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1
Local Government and Other Legislation
Amendment
LOCAL GOVERNMENT AND OTHER
LEGISLATION AMENDMENT BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
Objective of the Legislation
The Bill provides for the amendment of the Local Government Act 1993
and other legislation in order to:
· Clarify the legal requirements for those councils with significant
water and sewerage business activities which are affected by the
requirements of chapter 10 (Reform of certain water and
sewerage services) of the Local Government Act 1993;
· Validate the levying of rates in 1999/00 where local governments
have not fixed a period for payment of rates;
· Facilitate the distribution of transfer proceeds to shareholding
local governments following the transfer of the South East
Queensland Water Board to the new South East Queensland
Water Corporation Ltd;
· Carry forward the consequential amendment program to give
effect to the integrated planning reform program in respect of
ports, public housing and private certification, and to remove
anomalies, improve workability and correct minor textual errors
in the Integrated Planning Act 1997; and
· Address a number of matters in local government legislation of a
minor technical nature.
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Local Government and Other Legislation
Amendment
Reasons for and Achievement of the Policy Objectives
The Queensland Government is committed to ongoing reform in the
areas of national competition policy objectives and integrated State planning,
and to the autonomy and accountability of local governments. The policy
objectives of this Bill permit the timely ongoing implementation of the
current reform programs as they affect local governments and other
statutory and industry bodies.
Alternatives to the Bill
There are no alternatives considered appropriate for achieving these
policy objectives.
Estimated Cost of Implementation
The costs to Government of implementing the Bill will be administrative
in nature and will not be significant. Costs will be met within existing
budgetary allocations.
Consistency with Fundamental Legislative Principles
The Bill contains a number of provisions intended for retrospective
commencement. Retrospectivity which diminishes rights and liberties of
individuals is inconsistent with fundamental legislative principles. The
retrospective provisions in the Bill are intended to maintain existing rights or
to merely clarify existing arrangements and expectations among
stakeholders. No rights or liberties are diminished by these provisions.
Consultation
Consultation has been made on all provisions in the Bill with lead State
Government agencies and bodies representing local government-wide
interests which are concerned with the State's national competition policy
objectives (including water reforms) and the integrated planning agenda. A
three-month consultation program was undertaken to verify the adequate
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Local Government and Other Legislation
Amendment
operation of the State's new integrated planning regime with peak industry
and government stakeholders.
As a result, the Bill represents a broad consensus on the correct
interpretation of policies and the practical application of objectives by
leading stakeholders in the Government's reform programs.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Short title
Clause 1 provides for the short title of the Bill.
Commencement
Clause 2 provides for commencement of provisions.
Clause 2(1) provides for the following clauses to commence
retrospectively at the commencement date of the IPA, ie 30 March 1998:
· clause 19 (amendment in pt 6);
· clause 24 (amendment of s 3.1.6);
· clause 25 (amendment of s 3.1.7);
· clause 45 (new sections 4.1.33A, 4.1.33B);
· clause 71 (new section 6.1.30A);
· clause 76 (amendment of s 6.1.35A);
· clause 77 (replacement of s 6.1.35B);
· clause 79 (amendment of s 6.1.45A); and
· clause 81 (new section 6.1.51A).
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Local Government and Other Legislation
Amendment
Clause 2(2) provides for clauses 63 to 66 (public housing provisions in
IPA), clause 74 (omission of s6.1.33) and clause 84(3) (item 10A of
Schedule 8) to commence on 31 March 2000.
Clause 2(3) provides for clauses 28 (amendment of s3.2.8 of IPA),
32(amendment of s3.5.17), 36(amendment of 3.6.5), 40(amendment of
4.1.21), 53(amendment of 4.3.11) and 67(amendment of 5.7.6) to
commence on 1 July 2000.
Clause 2(4) provides for clauses 22(insertion of new ch1, pt 4 div 3 into
IPA), 61 (amendment of 5.3.5), 84(2)(insertion of new section 4A into
Schedule 8, pt 1) and part 10 (amendment of the Transport Infrastructure
Act) on a date to be fixed by proclamation.
Clause 2(5) provides that all remaining provisions commence on assent.
PART 2--AMENDMENT OF LOCAL GOVERNMENT
ACT 1993
Clause 3 (Act amended in pt 2) provides that this part amends the Local
Government Act 1993.
Clause 4 omits a definition which is relocated under clause 5 to s.772.
Clause 5 (Act amended at s772 -- Definitions for ch 10) relocates the
definition omitted by clause 4, and inserts the new definitions:
· "access component" - the access component of a two-part tariff
as the basis of utility charges for water is defined as a fixed
amount charged for access to the water service. The definition
clarifies that this amount need not be calculated on the basis of the
volume of water supplied, as reflected in the subordinate
legislation. It is intended to make clear that the access component
of a two-part tariff need not be based on consumption, even
though two-part tariffs are a valid form of "consumption
charging" for the purposes of s783(b) (see clause 6 insertion of
s772A);
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Local Government and Other Legislation
Amendment
· "consumption component" the consumption component of a
two-part tariff as the basis of utility charges for water is defined as
an amount based on the quantity of water supplied. For example,
the consumption component is expressed as a charge per kilolitre
of water supplied; and
· "cost-effective" the term "cost-effective" is defined in order to
clarify the intent of the Act in relation to the carrying out by
councils of an assessment of whether it is cost-effective to apply a
two-part tariff as the basis of utility charges for water services.
The definition provides that a two-part tariff is cost-effective if the
application of the tariff is likely to result in savings in costs to the
business activity for supplying water. Costs include the capital
cost of providing water service infrastructure. This means that
councils in carrying out a cost-effectiveness assessment are not
required to consider the impact of a two-part tariff on consumers,
although councils may choose to do this as part of the
assessment. The intent is to set a general definition, with the detail
of what is required in a cost-effectiveness assessment set out in
subordinate legislation
Clause 6 inserts a new section 772A to clarify that a two-part tariff
satisfies the requirement of s783(b) of the Act that consumption is the basis
of utility charges for water services. The intent is to provide that the access
component of a two-part tariff is not inconsistent with the requirement of
s783(b) for consumption to be the basis of water charges, even though the
access component may be based on some other factor, eg, the flow capacity
of a water meter.
The provision further clarifies that a two-part tariff is not the only basis
for utility charges for water that meets the requirement for
consumption-based charging under s783(b). Other bases for water charges
that meet the consumption requirement are set out in the subordinate
legislation.
Clause 7 inserts a new section 783A to clarify that where a local
government has resolved under s.780 to apply a two-part tariff for water
services, this resolution is implemented by the making of utility charges
under chapter 14 or in the case of the Brisbane City Council, under the City
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Local Government and Other Legislation
Amendment
of Brisbane Act 1924, part 3. The intent is to clarify that while a council
may decide under chapter 10 to apply a two-part tariff, this decision only
sets the basis of the utility charge. The utility charge must be made at a
budget meeting of the council, as required under chapter 14 or in the case of
Brisbane City Council, under part 3 of the City of Brisbane Act 1924.
Clause 8 inserts a new section 973A to clarify that a utility charge for
water or sewerage services validly made under chapter 14 after the
amendment commences is not invalid to because a council affected by
chapter 10 has failed to comply with requirements of chapter 10.
Clause 9 inserts a new part 4 (sections 1242-1244) and heading in
chapter 19 of the Act.
PART 4--VALIDATION PROVISIONS FOR LOCAL
GOVERNMENT AND OTHER LEGISLATION
AMENDMENT ACT 1999
Section 1242 provides for the validation of rate notices issued by some
local governments in 1999/2000 which do not comply with the
requirements of s.1008 and s.1014 as amended by the Local Government
and Other Legislation Amendment Act 1999 (Act No.30 of 1999). The
intent is that council rate notices for the financial year ending 30 June 2000
are valid despite a council's failure to decide the period for payment of rates.
The intent is that the rate notices are valid if they had been issued as if the
amendments to s.1008 and s.1014 had not been made.
PART 5--VALIDATION PROVISIONS FOR LOCAL
GOVERNMENT AND OTHER LEGISLATION
AMENDMENT ACT 2000
Section 1243 applies the part to the Brisbane City Council.
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Local Government and Other Legislation
Amendment
Section 1244 is of retrospective application and provides that if a local
government prior to the commencement of the section made and levied a
utility charge for water services in order to implement a resolution under
s.780 of the Act, the utility charge is not invalid because of a failure to
comply fully or to perform any action required under chapter 10, Parts 3
and 4 and s.783 of the Act.
The intent is that the utility charges for water services made by any of the
local governments which prior to commencement have resolved under
s.780 to apply a two-part tariff are not invalid merely because a two-part
tariff assessment report was not prepared in accordance with part 3 of
chapter 10, or because the council in making its decision on the report did
not comply with part 4. In addition, any such utility charges for water
services are not invalid merely because the charge includes an access
component that is not based on consumption.
However, the section is not intended to prevent a utility charge for water
services being invalidated on other grounds.
In addition, subsection (3) provides that the section does not affect a court
decision made before the commencement of the section to invalidate a utility
charge for water services levied on a person, where the charge was based on
a resolution under s.780 to apply a two-part tariff. The intent is that the
section does not affect the decision of the Supreme Court (Hume Doors
and Timber (Qld) P/L v LCC [1999] QSC) to invalidate Logan City
Council's utility charges for water levied on Hume Doors and Timber (Qld)
P/L for 1998/99.
PART 3--AMENDMENT OF BUILDING ACT 1975
Act amended in pt 3
Clause 10 declares that part 3 amends the Building Act 1975.
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Local Government and Other Legislation
Amendment
Amendment of s 3 (Definitions)
Clause 11 inserts a new definition of "professional misconduct" -
· in paragraph (a), to mean conduct when a building certifier seeks,
accepts or agrees to accept a benefit (whether for the building
certifier's benefit or another person) as a reward or inducement to
act other than in accordance with the Building Act or another Act
regulating building certifiers, including private certifiers for
building work;
· in paragraph (b), to mean conduct when a building certifier acts in
a way contrary to a duty stated in the Building Act or another Act
for building certifiers, including private certifiers for building
work;
· in paragraph (c), to mean conduct when a building certifier makes
false claims about their qualifications, experience or accreditation
as a building certifier;
· in paragraph (d), to mean conduct when a building certifier
exceeds their powers as a building certifier;
· in paragraph (e), to mean conduct when a building certifier
undertakes professional work which they are not competent to
perform. This will increase the deterrent for a certifier to act
beyond his or her competencies;
· in paragraph (f), to mean conduct when a building certifier
contravenes a code of conduct that applies to the building certifier;
· in paragraph (g), to mean conduct by a building certifier that is
negligent or incompetent.
Amendment of s 21 (Show cause notices)
Clause 12 amends section 21 to enable an enforcement notice to be given
to not only an owner but any person who does not comply with a particular
matter in the Act. This complements the amendments to section 22.
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Local Government and Other Legislation
Amendment
Amendment of s 22 (Enforcement notices)
Clause 13(1) amends subsection (1) to provide for local government, and
private certifiers as permitted by subsection (3), to give an enforcement
notice regarding the carrying out of building work. This will allow building
works associated with the construction of buildings and structures, such as
siteworks, to be subject to an enforcement notice.
Clause 13(2) amends subsection (2) to enable a local government to give
an enforcement notice to not just an owner but any person who does not
comply with a particular matter in the Act. For example a local government
could give an enforcement notice to a builder regarding the carrying out of
building work that does not comply with the provisions of section 4.
Clause 13(3) amends subsection (4) to require, similar to the issue of
show cause notices to an owner, a show cause notice to be issued to another
person before an enforcement notice is issued to the person.
Clause 13(4) amends subsection (5) to clarify that the requirement to
serve a show cause notice applies to a local government and private certifier.
Amendment of s 24 (Appeals against enforcement notices)
Clause 14 amends section 24 to allow not only an owner but also a
person who is given an enforcement notice to be able to appeal to the
Building and Development Tribunal against the giving of the notice.
PART 4--AMENDMENT OF BUILDING AND
CONSTRUCTION INDUSTRY (PORTABLE LONG
SERVICE LEAVE) ACT 1991
Act amended in pt 4
Clause 15 declares that part 4 amends the Building and Construction
Industry (Portable Long Service Leave) Act 1991.
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Local Government and Other Legislation
Amendment
Amendment of s 77 (Duty of assessment manager to sight approved
form)
Clause 16 amends subsection (3) to clarify that it is an offence for a
private certifier, acting as an assessment manager, to issue a development
permit for building works under the Integrated Planning Act 1997 if the
private certifier has not seen an approved form issued by the Authority
signifying payment of the levy as required.
PART 5--AMENDMENT OF THE CITY OF
BRISBANE ACT 1924
Clause 17 (Act amended in pt 5) provides that this part amends the City
of Brisbane Act 1924.
Clause 18 inserts a new section, s58A that applies the same intent as
clause 8 (inserting s973A in the Local Government Act) in relation to
Brisbane City Council.
PART 6--AMENDMENT OF INTEGRATED
PLANNING ACT 1997
All references to the repealed Act in the notes to Part 6 are references to
the Local Government (Planning and Environment) Act 1990 (P&E Act)
(repealed).
Act amended in pt 6
Clause 19 declares that part 6 amends the IPA.
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Local Government and Other Legislation
Amendment
Replacement of s 1.4.3 (Implied and uncommenced right to use
premises protected)
Clause 20 replaces and clarifies the operation of section 1.4.3. The
section applies where a person applies for a permit to carry out assessable
development, and that development also involves a material change of use
of the land the subject of the application.
If when the application is made, the material change of use is not
assessable development, ie it is either self assessable or exempt
development, the replacement section 1.4.3 makes it clear that provided a
permit for the development ultimately takes effect,1 any change to the
planning scheme or to any applicable code for the change of use after the
date of the application, cannot further regulate the use of the premises
implied by the approved assessable development.
For example, a proposal to build a shop in a retail area involves
assessable building work, and the change of use is self-assessable. The
code applicable to the change of use requires 3 car parking spaces to be
provided. After the date of the application for the building work the
planning scheme is amended to increase the required car parking spaces to
5. These new requirements do not apply to the development for the shop if
the assessable building work applied for and approved, is completed within
the time provided by either the permit or the IPA, and the use of the
building for a shop commences within five years of the date of the building
work being completed.
Amendment of s 1.4.6 (Lawful uses of premises protected)
Clause 21 amends section 1.4.6 by inserting a new subsection (4) to
make it clear that although lawful uses are protected under the provision
from further regulation by a planning scheme, further regulation of
development in relation to the use may be imposed by the State under
schedule 8. For example, a planning scheme could not require a separate
approval for operational works necessarily associated with an existing use.
1 Section 3.5.19 provides that an approval takes effect, if there is no submitter and the
applicant does not appeal, when the notice is given; otherwise when the submitter's
appeal period ends, or an appeal by the applicant or a submitter is decided.
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Local Government and Other Legislation
Amendment
However, operational works made assessable in part 1 of schedule 8 would
require an approval whether or not they were necessarily associated with an
existing use.
Insertion of new ch 1, pt 4, div 3
Clause 22 inserts a new division to deal with uses and rights acquired
after the commencement of the IPA, but before the commencement of
legislation which amends other State legislation to integrate development
assessment processes in that legislation into IDAS. In this amendment Bill
certain development on strategic port land is made assessable under IDAS2.
The new division provides, in particular, that lawful rights to use premises
acquired for, and buildings and works lawfully constructed on, strategic port
land are protected if they were acquired or constructed after the
commencement of the IPA, but not under the IPA.
New section 2.1.17A
Clause 23 inserts a new section 2.1.17A to provide that where a planning
scheme policy and any other planning instrument deal with the same matter
in an inconsistent way, any planning instrument (not just the planning
scheme as stated in the existing provision), will prevail over the planning
scheme policy to the extent of the inconsistency. A planning instrument
includes a temporary local planning instrument and a State planning policy.
The amendment is consistent with the sections of the Act dealing with State
planning policies (SPP) which provide that if an SPP is made about the
same matter as a local planning scheme policy, that matter effectively
becomes a State interest, and unless the SPP itself states otherwise, has
effect throughout the State3. The local planning scheme policy may only
support the local dimension of the planning scheme.
The amendment is related to a minor amendment in the schedule4
omitting section 2.1.16 (2).
2 See clause 84(2).
3 See sections 2.4.1 and 2.4.2 IPA.
4 See schedule to part 11 Integrated Planning Act, item 1.
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Local Government and Other Legislation
Amendment
Amendment of s 3.1.6 (Preliminary approval may override local
planning instrument)
Clause 24 inserts a new section 3.1.6(1) that provides that section 3.1.6
applies to development applications under either:
· IPA schemes, for a material change of use requiring impact
assessment, or
· transitional planning schemes or interim development control
provisions, which under the repealed Act, would have required
public notification.
The existing provision uses terminology applicable to IPA schemes. The
amendment, which is proposed to commence retrospectively, makes it clear
that the section has always applied to the equivalent type of application made
under an instrument prepared under the repealed Act.
Amendment of s 3.1.7 (Assessment manager)
Clause 25 amends section 3.1.7 by inserting a new sub-section (2A) to
ensure the intent of the IPA is achieved. The Minister may decide, or a
regulation prescribe, a local government as assessment manager for a
development application for land not wholly within the local government's
area5. The Local Government Act 1993, however, restricts a local
government's jurisdiction to its area and other areas put under its control for
a specific purpose. The amendment, which is proposed to be retrospective,
ensures the jurisdiction of the local government includes acting as the
assessment manager for development on the land the subject of a
development application which is outside the local government's area,
where the local government is appointed as assessment manager by the
Minister or by regulation.
5 "Local government area" under the Local Government Act 1993 is an area declared
by regulation to be a local government area, and is the local government's "basic
territorial unit".
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Local Government and Other Legislation
Amendment
Amendment of s 3.2.2 (Approved material change of use required for
certain developments)
Clause 26(1) amends section 3.2.2(1) to clarify that the section applies
when a development application is made to build any structure or carry out
other works for which a permit for a material change of use of the land is
needed to enable the structure or works to be used for their intended
purpose. If that is the case, the section provides that if the change of use
has not been applied for or approved, then the application is taken also to be
for the change of use.
Clauses 26(2) amends section 3.2.2(2)(1)(a) to twice replace the term
"development". Under the IPA, "development" is characterised as an
action rather than the result of an action. Accordingly it is inappropriate in
the context of this subsection to use the term "development". Rather the
provision relates to the use of the result of the development, ie the structure
that is the result of building work, or works that are the result of operational
work being carried out.
Amendment of s 3.2.3 (Acknowledgement notices generally)
Clause 27 amends section 3.2.3 to clarify that even though the
assessment manager may not intend to make an information request, and
advises the applicant accordingly in the acknowledgement notice, this does
not refer to, or in any way interfere with the right of the chief executive to
make an information request, should referral coordination be necessary for
the application. The amendment confines the operation of the paragraph to
an information request under section 3.3.6, which does not apply if referral
coordination is required.
Amendment of s 3.2.8 (Public scrutiny of applications)
Clause 28(1) amends section 3.2.8(3) to include in the definition of
"supporting material" for the section any written requests for further
information made by the assessment manager during the information and
referral stage for an application. As supporting material, these requests
would need to be kept available for public scrutiny by the assessment
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Local Government and Other Legislation
Amendment
manager during the processing. This is consistent with the requirement that
any information request made by a concurrence agency must be kept
available for public scrutiny.6
Clause 28(2) renumbers the provision.
Amendment of s 3.4.2 (When does notification stage apply)
Clause 29 amends section 3.4.2 to clarify the intention of the provision
particularly in response to a recent court decision, which confirmed its
intended meaning. The amendment clarifies that if any aspect of the
development the subject of an application requires impact assessment,
including when another aspect requires code assessment, the whole of the
application is required to be publicly notified. This is so even if part of the
application is subject to a concurrence agency requirement that all or part of
the application be refused.
Section 4.1.28(4) provides that appeal rights for the application are
available for submitters only for that part involving impact assessment.
The combined effect of the provisions is that a person wishing to make a
submission about a development application is fully informed by the public
notification about all aspects of the proposed development, and can make a
submission about all or any aspect of the proposed development, whether
code or impact assessable. The entire submission, including those views
expressed on aspects of the proposed development that are subject to code
assessment, form part of the common material7 and as such must be taken
into account by the assessment manager in assessing both the code and
impact assessable aspects of the application. However, there is no appeal
available to the submitter against the decision of the assessment manager
with respect to the code assessable aspects of the application.
The heading of the provision is also amended.
6 See definition of "common material" in schedule 10, and s 3.3.6(5) of the IPA.
7 See definition of "common material" in schedule 10 of the IPA.
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Local Government and Other Legislation
Amendment
Amendment of s 3.5.3 (References in div 2 to codes, planning
instruments, laws or policies)
Clause 30 amends section 3.5.3 to remove an inconsistency between this
section and section 3.5.6. The division deals with how the assessment
manager must assess development. Section 3.5.3 states that any reference
to a code, planning instrument, etc. in the division refers to the code,
planning, instrument, etc. in effect at the time an application is made.
However, section 3.5.6, which is also within the division, refers to codes,
planning instruments, etc. coming into effect after the application is made.
Amendment of s 3.5.15 (Decision notice)
Clause 31(1) amends section 3.5.15(3)(b) to remove an anomaly about
the operation of this section and section 4.1.41.8 Section 3.5.15(3)(b)
requires the assessment manager to give a copy of its decision notice to
principal submitters within five business days of the day the applicant
lodges an appeal (if this is the earliest of the events listed). However, under
section 4.1.41, an applicant has ten days to notify the assessment manager
that they have lodged an appeal. If the assessment manager is relying for
knowledge of the appeal on the advice of the appellant, it would not be
possible for the assessment manager to comply with the requirement of
section 3.5.13(3)(b), if the applicant's advice is received in the later part of
the time given under section 4.1.41. Amended subsection (3)(b) links the
assessment manager's advice to submitters to when the assessment
manager receives advice of an appeal from the appellant.
Clause 31(2) amends subsection (5) to require the assessment manager
to give referral agencies, in addition to a copy of the decision notice, a copy
of approved plans and specifications.
8 Section 4.1.41 of the IPA requires a person who has lodged an appeal about a matter
relating to a development application to give notice of the appeal to particular parties
with an interest in the application.
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Local Government and Other Legislation
Amendment
Amendment of s 3.5.17 (Changing conditions and other matters
during the applicant's appeal period)
Clauses 32(1) and (2) amend sections 3.5.17(2) and (5) for consistency
with subsection (1) which provides for representations to be made by the
applicant to the assessment manager about any matter stated in a decision
notice (other than those specifically excluded in the section). The matters
include, but are not restricted to, conditions of the development approval the
subject of the decision notice. If the assessment manager does not agree
with the representations made under subsection (1), existing subsection (5)
only allows the assessment manager to respond to the applicant by written
notice that the conditions have not been changed. The amendment provides
for the assessment manager to give written notice that its decision has not
been changed with respect to any matter about which the applicant has made
representations.
Amendment of s 3.5.18
Clause 33 amends section 3.5.18 for consistency with sections 4.1.27
and 4.2.9. The amendment provides that when an applicant makes written
representations under section 3.5.18 to the assessment manager, seeking
suspension of the applicant's appeal period, if a negotiated decision notice is
given to the applicant, the applicant's appeal period9 starts again from the
day after the negotiated decision notice is received. The effect of this
amendment is that the applicant has 20 business days after the negotiated
decision notice is given to the applicant to lodge an appeal.
Clause 33 also amends existing section 3.5.18(4)(c) for consistency with
the amendment to s 3.5.17(5)10 to provide for the assessment manager to
notify an applicant that matters, including but not limited to conditions, in a
decision notice have not been changed.
9 See section 4.1.27(2) and 4.2.9(2) of the IPA.
10 See Clause 32(2).
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Local Government and Other Legislation
Amendment
Amendment of s 3.5.35 (Limitations on conditions lessening cost
impacts for infrastructure)
Clause 34(1) amends paragraph 3.5.35(1)(a) to replace the reference to
"development" with a reference to "lots, works, and uses".
"Development" is characterised under the IPA as an action, and not a result.
It is intended that this provision refer to the result of development, ie that the
use of premises, lots (the result of subdivision) or works, should not be
inconsistent with the timing for infrastructure under the planning scheme.
The provision has been amended accordingly.
Clause 34(2) adds a new subsection (1A) which makes it clear that only
the entity responsible for the particular infrastructure may impose a
condition under subsection (1). For example, a local government may not
under subsection (1) require a payment from an applicant to lessen cost
impacts related to the provision of State schools infrastructure.
Amendment of s 3.6.3 (Effect of direction)
Clause 35 amends section 3.6.3(1) to simplify the provision. The section
repeats in part the provisions of section 3.6.2(1) which lists the actions that a
Minister may direct the assessment manager to take about an application if
the Minister takes action under the division.11 The amended subsection
refers generically to a direction, and removes reference to specific directions,
obliging the assessment manager to comply with any direction the Minister
may make under section 3.6.2(1).
Amendment of s 3.6.5 (When development application may be called
in)
Clause 36 amends section 3.6.5 by linking the period during which the
Minister may call in an application involving a State interest to the date the
chief executive receives advice that an appeal has been lodged, whereas the
existing provision links the period to the end of the applicant's and
submitter's appeal periods. A corresponding amendment is proposed to
11 Chapter 3, part 6, division 1, gives the Minister reserve powers with respect to
development applications in particular circumstances.
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Local Government and Other Legislation
Amendment
section 4.1.41 12, to require an appellant to give notice of an appeal to the
chief executive.
Amendment of s 3.7.4 (Plan for reconfiguring that is not assessable
development)
Clause 37 amends section 3.7.4(2) by removing the reference to
"applicable code" to clarify the intended operation of the subsection. The
term "applicable code" has a particular meaning for the assessment of
development under the IPA and is not appropriately used in the context of
section 3.7.4. The provision deals specifically with the reconfiguration of a
building,13 which is exempt development under schedule 8. The IPA does
not regulate exempt development, and an "applicable code" cannot apply to
exempt development.
The intention of the provision is that a building format plan of
subdivision submitted to the local government for approval must be
consistent with the terms of any development permit or requirement already
applying to the building when the approval of the plan is sought. In effect
the provision facilitates the continuing lawfulness of the building under
section 1.4.4. 14 It is not intended that the provisions of any planning
scheme or code introduced after any approval relevant to the building should
further regulate the building. For example, a condition cannot be imposed
on the approval of a plan of subdivision, requiring the subdivided building
to comply with parking codes introduced into the planning scheme after any
development approval relevant to the building.
12 See clause 46.
13 Schedule 8, part 1, item 4(a) and part 3, item 15 provide that the reconfiguration of a
building only, is not assessable development. Two other types of development are also
excepted from being assessable development, however, neither of these require local
government approval of the plan of subdivision under section 3.7.4 - see s 3.7.8 of the
IPA and 50(g) of the Land Title Act.
14 Section 1.4.4 protects lawfully constructed buildings and works from further regulation
by a planning scheme.
20
Local Government and Other Legislation
Amendment
Amendment of s 3.7.8 (Application of pt 7 to acquisitions for public
purposes)
Clause 38(1) amends the section heading for consistency with the
amendment of the provision.
Clause 38(2) replaces section 3.7.8(1) to clarify that part 7 does not apply
to plans for the reconfiguration of any land acquired for a public purpose,
whether under the Acquisition of Land Act 1967 or otherwise,15 or held for a
public purpose, irrespective of how it was acquired.
New section 3.7.8(1) also exempts from the application of part 7 of
chapter 3 any plan for the reconfiguration of strategic port land. It is not
intended that reconfiguration of strategic port land be assessable
development under IDAS. Local government approval of plans for the
reconfiguration of strategic port land is not required at present. It is not
intended to make any change to this arrangement and the amendment
reflects this.
Amendment of s 4.1.10 (Rules of court)
Clauses 39(1) and (2) amend section 4.1.10(1) to allow for changes to
the Planning and Environment (P&E) Court Rules to be approved by
District Court judges. (Under the existing provision the Chief Justice of the
Supreme Court and another Supreme Court judge are required to give final
approval to the rules before they are forwarded to the Governor in Council
for approval.) In practice the rules for the P&E Court are made and
administered by the judges of the Planning and Environment Court who are
drawn from the District Court.16 It is appropriate that the Chief Judge and
other judges of the District Court should have responsibility for making and
amending the particular rules for the P&E Court.
15 See also Clauses 84(1) and 84(4) which amend schedule 8 of the IPA.
16 See section 4.1.8 of the IPA.
21
Local Government and Other Legislation
Amendment
Amendment of s 4.1.21 (Court may make declarations)
Clause 40 amends section 4.1.21 by inserting new subclauses (6) and (7)
to require a person seeking a declaration under the section to give the chief
executive notice in writing that they are taking this course of action. The
Minister may then elect to become a party to the proceeding by filing a
notice of election.
Amendment of s 4.1.23 (Costs)
Clause 41(1) amends section 4.1.23(2)(e) to clarify the intention of the
provision. As it currently exists, the provision could be interpreted as
providing for costs to be awarded against a party for default in a procedural
requirement under the IPA. This is not the intention of the Act and the
amendment makes it clear that the provision refers to a default in the
procedural requirements of the Court.
Clause 41(2) amends section 4.1.23(g) to replace an incorrect reference
to "the appellant" with "the applicant".
Amendment of s 4.1.28 (Appeals by submitters)
Clause 42 amends section 4.1.28 by inserting new subsections (5) and
(6) to reinforce that submitters do not have rights of appeal against aspects
of development that are subject to code assessment.
New subsection (5) makes it clear that where an application is made to
carry out development under a transitional planning scheme, appeal rights
are available to submitters only for the aspect or aspects of the proposed
development that would have required public notification under the repealed
Act.
New subsection (6) makes it clear that where an application is referred to
a concurrence agency and that agency is required to assess the application
against a concurrence agency code17 and the decision of the concurrence
agency forms part of the decision of an assessment manager, that part of the
decision is not subject to appeal by a submitter.
17 See definition of "concurrence agency code" in Schedule 10 of the IPA (inserted by
Vegetation Management Act 1999).
22
Local Government and Other Legislation
Amendment
These amendments are consistent with amended section 3.4.218 which
clarifies that for an application involving impact assessment, or both impact
and code assessable aspects, the whole application must be publicly notified.
A person may make a submission about any or all aspects, which must be
considered by the assessment manager as part of the common material in
the decision making process. However, the part of the decision which deals
with code assessable aspects is not subject to a submitter's appeal.
Amendment of s 4.1.30 (Appeals for matters arising after approval
given (co-respondents))
Clause 43 amends section 4.1.30 by adding two new subsections to
provide for appealable matters omitted by oversight. New subsection (4)
provides for a deemed refusal of a request for an extension of the currency
period of an approval, or for a minor change to a development approval,19
to be appealable matters. Subsection (5) provides that either of these
requests is deemed to be refused on the day after the expiry of the period
during which the decision should have been made.
Amendment of s 4.1.31 (Appeals for matters arising after approval
given (no co-respondents))
Clause 44 amends section 4.1.31 by adding two new subsections to
provide for an appealable matter omitted by oversight. New subsection (3)
provides for a deemed refusal of a request to change or cancel a condition of
a development approval20 to be an appealable matter. Subsection (4)
provides that the request is deemed to be refused on the day after the expiry
of the period during which the decision should have been made.
18 See clause 29.
19 See definition of "deemed refusal" in Schedule 10 of the IPA, amended by clause 85.
20 See definition of "deemed refusal" in Schedule 10 of the IPA, amended by clause 85.
23
Local Government and Other Legislation
Amendment
Insertion of new ss 4.1.33A and 4.1.33B
Clause 45 inserts a new section 4.1.33A to reinstate rights of appeal and
review available under the repealed Act21 about conditions imposed for
planning scheme amendments under that legislation. These amendments
may continue to be appealable or reviewable until the schemes are replaced
by IPA planning schemes.
Clause 45 also inserts a new section 4.1.33B that substantially
reproduces a provision of the repealed Act22 enabling an appeal against a
decision about development under a local law. Since the commencement of
the IPA a local government may not propose further local laws about
development and has limited powers to deal with existing local laws. 23 The
amendment enables an appeal against decisions under a development
decision under existing local laws, and for consistency with the appeal
framework of the IPA, against a deemed refusal.
The new sections establish the same 20-day appeal periods as are
available for appellants against development decisions under the IPA.
The provision is made retrospective to the commencement of the IPA.
Amendment of s 4.1.41 (Notice of appeal to other parties (div 8))
Clause 46(1) amends section 4.1.41(d) by requiring an appellant under
division 8, in addition to the existing requirements of the section, to give a
copy of a notice of appeal to the chief executive.
21 Section 2.19(3)(c)(a) of the repealed Act provided for a decision to be made about a
planning scheme amendment proposed by a local government, including whether or
not conditions should be attached. Section 4.15 of the repealed Act allowed for an
application for be made to the local government for review of the conditions, and a
decision about the application. The Court could review the decision on the application
under section 7.2 of the repealed Act.
Section 4.4 of the repealed Act provided for a local government to make a decision
about a planning scheme amendment proposed by an applicant. Section 4.3 allowed
an application for review of conditions attached to an approval. Section 4.4 allowed for
a decision on the application for review, and appeal to the Court.
22 See section 7.1(6) of the repealed Act.
23 See section 854 of the Local Government Act 1993.
24
Local Government and Other Legislation
Amendment
Clause 46(2) amends section 4.1.41(2)(b) by clarifying the action the
Minister24, a submitter to a development application, or an advice agency
must take to elect to become a co-respondent to an appeal.
Replacement of s 4.1.46 (Minister entitled to be represented in an
appeal involving a State interest)
Clause 47 replaces section 4.1.46 to clarify its intent, that the Minister
may elect to become a party to an appeal involving a State interest. The
heading of the section is amended accordingly.
Replacement of s 4.1.53 (Court must not decide appeal unless
notification stage complied with)
Clause 48 replaces section 4.1.53 to clarify that the Planning and
Environment Court may decide an appeal even if some procedural
requirements of IDAS have not been complied with. It is intended that this
discretion apply, in particular, to the requirements of IDAS for public
notification of development applications. However, the discretion may
apply to any procedural requirement of IDAS for any appealable matter.
Amendment of s 4.2.7 (Jurisdiction of tribunals)
Clause 49 amends section 4.2.7(2) to make it clear that whilst a tribunal
may decide any matter that may be appealed to it under another Act, an
appeal to a tribunal under this Act can only be made about a decision or the
like under this Act that relates to the Building Act.
Insertion of new s 4.2.16A
Clause 50 inserts a new section 4.2.16A requiring the registrar to give
notice of an appeal that may be appealed to the tribunal under another Act, to
parties the registrar considers are affected by the appeal within 10 business
days after the appeal is started.
24 See clause 47 which amends section 4.1.46.
25
Local Government and Other Legislation
Amendment
Amendment of s 4.2.17 (Notice of appeal to other parties (div 3))
Clause 51 amends subsections (1)(a) and (b) to require the registrar to
also give notice of the appeal to previously unlisted affected parties
including the private certifier (if any) and any building referral agency for an
aspect of the application the subject of the appeal.
Also, subsection (1)(a) consolidates the notification requirements if the
appellant is an applicant or a person who is given a notice mentioned in
section 4.2.11. Subsection (1)(b) prescribes who the registrar is to give
notice of appeal to, if the appellant is a building referral agency mentioned in
4.2.10.
Amendment of s 4.3.2A (Certain assessable development must comply
with codes)
Clause 52 amends section 4.3.2A to correct an oversight. The provision
requires compliance with certain codes that are not applicable codes. The
amendment extends the scope of the provision to include codes (also not
applicable codes) that are identified in a preliminary approval for
development.
Amendment of s 4.3.11 (Giving enforcement notice)
Clause 53(1) inserts a new subsection (2A) requiring an assessing
authority to give local government written notice of the withdrawal of an
enforcement notice. This will enable local governments to accurately
maintain the register of enforcement notices required under section 5.7.2.
Clause 53(2) inserts a new subsection (3A) requiring a private certifier
acting as an assessing authority to consult with the assessment manager
about the giving of an enforcement notice prior to giving the notice. This
complements subsection (3) which states that an assessing authority, such
as a local government, must consult with the private certifier engaged for a
development, before the assessing authority considers giving an
enforcement notice on the development.
26
Local Government and Other Legislation
Amendment
Clause 53(3) amends subsection (4) to cover the situation where an
assessing authority does not need to undertake consultation with a private
certifier or local government, prior to issuing an enforcement notice, if it
believes the work is dangerous.
Clause 53(4) amends subsection (5) to clarify that only if an assessing
authority is a private certifier or a local government, is the assessing
authority prohibited from delegating its power to give an enforcement notice
about the demolition of a building. This carries forward the provisions of
previous section 64A of the Building Act 1975 in force prior to the
commencement of the Building and Integrated Planning Amendment Act
1998.
Clause 53(5) amends subsection (7) to remove the unintended restriction
for no assessing authority other than local government to be able to give an
enforcement notice in the instance mentioned in subsection (7).
Amendment of s 4.3.18 (Proceedings for offences)
Clause 54(1) amends section 4.3.18(1) to extend the application of the
provision to enable a person to prosecute another person in a Magistrates
Court for any offence in chapter 4 part 3, not just a development offence.
Clause 54(2) replaces section 4.3.18(3) to limit the ability to prosecute
certain offences to the assessing authority25 for the application. For
consistency with the amendment to subsection (1), the list of offences in
subsection (3) is extended to include those offences in chapter 4 part 3
which are not defined as development offences26.
Amendment of s 4.3.26 (Effect of orders)
Clause 55 inserts an additional paragraph in the section to clarify the
extent of the Court's power to make enforcement orders. The amendment
makes it clear that the Court may order a respondent to proceedings for an
25 See definition of "assessing authority" in Schedule 10 of the IPA, as amended by
Clause 85.
26 See definition of "development offence" in schedule 10 of the IPA.
27
Local Government and Other Legislation
Amendment
enforcement order to, among other things, make good as far as is
practicable any change or damage done to anything in the course of
committing a development offence.
Amendment of s 5.1.16 (Public notice of proposed sale of certain land
held in trust by local governments)
Clause 56 amends section 5.1.16(1) to correct an oversight. Section
5.1.16 is intended to apply to any land acquired by the local government
under section 5.1.15 as an alternative to the payment of infrastructure
charges, whether by written agreement under section 5.1.15(1)(b) or a
requirement of the local government under section 5.1.15(3).
Amendment of s 5.2.2 (Agreements may be entered into about
infrastructure)
Clause 57 amends section 5.2.2(1)(d) to clarify the intent of the
provision. Section 5.2.2 deals with matters about the funding or supply of
infrastructure which may be the subject of an infrastructure agreement under
the IPA. Paragraphs (a) to (c) refer to agreement about the funding or
supply of infrastructure for development the subject of a development
application. Paragraph (d) is intended to allow an infrastructure agreement
to be entered into where there is no associated development application. The
reference to a development proposal in paragraph (d) has caused confusion.
This amendment deletes those words.
Amendment of s 5.2.5 (When infrastructure agreements bind
successors in title)
Clauses 58(1) and (2) amend section 5.2.5 by inserting a new subsection
(3) and renumbering. The section allows for infrastructure agreements
made under the IPA to bind the owner and successors in title if the owner of
the land consents. New subsection (3) allows for the agreement to release
the owner and successors in title from the obligations of the infrastructure
agreement when the land is subdivided. This will enable the individual
subdivided parcels to be disposed of free of the obligations of the
28
Local Government and Other Legislation
Amendment
agreement. If a development proponent were to take advantage of this
provision, and release the owner and successors in title, the public sector
entity requiring or providing the infrastructure, as a party to the agreement,
could ensure the agreement protected their interests.
Amendment of s 5.2.6 (Exercise of discretion unaffected by
infrastructure agreements)
Clause 59 amends section 5.2.6 to address concerns that an infrastructure
agreement that relies for its fulfillment on a development approval can only
be entered into after a development application has been made and before it
is decided. This interpretation was not intended and the amendment makes
it clear that the development application may have already been made, or it
may be made in the future.
New s 5.2.7
Clause 60 inserts a new section 5.2.7 to provide that where, if instead of
imposing conditions on a development permit an assessment manager or
concurrence agency enters into an infrastructure agreement with an
applicant27, any conditions subsequently imposed on a development permit
should be consistent with the terms of the agreement. To the extent they are
not, the terms of the agreement prevail. This provision is consistent with
the provisions of the IPA which require that conditions imposed on a
subsequent development approval must not be inconsistent with conditions
imposed on a previous approval28. As an infrastructure agreement is
entered into as an alternative to conditions being imposed it is appropriate
that its terms should have the same status as development conditions.
Amendment of s. 5.3.5 (Private certifier may decide certain
development applications and inspect and certify certain works)
Clause 61(1) amends the section heading for consistency with the
amendment of the provision.
27 See section 3.5.35(4) of the IPA.
28 See section 3.5.32(1)(a) of the IPA.
29
Local Government and Other Legislation
Amendment
Clause 61(2) omits subsections (2) to (7) and inserts new subsections (2)
to (4).
Subsection (2) will transfer to the Standard Building Regulation 1993
(SBR) requirements imposed on a private certifier to not decide an
application until all necessary development approvals are effective for listed
aspects of assessable development. This will enable the SBR to prescribe in
detail various other assessments that must have preliminary approval or a
development permit, as appropriate, prior to building work being approved.
This will include a requirement for prior approval of any necessary material
change of use or impact assessment of aspects of development and include
certain code assessable aspects of plumbing and drainage work and
operational works.
Subsection (3) delays the commencement of the decision stage for
applications being assessed by private certifiers to when the private certifier
is entitled under subsection (2) to make a decision. Subsection (4) clarifies
that in addition to deciding a development application, a private certifier may
also decide subsequent changes to an approval.
The requirements of existing subsections (5) to (7) are to be transferred
to the Standard Building Regulation to improve the readability of the
legislation.
This clause will not be commenced until the regulation is also
commenced. The date will be set by proclamation.
Amendment of s 5.3.8 (Private certifiers must act in the public
interest)
Clause 62 amends subsection (2)(b) to prescribe as an offence for a
private certifier to act contrary to a duty for private certifiers stated in the Act
under which the certifier is accredited. This is in addition to acting contrary
to a duty stated in the IPA.
30
Local Government and Other Legislation
Amendment
Replacement of s 5.6.1 and 5.6.2
Clause 63 replaces section 5.6.1 to clarify that Part 6 of Chapter 5 of the
IPA applies to development carried out for public housing, which is
defined by an amendment to section 5.6.2. The existing provisions are
unintentionally confined to the activities of the Queensland Housing
Commission.
Clause 63 also replaces the definitions for the part, in section 5.6.2. The
"chief executive" is defined, by reference to the State Housing Act 1945,
and the chief executive's role as the Queensland Housing Commission
(QHC).
"Public housing" is defined by reference to an element of subsidy by the
State to the accommodation being provided, and includes subsidised
services for residents of the housing. So for example, development under
this part would include building work for administration, kitchen or nursing
facilities within residential projects.
Amendment of s 5.6.3 (How IDAS applies to development by
commission)
Clause 64 amends section 5.6.3 to remove an inappropriate reference to
the Queensland Housing Commission.
Amendment of s 5.6.4 (Commission must publicly notify certain
proposed development)
Clause 65(1) amends the heading of section 5.6.4 to remove an
inappropriate reference to the Queensland Housing Commission.
Clause 65(2) replaces subsection (1) and links the operation of the
provision to the chief executive's decision about whether the proposed
development is substantially inconsistent with the planning scheme.
Under the existing provisions public notification is required if a public
housing proposal would, if it were assessable development under the
planning scheme, be subject to impact assessment. The effect of the
amendment is to avoid an unnecessary public notification process where the
31
Local Government and Other Legislation
Amendment
proposed development is inconsistent with the planning scheme but only in
a way that the chief executive is satisfied is not substantial given the
particular development.
For example, a proposal for housing for the aged in a residential area
may only be inconsistent with the planning scheme to the extent that fewer
parking facilities are proposed because residents will not be car owners and
therefore will not need parking facilities to the extent allowed for by the
planning scheme. A proposal for housing with wheelchair accessibility and
similar disability design adaptations may only be inconsistent to the extent
of minor variations from building setbacks required by the planning scheme
provisions. Notification would be required where the form of housing
proposed was not envisaged for the site and surrounding properties by the
statement of intent for the particular area in the planning scheme.
Clause 65(3) amends subsection (2) to remove an inappropriate reference
to the Queensland Housing Commission.
Clause 65(4) amends subsection (3) for consistency with amended
subsection (1) by referring directly to the sections of the IPA that detail the
public notification process required to be followed. (This also removes the
need for existing subsection (4)(b)).
Clause 65(5) replaces existing subsections (4) and (5) by removing
inappropriate references to the Queensland Housing Commission, and the
State Housing Act 1945. As the notice required by the public notification
sections of the IPA is inappropriate, the chief executive has the
responsibility to approve a revised form for the public notification of public
housing development. The chief executive must take any submissions into
account before deciding whether to proceed with the public housing.
Amendment of s 5.6.5 (Commission must advise local government
about all development)
Clauses 66(1), (2), and (3) amend section 5.6.5 to remove inappropriate
references to the Queensland Housing Commission.
32
Local Government and Other Legislation
Amendment
Amendment of s 5.7.6 (Documents the chief executive must keep
available for inspection and purchase)
Clause 67(1) amends section 5.7.6 to require the chief executive to keep
available for the public to inspect and purchase, all notices given to the chief
executive of proceedings taken29 or appeals lodged.30
Clause 67(2) renumbers paragraphs in the section.
Amendment of s 6.1.1 (Definitions for pt 1)
Clause 68(1) removes the definitions of "applicable codes",
"assessable development", and "self-assessable development".
Clause 68(2) inserts new definitions of "applicable codes", "assessable
development", and "self-assessable development", and other definitions
for the section, for conciseness and to remove circularity between the
definitions of "self-assessable development" and "applicable codes".
The definition of "applicable codes" is amended to draw on the
definition of "standards" added for the section.
The definition of "assessable development " for transitional purposes is
amended to include development made assessable under a transitional
planning scheme which commenced after the commencement of the IPA31.
A new paragraph (c) is added to the definition to include development on
State land under a transitional planning scheme. Under the repealed Act
Crown land was not subject to regulation under a planning scheme.32
29 See clause 40.
30 See clause 46.
31 Section 6.1.9 of the IPA provides for the preparation of transitional planning schemes
commenced under the repealed Act to continue under the IPA.
32 See section 2.21 of the repealed Act.
33
Local Government and Other Legislation
Amendment
The definition of "self-assessable development" for transitional
purposes is amended to remove circularity between the definitions of
"self-assessable development" and "applicable codes", and includes
development made assessable under a transitional planning scheme that
commenced after the commencement of the IPA.
A definition of "standards" is inserted to clarify the definitions of
"applicable codes", and "self assessable development", for conciseness and
to remove circularity between the definitions of "self-assessable
development" and "applicable codes".
A definition of "State land" is inserted to clarify the definitions of
"assessable" and "self-assessable development".
Insertion of new 6.1.10B
Clause 69 inserts a new section 6.1.10B to address a difficulty being
experienced by local governments needing to resume land. Under the
repealed Act a local government could resume land for any purpose of its
planning scheme33. The IPA provides for local governments to resume
land to achieve the desired environmental outcomes stated in the planning
scheme. For the time being most planning schemes are transitional
schemes made under the previous legislation and do not state desired
environmental outcomes. As a consequence, local governments with
transitional schemes have lost the ability to resume land for planning
scheme purposes. This was not intended. The proposed bill inserts a
transitional provision in the IPA which provides a similar power to that
under the repealed P&E Act for transitional schemes. The power to take
land to achieve the strategic intent of a planning scheme is intended to
approach the power under the IPA (to achieve desired environmental
outcomes), rather than the broader power under the repealed Act which
allowed taking for any purpose of the planning scheme.
33 See section 8.1 of the repealed Act.
34
Local Government and Other Legislation
Amendment
Amendment of s 6.1.30 (Deciding applications (other than under the
Standard Building Regulation))
Clause 70 amends section 6.1.30(3)(d) to remove any doubt that while
the criteria in the provision under the repealed Act34 apply to the assessment
of an application, IDAS is the process which must be followed.
Insertion of new s 6.1.30A
Clause 71 inserts a new retrospective section 6.1.30A validating aspects
of development applications and approvals made and given under
transitional planning schemes where the full extent of development the
applicant seeks approval for has not been nominated on the application
form.
The provision is needed because some applicants unfamiliar with IDAS
have failed to nominate the full range of development they are applying for
on the form, even though the information submitted with the application
clearly indicates the application is intended to cover such development.
Under the repealed Act, approvals were given as a "package"
encompassing a range of development defined under the planning scheme,
including changes of use, building works, and other works. Applicants had
no choice but to obtain the complete package. Further approvals would have
been required under other legislation such as the Building Act before some
of the development could actually start. Under IDAS, applicants have
flexibility to apply for development under separate applications if they wish,
and the application form consequently makes provision for the applicant to
nominate the aspect or aspects of development they are applying for. Many
applicants and assessment managers also have confused the term "material
change of use" under the IPA with the totality of approvals obtained under a
planning scheme under the repealed Act.
The combined result of these factors is that some applicants have
nominated only a material change of use on the application form, when their
intention is to seek a "package" style approval equivalent to what they
would have received under the repealed Act. Under IDAS, the equivalent of
34 Section 5.2(4) of repealed Act.
35
Local Government and Other Legislation
Amendment
this "package" most commonly consists of a development permit for a
material change of use, and preliminary approval for building and other
works, so that further assessment under the planning scheme is
unnecessary.
Without a validating provision of this nature, the failure to nominate on
the application form all aspects of development for which the applicant is
seeking approval could be strictly interpreted to mean that a further
application or applications are required for assessment of the other
development under the transitional planning scheme. Because the scheme
treats all aspects of development as a "package", it could further be argued
that, if the original application required public notification, so too would the
further application.
Consequently, the provision has effect where an applicant applies for a
material change of use of premises and it is apparent from the common
material for the application, (such as detailed plans and specifications), that
the applicant intended at the time the application was made to seek approval
for building work or other aspects of development assessable under the
transitional planning scheme. In that case, the application is deemed to be
for that other development as well as the material change of use.
The amendment provides that if the assessment manager approves the
application, the approval for the building work or other aspects of
development not stated in the application is a preliminary approval only,
unless the approval specifically states otherwise. If the approval is a
preliminary approval for building work, no further approval is required
under the planning scheme. If the approval is for other works requiring a
further application or applications under the transitional planning scheme,
the application or applications must be processed using the code assessment
process. This ensures that, in common with assessment under the repealed
Act, only one public notification process needs to be undertaken for the
proposal.
The local government may expressly refuse the other development
deemed to be included in an application.
36
Local Government and Other Legislation
Amendment
Also, an applicant may limit the operation of the provision by written
notice to the assessment manager specifically nominating the aspects of
development the applicant intended to seek approval for. This will address
any disagreements between the applicant and assessment manager as to the
scope of the application. For example, such disagreements may be reflected
in the scope of information requests for the application, or the conditions of
any approval.
This section does not provide an opportunity for applicants to amend an
application in progress by adding further development. Subsection 1(c)
indicates it must be clear from the common material that the application was
for the other development. The use of the term "was" in this context is
intended to convey that at the time the application was made, it could be
inferred from the common material that the applicant intended to seek
approval for development in addition to the material change of use. Further
common material may be subsequently submitted supporting the
application for the other development (for example, in response to an
information request), however if it could not be inferred from the
information submitted when the application was made that approval for the
other development was being sought, this section would not apply.
Amendment of s 6.1.31 (Conditions about infrastructure for
applications)
Clause 72(1) amends section 6.1.31(2)(a) to clarify the intention of the
IPA that agreements may be entered into about infrastructure under the Act,
regardless of the other arrangements that can be made about infrastructure
provision under the planning scheme.
Clause 71(2) inserts a new subsection (3) which provides that the terms
of an infrastructure agreement prevail to the extent of any inconsistency over
any conditions imposed under this section on a development approval,
regardless of the order in which they were made or decided. This is
consistent with the relationship between development approvals and
infrastructure agreements provided for generally under the IPA.
37
Local Government and Other Legislation
Amendment
Amendment of s 6.1.32 (Conditions about infrastructure for
applications under interim development control provisions or
subdivision of land by-laws)
Clause 73 amends section 6.1.32 by providing that the terms of an
infrastructure agreement prevail to the extent of any inconsistency over any
conditions imposed under this section on a development approval,
regardless of the order in which they were made or decided. This is
consistent with the relationship between development approvals and
infrastructure agreements provided for generally under the IPA.
Omission of s 6.1.33 (Conditions about infrastructure for applications
about reconfiguring a lot)
Clause 74 omits section 6.1.33 after 31 March. The omission coincides
with the expiry of the time given in the section for the making of an
application for the development affected by the section, ie two years from its
commencement.
Amendment of s 6.1.34 (Consequential amendment of transitional
planning schemes)
Clause 75 amends section 6.1.34(2) to remove an obligation, and allow
local government to exercise its discretion, to amend its planning scheme
for consistency with a development approval that under the repealed Act
would first have required the planning scheme to be amended. Experience
with administering the provision has shown that there are circumstances
where such amendments are unnecessary or undesirable, and it is
appropriate that local governments should have the option to amend the
planning scheme.
The operation of the existing provision limits to 20 days the time within
which the local government may choose to amend its planning scheme to
reflect an approval.
38
Local Government and Other Legislation
Amendment
Amendment of s 6.1.35A (Applications to change conditions of
rezoning approvals under repealed Act)
Clause 76(1) amends section 6.1.35A(1) to extend the operation of the
provision to include conditions imposed under section 2.19(3)(a) of the
repealed Act35.
Clauses 76(2) and (3) amend sections 6.1.35A(2) and (3) by providing
that an applicant wishing to change a condition of a rezoning may elect to
use either the process under the repealed Act or IDAS.
Previously the provision allowed an appeal under the repealed Act only if
the IDAS process could not be used to achieve the change. The effect was
that where the change involved assessable development it was necessary to
apply under IDAS. However, if the change was not assessable
development, for example a change to a management condition such as
length of operating hours, the process under the repealed Act could be used.
The optional means of seeking a change provides more flexibility and
does not disadvantage either the applicant or potential submitters as the
process under the repealed Act involves public notification and third party
appeal rights.
The provision is retrospective.
Replacement of s 6.1.35B (Development approvals prevail over
conditions of rezoning approvals under repealed Act)
Clause 77 replaces section 6.1.35B to clarify that a development approval
prevails to the extent of any inconsistency over any rezoning approval or
decision under the repealed Act, whether the rezoning proposal was initiated
by the Minister, a local government or an applicant.
The provision is retrospective.
35 Section 2.19 of the repealed Act provided for the assessment of an amendment of a
planning scheme proposed by the Minister or a local government. Subsection 3(a)
provides for conditions to be imposed on the proposal.
39
Local Government and Other Legislation
Amendment
Amendment of s 6.1.45 (Infrastructure agreements under repealed
Act)
Clause 78(1) amends the heading of section 6.1.45 to omit reference to
the repealed Act, as the operation of the amended provision will be wider.
Clause 78(2) inserts a subsection (2) which clarifies the status of
permission criteria under section 40 of the Transport Infrastructure Act, or
section 145(4) of the Transport Operations (Passenger Transport) Act
(TOPTA), contained in infrastructure agreements under the repealed Act or
under the IPA.
Permission criteria made under section 40 (repealed 1 December 1999)
and the TOPTA determined what aspects of a proposal needed to be
referred to the Department of Main Roads (DMR). The approval of
development under section 40 has been integrated into IDAS, and the
Integrated Planning Regulation determines when development must be
referred to DMR. However, transitionally the provisions of section 40 and
the TOPTA may apply to some infrastructure agreements made under the
IPA.
The amendment ensures that where there is an infrastructure agreement
under the repealed Act or under the IPA that contains permission criteria,
the referral arrangements in the permission criteria will prevail.
Clause 78(2) also inserts a definition of "permission criteria" for the
purposes of the section.
Amendment of s 6.1.45A (Development control plans under repealed
Act)
Clauses 79(1) and (2) replace subsection (1) and extends the operation of
the section to make valid any appeal process under a development control
plan (DCP).
Clause 79(3) inserts a new subsection (3) which preserves the right to
claim compensation under the repealed Act for a change to a DCP.
40
Local Government and Other Legislation
Amendment
Some of the DCPs to which this provision applies contain approval
procedures that are inconsistent with the requirements under the IPA for
claiming compensation, in particular, the 2 year limitation for lodging a
development application (superseded planning scheme). The proposed
amendment allows a claim for compensation to be made as if the repealed
Act had not been repealed.
The provision is retrospective.
Amendment of s 6.1.46 (Local Government (Robina Central Planning
Agreement) Act 1992
Clause 80 amends section 6.1.46 to preserve the transitional
arrangements that have continued the operation of the Robina Act, until 30
March 2003, to coincide with the date by which IPA schemes are required
to be prepared.
Insertion of new s 6.1.51A
Clause 81 inserts a new section 6.1.51A to ensure that continuing uses
established on State land before the commencement of the IPA, when State
land was not bound by planning schemes36, are lawful existing uses even
though the land may have ceased to be State land. Similarly, premises that
were a lawful building or works before commencement of the IPA are
validated.
Section 6.1.51 makes lawful development on State land that was the
subject of an order in council under the repealed Act. The new section
removes any doubt that uses of State land that were established before the
commencement of the IPA and which continue, and buildings and works
established on State land before that time, have the protection given by
sections 1.4.637 and 1.4.738 of the IPA. This is so even though the
premises were not the subject of an order in council under the repealed Act.
36 See section 2.21 of the repealed Act.
37 Lawful uses of premises protected.
38 Lawfully constructed buildings and works protected.
41
Local Government and Other Legislation
Amendment
Amendment of sch 1 (Process for making or amending planning
schemes)
Clause 82 amends schedule 1 by inserting a new section 11(3A) to
enable the Minister to delegate to the chief executive the responsibility for
advising a local government it may proceed to publicly notify a minor or
routine scheme amendments, where there are no State or regional interests
involved. The delegation will enable the administrative process for these
amendments to be streamlined.
Amendment of sch 5 (Community infrastructure)
Clause 83 amends item 1(p) of the schedule, which lists community
infrastructure for the purposes of the IPA. Designation of land under part 6
of the IPA is restricted to land for community infrastructure under schedule
5. Non-urban water cycle management infrastructure, such as irrigation
dams, is not included in the existing list of community infrastructure and as
a consequence land for this infrastructure cannot be designated. This does
not reflect the intention of the IPA and item 1(p) is amended to refer to
water cycle management infrastructure generally.
Amendment of sch 8 (Assessable, self-assessable and exempt
development)
Clause 84(1) amends item 4, by substituting paragraphs (c) and (d) for
existing paragraph (c), and adding paragraph (e) to clarify that
reconfiguration of any land acquired for a public purpose, whether under the
Acquisition of Land Act 1967 or otherwise, or held for a public purpose
under that Act is exempt development under the IPA39.
Clause 84(1) also adds new paragraph (f) which provides that
reconfiguration of strategic port land is a further exception to the general rule
that reconfiguration is assessable development. The provision reflects the
existing situation where no approval is needed for this development.
39 See also Clauses 38 and 84(4).
42
Local Government and Other Legislation
Amendment
Clause 84(2) amends part 1, by adding item 4A which makes assessable
a material change of use of premises on strategic port land that is
inconsistent with the relevant port's land use plan. This provision
corresponds with amendments to the Transport Infrastructure Act 1994
(TIA).40 The provision, together with amendments to the Integrated
Planning Regulation 1998 will reflect the existing approval regime for
development on strategic port land which requires that the approval of the
Minister for Transport be sought where development is proposed on
strategic port land that is inconsistent with the land use plan for the port
developed under the TIA. Under IDAS the Minister will be a concurrence
agency for the development.
Clause 84(3) inserts new item 10A which relates to section 6.1.40 of the
IPA. Section 6.1.40 is a transitional provision that exempts development
started by or on behalf of the State from regulation by planning schemes.
The provision will expire on 30 March 2000.
New item 10A provides that any use implied by building work,
plumbing or drainage work, or operational work, substantially commenced
before 31 March 2000, is exempt from regulation by the planning scheme.
This provision will ensure that the use of a relevant structure or works will
not require an approval from the local government and will be a lawful use
under the IPA.
There must, however, be a clear link between the work and a particular
use for the provision to exempt the material change of use (MCU). It is not
intended to protect any other MCU on the site, including any substantial
alterations or extensions with respect to the implied use if the substantial
increase in scale or intensity is not implied by the works.
For example the provision would not exempt:
· the use of a building constructed for a hospital, from assessment
of the MCU under the planning scheme, if the building were
subsequently or alternatively used for a school. This would be so
even though no further external work was necessary to make the
change;
40 See part 8.
43
Local Government and Other Legislation
Amendment
· any substantial increase in scale or intensity of a use of land after
30 March 2000, (where the use was implied by works
commenced before 31 March 2000). This would be so whether
or not the increase in scale or intensity was accompanied by
building or other works also commencing after 30 March 2000.
Clause 84(4) inserts new paragraphs (c), (d) and (e), and (f) in item 15.
Paragraphs (c) and (d) replace previous item (c) to clarify that
reconfiguration of any land acquired for a public purpose, whether under the
Acquisition of Land Act 1967 or otherwise, or land held for a public
purpose, cannot be made assessable or self assessable under a planning
scheme 41. Paragraph (f) makes similar provision for the reconfiguration
of strategic port land. This maintains the existing position for both these
types of land.
Amendment of sch 10 (Dictionary)
Clause 85(1) omits two definitions replaced by this clause.
Clause 85(2) replaces the definition of "assessing authority" to provide
that the following entities are assessing authorities and may, within their
jurisdiction, issue enforcement notices with respect to the stated
development. Where the respective jurisdictions overlap administrative
arrangements should avoid duplication of enforcement notices:
· for assessable development - either the assessment manager
giving a development permit, or a concurrence agency whose
conditions have been imposed on the permit;
· for assessable development carried out without a development
permit - either the assessment manager or the State entity who
would have been a concurrence agency for the application;
· for assessable development assessed by a private certifier - either
the private certifier or the relevant local government;
· for self assessable development (other than building or plumbing
work) - the local government or the entity administering the code
for the development;
41 See also Clauses 38 and 84(1).
44
Local Government and Other Legislation
Amendment
· for self assessable building or plumbing work carried out on
behalf of a public sector entity - the chief executive of that entity;
· for any other matter, including self assessable building or
plumbing work generally - the local government.
Clause 85(2) also inserts a definition of "concurrence agency code" for
the purposes of the definition of "applicable code" in schedule 10, and
replaces the definition of "superseded planning scheme" to remove
circularity.
Clause 85(3) amends the definition of "applicable code" to remove any
doubt that the term includes a concurrence agency code42.
Clause 85(4), (5), and (6)amends the definition of "deemed refusal" by
making two minor corrections, and by including the deemed refusal of a
request to extend the currency period for a development approval. This is
consistent with the amendment of section 4.1.30.43
Clause 85(7)identifies a further offence in the definition of
"development offence" for consistency with a previous amendment44.
PART 7--AMENDMENT OF INTEGRATED
PLANNING AND OTHER LEGISLATION
AMENDMENT ACT 1998
Act amended in pt 7
Clause 86 declares that part 7 amends the Integrated Planning and Other
Legislation Amendment Act 1998.
42 See definition of "concurrence agency code" inserted by clause 85(2).
43 See clause 43.
44 Building and Integrated Planning Amendment Act 1998, s 131.
45
Local Government and Other Legislation
Amendment
Omission of s 42 (Amendment of s. 5.3.5 (Private certifier may decide
certain development applications and inspect and certify certain
works))
Clause 87 deletes section 42 of the Integrated Planning and Other
Legislation Amendment Act 1998. These provisions are replaced by clause
61.
PART 8--AMENDMENT OF SOUTH EAST
QUEENSLAND WATER BOARD (REFORM
FACILITATION) ACT 1999
Act amended in pt 8
Clause 88 provides that Part 8 amends the South East Queensland Water
Board (Reform Facilitation) Act 1999.
Replacement of s 9 (Board to ensure transfer proceeds are paid to
State)
Clause 89 inserts a replacement provision in relation to payment of the
transfer proceeds. Whereas previously the proceeds were to have been paid
to the State, they will now be paid to the prescribed entities listed in the
clause. This is to ensure the legislation accurately reflects the State's
commitment to distribute a proportion of the transfer proceeds amongst
certain local governments.
46
Local Government and Other Legislation
Amendment
PART 9--AMENDMENT OF TRANSPORT
INFRASTRUCTURE ACT 1994
Act amended in pt 9
Clause 90 declares that part 9 amends the Transport Infrastructure Act
1994.
Replacement of s 172 (Strategic port land not subject to zoning
requirements)
Clause 91 replaces section 172 to provide that despite section 2.1.1 of the
IPA 45 strategic port land is not subject to regulation under planning
schemes. However, by implication it is subject to the IPA and in particular
to schedule 8 which lists development assessable under IDAS.
Omission of s 173 (Use of strategic port land to be consistent with
approved land use plan)
Clause 92 omits section 173. The section currently provides46 that where
a port authority proposes to use its strategic port land in a way inconsistent
with its port land use plan the Minister for Transport may approve the
inconsistent use if the Minister is satisfied that the port authority has
adequately consulted with the public and the relevant local government. It is
proposed that the responsibilities of the Minister for this development be
integrated into IDAS. A material change of use of strategic port land which
is inconsistent with the port land use plan is to be listed as assessable
development in schedule 8 of the IPA 47, and amendments to the Integrated
Planning Regulation 1998 will make the Minister for Transport a
concurrence agency for the development. The Minister's jurisdiction will
45 Section 2.1.2 provides that planning schemes apply to the whole of a local
government's area. This includes strategic port land in its area.
46 See sections 169 to 171 of the Transport Infrastructure Act 1994.
47 See Clause 84(2).
47
Local Government and Other Legislation
Amendment
include the power to require from the port authority, if necessary, evidence
of prior consultation with the public and the local government.
PART 10--MINOR AMENDMENTS
Clause 93 provides that the Schedule amends those Acts mentioned in it.
SCHEDULE
MINOR AMENDMENTS
This schedule includes minor and consequential amendments.
BUILDING ACT 1975
Clause 1 corrects a cross reference in the definition of "owner".
Clause 2 corrects a cross reference in section 16(7).
Clause 3 inserts in section 26 after "(2)" the words "to an owner".
Clause 4 corrects a cross reference in section 26.
CITY OF BRISBANE ACT 1924
Clause 1 corrects a cross-reference in section 3A(2).
48
Local Government and Other Legislation
Amendment
Clause 2 removes a misspelling from the heading to section 14A.
Clause 3 simplified redundant words in section 14A(1).
Clause 4 omits from section 134(2) the words `and, where the council' to the end of
that section. These words are redundant because they refer to s.8(3) of the
Acquisition of Land Act 1967 which has been repealed.
INTEGRATED PLANNING ACT 1997
Clause 1 omits section 2.1.16(2) which is replaced in new section
2.1.17A.
Clause 2 amends 4.1.48(1) to replace a reference to the District Court
Rules part 39 with a reference to the Uniform Civil Procedures Rules 1999,
ch 9 pt 4.
Clause 3 similarly amends section 4.1.48(3)(e).
Clause 4 amends the spelling of "policies" in s6.1.20.
Clause 5 amends the spelling of "policies" in s6.1.29(3)(c).
LOCAL GOVERNMENT ACT 1993
Clause 1 corrects a cross-reference in section 9(2).
Clause 2 simplifies the heading to chapter 10, part 2.
Clause 3 makes uniform the use of terms in the heading to section 774.
Clause 4 makes the wording in the heading to section 776 consistent with
other provisions in the chapter.
49
Local Government and Other Legislation
Amendment
LOCAL GOVERNMENT (CHINATOWN AND THE
VALLEY MALLS) ACT 1984
Clause 1 provides for the town clerk of the Brisbane City Council to
approve the form of infringement notices (currently required to be
prescribed by Regulation). This will avoid the problem of invalid
infringement notices when the Regulation made pursuant to the Local
Government (Chinatown and The Valley Malls) Act 1984 expires on 1
September 2001.
LOCAL GOVERNMENT (QUEEN STREET MALL)
ACT 1981
Clause 1 provides for the town clerk of the Brisbane City Council to
approve the form of infringement notices (currently required to be
prescribed by Regulation). This will avoid the problem of invalid
infringement notices when the Regulation made pursuant to the Local
Government (Queen Street Mall) Act 1981 expires on 1 September 2000.
© The State of Queensland 2000