[##date,
organisation,
return address,
telephone,
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Planning Reform Group
Department of Infrastructure, Local Government and Planning
By email to: bestplanning@dilgp.qld.gov.au; edoqld@edoqld.org.au
Dear Sir/Madam,
Draft Planning Bill 2015 (Planning Bill) and Planning and Environment Court Bill 2015 (P&E Court
Bill)
Thank you for the opportunity to make a submission on the exposure drafts of the new proposed planning
framework. This submission extends to only the Planning Bill and P&E Court Bills.
We appreciate the opportunity to comment on the proposed planning framework reform prior to the Bills
going to Parliament, however we are disappointed with the relatively short timeframe provided for
consultation on this extensive framework. The community provides their input on planning matters,
including legislative reform, typically in their weekends and evenings. Extensive amendments to the
fundamental planning framework require more than 6 weeks (12 days if working every weekend!) to
understand, form an opinion and confer with others, particularly as non-planning professionals.
[#Insert short para about you or your group and why you are writing this submission. If you’re writing
on behalf of a group, please be explicit how you are authorised by the group to make the submission, e.g.
If as secretary or president you are authorised to write submissions for the group.#]
We support a system which facilitates good development that enhances communities and the environment,
in other words development which is ecologically sustainable. Human development is the biggest impact
we have on our environment and our communities. Our planning framework provides the fundamental
protections to regulate development impacts on our natural resources and plant and animal species – both
terrestrial and marine, as well as to ensure development is appropriate to the community’s needs.
Community rights to provide submissions and appeal to the P&E Court are a check and balance to ensure
good planning decisions are made for the environment and community, free of corruption and politics.1
Without a strong framework - free of unnecessary discretions for decision makers and with clear, legislated
processes - community rights to participate in planning are often eroded as they are seen to stand in the way
of the development imperative under bad governance. It is essential that the planning framework itself
provides clear, strong provisions to ensure environmental impacts are mitigated and that the community has
their say on the planning instruments and significant developments.
This new planning framework in no way improves community participation nor environmental
protections in planning and development decisions; in fact in many ways it is a step backwards.
As stated by ICAC NSW: ‘Merit appeals provide a safeguard against biased decision-making by consent authorities
and enhance the accountability of these authorities. The extension of third party merit appeals acts as a disincentive
for corrupt decision-making by consent authorities.’ ICAC, Anti-corruption safeguards and the NSW planning
system, February 2012
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We ask that the following changes, as detailed below, be made to the proposed Bill to ensure:

adequate environmental protections in planning;

meaningful community involvement in decision making; and

open, transparent and accountable planning decision making.
[#Insert your key concerns and proposed corrections. We set out suggested issues below but, if you can,
it is best to express your concerns in your own words and detail any personal experiences of the
planning system, such as where you may have been excluded from public notification due to time frames
or threatened with costs in an appeal.
Ensuring adequate environmental protections and good planning
1.
We ask that the Government maintains the current SPA purpose in the new Planning Bill, along with
those sections defining purpose terms and requiring and guiding the advancement of the purpose. We
are pleased that reference to ecologically sustainable development (ESD) is now made in the
purpose, however the integration of ESD into decision making has been weakened compared to the
current Sustainable Planning Act 2009 (Qld) (SPA) with less definition and uncertainty as to
whether key principles of ESD will be integrated. ESD principles are not intuitive – adequate
definition is necessary to provide clear guidance for decision makers on how to apply it. While not
perfect, the purpose of SPA is far superior to that provided in the Planning Bill in how adequately
principles of ESD have been integrated, and should be retained.
Response to requested comment - Options for advancing the Act’s purposes (p.20):
We strongly support the integration of section 3(6) as provided in the Bill to guide how decision makers
must advance the purpose of the Act. To ensure the principles of ESD are properly integrated into all
decision making, clear guidance must be provided to decision makers on how this should be undertaken.
Further, this is the only means that fundamental provisions of ESD, such as the precautionary principle
and intergenerational equity,2 as well as other important considerations in planning (short, long-term and
adverse environmental effects of development, amenity and sustainable use of resources etc) are brought
into the framework.
Case example - The importance of the precautionary principle:
Holts Hill Quarries Pty Ltd v Gold Coast City Council & Ors3: This case is a developer appeal
against Council’s refusal of an application for rezoning of land from rural to extractive industry. The
Court upheld the refusal due in part to a finding that the existence of vulnerable species of fauna and
flora on site – giving rise to the need for application of the ‘precautionary principle’. Adequate
studies had not been undertaken to determine which such species exist on the site, and the potential
impact on them if they do; it was decided the development should not be allowed to go ahead.
2.
Insufficient guidance is provided to ensure environmental values and concerns are integrated into
planning instruments, with no requirement for performance indicators to support achievement of
meaningful performance indicators and their review. I support the maintenance of ‘core elements’ in
planning schemes, implementation of meaningful performance indicators to guide strategic outcomes
and desired regional outcomes being required in regional instruments.
These terms are utilised in planning decision making to protect against bad development – see for example re.
precautionary principle: Histpark Pty Ltd & Anor v. Maroochy Shire Council [2001] QPEC 059; and Holts Hill
Quarries Pty Ltd v Gold Coast City Council & Ors [1999] QPEC 026. See also of interest from NSW: Telstra
Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 extensive consideration of the application of the
principles of ESD in planning.
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Holts Hill Quarries Pty Ltd v Gold Coast City Council & Ors [1999] QPEC 026
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Response to requested comment - Compensation (p.42):
Fundamentally we believe Queensland should, like NSW, remove the power to obtain compensation
from local governments under planning legislation. This is an unnecessary waste of taxpayer funds that
could be better used. If integrated, we support the approach that in no way limits a decision maker in
establishing restrictions on development to avoid impacts from natural processes.
Ensuring meaningful community involvement in decision making
3.
I believe the draft Planning Bill needs amending to improve community involvement in decision
making, not reduce it. For example:
• The Bill reduces public consultation timeframes for development compared to that provided
under SPA prior to changes made by the Newman Government in 2013. Prior to 2013 complex
developments4 and those contained in Sustainable Planning Regulation 2009 schedules 16 and 17
provided for minimum 30 business day consultation on particular of concern development (these
included development such as large tourist resorts and golf courses, and development within
100m of critical habitat, protected areas, the wet tropics or wetlands). These extended public
consultation provisions should be returned for developments that are complex enough to have
required 3+ concurrence agencies previously, and those contained in the previous schedules. A
new trigger is required for larger and complex developments in the absence of the previous
mechanisms. The repeal of the SPR schedules 16 and 17 in 2013, which went unnoticed by
many, is a perfect example of why it is far preferable that these provisions must be in the
Act and not in regulations.
• I do not support a discretion being available to excuse non-compliance with public notification
procedures, nor to provide exemptions from assessment through exemption certificates.
Discretions like this get abused under bad governance.
• I do not support the timing of public notification being discretionary and potentially occurring
prior to the information stage. This discretion is a small favour to developers at a big cost to
community involvement in decision making by diminishing certainty that the public will have all
available information when providing their submissions.
• The legislation must clearly require non-minor changes to development applications to trigger renotification if the change is likely to attract submissions. I do not support provisions allowing
developers to be able to make major changes to development without further public notification.
• All laws directing public consultation on development should be in the one place and subject to
public and Parliamentary scrutiny, not hidden away in rules and regulations. The Development
Assessment Rules contain provisions which confuse the public notification times provided in the
Bill; for example by allowing re-notification of development applications for only 10 business
days. Further, regulations to ensure meaningful consultation, such as simply that public
consultation not be undertaken from 20 December to 5 January (now in the Development
Assessment Rules), can slip away easily while no one is watching.
4.
We support the reinstatement of the general rule that each party pays their own costs. This rule is
integral to ensure that the community is not further impeded from utilising their submission and
appeal rights under the Act. We ask that this general rule be extended to enforcement orders, as the
provision allowing costs to follow the event will pose a disincentive to community members utilising
Development requiring 3 or more concurrence agencies – see Sustainable Planning Act 2009 (Qld) at 22 November
2012, section 298 at 22 November 2012.
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the third party powers to seek enforcement orders.5 The community plays an important watchdog
role to ensure planning offences don’t get ignored.
Response to requested comment – categories of assessment:
merit OR impact / standard OR code (p.56)
We support the retention of the terms currently used in SPA – impact and code development.
The changes to the development assessment framework in the planning bill are not substantial
enough to warrant changing the terms; changing the terms is unnecessarily confusing for all
stakeholders and further reduces the accessibility of the planning system to lay people already
familiar with the current terms.
Ensuring open, transparent and accountable planning decision making
5.
The State Assessment Referral Agency (SARA) has significant power under this framework. The
role of government departments, such as Department of Environment and Heritage Protection and
Department of Natural Resources and Mines, in development assessment is integral to ensure the
specialist expertise of these departments is integrated into planning decisions.

Decision makers must be required to not be inconsistent with the State development assessment
provisions (SDAP) when making their decisions. Also, SDAP and the Single Planning Provisions
are in urgent need of reform to strengthen environmental protections provided.

SARA should further be required to follow the advice of technical agencies on particular matters,
such as coastal protection and heritage matters.

If SARA is able to not follow the advice of a technical agency – there must be a requirement to
publish the departmental advice, and SARA’s reasons as to why departmental advice was not
followed, which must be available to the public for review.
The discretion open to SARA to ignore departmental advice and not make decisions in accordance
with the SDAP promotes corruption and increases the chance of poor planning.
Case example – the importance of concurrence agency role for specialist departments: Rainbow
Shores v Gympie Regional Council & Ors6: This recent decision of the Planning and Environment
Court (P&E Court) demonstrated the importance of specialist departments maintaining concurrence
power. In this case the P&E Court upheld the recommendation of refusal provided by the then
Department of Environment and Resource Management in their role as a concurrence agency to a
development proposal near Rainbow Beach due to inconsistencies with the State Coastal
Management Plan.
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6.
To truly ensure ‘open access to planning and development information’, as provided in the
Directions Paper, provisions providing access to information should be given strength in the
legislation, not hidden in rules that can be changed without any Parliamentary or public scrutiny.
7.
The Development Assessment Rules – which provide certainty around the process for assessment,
including the requirements for public notification of development, how public submissions are
considered, and whether new information from the proponent will trigger re-notification –should be
secured in legislation so that changes to them would have a transparent legislative reform process
with public and Parliamentary scrutiny.
This could be framed to still allow the local government to obtain costs in successfully obtaining enforcement
orders.
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Rainbow Shores v Gympie Regional Council & Ors [2013] QPEC 26.
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Response to requested comment – assessment under standard/code rules (p.70-72):
We strongly oppose the implementation of the presumption in favour of approval in
standard/code assessment, as well as the ability for the assessment manager to approve
development that does not comply with assessment benchmarks, as outlined in Option 1. These
proposals degrade the integrity of the planning assessment framework. The example provided in
Option 1(3) does not adequately limit the significant discretion provided in (3) which could
easily be abused to allow bad development without any safeguards. We support the use of
Option 2 in the Bill which provides an accountable and certain approach to development
assessment.
Response to requested comment – transitional provisions for standard/code assessment
(p.256): A development application should be assessed under the code which was chosen as
appropriate at the time of applying – to ensure certainty in assessment.
We call on the Queensland Government to amend the proposed legislation, as detailed above, and generally
with a view to empower our communities to meaningfully participate in planning and assessment and to
adequately protect the environment from bad development.
Yours sincerely,
[##Insert your name and signature##]
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