The scorecard comes after Deputy Premier and Minister for Planning Jackie Trad tabled the Government’s Planning Bill 2015 and two related bills in Queensland Parliament mid-November 2015.
The LNP Opposition also has draft planning laws that will be up for consideration by parliament at the same time as the Government’s planning bills.
EDO Qld solicitor Revel Pointon said the scorecard was designed to help the community make sense of complex planning laws and revealed Queenslanders were not getting the first-class planning framework they deserved.
“We compared both the Government and the Opposition bills to see how they compared to planning laws in place under the Bligh and Newman governments.
“The QCC/EDO Qld scorecard assessed all the planning laws against four key indicators: protection of nature; support for community participation in planning; promotion of accountability and transparency; and whether they provide certainty to the community.
“The scorecard findings reveal the Opposition planning bills would be the worst outcome for Queensland, but disappointingly the current Government’s proposed laws are not much better.
“There are serious accountability and transparency shortfalls in both the Government’s and the Opposition’s proposed new planning and development assessment laws, mainly due to too much flexibility surrounding decision-making that tends to favour developers’ interests over the community.
“The current Government is clearly better on community involvement in planning and development assessment, in particular proposing to restore rules in the Planning and Environment Court that will protect the community from the threat of massive costs.
“However, the Government’s bills are only marginally ahead of the Opposition Bills on the other three measures.
“We are particularly concerned the government has decided to continue with its single assessment system – SARA – which weakens the role of specialist departments such Department of Environment and Heritage Protection.
“If the Deputy Premier wants planning based on the best science, we need our specialist departments to have a strong decision making role in planning and assessment decisions.
“We need strong, clear planning legislation to protect the environment for the future and to protect the community’s right to have their say on development that affects the places that matter to them,” said QCC planning spokesperson Karen Robinson.
“However both sets of planning laws will further entrench the presumption of development approval by weakening controls on code assessable applications.
“They also reduce the community’s rights to oppose development that does not comply with local plans and planning schemes,” Ms Robinson said.
“We are already seeing rising discontent in the community, particularly in south-east Queensland, as people wake up to find 15 and 20 storey apartment buildings approved where plans allowed just 6 and 12 storey.
“At the same time, scarce parkland and important koala habitat is being removed from protected zones and made available for development.
“People tell us they believe the planning system is broken, yet if the community is hoping any of the proposed new planning laws will fix this they are going to be seriously disappointed.”
 The Planning and Development (Planning for Prosperity) Bill 2015 (and two associated bills) were tabled in June as Private Members Bills by Shadow Treasurer Tim Nichols.
The scorecard is based on an analysis of the following pieces of legislation and draft laws:
- Sustainable Planning Act 2009 (SPA) – as it was in late 2011 before the election of the Newman government
- Sustainable Planning Act 2009 (SPA) – in it’s current form including amendments made before the election of the Palaszczuk government
- Planning and Development (Planning for Prosperity) Bill 2015 – tabled by the Opposition in June 2015 and currently “on hold” awaiting consideration by the Parliamentary Committee.
- Planning Bill 2015 – tabled by the Government on 12 November 2015.
SCORECARD COMPARISON SUMMARY
1. Protecting Nature
Ecological sustainability: The Opposition bills scored lowest with only token mention of ESD and no mention at all of climate change. Changes to SPA c2015 to remove concurrence agency status for specialist departments and master planning provisions, have reduced nature protection particularly for coastal protection from development. Concurrence agency status has not been returned under either the Opposition’s or the current government’s proposed frameworks. Both versions of SPA and the Government bills scored higher against the Opposition bills as they have stronger definitions of ecologically sustainable development (ESD). In the two SPA bills planning schemes and regional plans must include mechanisms to demonstrate how they will work toward achieving ESD. None of the instruments provide for climate change adaptation. The two SPA bills ensure infrastructure planning sets aside adequate areas for open space, recreation and environmental protection at a reasonable cost to local government and the community.
2. Community Involvement in Decision Making
Public notification: The Opposition bills once again scored the lowest on community involvement in decision making. Public notification times are not included at all in the Opposition bill and are instead proposed to be included in separate “Rules” document (not yet provided) that can be easily changed. Public notification times in SPA c2011 for complex developments were reduced under SPA c2015, and these changes continue in both the Opposition and Government’s proposed bills. The Government bill makes provision for regulations to be made for different notification timeframes, but it is uncertain whether this will be a return of the longer notification provisions previously under SPA c2011. No trigger is provided for complex developments that would previously have had 3+ concurrence agencies, as under SPA c2011.
Public access to information provisions – under both versions of SPA all information that is required to be made public is listed in the Act itself and cannot be changed outside parliament. The Opposition bills refer to the information list being provided in separate “rules” but don’t provide these for scrutiny. While the Government bills also propose listing accessible information in separate rules, a draft has been provided for scrutiny.
Objection and appeal rights: All four instruments include community and individual rights to object to development and to appeal against a bad decision in court. Under both SPA c2011 and the Opposition framework however there is a risk of the community group or individual having to pay their own costs as well as the costs of the developer if they lose the appeal. The Government Bill returns the rule that each party pays its own costs for development appeals, as under SPA c2011.
3. Open, Accountable & Transparent
Creation and amendment of planning instruments: The community and the environment are best served when planning schemes are regularly reviewed, include a strategic framework for meeting the community’s vision, and measures or indicators that can be used to evaluate how well the plan has performed. It is also best practice to consult with the community ahead of developing a new planning scheme to ensure community aspirations are identified and incorporated. Both SPA c2011 and c2015 included these kinds of requirements for local planning schemes but both the Opposition and Government draft bills have very minimal requirements in the main legislation. For the two bills the main planning scheme guidance is to be provided in regulations or guidelines however no draft regulation has been provided with the Opposition bill.
Compensation: Both versions of SPA include compensation provisions for “back zoning” but sets certain limitations on these. The Opposition bills increase State and local government’s exposure to compensation claims in some circumstances. The Government Bills propose to change the provisions that in previous legislation removed compensation liability if a change was made to reduce the risk from “natural events” if the risk could not be “substantially reduced” by imposing conditions prior to the “adverse change”, claiming this will make it easier for local governments to manage changes to development rights where risk (e.g. from increased climate related hazards).
Ministerial powers: With regard to the extent of discretionary power, the Opposition bill gives the Minister almost unfettered authority, including not providing the need to seek representations on proposed call ins. The Government bill reinstates some of the provisions removed in SPA c2015 and the Opposition bill, but does not include all the checks and balances that could be found in SPA c2011.
Assessment system: The proposed assessment systems in both the Opposition and Government bills are supposed to deliver a simplified assessment system however it is much less clear and is less accountable than the assessment system, in both versions of SPA, known as IDAS. Also changes made to regulations during the previous term of government mean that SPA c2015 as well as both draft bills retain the State Assessment Referral Agency (SARA), giving the planning department and minister sole decision-making powers that may override specialist agencies such as the environment and heritage department. In addition both the draft bills allow for delegation of assessment manager and referral agency roles to “any person” with virtually no checks and balances, making the systems far less accountable. Other proposed changes to terms used for types of assessment and how these are decided are likely to be confusing to the average person and downplay the potential effects of some types of development.
4. Provides Certainty
Concurrence agency power: Of significant concern – changes to the SPA regulation removed the concurrence power of specialist agencies to recommend either mandatory conditions on development or a refusal. Under SPA c2015 – SARA (mentioned above) the planning department is the sole state assessment agency and is not required to publish the agency’s advice or give reasons if the advice is not followed. These arrangements are retained in both the Opposition bills. The Government bills retain SARA and do not return concurrence agency power to the specialist departments, however the assessment manager must publish reasons for a decision.
Assessment processes uncertain: The Government bill provides that code assessment may provide for an approval even if none of the assessment benchmarks are met by the application. A further major reduction in certainty for the community arises when development can be approved that does not comply with the planning scheme. Both SPA c2011 and c2015 include a test that this can only happen where there are “sufficient grounds” and these must be made explicit.
Planning framework overruled by other Acts: Since the 1970’s all Queensland governments have retained a separate system of assessment outside the main planning framework for projects of state significance to be “fast-tracked”. In 2011 the Urban Land Development Authority (ULDA) also existed as a fast-tracking mechanism for some forms of development to by-pass the SPA, ostensibly to achieve affordable housing outcomes. In 2012 the ULDA was superseded by the Economic Development Queensland (ECQ) Act and the option for certain areas to be designated as Priority Development Areas or PDA’s became the mechanism for by-passing the 2015 amended version of SPA. These alternate assessment systems have become progressively less accountable over time, with minimal public objection opportunities and no appeal rights. PDAs are islands of development that are not required to be integrated with the planning schemes or the general state planning laws. In addition to ECQ the Newman government enacted the Regional Interest Act that removed most regional planning from SPA. The rules that allowed for a contained urban “footprint” in SEQ were removed and other rules weakened.