The Queensland Government has released proposed amendments to the state planning laws, which are said to support economic recovery from the COVID-19 crisis.
Submissions are due on Friday 7 August 2020. See here for details on how to make a submission.
There are three elements to the proposed planning stimulus measures:
- Changes to the process for making infrastructure designations, which significantly lower the environmental assessment necessary to authorise infrastructure, potentially including large-scale infrastructure;
- Changes to the rules for public notification, which (while timely) could be refined to better meet their intended purpose; and
- Changes to the regulations which will allow development to proceed with a lower level of assessment or no assessment, which have not been adequately explained and contain concerning and unnecessary reductions in community participation rights.
Infrastructure designations: reduced environmental assessment
Infrastructure designations can encompass a wide variety of both public and private infrastructure and are significant because they have the effect that no further assessment under Planning Law is required before the infrastructure proceeds. As a consequence, it is critically important that adequate environmental assessment occurs before a decision is made to make the infrastructure designation.
The proposed changes alter the necessary environmental assessment from the current requirement for “a comprehensive assessment of all environmental, social and economic impacts” and “how any negative impacts can be avoided, mitigated or offset” to the proposed an “acknowledgement” of impacts on surrounding properties and “off-site impacts such as noise, traffic and infrastructure capacity” and how these are proposed to be managed.
This is a significant lowering of the bar for environmental assessment. Our concerns about this are compounded by the fact that these changes do not have an expiry date and will remain in effect unless and until they are repealed or amended.
We believe that any truncated process for infrastructure designations should be time-limited with an express expiry date and that it should be limited in its operation to infrastructure with a lower environmental risk, such as government infrastructure on brownfield sites.
Changes to public notification
The public notification requirements for development applications have been substantially the same since before the Internet was part of everyday life and particularly given the recent changes in the market for local newspapers, changes are warranted.
However, we are concerned that the proposed changes are inadequate to ensure that the majority of the affected community is aware of the development proposal. One reason for this concern is that one option available, in the absence of a local newspaper, is publishing a notice in a state or national newspaper. That could mean publications in any of The Australian, the Financial Review or the Saturday Paper – each of which attracts quite different, and small, readerships, with the result that they are likely to reach only one segment of an affected community.
This is an opportunity for the government to provide the community with a single point of reference it can go to in order to identify any development applications being notified in their local area – this should be on the relevant Council’s website.
This requirement should apply in addition to the other requirements for notices to be placed on the land, in any local newspaper and given to adjoining owners and occupiers.
Changes to level of development assessment
These proposed changes will, if the relevant Council ‘opts in’, either remove the need for development approval or reduce the level of assessment (and the associated need for public notification) for certain development including changes in the tenancies of existing buildings, changes in use where the use is ‘anticipated in the zone’, building works to expand floor area by up to 10% or 100m2 (whichever is less) or to allow the establishment of certain ‘compatible uses’ (which we take to be about allowing the establishment of ancillary uses, however, the consultation material is not clear). There is also a (poorly articulated) proposal to allow temporary uses (or possibly temporary events) to proceed without development approval, which does not appear to be related to economic stimulus.
In general, we think that the consultation material is lacking the detail that is necessary to fully explore the effect of these proposals and the potential for misuse or poor outcomes. We also think that issues such as the alternative ways of achieving the intended outcomes (such as temporary local planning instruments that could facilitate new development while providing basic protections for the surrounding community) and flow on implications (such as infrastructure funding) have not been explored.
As a consequence, we think these changes should be subject to further consultation when there is further detail available, including the draft amendments.
These changes are intended to be temporary and will apply only where the relevant Council “opts in” to the change. However, we expect Councils to be under considerable pressure to opt into the changes, given the need for economic recovery. Further, while these will be temporary measures, the new uses or building works undertaken will not be, with the result that the surrounding community may be living with any consequential poor outcomes for many years.