An alternative way to challenge development
This factsheet is intended as a plain English explanation of a particular area of law. Whilst all care has been taken in its preparation, it is not a substitute for legal advice as legal details have been omitted to provide a brief overview of this area of the law. If you require legal advice relating to your particular circumstances you should contact EDO NQ or your solicitor.
This fact sheet outlines the particular powers of the Queensland Minister for State Development, Manufacturing, Infrastructure and Planning (“The Minister”) under the Planning Act 2016 (Qld) to take over the decision making process from a local government in relation to a development application. It looks at the legislative process the Minister is required to follow and the general limitations of the call-in power.
What is the ministerial call-in power?
The call-in power conferred on the Minister under the Planning Act 2016 (Qld) (“Planning Act”) permits the Minister to intervene in the assessment process of a development application under certain circumstances. Once the Minister makes the decision to call in a development application, the Minister becomes the assessment manger. This allows the Minister to undertake an assessment or reassessment of the application against any identified State interest or on planning merit.
The Minister may call in a development application at any stage of a local government assessment process. Once the Minister gives a call in notice to the original decision maker, any decision by that decision maker no longer has any effect. Any appeals against a decision of the original decision maker are discontinued and the assessment process effectively starts again. The Minister’s decision on the application is final and cannot be appealed in the Planning and Environment Court.
When can the call-in power be used?
The ministerial call-in power can only be exercised where there is a state interest involved. A state interest is defined under schedule 2 of the Planning Act, as an interest that the Minister considers:
- affects an economic or environmental interest of the State or a part of the State; or
- affects the interest of ensuring the purpose of the Planning Act is achieved.
The purpose of the Planning Act is to establish an efficient, effective, transparent and accountable system that facilitates the achievement of ecological sustainability. Ecological sustainability requires the integration of following three elements:
- the protection of ecological processes and natural systems at local, regional, State, and wider levels: this involves the need to conserve, enhance or restore the life-supporting capacities of air, ecosystems, soil and water for present and future generations, and protect biological diversity; and
- economic development: targeted to achieve strong economies with the capacity to meet their needs, without compromising the ability of future generations to meet theirs; and
- the maintenance of the cultural, economic, physical and social wellbeing of people and communities: which includes, among others, the accounting for potential adverse impacts of development on climate change.
The call in power may be exercised if the Minister considers the purpose of the Planning Act is not being achieved. While notions of economic and environmental protection are encompassed within the purpose of the act, these issues are covered in greater detail under the State Planning Policy,  providing the Minister with a wider scope for the exercise of the call-in power.
It is important to note that, whether specifically identified in a development application or not, planning schemes in Queensland require the integration of all state interest policies.
Further guidance on state interest can also be found in the Regional Plan specific to your region. The purpose of the Regional Plan is to identify the types of outcomes wanted, and provides the policy framework for achieving them. Regional plans are particularly useful for identifying and addressing regional issues such as managing competing land uses.
The Planning Act with the support of the Planning Regulation 2017 (Qld) sets out the process that must be followed and timeframes that must be adhered to if the Minister decides to call in a development application. The Minister must give a proposed call in notice seeking representations about the proposed call in to:
- the decision maker;
- the applicant;
- each referral agency; and
- any submitters for the application the Minister is aware of at the time of the notice.
The proposed call in notice must state:
- the Minister is proposing to call in the application;
- the reason for the proposed call in;
- that the decision process has stopped if the decision-maker has not yet decided the application;
- the point in the process the Minister proposes the process will start or restart;
- whether the Minister intends to direct the decision-maker to assess all or part of the application; and
- that the person to whom the notice is given may make representations about the proposed call in, within the representation period.
The time in which the proposed call in notice must be given will vary depending on whether or not, an appeal has been filed, there are submitter(s) on the application and/or the application had deemed approval under the Planning Act. 
Once the proposed call in notice has been given, the decision-making process stops. The decision maker cannot cancel an application after receiving a proposed call in notice. If the Minister decides not to proceed with the call in the decision-making process will restart from the point where it stopped.
If the Minister does decide to call in the application the Minister must give a ‘call in notice’ within 20 business days of the end of the representation period. The representation period is the time in which a person may make representation about the proposed call in and is determined by regulation. The call in notice discontinues any appeals and cancels all previous decisions made on the application.
Common decisions delivered by the minister
Applications are decided on a case-by-case basis. Decisions delivered by the Minister can vary from an unrestricted approval of an application to a complete refusal of an application. It is common for the Minister to grant an application subject to certain conditions and/or restrictions on the use of the proposed building. An example of the restrictions which may be imposed by the Minister is illustrated in the call-in and subsequent decision delivered on the Bargara Esplanade Jewel application.
The original application proposed a nine-storey multi-use building comprising 60 residential units, 10 residential townhouses, retail shops and rooftop bar. Concerns were raised that the site is located in a Sea Turtle Sensitive Area in the planning scheme and the council’s planning officer’s report indicates that the development application does not sufficiently demonstrate that the proposed development will not cause an unreasonable impact on sensitive fauna in the area.
The Minister called-in the application and subsequently approved two discrete building comprising 55 residential units, 10 residential townhouses with no provision for retail or commercial use with a maximum height of six stories. In addition, all apartments are to incorporate architectural and design features that minimise lighting impacts on turtle nesting areas.
How does an application get called in?
There are many reasons the Minister may want to call in a development application. The application may not comply with town planning or other environmental constraints. The application may not demonstrate sufficient consideration of surrounding environmental matters or a decision maker may seek for the Minister to handle a particular application for a variety of reasons.
There is no official process for concerned community members to have a development application called-in by the Minister and ultimately the decision to call-in an application is at the discretion of the Minister. We recommend anyone who is concerned that a current development application poses a significant impact to any sensitive environmental matter contact EDO NQ or your solicitor.
This factsheet is current as at September 2019
- The power to call in a development application is conferred on the Minister under ss 101-106 of the Planning Act 2016 (Qld).
- See the Queensland Government information regarding the Minister’s power to call in a development application at: https://planning.dsdmip.qld.gov.au/planning/spasystem/development-under-spa/development-assessment-under-spa/ministerial-call-in
- See generally, effect of a call in notice s 104 of the Planning Act 2016 (Qld).
- Section 104(1)(a) of the Planning Act 2016 (Qld).
- See s 91 Planning Act 2016 (Qld), the Minister may exercise powers under Part 3 of the Act in relation to a matter only if that matter involves, or is likely to involve a State interest.
- Planning Act 2016 (Qld) s 3(1).
- Planning Act 2016 (Qld), s3(2).
- Queensland State Planning Policy available here https://dsdmipprd.blob.core.windows.net/general/spp-july-2017.pdf
- The Regional Plan for Far North Queensland is available here https://dsdmipprd.blob.core.windows.net/general/fnq-regional-plan-2009-31.pdf.
- Planning Regulation 2017 (Qld) s 46.
- The representation period must be at least five days from when the proposed call in notice was given. See Planning Regulation 2017 (Qld) s 50.
- Planning Regulation 2017 (Qld) s 47.
- Planning Act 2016 (Qld) s 103.
- Planning Act 2016 (Qld) s 103(3)(d)