends section 6.1.35C to remove redundant wording.
Insertion of new ch 6 pt 4
Clause 30 inserts a new section 6.4.1 into the transitional arrangements for
the IPA, to include the SEQ regional plan as a consideration for
development applications being assessed under transitional planning
schemes.
Unlike the equivalent arrangements for IPA planning schemes included in
chapter 3, there is no provision for the regional plan to "fall away" as a
consideration under IDAS if the transitional planning scheme is amended
to reflect the regional plan. This reflects the fact that, under section 6.1.29,
the relevant transitional planning scheme is only one of a number of
considerations under IDAS. Consequently the regional plan has been
introduced into this section as an independent, prevailing consideration.
Amendment of sch 1 (Process for making or amending
planning schemes)
Clause 31 amends Schedule 1 in several respects to reflect the SEQ
regional plan as a consideration in the process for making planning
schemes.
Section 3(2) of Schedule 1 has been amended to require local governments
to consider and report upon the effect of the regional plan in statements of
proposals for making new planning schemes.
Section 10(b) of schedule 1 has been amended to add consistency with the
regional plan as an additional criterion upon which the Minister may allow
a local government to forego further public consultation on a planning
scheme amendment. The regional plan will itself be subject of extensive
consultation, and if any resulting planning scheme amendments reflect the
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regional plan, further public consultation may be unnecessary. However,
this will depend upon the nature of the amendment, and how clearly
potentially affected persons could determine what effect the draft regional
plan had on their interests.
Amendment of sch 10 (Dictionary)
Clause 32 amends schedule 10 to introduce, or modify definitions
consistent with the provisions of the Bill.
Part 3 Amendment of integrated Planning and
Other Legislation Amendment Act 2003
Act amended in pt 4
Clause 33 States this part amends the Integrated Planning and Other
Legislation Amendment Act 2003.
Amendment of s 94 (Insertion of new ch 5, pt 7A)
Clause 34 omits subsection (2) of section 5.7A.1(2). This subsection
(which has not commenced) provides for the chief executive to determine
an EIS is unnecessary for a controlled action under the Commonwealth
Environment Protection and Biodiversity Conservation Act. The effect of
such a determination was intended to be that an EIS would be carried out
under the Commonwealth legislation, instead of under this Part.
Since IPOLAA 2003 was enacted, the bilateral agreement between the
Commonwealth and the State of Queensland concerning the accreditation
of assessment processes for controlled actions has been further developed
and refined. The procedures under the agreement for determining whether
the EIS process under this Part is triggered for a controlled action mean
that it would be more appropriate for the chief executive's discretion to be
exercised in conjunction with providing advice to the Honourable the
Minister for the Environment about whether the EIS process is triggered
under the agreement, rather than potentially as a separate decision as
implied under subsection (2).
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Consequently it is proposed to remove subsection (2), but deal with the
chef executive's discretion about triggering the EIS process in the relevant
regulation establishing the triggers for an EIS under this Part.
Amendment of s 115 (Amendment of s 43B (Relationship of
coastal plans with Integrated Planning Act 1997))
Clause 35 corrects a section reference in IPOLAA 2003.
Part 4 Amendment of Local Government Act
1993
Act amended in pt 5
Clause 36 states this part amends the Local Government Act 1993.
Amendment of s 854 (Local laws and subordinate local laws
about development)
Clause 37. This section amends section 854 of the Local Government Act
1993 in two respects.
Subsection (1) amends the introductory wording to section 854(3) for
greater consistency with section 854(1). Section 854(1) applies for any
new local law that contains a process similar to, or which duplicates the
IDAS process under the IPA. Section 854(3) is intended to apply for
existing local laws containing such processes, but the current introductory
wording suggests it is intended to apply more broadly. The amended
wording brings the two subsections more closely into line.
Subsection (2) compliments an amendment made to section 854 under
IPOLAA 2003. That amendment provided for local laws about a limited
number of specified matters to continue to be made until a local
government commenced making its second IPA planning scheme (despite
section 854(1)). However that amendment did not make similar
arrangements for the amendment or repeal of existing local laws dealing
with the specified matters under section 854(3). This amendment is
intended to address that oversight.
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Part 5 Amendment of Queensland Heritage Act
1992
Act amended in pt 6
Clause 38 states this Part amends the Queensland Heritage Act 1992.
Amendment of s 35 (application for exemption certificate)
Clause 39(1) clarifies that exemption certificates are available to the State.
Clause 39(2) consolidates in one section of the Queensland Heritage Act
1992 (QHA) work that may be considered as exempt development. Such
work, if given an exemption certificate under the QHA, does not require a
development application to be made under the Integrated Development
Assessment System. This amendment removes the term "excluded work"
and clarifies the definitions of the categories of work that may be
considered as exempt development. The term "excluded work" reflects the
logic of the previous Heritage Act and Heritage Regulation in dealing with
development. With the roll-in of the QHA into the Integrated Development
Assessment System (IDAS) under the Integrated Planning Act 1997 (IPA),
development is now defined under the IPA. Use of the term "excluded
work" is redundant and confusing, as excluded work is both a category and
within the categories of work for which an exemption certificate may be
issued. Stating these categories of work separately rather than grouping
them under a further category known as excluded work clarifies categories
of work that may be considered for an exemption certificate.
Amendment of pt 7 (Discovery and protection of objects and
areas)
Clause 40 amends the title of Part 7 of the QHA to clarify that Part 7
provides for the protection of historical archaeological objects and
historical archaeological areas of cultural heritage significance from the
period since European settlement.
Amendment of s 44 (Study must be reported)
Clause 41 provides that studies of historical archaeology must be reported.
This amendment clarifies that this provision does not extend to cover
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studies of places of cultural heritage significance that are not places of
historical archaeology.
Amendment of s 51 (Applying for permit to enter protected
area)
Clause 42 amends Section 51(2)(c) to provide that an application for entry
to a protected area contains the written permission of the owner for the
applicant to enter the area. Activities proposed to be undertaken in a
protected area and/or an area of historical archaeology require negotiation
with the owner so that appropriate arrangements are made for access and
study. Proof of owner permission to enter and undertake activities is
required on the application form for a permit to enter a protected area to
ensure that the rights of owners are protected.
Amendment of s 55 (Functions of authorised persons)
Clause 43 amends section 55. As various pieces of legislation are
incorporated into the IDAS it is necessary to provide for authorised persons
under those Acts to be empowered to conduct investigations and
inspections to monitor and enforce compliance with the IPA. Section
55(1)(b) empowers an authorised person under s.55 of the QHA to
undertake these activities and achieves consistency and fairness in
enforcement across the various pieces of legislation incorporated into the
IDAS.
Amendment of s 57H (Issue of warrant)
Clause 44 amends Section 57H(1)(a) to link monitoring and compliance
activities conducted under the QHA for registered places with development
offences under the IPA. This provides for the issuing of warrants under the
QHA for development offences in registered places and achieves
consistency and fairness in enforcement across the various pieces of
legislation incorporated into the IDAS.
Insertion of new s 67B
Clause 45 inserts a new section 67B dealing with Ministerial delegation.
Under the proper operation of the Heritage Act, it is intended that the
Minister may delegate powers to specified persons and local governments.
This power was part of the Heritage Act prior to the commencement of
amendments occasioned by the Queensland Heritage and Other
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Legislation Amendment Act 2003 (QHOLAA) and Section 67B continues
to reflect this.
Insertion of new pt 10
Clause 46 inserts a new Part 10 to clarify the status of development
applications made to and approvals and conditions issued by the Heritage
Council before the commencement of the QHOLAA on 28 November
2003. Part 10 provides that development applications, development
approvals, reviews and appeals relating to applications lodged, approved or
under review at the 28 November 2003 continue under the arrangements
existing in the previous Heritage Act.
Amendment of sch (Dictionary)
Clause 47 amends the dictionary. With the removal of the redundant term
"excluded work" the term "emergency work" is transferred into the IPA as
the term is only used in that Act. The definitions for the terms minor repair
work, minor work and maintenance work have been amended to maintain
consistency across the definitions.
Part 6 Amendment of Primary Industries and
other Legislation Amendment Act 2003
Act amended in part 7
Clause 48 States this part amends the .Primary Industries and other
Legislation Amendment Act 2003.
Amendment of section 80 (Amendment of schedule 8)
Clause 49 renumbers an item in schedule 8 of the IPA for consistency with
other amendments made to that schedule.
Amendment of section 81 (Amendment of schedule 8A
(Assessment manager for development applications))
Clause 50 renumbers items in schedule 8A of the IPA for consistency with
other amendments made to that schedule.
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Schedule Minor Amendments
Integrated Planning Act
Section 2.6.8(1)(b)
Clause 1removes a redundant section reference resulting from the
commencement of IPOLAA 2003.
Section 2.6.18
Clause 2is a minor amendment of section 2.6.18 requiring notice of the
repeal of a designation to be given to the chief executive. This is necessary
to ensure the chief executive can accurately discharge the chief executive's
functions under Chapter 7 Part 7 to keep available for inspection and
purchase copies of planning schemes (including up to date notations for
designations). In the case of an amendment or replacement, the original
regulatory provisions again apply if the regional planning Minister decides
not to proceed with the amendment or replacement.
Section 3.2.1(6),'(3)(b)'
Clause 3corrects an incorrect section reference.
Section 3.5.3A(1), `a development'
Clause 4 removes redundant wording.
Section 3.5.28(1), `owners'
Clause 5 corrects punctuation.
Sections 4.1.5(2) and (4), 4.1.48(1) and (3)(c), "District Courts
Act 1967' -
Clause 6 corrects a reference to other legislation.
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Section 5.2.1, definition infrastructure agreement
Clause 7 adds an additional type of agreement to the list of infrastructure
agreements inserted under IPOLAA 2003.
Section 6.1.20(4), `2005'
Clause 8 extends the application of section 6.1.20 for a further year,
consistent with the commencement of IPOLAA 2003.
Section 6.1.26(4), after `repealed Act'
Clause 9 corrects a section reference.
Section 6.1.31(3)(b)(i), `2005'
Clause 10 extends for one year the period within which local governments
may assess and decide development applications using the infrastructure
arrangements under the repealed Act, consistent with the commencement
of IPOLAA 2003.
Chapter 6, part 1, division 11
Clause 11 removes a transitional provision which has had its effect, and is
consequently redundant.
Schedule 1, section 9, heading `resolution proposing'
Clause 12 removes redundant wording from the title of this section.
Schedule 1, section 9(3), `makes a resolution'
Clause 13 removes wording made redundant by amendments under
IPOLAA 2003.
Schedule 1, section 19, heading `resolution about adopting'
Clause 14 removes redundant wording from the title of this section.
Schedule 1, section 19, `makes a resolution'
Clause 15 removes wording made redundant by amendments under
IPOLAA 2003.
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Schedule 2, section 1, heading, `Resolution'
Clause 16 removes redundant wording from the title of this section.
Schedule 2, section 3, heading, `Resolution about adopting'
Clause 17 removes redundant wording from the title of this section.
Schedule 2, section 3(1), `makes a resolution under section 1
and'
Clause 18 removes wording made redundant by amendments under
IPOLAA 2003.
Schedule 2, section 3(2), `a copy of the resolution and'
Clause 19 removes wording made redundant by amendments under
IPOLAA 2003.
Schedule 4, section 7, heading, `Resolution about adopting'
Clause 20 removes redundant wording from the title of this section.
Schedule 8, heading
Clause 21 amends the heading of Schedule 8 for greater clarity.
Schedule 8, part 1, table 3,item 1
Clause 22 includes a reference to the reconfiguration of land for railway
purposes under the Transport Infrastructure Act to confirm that this form of
reconfiguration is exempt development.
Schedule 8, part 1, table 5, item 2(b), `or excluded under that
Act'
Clause 23 corrects an incorrect reference.
Schedule 8A, table 3, items 1 to 7, `table 1 or 2 does'
Clause 24 corrects grammar.
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Schedule 8A, table 4, item 1, `table 1, 2 or 3 does'
Clause 25 corrects grammar.
Schedule 9, table 3, item 2
Clause 26 includes a reference to the reconfiguration of land for railway
purposes under the Transport Infrastructure Act to confirm that this form of
reconfiguration is exempt development.
Schedule 9, table 4, item 6 `70'
Clause 27 corrects an incorrect section reference.
Schedule 9, table 4, item 9(c), `authority'
Clause 28 corrects an incorrect reference.
Schedule 10, definition "artificial waterway", `5B'
Clause 29 corrects an incorrect section reference.
Schedule 10, definition "coastal management district", `47(2)
Clause 30 corrects an incorrect section reference.
Schedule 10, definition "core matter"
Clause 31 inserts a new definition, consistent with amendments made
under IPOLAA 2003
Schedule 10, definition "development application (superseded
planning scheme)", paragraph (a)(iii), `adopted'
Clause 32 corrects a grammatical error.
Schedule 10, definition "State coastal land", `12A'
Clause 33 corrects an incorrect section reference.
© State of Queensland 2004