Is your planning scheme robust enough under the new planning framework?

11 May 2017
Stafford Hopewell, Partner, Brisbane

It is less than 2 months before the commencement of the new planning framework in Queensland under the Planning Act 2016.

Assessable development

Under the new planning framework, there are 2 categories of assessment for assessable development, namely code and impact assessment.

Code and impact assessment

The Planning Act requires the following:

  • Code assessment – to be carried out against the assessment benchmarks in a categorising instrument for the development and to have regard to matters prescribed by the Planning Regulation (which is currently in draft).
  • Impact assessment – to be carried out against the assessment benchmarks in a categorising instrument for the development and to have regard to matters prescribed by the Planning Regulation, as well as any other relevant matters that do not involve a person’s personal circumstances, financial or otherwise. An example of the “other relevant matters” is a planning need.

Categorising instrument

A categorising instrument is the Planning Regulation, planning scheme, a temporary local planning instrument or a variation approval.

Assessment benchmarks

Assessment benchmarks are matters against which an assessment manager is required to assess assessable development. For example, codes, standards and planning intent for a zone, precinct or development area.

However, an assessment benchmark does not include any of the following:

  • a person’s opinion, circumstances, financial or otherwise;
  • a strategic outcome under a planning scheme for code assessment;
  • a matter prescribed by the Planning Regulation.

Implications to local governments

The new planning framework gives rise to the following implications to local governments in assessing and deciding a development application requiring code assessment:

  • No strategic outcomes – A local government can no longer rely on the strategic outcomes under its planning scheme to regulate development that is subject to code assessment.
  • No sufficient grounds – A local government will no longer have a broad range of considerations (including the consideration of “sufficient grounds”) in assessing and deciding a development application requiring code assessment, since its assessment and decision can only be based on the assessment benchmarks in a categorising instrument such as a planning scheme.

A planning scheme which is in effect under the Sustainable Planning Act 2009 continues to have effect under the Planning Act.

Local governments should therefore consider reviewing their planning schemes to ensure that they are adequate and “robust enough” to regulate development requiring code assessment under the new planning framework such that the planning intent and vision for their local government areas are not undermined.

The Department of Infrastructure, Local Government and Planning has released the Alignment Amendment Rules made by the Minister under the Planning Act late last year.

The Rules enable local governments to amend their planning schemes and bring them into alignment with the new planning framework.

In particular, the Rules permit amendments to a planning scheme that improve and clarify assessment benchmarks to ensure they are sufficiently robust to permit assessment for code assessment under the Planning Act, and take in account the removal of the application of the strategic outcomes under a planning scheme to development that is subject to code assessment.

If you would like to discuss or find out more about the implications of the new planning framework, please do not hesitate to contact one of the members of our Planning and Environment team.

We would also be happy to give a presentation on specific matters under the new planning framework which are of interest to you.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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