in brief corrs Sustainable Planning and Other Legislation Amendment Act 2012 Amendments march 2012 The new Chapter 8A Urban

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1 corrs in brief This e-newsletter summarises recent changes to the Sustainable Planning Act 2009 (SPA), the Urban Land Development Authority Act 2007, the Local Government Act 2009 and the Building Act 1975 introduced by the Sustainable Planning and Other Legislation Amendment Act 2012 (SPOLA Act). The newsletter deals with the following changes that in most respects commenced on 17 February 2012: 1. The insertion of a new Chapter 8A Urban Encroachment in the SPA; 2. Amendments to the infrastructure charges provisions in the SPA; 3. Amendments to the Ministerial call-in powers and powers to direct local governments in the SPA; 4. Amendments to the Urban Land Development Authority Act 2007; 5. Amendments to the Building Act 1975; and 6. Amendments made to the Local Government Act 2009 as to a local government s power to enter a property. The SPOLA Act also amended the following other legislation: Animal Management (Cats and Dogs) Act 2008; Coastal Protection and Management Act 1995; Land Sales Act 1984; Local Government Electoral Act 2011; Plumbing and Drainage Act 2002; City of Brisbane Act This newsletter only deals with the issues in 1 to 6 above. The new Chapter 8A Urban Encroachment Provisions in the Sustainable Planning Act 2009 The purpose of the new Chapter 8A is to introduce provisions into SPA that protect the existing lawful use of registered premises from encroachment by new development. In doing so, these new provisions, to a certain extent, codify common law principles dealing with reverse amenity and the consequences of moving to a nuisance. The protection is afforded to those premises recorded on a register, which are accepted by the Minister to be significant premises that emit aerosols, fumes, light, noise, odour, particles or smoke in compliance with the development approval or code of environmental compliance applying to the activity. The protection mechanism In circumstances where an affected person claims the emission of aerosols, fumes, light, noise, odour, particles or smoke being emitted from a registered premises will interfere with an environmental value 1, that person is precluded from bringing civil proceedings for nuisance or criminal proceedings relating to a local law if the emissions are consistent with a development permit for the registered premises or any applicable code of environmental compliance. 2 This restriction on legal proceedings is only in respect of certain types of development applications, namely those that constitute a relevant development application under section 680B of SPA and are listed in section 680D of SPA. Registration The new Chapter 8A, Part 3 regulates the registration of premises to be afforded the protection. A premises afforded the protection is registered by application to the Minister by the owner of the premises, but is limited to those premises on which an activity is carried out that involves the emission 1 Environmental value is defined in section 680 E of the Sustainable Planning Act 2009 to mean an environmental value under the Environmental Protection Act 1994 (EPA). Section 9 of the EPA defines Environmental Value to be: (a) a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety; or (b) another quality of the environment identified and declared to be an environmental value under an environmental protection policy or regulation. 2 New section 680E of SPA. MAKING BUSINESS SENSE

2 of aerosols, fumes, light, noise, odour, particles or smoke and the activity is in compliance with the development approval for the premises and any code of environmental compliance applying to the activity. 3 In addition to this limitation, prior to deciding whether to register the premises the Minister must also be satisfied the activity carried out at the premises is significant, in that the activity is significant to the economy, heritage or infrastructure of the State, a region or the locality in which the mapped area is situated. The activity carried out at the premises must also be consistent with the nature of the development proposed for the mapped area under the planning scheme, and any regional plan, applying to the mapped area. 4 The Minister must also be satisfied public consultation about the proposed registration has been undertaken in the mapped area by or for the applicant and the outcomes of the public consultation show the levels of support for the proposed registration. 5 An application for registration must include supporting documentation, such as a map showing details of the area and information about the significance of the activity carried out at the premises to assist the Minister in this process. 6 Should the Minister decide to register the premises, the Minister must then consider the length of the term of registration appropriate for the premises, being a minimum of 10 years and a maximum of 25 years. 7 Registration of a premises can be cancelled if emissions are not in compliance with the development approval or an applicable code of environmental compliance. Increases in the level of emissions To ensure continued protection under the restriction on legal proceedings provisions, any authorised increase in the emissions of aerosols, fumes, light, noise, odour, particles or smoke at the registered premises will need to be registered. 8 This protection from legal proceedings only safeguards against claims in respect of the level of emissions authorised at the time the premises was registered. It does not apply where a code of environmental compliance is subsequently amended or newly approved to authorise greater emissions. 9 Premises that are significant As can be seen, the protection afforded by the urban encroachment provisions is limited to significant premises on which the existing lawful use of the premises involves the emission of aerosols, fumes, light, noise, odour, particles or smoke. Suggested examples of premises that are significant to the economy, heritage or infrastructure of the State, a region or the locality include the Nestle Factory at Gympie, the RNA showground (although this is currently within the Bowen Hills Urban Development Area (UDA) and therefore is exempt from the urban encroachment provisions until such time as the UDA expires and the UDA approval converts to a SPA development approval) and Milton Brewery. Protection from urban encroachment is already afforded to the Milton Brewery by virtue of the Planning (Urban Encroachment) Milton Brewery Act 2009, which will now be repealed. The Brewery will be a registered premises under these new urban encroachment provisions. It should however be noted that an owner of premises at which a mining activity or a chapter 5A activity (eg a greenhouse gas storage or petroleum activity) is being carried out is expressly precluded from applying for registration and therefore cannot obtain the benefit of the protection under the urban encroachment provisions. 10 Criticism of the new urban encroachment provisions The new urban encroachment provisions have been criticised in some quarters as not going far enough. The provisions merely protect against civil proceedings for nuisance and criminal proceedings under a local law. The provisions do not in any way prevent residential encroachment or provide protection from proceedings being instituted under the SPA or the Environmental Protection Act 1994 relating to the breach of conditions of approval in circumstances where residential development has encroached on industrial developments that at the time of their establishment did comply with conditions of approval. Given the restriction on legal proceedings is only in respect of relevant development applications listed in section 680D of SPA, the protection also does not apply to development in an UDA. There is no equivalent legislative mechanism by which UDA development, such as the RNA Showground, can obtain protection from residential encroachment while in an UDA. Conclusion Clearly there are limitations to the protection afforded by these new urban encroachment provisions, but the provisions do go 3 New section 680F of SPA. The Minister must also be satisfied of these requirements, among others before being satisfied a premise ought to be registered. 4 New section 680I SPA. 5 New Section 680I(c) and (d) of SPA. 6 New Section 680G(2) of SPA. 7 New section 680W of SPA. 8 New section 680E(4) of SPA. 9 New section 680E(5) of SPA. 10 New section 680F(b) of SPA. PAGE 2

3 some way to addressing the inevitable increase in conflict that is likely to occur as a result of the Queensland Government s policy of actively encouraging increased dwelling density, sustainable infill development and transit oriented development. Given the pressures on housing supply, infrastructure and industry as a result of population and economic growth in the State and the need to maximise land use efficiencies and manage urban sprawl, the new urban encroachment provisions do provide a mechanism by which the existing lawful use of registered premises are to some degree protected from the consequences of encroachment by new development. Amendments made to the infrastructure charges provisions in the Sustainable Planning Act 2009 The key amendment made by the SPOLA Act to the adopted infrastructure charges provisions under SPA are to allow local governments and distributor-retailers for particular water services or wastewater services to increase adopted infrastructure charges to allow for indexation. The allowable increase to the adopted infrastructure charges is limited to no more than an amount reflecting the increase in the consumer price index between the time the charges are levied and the time they are paid, up to the maximum adopted charge that could have been levied by the local government and distributor-retailer for the development at the time. The following key amendments were made in respect of the local government s ability to increase the charge in this manner: (a) Inserting section 648D(1)(f) to allow for the increase of an adopted charge, after it has been levied but before it has been paid, to allow for indexation of the charge during this period. By the insertion of the new section 648D(10), the method for calculating any indexation to apply must be stated in the adopted infrastructure charges resolution and is limited to no more than an amount reflecting the increase in the consumer price index between the time it is levied and the time it is paid. Any charge indexed up in this way cannot exceed the maximum adopted charge that could have been levied by the local government for the development at the time; (b) Further consequential amendments to implement the above arrangements are in sections 648D(10), namely the insertion of subsection 648D(11), subsection 648F(e), section 648HA and amendment of section 648K. Further amendments reflecting those above but applying to distributor-retailers for particular water services or wastewater services have been made, particularly the amendment of sections 755KA, 755KB and 755MA. The SPOLA Act also corrected some drafting oversights in the SPA in respect of adopted infrastructure charges. It did this by: (a) extending the definition of pre-sprp amount to include the maximum amount a local government for a distributorretailer could have obtained under an SEQ infrastructure charges schedule for supplying water/waste water trunk infrastructure and not just the charge previously recoverable by a local government; and (b) Amending section 648D(1)(a) and (b) to enable local governments to adopt a charge for particular development that is equal to the maximum adopted charge. Previously the charge had to be less than the maximum adopted charge for the development. Amendments to the Ministerial call-in powers in the Sustainable Planning Act 2009 Previously a Minister as defined in Chapter 6, part 11, division 2 of SPA was entitled to call in a development application if the application involved a State interest and as long as the relevant timeframes were satisfied. The Minister must now give written notice of the proposed call in to the assessment manager, applicant, any submitters and any concurrence agencies. The timeframes in which the Minister must give such notice are the same as those that previously applied to a Ministerial call-in, namely, from the time the application is made to the later of: (a) 15 business days after the day the chief executive receives notice of an appeal about the application; (b) if there are submitters for the application, 50 business days after the day the decision notice or negotiated notice is given to the applicant; (c) if there are no submitters for the application and a decision notice or negotiated decision notice is given, 25 business days after the day the notice is given; (d) if the application is taken to have been approved under section 331 (deemed approval) and a decision notice or negotiated decision notice is not given, 25 business days after the day the decision notice was required to be given to the applicant. New section 424A(3) sets out the things the notice of the proposed call-in must contain, including: (a) the reasons for the proposed call-in; (b) if the notice is given before the assessment manager makes a decision on the application, that the IDAS process stops on the day the notice is given; PAGE 3

4 (c) the point in the IDAS process, before or at the start of the decision stage, the Minister proposes the process will restart if the application is called in; (d) that the person to whom the notice is given may make representations to the Minister about the proposed call in within the stated representation period of at least 5 business days after the notice is given. The Minister is able to extend the representation period, by notice to those entities to whom the proposed call-in notice was given. The Minister must then consider all representations made and decide whether to call in the application. If the application is not called in, and the assessment manager had not made a decision before the proposed call in notice was given, the IDAS process restarts at the point it was stopped because of the giving of the proposed call in notice. If the application is not called in, and the assessment manager had made a decision before the proposed call in notice was given, the appeal period starts again the day after the Minister advises that the application will not be called in. This is to ensure that the right of any party to appeal the decision is not adversely affected by the delays in the giving of the proposed call in notice, the subsequent representation period and the Minister s consideration of the representations. If the Minister decides to call in the application, the call in notice may be given at any time before the day that is 20 business days after the end of the representation period. For applications which have already been called in and were not finally dealt with before the commencement of the new sections (17 February 2012), the new provisions do not apply. Chapter 6, part 11, division 2 of SPA as in force before the commencement applies to such applications. Ministerial directions Under Chapter 3 of SPA, the Minister of Local Government has the power to direct local governments with respect to various matters. One of the changes to these provisions is that the Minister may now direct a local government to take an action in relation to a proposed amendment of a local planning instrument to ensure it reflects the standard planning scheme provisions. Previously section 126 only permitted a direction to be given for a local planning instrument or proposed local planning instrument. Amendments to the Urban Land Development Authority Act 2007 The SPOLA Act also made numerous amendments to the Urban Land Development Authority Act 2007 (ULDA ACT), of which the most notable is the insertion of a new Part 6A Infrastructure Agreements. The new Part 6A regulates the entering into of infrastructure agreements by the Urban Land Development Authority (ULDA) and reflect the SPA provisions in that regard, but with reference to the relevant ULDA instruments. These provisions confirm an infrastructure agreement is paramount in circumstances where it is inconsistent with a Urban Development Area (UDA) development approval and deals with the transitioning of infrastructure agreements once a UDA ceases. Under the new provisions, infrastructure agreements in force at the time a UDA ceases remain in force and a superseding public sector entity with responsibility of the infrastructure on the land will be taken to be a party to the agreement in place of the ULDA. To facilitate this process, in circumstances where a proposed infrastructure agreement is likely to apply to land after it will cease to be in a UDA, the ULDA must consult with the entities the ULDA considers will be superseding public sector entities for the land, prior to entering into the proposed infrastructure agreement. Other amendments to the ULDA Act introduced by the SPOLA Act that may also be of interest are as follows: (a) The amendment of section 31 to enlarge the Minister s powers to amend a development scheme submitted to the Minister by the ULDA, to provide additional time for the Minster to consider amending the scheme regarding an affected owner s interest, where requested, or if a caretaker period occurs; (b) The amendment of section 35 to enable the Minister to amend a development scheme at the request of the ULDA and not just an amendment that corrects an error; (c) The amendment of section 38 to shorten the process for amending a development scheme; (d) The amendment of section 51 and the insertion of section 51A regarding the need for evidence of a State resource to be included in a UDA development application if required under SPA development application. Section 75, in respect of applications to change a UDA development approval was also amended to reflect the need for evidence of State resource entitlement; (e) The amendment of section 55 to allow the UDA to give a UDA preliminary approval even though the application was for a UDA development permit. Sections 57 and 80 were also amended and section 70 replaced to reflect the ability to grant UDA preliminary approvals; (f) The amendment of section 56 to include two additional circumstances where a UDA development approval may be granted even though the development would be inconsistent with the land use plan, ie when the PAGE 4

5 development would be consistent with the a UDA preliminary approval that is in force for the land or the development would be consistent with a proposed development scheme; (g) The amendment of section 57 to allow the interim land use plan and the proposed development scheme to be considered in deciding an application in circumstances where a development scheme for the UDA has not yet taken effect; (h) The amendment of section 76 to reflect the roll forward provisions in SPA so that the currency period for MCU and ROL UDA development approvals roll forward from the date a related approval takes effect; (i) The amendment of section 104 to align the penalty values for by-laws made by the ULDA replacing a local law with those that would be applied by a local government for the same offence and to provide for greater flexibility in how local laws and by-laws apply; and (j) The insertion of section 105A clarifying the process for the appointment of a chairperson and providing for the appointment of a deputy chairperson. Amendments to the Building Act 1975 Section 86 of SPA provided that a planning scheme must not include provisions about building work, if the building work was regulated under the building assessment provisions of the Building Act In addition, to the extent a planning scheme contained provisions about the specified building work, the planning scheme had no effect. That section has now been omitted however its purpose is preserved in new section 78A. The operation of section 78A has been broadened so that a local planning instrument must not include provisions about building work (as opposed to solely a planning scheme). A local planning instrument is defined as a planning scheme, temporary local planning instrument or planning scheme policy. Local governments should keep this section in mind for drafting of future local planning instruments. In relation to current local planning instruments which contain building work provisions, those provisions will have no effect. Amendments to Local Government Act 2009 Power of entry Amendments to the Local Government Act 2009 (LGA) relate primarily to local government superannuation schemes. However, one important change has been made to section 132 of the LGA, which concerns a local government s power to enter a property. One of the reasons an authorised person (as defined under the LGA) may have wanted to enter a property was to inspect work that was carried out under a permit or notice. That power has been expanded so that an authorised person may now also enter a property and inspect work that is the subject of a permit or notice. This allows a local government to check the progress of works while being undertaken instead of having to wait until the works are completed. The meaning of a permit has not changed, and is still defined as an approval, licence or other authority issued under any Local Government Act. Similarly a notice is still defined as a notice issued under any Local Government Act. Examples of Local Government Acts are the LGA, SPA and the Plumbing and Drainage Act Authors Sonia Mortimer Lawyer, Brisbane Tel sonia.mortimer@corrs.com.au Carmen Lewis Lawyer, Brisbane Tel carmen.lewis@corrs.com.au Corrs Chambers Westgarth, 2012 This publication does not constitute legal advice and should not be relied on as such. You should seek individualised advice about your specific circumstances. We have sent this publication to you because you have requested to receive these publications from us. If you do not wish to receive such publications, please send an with Unsubscribe in the subject heading and containing your name and contact details to privacy@corrs.com.au. PAGE 5