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1
Integrated Planning and Other Legislation Amendment
Bill 2006
Integrated Planning and Other Legislation
Amendment Bill 2006
Explanatory Notes
Introduction
This Bill includes a series of technical amendments to the Integrated
Planning Act 1997 in the areas of currency periods, referral coordination
and referral assistance, infrastructure charges and accountability for
assessment managers. The Bill also includes amendments to other
provisions of the Integrated Planning Act 1997 (IPA) designed to clarify or
improve its operation and resolve irregularities, and a series of minor
clarifying amendments to other legislation.
In order to be able to properly read and interpret the Bill it is necessary to
read the Bill together with the current reprint version of the Integrated
Planning Act 1997.
General Outline
The Bill consists of:
· Amendments to the Integrated Planning Act 1997 to reflect changes
to currency period arrangements, referral coordination, infrastructure
charges and accountability of assessment manager decision making;
· Other technical and clarifying amendments to the Integrated Planning
Act 1997;
· Amendments to the Coastal Protection and Management Act 1995 to
include a definition for "tidal works";
· Amendments to the Currumbin Bird Sanctuary Act 1976;
· Amendments to the Environmental Protection Act 1994;
· Amendments to the Nature Conservation Act 1992;
· Amendments to the Townsville City Council (Douglas Land
Development Act) 1993;
· Amendments to the Building Act 1975;
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Integrated Planning and Other Legislation Amendment
Bill 2006
· Amendments to the Wet Tropics World Heritage Protection and
Management Act 1993; and
· Amendments to the Plumbing and Drainage Act 2002.
Policy Objectives of the Legislation
The objectives of the legislation are to:
· Reform current arrangements for the lapsing of development
approvals;
· Discontinue the referral coordination and referral assistance
processes;
· Require assessment managers to give reasons for departures from
their planning schemes in order to improve accountability for
decisions;
· Require assessment managers with websites meeting technical
standards stated in a guideline approved by the chief executive to post
electronic copies of decision notices searchable by parameters stated
in the guidelines In this way assessment managers' (particularly local
government) decisions will be more accessible to the community;
· Define the term `planning grounds' for decision rules for impact
assessable development applications and making a decision in conflict
with a planning scheme;
· Carry out a series of amendments to the infrastructure arrangements
under the IPA to make them more flexible and responsive to local
governments' needs;
· Clarify a number of IPA provisions and address certain operational
matters; and
· Make several minor mechanical amendments to other environmental
and building legislation.
Reasons for the Bill
The Bill has been drafted to address issues with the application of currency
periods for development approvals, and to streamline the Integrated
Development Assessment System (IDAS).
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Integrated Planning and Other Legislation Amendment
Bill 2006
Achieving the Objectives
The objectives of the Bill are achieved primarily by:
· Clarifying linkages between currency periods for different types of
approvals;
· Removing referral coordination and referral assistance from the
Integrated Development Assessment System;
· Inserting provisions requiring assessment managers to include reasons
for decisions, and publish decision notices on their websites;
· Extending the period within which local governments can use
transitional infrastructure charging arrangements, and making other
technical and clarifying changes to infrastructure planning and
charging arrangements; and
· Improving and clarifying IPA through removing any irregularities and
resolving operational issues.
Administrative Costs
While some reforms may require administrative rearrangements, net
administrative savings are expected.
Long term cost benefits are foreseen, particularly as a result of the removal
of referral coordination.
Fundamental Legislative Principles
The legislation is consistent with fundamental legislative principles and
seeks to clarify and improve the rights and liberties of individuals.
The amendments to the Townsville City Council (Douglas Land
Development Act) 1993 include the retrospective validation of past
amendments to the Townsville planning scheme. This validating provision
will have a beneficial effect for individuals affected by these amendments,
by clarifying their existing land use rights under the planning scheme.
Clause 39, which replaces the existing arrangements about the currency of
development approvals, includes a provision (section 3.5.21(5)) which
applies the new arrangements to approvals already given. This provision
will not disadvantage any individual, and will have a beneficial effect for
some individuals with development approvals affected by the provision, as
it will lengthen the currency period for the approvals.
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Integrated Planning and Other Legislation Amendment
Bill 2006
Consultation
Consultation about the Bill has been carried out with key stakeholders
including the Local Government Association of Queensland (LGAQ),
Urban Development Institute of Australia (UDIA), Queensland
Environmental Law Association, Queensland Law Society, and State
agencies likely to be affected by the Bill.
Notes on Provisions
Part 1 Preliminary
Short title
Clause 1 states the short tile of the Bill.
Commencement
Clause 2 states the commencement arrangements for the Bill.
Part 2 Amendment of Integrated
Planning Act 1997
Act amended in pt 2
Clause 3 states this part amends the Integrated Planning Act 1997.
Amendment of s 2.1.2 (Area to which planning schemes apply)
Clause 4 amends subsection (2) to omit the phrase "under this Act".
This subsection allows a planning scheme to vary a code for prescribed
tidal works, even though the works may be outside the planning scheme
area. When this subsection was included in the IPA, it was proposed to
include the prescribed tidal works code under the Integrated Planning
Regulation 1998 (IP regulation), hence the reference in this subsection to a
code for prescribed tidal work "under this Act". The code has in fact now
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Integrated Planning and Other Legislation Amendment
Bill 2006
been included under the Coastal Protection and Management Regulation
2003. The amendment reflects this.
Replacement of s 2.1.8 (Consolidating planning schemes)
Clause 5 replaces section 2.1.8. The new section includes clarifications to
the process for making a consolidated planning scheme, and includes a
requirement to give the chief executive a copy of the consolidated scheme.
Schedule 1 includes the requirement for giving copies of approved schemes
and amendments to the Chief Executive, however preparing and adopting
consolidated planning schemes is not carried out under schedule 1.
Consequently the requirement to give copies of planning schemes and
amendments to the chief executive does not currently apply to actions
under these two sections.
Amendment of s 2.1.8A (Amending planning scheme to state
compliance with State planning policy)
Clause 6 amends section 2.1.8A to include a requirement to give the chief
executive a copy of a planning scheme amended to reflect compliance with
a State planning policy. As for section 2.1.8, there is currently no
requirement to give the chief executive a copy of the amended scheme, as
schedule 1 does not apply to the amendment.
Amendment of s 2.1.10 (Extent of effect of temporary local
planning instrument)
Clause 7 amends s 2.1.10 to clarify the intent of the existing provision
concerning how a Temporary Local Planning Instrument (TLPI) affects a
planning scheme. The current term "cannot amend a planning scheme"
may suggest a TLPI is in fact capable of amending a planning scheme, and
that the Act infers some sanction for doing so. The amendment is intended
to confirm that, regardless of what relationship a TLPI purports to establish
with a planning scheme, it does not amend the scheme.
The amendment also clarifies the role of a TLPI with respect to the
superseded planning scheme and compensation arrangements under
Chapter 4 Part 5, by confirming that implementing a TLPI is not a
"change" to the relevant planning scheme for that part.
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Integrated Planning and Other Legislation Amendment
Bill 2006
Amendment of s 2.1.18 (Adopting planning scheme policies in
planning schemes)
Clause 8 amends s 2.1.18 by inserting subsection (3), clarifying that
documents under development approvals, such as plans, are not considered
to be "documents" under this section. IPA planning schemes may
sometimes "call up" documents forming part of older development
approvals or rezoning approvals, to ensure the rights or obligations under
those approvals continue with respect to particular premises. It was not
intended that documents of this nature be first made as planning scheme
policies in order have effect.
Amendment of s 2.1.22 (Repealing planning scheme
policies)
Clause 9 amends subsections (5) and (6) of s 2.1.22 to allow the repeal of a
planning scheme policy to take effect on a later day, if a planning scheme
repealing the policy also starts on the later day. This section currently
states planning scheme policies are repealed on the day the adoption of the
relevant planning scheme is notified in the gazette. However, s 2.1.7 allows
a planning scheme to come into effect on a later day stated in the gazette
notice about the adoption of the scheme. This could potentially leave a gap
in the effect of the relevant policies.
Amendment of s 2.2.1 (Local Government must review planning
scheme every 8 years)
Clause 10 amends s 2.2.1 to remove an incorrect reference.
Replacement of s 2.3.2 (Power of Minister to direct local
government to take action about local planning instrument)
Clause 11 replaces s2.3.2, concerning the power for the Minister to direct a
local government to take an action about a local planning instrument. The
reason for the replacement is to allow for a direction to be made about a
proposed local planning instrument, not merely a local planning instrument
already in effect.
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Integrated Planning and Other Legislation Amendment
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Amendment of s 2.5A.12 (The SEQ regional plan may include
regulatory provisions)
Clause 12 amends subsection (2) of s 2.5A.12 to include a reference to
criteria for the assessment of development, as the current arrangements
provide only for the inclusion of a code in the regulatory provisions.
Replacement of s 2.5A.20 (Minor amendments of SEQ regional
plan)
Clause 13 replaces section 2.5A.20 to allow for the regional planning
Minister to approve amendments to the SEQ regional plan, being minor
amendments, or amendments to include local growth management
strategies or structure plans. Section 2.5A.20 currently includes a shortened
amendment process, only for minor amendments to the SEQ regional plan.
Local Growth Management Strategies and Structure Plans are intended as
an interim arrangement to convey the effect of some of the key elements of
the regional plan at a local scale, including for example the location of key
transit oriented development locations, activity centres, priority
infrastructure areas and major infrastructure, pending the amendment of
planning schemes to reflect these matters.
Local Growth Management Strategies and Structure Plans are intended to
be prepared by local governments under guidelines produced by the Office
of Urban Management. These guidelines provide for public consultation
about proposed Local Growth Management Strategies and Structure Plans.
It is also proposed that Local Growth Management Strategies and Structure
Plans will be adopted as amendments to the SEQ regional plan. In this way
they will, in common with other aspects of the regional plan (other than the
regulatory provisions), "fall away" as considerations in development
assessment once the relevant planning scheme is amended to reflect them.
As they will have been subject to public consultation as part of their
preparation, this amendment allows for a shortened process for including
them under the SEQ regional plan, in order to avoid duplication. The
definitions of Local Growth Management Strategy and Structure Plan both
require the regional planning Minister to be satisfied about the public
consultation carried out for these documents. Consequently, adequate
public consultation is integral to the documents' definitional character.
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Integrated Planning and Other Legislation Amendment
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Insertion of s 2.6.5A (Relationship of designation to State
Development and Public Works Organisation Act 1971)
Clause 14 inserts new section 2.6.5A. Subsection (1) clarifies that the
section applies if a designation is made for land included within a State
development area declared under the State Development and Public Works
Organisation Act 1971. Subsection (2) states that despite section 84 of the
State Development and Public Works Organisation Act 1971, use of the
designated land for purposes consistent with the designation is taken to be
a use consistent with the intent of the development scheme for the State
development area, and is not a use that contravenes section 84 of the Act
(particularly in terms of subsections (2) and (4)).
This amendment means development for the designated purpose does not
require approval under the development scheme for the State development
area.
Amendment of s 2.6.7 (Matters the Minister must consider
before designating land)
Clause 15 amends subsection (1) of section 2.6.7 to introduce subsection
(d) to require a Minister proposing a designation to which section 2.6.5A
applies (i.e. a designation in relation to land included with a declared State
development area under the State Development and Public Works
Organisation Act 1971), to be satisfied the designation has taken adequate
account of the approved development scheme for the State development
area.
Although not a statutory requirement under this clause, it is anticipated in
order to fulfil this requirement, that the designating Minister will consult
with and obtain the agreement of the Minister responsible for the State
Development and Public Works Organisation Act 1971 to any proposed
designation within a State development area. This consultation is to ensure
the proposed designation was not for purposes contrary to the approved
development scheme or that would prevent other development in
accordance with the approved development scheme from being carried out.
Clause 15 also amends subsection (2) of s 2.6.7, which previously provided
for the designator to consider planning schemes and State planning
policies. The amendment adds consideration of the SEQ regional plan in
appropriate circumstances prior to designation.
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Integrated Planning and Other Legislation Amendment
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Clause 15 also amends subsection (3)(e) of s 2.6.7 to clarify that this
section applies for an EIS even if the EIS includes an assessment of
development other than the community infrastructure.
Amendment of s 2.6.15 (When designations do not cease)
Clause 16 amends s 2.6.15 to clarify the application of this section to
public sector entities such a Government Owned Corporations (GOC's). It
is intended GOC's should be treated in the same way as a State Department
with respect to when designations cease. Consequently, a reference to
"State" has been replaced with "public sector entity".
Amendment of s 3.2.1 (Applying for development approval)
Clause 17 amends s 3.2.1 to make clear the scope of this provision,
simplifying it while clarifying its meaning. Subsection (5) requires that an
applicant effectively obtain the consent of a particular State agency
responsible for managing a State resource before making a development
application involving the resource. However, the phrase "taking or
interfering" under subsection (11) is unclear with respect to State land.
Subsection (11) also unintentionally narrows the scope of the provision
because it specifically refers to State land and does not cover freehold land
held or administered by the State. Consequently subsection (11) has been
removed and the application of subsection (5) has been generalised by
removing the words "taking or interfering with" for clarification. It is not
intended however that the scope or intent of the arrangements change.
Clause 17 also amends subsection (5) of s 3.2.1 to allow for the document
including evidence given under that subsection to also state a day by which
the evidence must be submitted with a development application. Resource
manager's consent is currently not time limited and as a result, evidence
could be submitted long after it ceases to be accurate or relevant. It is
intended that, if the evidence is not submitted with a development
application by the stated day, new evidence under this subsection would
need to be obtained.
Amendment of s 3.2.3 (Acknowledgement notices generally)
Clause 18 omits subsection (2)(a)(vi) of s 3.2.3, which contains a
redundant reference to clearing vegetation on freehold land under the
Vegetation Management Act.
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Integrated Planning and Other Legislation Amendment
Bill 2006
Subsection (2)(f) of the same section has also been omitted to remove
reference to referral coordination.
Amendment of s 3.2.4 (Acknowledgment notices for
development inconsistent with priority infrastructure plans)
Clause 19 includes paragraph (iv) under subsection (1)(b) to ensure
consistency with the amended definition for the types of urban growth to be
included in the priority infrastructure area.
Subsection (2)(a) is amended to require the acknowledgment notice to
identify the nature of an inconsistency (e.g. whether the development is
outside the Priority Infrastructure Area (PIA) or inconsistent with the
assumptions about type, scale, location and timing of future growth), so
that referral agencies can determine the scope of their conditioning powers
with respect to any additional infrastructure cost conditions. This
amendment is also intended to better inform the applicant of the nature of
the inconsistency enabling them to determine the range of additional costs
that can potentially be imposed.
Amendment of s 3.2.6 (Acknowledgement notices if there are
referral agencies or referral coordination is required)
Clause 20 omits subsection (2) of s 3.2.6 in order to remove reference to
referral coordination and changes the title in response to the omission of
referral coordination from the section.
Amendment of s 3.2.11 (Withdrawing an application)
Clause 21 omits subsection 1(c) of s 3.2.11 as a result of the omission of
referral coordination.
Amendment of s 3.2.12 (Applications lapse in certain
circumstances)
Clause 22 amends s 3.2.12 to provide that, where an applicant seeks to
extend an information request period before the application lapses, but the
entity making the information request does not respond until after 5 days
prior to the period ending, the application does not lapse until 10 days after
the entity responds declining the request.
The intent of this clause is to allow reasonable time for an applicant to
respond to an information request in a situation where the entity making
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Bill 2006
the information request has refused an extension to the response period
after the period has expired. If the entity has not responded in that period,
this clause applies even after the period for responding has ended.
Amendment of s 3.3.2 (Referral agency responds before
application is made)
Clause 23 omits subsection (2)(a) of s 3.3.2 as subsection (1) sufficiently
conveys that there is no obligation for the referral agency to give an early
referral agency response. Subsection (2)(b) is omitted as a result of the
omission of referral coordination.
Amendment of s 3.3.3 (Applicant gives material to referral
agency)
Clause 24 amends subsection (3)(c) of s 3.3.3 in order to omit reference to
subsection 3.3.2(2) that refers to referral coordination. This is a result of
the omission of referral coordination from the Act.
Amendment of s 3.3.4 (Applicant advises assessment
manager)
Clause 25 omits subsection (1)(b) because of its reference to referral
coordination, which has been omitted from the Act. The remaining clauses
are consequently amalgamated to form s 3.3.4(1) and any reference to
subsection (1)(a) is removed.
Omission of s 3.3.5 (Referral coordination)
Clause 26 omits section 3.3.5, relating to referral coordination.
Referral coordination was previously triggered for applications with more
than 3 concurrence agencies, for a list of development prescribed in the
Integrated Planning Regulation 1998, and more recently for applications
for preliminary approval under section 3.1.6. With the integration of more
approvals into IDAS, referral coordination has been triggered more often,
and there is evidence its application was indiscriminate, with smaller local
governments often bearing a disproportionate administrative burden.
While the list of triggers in the regulation has been reduced as more
approvals are integrated into IDAS, this has been more than offset by the
growth in other triggers. Consequently the administrative burden of referral
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Integrated Planning and Other Legislation Amendment
Bill 2006
coordination is not adequately offset by the value added to information
requests through this process.
Replacement of s 3.3.6 and s 3.3.7 (Information requests to
applicant (generally))
Clause 27 replaces section 3.3.6 and section 3.3.7 with a new section 3.3.6,
modified to account for the removal of referral coordination. Section 3.3.7
has been removed in its entirety because it relates solely to referral
coordination. In replacing s 3.3.6 the various subsections have been
renumbered partly to reflect the removal of a subsection that relates to
referral coordination and partly to reflect the previous inclusion of
subsection (4A), which will now become subsection (4).
Amendment of s 3.3.8 (Applicant responds on any information
request)
Clause 28 omits subsection (3) of s 3.3.8 as it deals with referral
coordination.
Omission of ch 3, pt 3, div 3 (Referral assistance)
Clause 29 omits division 3 to remove references to referral assistance and
referral coordination.
Amendment of s 3.3.14 (Referral agency assessment period)
Clause 30 amends this provision to remove references to referral
coordination.
Amendment of s 3.3.18 (Concurrence agency's response
powers)
Clause 31 amends s 3.3.18(1)(d) to insert a provision allowing a
concurrence agency to direct a different period for an aspect of approval to
lapse under section 3.5.21.
Amendment of s 3.4.2 (When the notification stage applies)
Clause 32 amends subsection (3)(b) of s 3.4.2 as the current wording
suggests that in order for this section to apply, the application can be for
only one of the options identified, when in fact it is intended that the
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Integrated Planning and Other Legislation Amendment
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section can apply for a combination of the options. The new provision
allows for public notification not to apply if an application for preliminary
approval under section 3.1.6 does not seek to change assessment levels of
development, or if it does seek to change assessment levels, it seeks to
change development requiring code assessment to self assessable
development, and/or it seeks to increase the level of assessment.
Applicants may sometimes seek to increase the level of assessment to
increase certainty of achieving particular development outcomes for a site.
For example, a section 3.1.6 approval may increase the level of assessment
for certain commercial uses in a shopping centre to encourage a particular
mix of development.
Amendment of 3.4.5 (Notification period for applications)
Clause 33 has been amended to omit reference to referral coordination.
Amendment of s 3.5.4 (Code assessment)
Clause 34 amends subsection (4) of section 3.5.4 by the inclusion of clause
(d), which allows local governments to apply current infrastructure
contributions in accordance with any planning scheme provisions, local
planning policies or planning scheme policies. The ability to lodge a
development application (superseded planning scheme) is intended to
enable landowners to exercise development entitlements provided for in
previous planning schemes. The provision is intended to prevent applicants
lodging a development application (superseded planning scheme) simply to
avoid paying current infrastructure contributions. This amendment to
subsection (4) extends arrangements that already exist in relation to
infrastructure charges under clause (c) to the current transitional
infrastructure charging arrangements.
Amendment of s 3.5.5 (Impact assessment)
Clause 35 amends section 3.5.5 with a similar intent and effect to the
amendment to section 3.5.4 described above.
Amendment of s 3.5.13 (Decision if application requires code
assessment)
Clause 36 amends s 3.5.13. Changes to this and the following section are
partly to achieve consistency and partly to link to a new definition of
"grounds" under schedule 10.
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The amendment seeks to capture the sense of the term "sufficient" as
opposed to the previously used term "enough". It is meant to imply not
only a given quantum of grounds (as at present), but also a qualitative value
in relation to conflict with a code
The amendment has inserted the phrase "despite the conflict" into both
section 3.5.13 and section 3.5.14 to more clearly relate the consideration of
grounds to the fact that there is a conflict. It is not an open-ended
consideration of grounds for departure as implied by the current wording,
but an evaluation that must be made in the context of the existence of a
conflict with the relevant code.
This section establishes one basis upon which an assessment manager's
decision might depart from its laws and policies. Another basis is if the
assessment manager is directed by a concurrence agency to make a
particular decision. This applies equally to s 3.5.14.
This amendment does not affect the current requirement that the
assessment manager's decision to depart from the code must be taken
having regard to the code's purpose, relevant State planning policies and
the SEQ regional plan.
Amendment of s 3.5.14 (Decision if application requires impact
assessment)
Clause 37 amends subsection (2)(b) of section 3.5.14 to remove the term
"planning" from the phrase "planning grounds". The term "planning" in
section 3.5.14 originally reflected an expectation that impact assessment
would involve consideration of "planning" issues, whereas code
assessment under section 3.5.13 could involve an assessment that may
involve technical codes such as those containing building or engineering
standards. This distinction has proved somewhat arbitrary in practice.
In addition, a definition of "grounds" for sections 3.5.13 and 3.5.14 has
been included in schedule 10 in this Bill, which provides an indication of
the nature of relevant grounds applicable to both sections.
Amendment of s 3.5.15 (Decision notice)
Clause 38 amends subsection (2) by inserting a requirement (paragraph (k))
for an assessment manager to give reasons for any departure from the laws
and policies the assessment manager was required to consider when
assessing a development application. At present, only reasons for refusal
are required. Paragraph (e) has also been modified accordingly. The
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provision is intended to give applicants and the community generally an
indication of the way in which the assessment manager reached its
decision.
At present, a decision notice is only required to give reasons for a refusal of
a development application. However, it is often more important for
applicants, submitters and the general public to be aware of reasons for a
decision generally (whether it is approved or refused), in particular where
that decision departs from the assessment manager's policy framework.
A subsection (2A) has also been inserted to confirm that a requirement to
give reasons for a decision about a development approval does not require
reasons to be given for each condition of the approval. Concern has
previously been expressed that section 27B of the Acts Interpretation Act
1954 (AIA), relating to standards applying to the giving of reasons, would
impose onerous requirements on assessment managers if applied for each
condition of a development approval. It is not intended that each condition
be supported by detailed findings and evidence as required under the AIA.
Replacement of ss 3.5.21 ~ 3.5.23
Clause 39 replaces sections 3.5.21 to 3.5.23, dealing with currency periods
for development approvals. The replaced provisions reflect the following
reforms to the currency period arrangements:
· The current default periods for the currency of approvals (four (4)
years for material changes of use and reconfiguration, and two (2)
years for other approvals) are retained;
· Modifications contained in subsections (1) and (2) clarify the currency
of approvals implemented in stages. Subsection (1) states a
development approval (i.e. either a preliminary approval or
development permit) for a material change of use lapses if the first use
does not start within the relevant period stated in that subsection.
Similarly, subsection (2) states a development approval for
reconfiguring a lot lapses if a plan under section 3.7.2(2) for the
reconfiguration is not submitted within the relevant period stated in
that subsection. There has in the past been uncertainty about the
currency of approvals implemented in stages, in particular preliminary
approvals. The wording (underlined above) is intended to clarify that
an approval is preserved if the first use or the first plan under a staged
approval starts/is submitted. Although the start of the first use or
lodging of the first plan preserves the approval under these
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Integrated Planning and Other Legislation Amendment
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· subsections, the lapsing of staged approvals in these circumstances
may also be influenced by any conditions about completion times,
provided for under section 3.5.21A.
· The term "currency period" has been removed from the Act, as it
appears to have contributed to confusion about the actual scope and
effect of section 3.5.21;
· The arrangements for conditioning approvals to achieve completion,
and consequent lapsing if development is not completed, currently
contained in section 5.3.31 have been moved to follow directly on
from section 3.5.21 (section 3.5.21A). This groups together all of the
arrangements in the Act for the lapsing of approvals, and together with
removal of the term "currency period" is intended to provide a clearer
and more complete picture of the range of tools available to
assessment managers to manage the currency and lapsing of
approvals;
· The beginning of the relevant periods for approvals for material
changes of use and reconfiguration will "roll forward" in some
circumstances to align with the beginning of those for "related
approvals". A "related approval' is defined for both material change of
use and reconfiguration approvals at the end of the section, and
contains the following key elements:
-- It is an approval for an application made to a local government or
private certifier. Approvals given by other assessment managers
are not related approvals. Although other assessment managers
are required to give relevant local governments copies of
development approvals, an effective requirement for local
governments to track the course of such approvals for a given
project may create administrative difficulties, if the local
government does not for example link such approvals to
particular premises or approvals given by the local government
itself;
-- The application for the approval must be made within 2 years of
a previous related approval taking effect. This is intended to
ensure the "rolling forward" arrangements apply only for
projects which continue to progress towards completion.
Approvals for which there is no related approval will effectively
"default" to the arrangements in subsections (1) and (2), which
are essentially the same as the previous arrangements. Similarly,
if the "chain" of related approvals is broken (i.e. a further
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Integrated Planning and Other Legislation Amendment
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application is not made within 2 years of the last related approval
taking effect) the lapsing of the earlier approval will stay linked
to the last related approval, and any necessary extensions will
need to be sought under section 3.5.22;
-- The definitions of "related approval" each consist of two parts.
The first part relates to the first related approval for a given
approval, while the second part relates to successive related
approvals. This structure reflects the relationship between
preliminary approvals for material changes of use and
reconfiguration, and the first development permits for this
development. A preliminary approval for a material change of
use or reconfiguration will "roll forward" to align with the first
permit for the development. Both the preliminary approval and
its related development will then "roll forward" together to align
with successive related works permits. A development permit for
a material change of use or reconfiguration will "roll forward" to
align with the first related works approval and subsequently with
any further works approvals. Paragraph (a)(ii) also makes
particular provision for preliminary approvals given under
section 3.1.6(3)(a)(ii) or (iii). These are preliminary approvals
with provisions over-riding the effect of a planning scheme by
making otherwise assessable material changes of use self
assessable or exempt. As there will be no further development
permit for these material changes of use, the preliminary
approval will "roll forward" directly to align with the first related
works permit.
· Assessment managers will still be able to both vary the currency
period as part of the approval, and to condition for the completion of
projects within a reasonable time. Where the assessment manager
varies the currency period as part of the approval it is the varied period
and not the default period that will "roll forward" to align with a
related approval under the limited circumstances described above;
· The amendments have also provided an opportunity to rationalise and
simplify the arrangements, notwithstanding the addition of the
"rolling forward" provisions. In particular, the rolling forward
arrangements effectively supersede the current special arrangements
for the currency of approvals resulting from development applications
(superseded planning scheme), allowing the removal of these special
arrangements, and the re-ordering and simplification of section 3.5.21.
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Section 3.5.21A is effectively the same as section 3.5.31(1)(c) and (2). It
allows for conditions of a development approval to establish completion
times for development. As indicated above, these requirements have been
moved to follow directly on from section 3.5.21, to give a clearer indication
of the range of provisions in the Act that affect the currency of approvals.
Section 3.5.21A(1) refers to a condition "under division 6", to confirm that,
despite reference to this type of condition being removed from section
3.5.31, such a condition must still meet the requirements of division 6
concerning the lawfulness of conditions.
Section 3.5.21A(4) confirms that security paid in respect of a development
approval that lapses through a condition mentioned in this section may still
be applied to complete the development. Amendments have also been
made to section 4.3.1 to ensure if security is applied to completing
development in this way, a development offence is not being committed.
These arrangements for applying security to complete development
contrast with section 3.5.21(5) which requires security to be released if an
approval lapses before development under the approval starts.
Section 3.5.22 has been amended to include subsections (4) and (5),
requiring the agreement of the chief executive of any agency administering
any State resource involved with the approval. Changes previously made to
s 3.2.1 to introduce an effective owner's consent for State resources meant
state agencies administering those resources were no longer considered an
"owner" under this section. This amendment addresses that unintended
consequence.
Section 3.5.22(3) has been amended to align with changes previously made
to owner's consent requirements to development applications under IPOLA
2003.
Section 3.5.23(4)(b) has also been omitted to remove duplication.
A new subsection (1) has been added to section 3.5.23 to clarify and limit
the intended scope of an assessment manager's assessment of an
application to extend a period made under section 3.5.22. The intention is
that assessment of a request for an extension should be a relatively
straightforward matter, and should not involve re-litigation of the full range
of matters considered in originally approving the application. If the
assessment manager considers it necessary to reconsider such matters, the
scheme of the Act is that the request for extension should be refused, and a
new IDAS application should be made, providing both the applicant, and in
the case of development requiring impact assessment, the community, with
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the full range of rights and responsibilities associated with assessing an
application under IDAS.
The maters stated for consideration under section 3.5.23(1) are:
· The consistency of the approval with current laws and policies, and
with any infrastructure contributions or charges currently payable.
The older a development approval becomes, the less it is likely to
conform with current community expectations, reflected in the
relevant laws and policies applying for assessment of such
development. Equally, infrastructure contributions or charges
previously payable may not reflect the scope or quantum of charges
now payable;
· The community's current awareness of the development approval. In
some localities, population changes may mean that a significant
proportion of the current community may not originally have had an
opportunity to comment or make submissions about the development,
and may be unaware of the development and its likely impact on its
neighbourhood. This is particularly important if the development was
at the time of approval, or has become inconsistent with the relevant
planning scheme and other laws and policies;
· Whether if the request was refused, the community would acquire
further rights to make submissions about the development, and the
extent to which those rights might be exercised. This criteria is closely
related to the previous point, as it may be more likely that the
community would exercise available rights to make a submission if a
significant proportion of the current community did not live in the
area when the original application was considered and consequently
did not previously exercise rights to make a submission;
· The views of any concurrence agency for the approval. As for the first
point above, the development may no longer conform with current
laws and policies upon which a concurrence agency would base its
decision if an application for the development were made now.
The balance of section 3.5.23 is substantially similar to the current section,
although some minor grammatical changes have been made.
Amendment of s 3.5.24 (Request to change development
approval (other than a change of a condition)
Clause 40 inserts subsections (3)(b) and (3)(c) for the same reason
subsections (4) and (5) have been added to section 3.5.22.
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Amendment of s 3.5.26 (Request to cancel development
approval)
Clause 41 inserts subsections (2) and (3) to section 3.5.26 for the same
reason subsections (4) and (5) have been inserted into section 3.5.22.
Amendment of s 3.5.31 (Conditions generally)
Clause 42 omits subsections (1)(c) and (2) in connection with the inclusion
of the new section 3.5.21A concerning lapsing of development approvals
through conditions. This groups together all of the provisions in the Act
dealing with the lapsing of approvals.
Amendment of s 3.5.31A (Conditions requiring compliance)
Clause 43 amends subsection (1) of section 3.5.31A to clarify when
compliance assessment is triggered. The previous wording, particularly the
use of the word "may" in the first line of the paragraph, may have implied
that the use of compliance assessment for a type of condition prescribed
under a regulation is discretionary. In fact it was intended to imply that the
imposition of a prescribed condition is discretionary, however once
imposed, the compliance assessment process must be used.
Amendment of s 3.5.33 (Request to change or cancel
conditions)
Clause 44 amends subsection (3) of section 3.5.33 for the same reason
subsections (4) and (5) have been added to s 3.5.22.
Amendment of s 3.7.2 (Plan for reconfiguring under
development permit)
Clause 45 amends subsection (2) of section 3.7.2 to reflect changes in
currency period arrangements.
Amendment of s 4.1.27 (Appeals by applicants)
Clause 46 amends subsection (1)(d) of section 4.1.27 to reflect changes in
currency period arrangements.
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Amendment of s 4.1.28 (Appeals by submitters general)
Clause 47 amends subsection (2)(b)(ii) of section 4.1.28 to reflect changes
in currency period arrangements.
Amendment of s 4.1.30 (Appeals for matters arising after
approval given (co-respondents)
Clause 48 amends subsection (1)(a) of section 4.1.30 to reflect changes in
currency period arrangements.
Amendment of s 4.1.33 (Stay of operation of enforcement
notice)
Clause 49 amends subsection (2) to include further exemptions in respect
of an appeal against an enforcement notice. The effect of the amendment is
that if the enforcement notice is about erosion or sedimentation or
environmental nuisance, the notice will continue to have effect, even if
there is an appeal against the notice.
Amendment of s 4.2.9 (Appeals by applicants)
Clause 50 amends subsection (1)(d) of section 4.2.9 to reflect changes in
currency period arrangements.
Amendment of s 4.2.11 (Appeals for matters arising after
approval given (co-respondents))
Clause 51 amends subsection (1)(a) of section 4.2.11 to reflect changes in
currency period arrangements.
Amendment of s 4.3.1 (Carrying out assessable development
without permit)
Clause 52 amends subsection (2) of section 4.3.1 to allow the use of
security to complete development after development has lapsed without
having committed an offence. Section 3.5.21A(4) clarifies that the security
can be used to complete development after development has lapsed.
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Amendment of s 4.3.2 (Self-assessable development must
comply with codes)
Clause 53 amends subsection (1) to replace the phrase "when carrying out"
with "for". A code may deal, not only with development itself, but also
with the ongoing use resulting from development, for example opening
hours or ongoing traffic management. The current wording may suggest
that an offence is limited to the development phase of a project. The
proposed wording clarifies the offence is intended to apply to development
and its effects.
Replacement of s 4.3.7 (Giving a false or misleading notice)
Clause 54 replaces s 4.3.7. Firstly, subsection (2) has been omitted to
remove reference to referral coordination and a new subsection (2) has
been inserted because of a need to include an offence for providing false or
misleading information.
Amendment of section 4.3.8 (Application of div 2)
Clause 55 inserts subsections (h) and (i) into section 4.3.8 to include
further exceptions from giving a show cause notice, before issuing an
enforcement notice, in respect of development the assessing authority
reasonably believes is causing erosion or sedimentation, or environmental
nuisance.
Amendment of s 4.3.13 (Specific requirements of enforcement
notice)
Clause 56 amends s 4.3.13 to include the ability for the assessing authority
to require in an enforcement notice, a compliance program demonstrating
how compliance with the enforcement notice will be achieved.
Amendment of s 5.1.4 (Funding trunk infrastructure for certain
local governments)
Clause 57 amends section 5.1.4(2), which currently prevents a local
government from using a mix of Infrastructure Charges Schedules (ICS)
and Regulated Infrastructure Charges Schedules (RICS or `regulated
charges') to levy infrastructure charges in their areas. The `regulated
charges' mechanism allows a maximum charge of $1500 per lot or
dwelling unit for each infrastructure network (with equivalent rates
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Integrated Planning and Other Legislation Amendment
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specified for commercial and industrial development). As such it is most
attractive for rural and regional councils. The current restriction is
counterproductive and needs to be removed by deleting subsection (2).
The amendment would allow a local government to use an ICS to levy
charges in excess of the amount able to be obtained under a `regulated
charge' for those networks (generally water supply and sewerage) for
which detailed planning has been undertaken (and for which a higher
charge can be adequately justified), whilst still being able to adopt
`regulated charges' for the remaining networks. The amendment would
also allow a local government to use a mix of ICS and policies for
infrastructure contributions whilst s6.1.31 is still in effect, provided
charges or contributions for a particular network in a particular area were
only payable under one charging instrument (either an ICS, RICS,
Infrastructure Charges Plan or policy in accordance with the restriction
imposed by s6.1.20(3)).
Amendment of s 5.1.5 (Making or amending infrastructure
charges schedules)
Clause 58 amends section 5.1.5 to clarify that an Infrastructure Charges
Schedule (ICS) can be made using the process specified in Schedule 1 or
Schedule 3. Subsection (4) has been added to clarify that when an ICS has
been prepared using the schedule 3 process it is nevertheless part of the
planning scheme and not a planning scheme policy.
Amendment of s 5.1.6 (Key elements of an infrastructure
charges schedule)
Clause 59 amends section 5.1.6 to allow local governments to state charges
as either a monetary amount or as a number of charge units. This
amendment is intended to provide greater flexibility to local governments
in calculating charges and make the task of indexing charges over time
easier. To ensure adequate accountability, the value of a charge unit must
be set by Council resolution (subsection (4)), and must be stated in the
local government's infrastructure charges register (subsection (5)).
Similarly, in the interests of transparency, the local government must
identify and method for indexing the amount of a charge unit and the
information to be relied on in the relevant Infrastructure Charges Schedule/
s (subsection (6)).
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Amendment of s 5.1.10 (Application of infrastructure charges)
Clause 60 amends section 5.1.10 to provide flexibility for local
governments and the Department of Main Roads to spend charges on the
infrastructure that delivers the best outcome for users regardless of
ownership of the road. This amendment therefore allows charges levied for
works for the local function of State controlled roads to be spent on local
government roads. This provision is an extension of section 5.1.13 which
allows a local government to provide different infrastructure to the items
identified in the priority infrastructure plan, provided the infrastructure
delivers the same standard of service. Because the planned infrastructure
related to the State controlled road network, the owner of the State
controlled road must be consulted about and agree to the different
infrastructure. An example of this might be constructing a new local
government road to provide alternative access to an area in lieu of
providing additional capacity on the existing State controlled road running
through the area.
Amendment of s 5.1.24 (Conditions local governments may
impose for necessary trunk infrastructure)
Clause 61 contains a series of minor amendments to introduce terminology
that is more consistent with that used elsewhere in Chapter 5, Part 1 and
related provisions.
Amendment of s 5.1.29 (Requirements for conditions about
safety or efficiency)
Clause 62 amends section 5.1.29 to introduce a requirement for State
infrastructure providers to repay contributions for works to maintain the
safety and efficiency of State infrastructure if the approval in respect of
which the contribution was required lapses and the development does not
proceed. These provisions mirror existing requirements under section
5.1.30 and apply them in a wider range of circumstances.
Amendment of s 5.1.30 (Requirements for conditions about
additional infrastructure costs)
Clause 63 amends section 5.1.30 to clarify that a State infrastructure
provider only has to repay the proportion of any additional infrastructure
cost payment that remains unspent at the time the provider is informed the
approval for which the payment was made has lapsed. This amendment
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Integrated Planning and Other Legislation Amendment
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has also been incorporated into the equivalent provisions under section
5.1.29.
Amendment of s 5.4.4 (Limitations on compensation under ss
5.4.2 and 5.4.3)
Clause 64 amends subsection (1)(a) of s 5.4.4 to clarify that introducing a
Temporary Local Planning Instrument (TLPI) prior to amending a local
planning scheme does not negate a person's right to compensation under
Chapter 5, Part 4.
Subsection (ea) is included to clarify that compensation is not payable if
the change relates to the matters dealt with in a planning scheme policy
prepared under section 6.1.20. This means a change to a policy that results
in a change in the infrastructure contributions payable under the policy
(such as an increase in the contributions or contributions being levied for
additional infrastructure networks), would not give rise to compensation.
Amendment of s 5.4.9 (Calculating reasonable compensation
involving changes)
Clause 65 amends subsection (3) of section 5.4.9. The amendment is one of
several changes concerning Temporary Local Planning Instruments (TLPI).
The amendment clarifies that the effect of any TLPI should be disregarded
in calculating the "before" value for compensation purposes. This is
because a TLPI establishes a "holding pattern" prior to any substantive
change to a planning scheme and is not in itself a change for a planning
scheme.
Amendment of s 5.5.1 (Local government may take or purchase
land)
Clause 66 amends subsection (1)(b)(i) of section 5.5.1. This section is
intended to facilitate the purchase or taking of land for downstream
drainage purposes by a local government if an applicant has been
unsuccessful in negotiating appropriate drainage arrangements with
downstream owners. The original explanatory notes for this section
indicate that the section was intended to carry forward the intent of a
similar section under the repealed Act. However, the use of the word "the"
in qualifying the term land in this section suggests, in conjunction with the
referential provisions in s 1.3.8, that only land the subject of the application
can be so acquired. This would be extremely limiting, and inconsistent with
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the original intent of the provision, and the provision in the repealed Act it
replaced. This clause amends subsection (1)(b)(i) of section 5.5.1 by
omitting the word "the" so as to make the provision applicable to land
generally.
Amendment of s 5.7.2 (Documents local government must keep
available for inspection and purchase)
Clause 67 amends section 5.7.2. The amendment is related to the changes
to section 5.1.6 and requires the infrastructure charges register to state the
amount of an infrastructure charge unit as determined by local government
resolution. This requirement would apply where one or more of the local
government's Infrastructure Charges Schedules states the applicable
charges as a number of charge units rather than a monetary amount.
Amendment of s 5.7.4 (Documents assessment manager must
keep available for inspection and purchase)
Clause 68 inserts a new subsection (3) requiring that, if the assessment
manager maintains a web site with technical capabilities of a type stated in
guidelines approved by the Chief Executive, the assessment manager must
publish decision notices on the website in a way stated in the guidelines.
This amendment is related to the amendment of s 3.5.15, requiring decision
notices to include reasons for departures from planning instruments,
allowing for greater public scrutiny of decision-making.
The proposed guidelines would require decision notices to be searchable by
key parameters such as by date, development type or location. The
guidelines would also establish the technical capabilities of websites to
which this requirement would apply.
Most assessment managers maintain a website, however not all such
websites would have the technical capacity to search data in the way
contemplated by the guidelines. It is not intended that assessment managers
be required merely as a result of this provision to upgrade websites to allow
for the necessary technical capacity. However if the assessment manager
already maintains, or upgrades a website in a way that meets the necessary
technical capacity, the requirements will apply.
This clause also inserts subsection (4) to provide that subsection (3) does
not apply for decisions given by private certifiers.
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Amendment of s 5.8.14 (How IDAS applies for development the
subject of an EIS)
Clause 69 amends subsection (2)(b) of section 5.8.14 to change section
references to reflect the removal of referral coordination and referral
assistance.
Amendment of s 5.9.9 (Chief executive may issue guidelines)
Clause 70 amends subsection (1) of section 5.9.9 by adding paragraph (c)
to allow for the publication of decision notices on a website maintained by
the assessment manager.
Subsection (1)(d) has also been added to allow the chief executive to make
guidelines about the form in which local planning instruments are to be
submitted to the chief executive under schedules 1,2, and 3.
Amendment of s 6.1.20 (Planning scheme policies for
infrastructure)
Clause 71 amends section 6.1.20. Subsection (2) currently specifies certain
matters a policy prepared under this section must include. These matters
generally relate to the infrastructure contributions a local government was
able to obtain under the repealed Local Government (Planning and
Environment) Act 1990. Due to the delays many local governments have
experienced in completing their IPA planning schemes, few local
governments have made significant progress in developing their Priority
Infrastructure Plans (PIPs) and related Infrastructure Charges Schedules.
Consequently, there has been a greater reliance by local governments on
local planning policies and planning scheme policies under section 6.1.20
to obtain contributions towards the cost of required infrastructure in the
period prior to the adoption of the PIP. The formerly limited scope of
subsection (2) was a possible impediment to this approach, as the section
generally lacked guidance on the intended scope and application of the
policies prepared under it.
As a result, subsection 6.1.20(2) has been substantially amended to provide
greater guidance about the requirements for preparing a planning scheme
policy about infrastructure. These requirements are similar to the
requirements for an Infrastructure Charges Schedule under section 5.1.6
and related sections, with modifications to account for the contributions
being implemented by way of a condition rather than an infrastructure
charge.
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Key issues to note are that such policies can apply to all development
infrastructure networks that can be charged for under the IPA, and not
simply those for which contributions could be obtained under the repealed
Act. Subsection (2C) also allows the contribution to be calculated in the
way permitted under the repealed Act, or, as if it were an infrastructure
charge under the IPA. The former is to accommodate local governments
who simply want to `roll over' their existing `headworks' policies into their
IPA planning schemes, whilst the latter is intended to allow those local
governments that have undertaken substantial work on their Priority
Infrastructure Plans and Infrastructure Charges Schedules to begin
implementing elements of this work though planning scheme policies.
Specifically, this would allow local governments to apply infrastructure
charging methodologies in calculating the contribution, and to require a
contribution for additional infrastructure networks.
It is however important to remember that all infrastructure contributions are
imposed by way of conditions on a development application, meaning they
apply to a more limited range of assessable development than infrastructure
charges. Any such conditions can also be appealed to the Planning and
Environment Court and will be subject to the normal `reasonable and
relevant' test.
Subsection (3) is amended to include reference to Infrastructure Charges
Schedules (ICS) and Regulated Infrastructure Charges Schedules (RICS) to
ensure that the provision applies in respect of all charging instruments,
including Infrastructure Charges Plans (ICP). This provision is intended to
prevent infrastructure contributions being levied on a development which is
also subject to infrastructure charges for the same network under an ICP,
ICS or RICS. Reference to ICPs is retained as any existing ICPs continue
to have effect under section 6.2.5.
IPA schemes repeal all existing policies when they commence. If this
occurs after the date specified in 61.20(4), local governments will not be
able to adopt new transitional infrastructure contributions policies. This
clause amends subsection (4) to extend this date until 30 June 2007, with
the Minister able to further extend it on an individual basis.
Amendment of s 6.1.21 (IPA planning schemes cancel existing
planning scheme policies)
Clause 72 amends subsection (1) of section 6.1.21 to allow for the
cancellation of policies on a later date if the relevant planning scheme starts
also starts on a later date. While section 2.1.7 allows for a planning scheme
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to fix a date for its own commencement later than the date the
commencement is notified in the gazette, section 6.1.21 has previously
cancelled local planning policies from the gazette date through omitting
reference to them. This clause consequently includes reference to planning
schemes starting on a later date as fixed in the scheme in order for local
planning policies to apply until the commencement of the planning
scheme.
Amendment of s 6.1.31 (Conditions about infrastructure for
applications)
Clause 73 amends subsection (3) of section 6.1.31 to extend the period in
which local governments can use planning scheme policies or planning
scheme provisions to obtain infrastructure contributions from 31 March
2006 to 30 June 2007. The amendment is necessary to give local
governments sufficient time to adopt their IPA planning schemes, and then
prepare, publicly notify and adopt their Priority Infrastructure Plans and
Infrastructure Charges Schedules or Regulated Infrastructure Charges
Schedules.
Subsections (4) and (5) are redundant provisions related to benchmark
development sequencing and have been omitted.
Amendment of s 6.1.54 (Provisions applying for State-
controlled roads
Clause 74 amends subsection (5) of section 6.1.54 to reflect the removal of
referral coordination.
Amendment of s 6.5.1 (When particular development approvals
lapse)
Clause 75 amends subsections (2) and (3) of section 6.5.1, and replaces
subsections (4) and (5).
The date in subsection (2) has also been extended from 30 March 2006 to
30 June 2006.
Subsections (4) and (5) have been replaced to clarify applicants affected by
these transitional arrangements may apply for an extension of the effect of
the transitional provisions in the same way an application may be made to
extend a currency period under s 3.5.22.
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The new arrangements for the lapsing of approvals contained in clause 39
will apply for development approvals that are in effect on or after the
commencement of those provisions, but not those that are in effect solely
because of section 6.5.1(See clause 76 below).
In other words, the new arrangements will not apply to approvals that, were
it not for the effect of section 6.5.1, would have lapsed before the
commencement of the new arrangements. Consequently this clause extends
the effect of section 6.5.1 from 30 March 2006 until 30 June 2006, so
approvals that would have lapsed upon its expiry will be saved until at least
then. The changes to subsections (4) and (5) are also designed to clarify
these approvals can be further extended beyond 30 June 2006 using the
processes for requesting and deciding and extension in sections 3.5.22 and
3.5.23.
Insertion of new ch 6, pt 7
Clause 76 inserts a new Part 7 for chapter 6, containing transitional
arrangements for several of the provisions in this Bill
Section 6.7.1 provides that if an application is undergoing the referral
coordination process at the time of commencement, the process will be
completed as though referral coordination were still provided for under the
Act. However the intent is not for the applicant to repeat referral
coordination if it has already been undertaken.
Section 6.7.2 contains transitional arrangements for the new currency and
lapsing arrangements for development approvals. As indicated above, this
section establishes that the new arrangements in s 3.5.21 will not apply to
development approvals that were saved only by the effect of s 6.5.1.
However, the new arrangements will apply to other approvals whether
given before or after its commencement.
Section 6.7.3 is aimed at ensuring that for applications made but not
decided when the amendments to s 3.5.13 and 3.5.14 and the definition of
grounds took effect, the new terminology about sufficient grounds in those
sections, and the related definition do not apply for assessing and deciding
the application.
Amendment of sch 1 (Process for making or amending
planning schemes)
Clause 77 amends section 19, which currently only requires public
notification if a local government decides to proceed with adopting a
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planning scheme or amendment. However the interests of submitters and
other persons may also be affected by a decision not to proceed.
Section 8A has also been amended to correct terminology in order to
maintain consistency.
Part 3, section 21(b) has also been amended to accommodate amendments
made in s 5.9.9(1)(d).
Amendment of sch 2
Clause 78 amends part 2, section 5(b) to accommodate amendments made
in s 5.9.9(1)(d).
Amendment of sch 3 (Process for making or amending
planning scheme policies)
Clause 79 inserts subsection (4)(a) into part 2 of schedule 3 to extend the
shortened process for minor amendments to planning scheme policy. The
definition of "minor amendment" in Schedule 10 refers to a minor
amendment of a planning instrument. However, at the moment Schedules
1 and 4 (planning schemes and State planning policies) are the only
processes allowing for a shortened process for such amendments. It is
reasonable to extend the shortened process for minor amendments to
planning scheme policies.
Amendment of sch 8 (Assessable development and self-
assessable development)
Clause 80 contains a number of minor clarifying amendments.
Amendment of sch 8A (Assessment manager for development
applications)
Clause 81 amends schedule 8A. The current wording in tables 1, 2 and 3
(item 3) can be interpreted in a number of ways when tidal works are not
completely within one jurisdictional area. The amendment will clarify
assessment manager responsibilities when tidal works overlap two
jurisdictional areas and will result in a more accurate determination of
applications that should be forwarded to the Minister under Table 5.
The phrase "any aspect of the development..." has been inserted at the
beginning of Table 1, item 1(a)(i). This provision is intended to ensure that,
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Integrated Planning and Other Legislation Amendment
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for development wholly in a single local government area, if any part of the
development application is assessable under a planning scheme, then the
relevant local government is the assessment manager. However the current
wording could infer that all of the development the subject of the
application must be assessable under the relevant planning scheme in order
for this provision to apply.
Table (1), item 1(d) is amended to use the wording used in paragraphs (b)
and (c) and replaces an incorrect reference to the local government area.
Table 3, item 6(a)(i) to clarify that the Chief Executive administering the
Coastal Protection and Management Act 1995 (the Environmental
Protection Agency) is the assessment manager for tidal works that are
completely outside of local government tidal areas and strategic port land
tidal areas. This amendment also allows for applications for tidal works not
assessable by local government, a port authority, the Environmental
Protection Agency, or the Department of Primary Industries and Fisheries
to be referred to the Minister in table 5.
Recent integration of Fisheries legislation has led to several applications
which, in the absence of such a provision, would need to be decided
individually by the Minister. Table 4 has been amended to insert and refine
assessment manager arrangements applications for development under the
Fisheries Act 1994 and Coastal Protection and Management Act 1995, and
for applications under the Fisheries Act 1994 and environmentally relevant
activities.
Table 4, item 3 has been amended to establish that the chief executive
administering the Water Act 2000 is the assessment manager for
development involving a combination of Environmentally Relevant
Activities (ERA) 19, 20 and 22, removing quarry material and any of the
development mentioned in Schedule 8, part 1, table 4, items 1 (A) to (G), 3
and 4 (clearing of native vegetation under the Vegetation Management Act
1999, taking or interfering with water, referable dam). Currently, if an
applicant wishes to make a single application for these three aspects of
development, taking of quarry material, dredging and clearing of native
vegetation, the applicant needs to write to the Minister of DLGPSR for the
Minister to determine who will be the assessment manager under Schedule
8A, Table 5, Item 1. Alternatively the applicant can make a separate
application for the vegetation clearing aspect of the project. However the
applicant would then receive two development permits one for the
combined taking of quarry material and ERA, and one for the vegetation
clearing. To encourage determination of all three aspects at the one time at
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Integrated Planning and Other Legislation Amendment
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the same time, Schedule 8A should this amendment provides for an
applicant to apply to DNRMW whenever a project involves all three
aspects of development.
The current wording of Table 4, item 2 refers to removal of quarry material
from a watercourse or lake as defined under the Water Act 2000 as
operational work. However, under Schedule 8 of IPA, Part 1, Table 5, Item
1 all aspects of development for quarrying in a watercourse or lake are
identified as assessable development. This clause amends this discrepancy.
Incorrect references have been removed from Table 6, item 1(a).
Amendment of sch 10 (Dictionary)
Clause 82 contains amendments to definitions under schedule 10.
The definition of "currency period" has been omitted to accommodate
changes to currency period arrangements.
The definition of "development application (superseded planning scheme)"
has been amended to clarify that the two year period to lodge a
development application (superseded planning scheme) starts at the time
the planning scheme, policy or amendment giving rise to the superseded
planning scheme commences, not when it is adopted (as the notice of
adoption can specify a later date for commencement).
The definition of "development infrastructure" has been amended to clarify
that all local government supplied public parks can be planned and charged
for including neighbourhood, district and City or Shire wide facilities.
The definition of "establishment cost" has been amended to clarify the
costs for preparing an infrastructure charges schedule that can be recovered
through infrastructure charges, the scope of costs that can be recovered
through charges for previously acquired land and to allow local
governments to acquire volumetric title (e.g. floor space in a building) in
lieu of land for local community facilities. The latter amendment has been
made because the cost of acquiring land can be prohibitive in some areas
(e.g. those that are already highly developed) and, if adopted, the resulting
charges would be unaffordable.
The definition of "priority infrastructure area" has been amended to correct
terminology, and to clarify that community and governmental uses that
support urban growth, such as schools, hospitals, and childcare centres etc,
are part of the Priority Infrastructure Area.
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Integrated Planning and Other Legislation Amendment
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The definition of "priority infrastructure plan" has been amended to correct
terminology, and to clarify that Priority Infrastructure Plans only need to
deal with networks the Local Government intends to supply or charge for
and do not have to undertake planning for infrastructure networks they
have no intention of providing.
The definition of "urban area", item (a) is amended to clarify that an urban
area includes the land identified within the priority infrastructure area
under a local government's priority infrastructure plan, but does not include
any rural residential or future rural residential areas included within the
priority infrastructure area. The amendment addresses an anomaly with the
current definition and effectively extends the same exclusion that exists for
rural residential areas under item (c) to item (a). The effect of the
amendment is to ensure the relevant provisions of the Vegetation
Management Act 1999 continue to operate for non-urban or rural
residential areas, even if they are included within the priority infrastructure
area.
The definitions of "referral assistance" and "referral coordination" have
been omitted in order to remove reference to referral assistance and referral
coordination.
A definition for "grounds" has been inserted to support changes made to s
3.5.13 and s 3.5.14. The key reason for including a definition is to
emphasise that grounds for departing from a planning instrument must
relate to a public interest, and not a private interest or the personal
circumstances of an applicant or another individual. The definition also
provides several examples of possible grounds for departure from a
planning instrument based on existing judicial authority. These are
examples only and are not intended to detract from or constrain current or
future judicial authority.
Definitions have also been included for "Commonwealth Environment
Act", "draft EIS", "draft terms of reference", "environmental management
plan", "EIS process", "proponent" and "terms of reference". These
definitions are largely self explanatory and have been included to facilitate
the commencement of the Environment Impact Statement provisions under
section 5.8 of the Act.
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Part 3 Amendment of Building Act 1975
Act amended in pt 3
Clause 83 states the part amends the Building Act 1975.
Clause 84 amends section 12Q(4)(b) of the Act to introduce a requirement
for the assessment manager to refuse an application where the proposed
fire management plan for the building does not adequately incorporate any
proposed fire management procedures for the building.
Clause 85 replaces section 12R to introduce a random inspection regime
for budget accommodation buildings. Under subsection (2), these building
must be inspected at least once every three years. Subsection (3) allows
inspection to be undertaken during the normal business hours of the local
government and without giving prior notice to the owner of the building.
Local governments are also required to maintain a register of the buildings
they are required to inspect, and record the details and results of the
inspections. As these provisions are a public safety measure, subsection (5)
specifies that local governments are not able to charge a fee for the
inspections.
Part 4 Amendment of Coastal
Protection and Management Act
1995
Act amended in pt 4
Clause 86 states the part amends the Coastal Protection and Management
Act 1995.
Clause 87 amends section 185 to preserve the Gold Coast scheme of works
approved under section 38 of the repealed Beach Protection Act 1968 in
March 1973. Preservation of the scheme of works is necessary to enable
the continuation of the works stated within the scheme, which will
otherwise be invalid once the Southeast Queensland Regional Coastal
Management Plan takes effect. To ensure the continuation of works, the
approval for the scheme of works is taken to be a development approval
under the IPA and the works are taken to have substantially started, thereby
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Integrated Planning and Other Legislation Amendment
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preserving the approval. To remove all doubt, all works stated within the
scheme of works have substantially started.
Clause 88 omits subsection (4)(c) of section 188.
Clause 89 inserts a definition of "currency period" and amends the
definition of tidal works to ensure that only "open" drains of certain
dimensions are excluded from being considered as a tidal work.
Part 5 Amendment of Currumbin Bird
Sanctuary Act 1976
Act amended in part 5
Clause 90 states the part amends the Currumbin Bird Sanctuary Act 1976.
Clause 91 amends the definition of `National Trust' to include any wholly
owned subsidiary of the National Trust.
The intent of these amendments is to allow the Currumbin Wildlife
Sanctuary to operate as a commercial entity at arms' length from the
National Trust.
Part 6 Amendment of Environmental
Protection Act 1994
Act amended in pt 6
Clause 92 states the part amends the Environmental Protection Act 1994.
Clause 93 amends Schedule 1, Division 2 of the Act to include a reference
to section 145P(1). The effect of the amendment is to require the
administering authority to give an information notice in relation to
proposed action under this section. Such a notice gives review and appeal
rights.
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Integrated Planning and Other Legislation Amendment
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Part 7 Amendment of Fisheries Act
1994
Act amended in pt 7
Clause 94 states the part amends the Fisheries Act 1994.
Clause 95 amends the schedule definition of "currency period" to reflect
changes to currency period arrangements.
Part 8 Amendment of Liquor Act 1992
Act amended in pt 8
Clause 96 states the part amends the Liquor Act 1992.
Clause 97 amends the definition of "relevant period" under s4 (Definitions)
to reflect changes to "currency period" arrangements.
Part 9 Amendment of Nature
Conservation Act 1992
Act amended in pt 9
Clause 98 states the part amends the Nature Conservation Act 1992.
Clause 99 inserts s174AA. The Nature Conservation (Wildlife) Regulation
1994, schedule 5, sections 7 to 10 were inadvertently renumbered as
sections 6 to 9. (Section 6 had previously been omitted.) Subsequently, the
Nature Conservation and Other Legislation Amendment Regulation (No. 2)
2005 (2005 SL No. 138) amended the schedule, based on the incorrect
numbering. Although there was no great doubt about what was actually
being amended, this amendment clarifies the position.
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Part 10 Amendment of Plumbing and
Drainage Act 2002
Act amended in part 10
Clause 100 states the part amends the Clause Plumbing and Drainage Act
2002.
Clause 101 amends the definition of "greywater application area" to allow
the disposal of greywater by both surface and subsurface irrigation. The
current definition suggests that disposal of greywater in both sewered and
unsewered areas must be by subsurface irrigation. The amendment is
required as some local governments in unsewered areas will allow treated
greywater to be dispersed to a land application area by surface irrigation
methods.
Part 11 Amendment of Prostitution Act
1999
Act amended in part 11
Clause 102 states the part amends the Prostitution Act 1999.
Clause 103 amends the definition of "currency period" to reflect changes to
currency period arrangements.
Part 12 Amendment of Townsville City
Council (Douglas Land
Development) Act 1993
Act amended in pt 12
Clause 104 states the part amends the Townsville City Council (Douglas
Land Development) Act 1993.
Clause 105 inserts a definition for the "Townsville IPA planning scheme"
and amends the definition of "Townsville planning scheme" to refer to both
the current IPA planning scheme and the previous planning scheme
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Integrated Planning and Other Legislation Amendment
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prepared and adopted by the Townsville City Council under the repealed
Local Government (Planning and Environment) Act 1990.
Clause 106 amends the title of section 30 to reflect that the procedures
specified under this section relate only to the previous planning scheme
prepared and adopted by the Townsville City Council under the repealed
Local Government (Planning and Environment) Act 1990 up until its
replacement by the IPA planning scheme on 1 January 2005.
Clause 107 inserts section 30A to provide a process for including land
developed under the Act into the Townsville IPA planning scheme. These
provisions are similar to the existing provisions of section 30, but replace
relevant planning scheme amendment and compensation processes under
the repealed Local Government (Planning and Environment) Act 1990 with
their Integrated Planning Act 1997 equivalents.
Clause 107 also inserts section 30B to validate any amendments made by
the Townsville City Council to include land developed under the Act in its
planning scheme prior to the Integrated Planning and Other Legislation
Amendment Act 2006 commencing. This amendment is necessary to
remove any uncertainty regarding the status of a significant number of
residential lots developed under the Act, under the Townsville planning
scheme.
Clause 108 amends section 35(3) to clarify that any conditions in relation
to the use of premises for land developed under the Act are taken to be
conditions that attach to the land under Integrated Planning Act 1997 as
well as the Local Government (Planning and Environment) Act 1990.
Part 13 Vegetation Management Act
1999
Act amended in pt 13
Clause 109 states the part amends the Vegetation Management Act 1999.
Clause 110 amends the definition of "currency period" to reflect changes to
"currency period" arrangements.
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Part 14 Amendment of Wet Tropics
World Heritage Protection and
Management Act 1993
Act amended in pt 14
Clause 111 states the part amends the Wet Tropics World Heritage
Protection and Management Act 1993.
Clause 112 amends section 14 to facilitate the inclusion of a seventh
director on the Wet Tropics Management Authority (WTMA) Board of
Directors. Subsection (a) is amended, and subsection (ab) included,
clarifying that both the chairperson of the board and the additional
Aboriginal member of the Board are both appointed by the Ministerial
Council. Subsection (2) is introduced to clarify the additional Aboriginal
person must be particularly concerned with the land in the wet tropics area.
Clause 113 deletes section 19 as the chairperson in now to be appointed
under subsection 14(1)(a).
Clause 114 raises the quorum of the board from 3 to 4 to reflect its
increased membership.
Schedule
Minor Amendments of the Integrated Planning Act 1997
The schedule contains minor consequential amendments and amendments
of incorrect section references and other minor errors.
© State of Queensland 2006