Significant amendments to Queensland's planning framework commence

Snapshot

On 22 July 2024, the Housing Availability and Affordability (Planning and Other Legislation Amendment) Act 2024 (HAAPOLA) came into force. HAAPOLA includes amendments to the Planning Act 2016 (Qld) (Planning Act) including, among other things, the new State facilitated development approval pathway process and acquisition and easement powers to deliver critical development infrastructure.

We have taken a look at some of the key components of HAAPOLA as well as other consequential changes.

Background

HAAPOLA implements commitments from the Homes for Queenslanders plan, delivering a package of reforms intended to simplify and expedite the supply of housing. The plan, which has set a goal of 1 million new homes by 2046, was initiated in part due to housing availability issues arising from population growth and economic pressures.

Key legislative changes introduced by HAAPOLA include:

• the establishment of the State facilitated development (SFD) approval pathway to facilitate development that is a priority to the State;
• a new power to take land and easements to deliver critical development infrastructure;
• the ability to impose conditions for an affordable housing component on development approvals; and
• the transitioning of development assessment in Development Control Plan areas to the Planning Act framework.

The only component of the amendments yet to commence is those in respect of Development Control Plans.

HAAPOLA amends the Acquisition of Land Act 1967, the Economic Development Act 2012, the Environmental Offsets Act 2014, the Planning Act 2016, the Planning and Environment Court Act 2016 and other legislation.

Amendments have also been made to the following:

• Planning Regulation 2017 (Planning Regulation),
• Economic Development Regulation 2023,
• Environmental Offsets Regulation 2014,
• Minister’s Guidelines and Rules (MGR),  
• Development Assessment (DA) Rules, and
• DA Form 1.

State facilitated development

The purpose of the new SFD pathway is to deliver development that is a priority to the State (for example, increasing housing supply), where there are barriers to such development proceeding through the traditional assessment process, such as outdated planning schemes or where a planning need is identified that was not anticipated.

SFDs need to be declared; they can be existing development or change applications, or proposed applications.

A summary of the SFD pathway is set out below.

Stage 1: Delaration Stage (Planning Minister)

Stage 2: Assessment  (Chief Executive)

Minister may make declaration only if: Satisfied the development will assist in delivering development that is for an urban purpose and is an identified priority for the State Complies with the criteria prescribed by regulation (Must be predominately residential, 15%+ affordable housing, affordable housing must be a diverse mix of dwelling types and no. of bedrooms, on premises in zone supporting residential development) Satisfied it is appropriate for Chief Executive to assess and decide all or part of the application instead of the decision-maker

Chief Executive assesses and decides, or reassesses and re-decides the application or part of the application If declaration directs decision-maker to assess application or stated part of application, Chief Executive’s decision may be based on the decision-maker’s assessment Chief Executive may consider State interests, planning instruments, any information or advice given to the Chief Executive, including submission or representation Chief Executive need not consider a referral agency response (but may ask referral agency for advice) Parts of s 45 (regarding what assessment must be carried out against) and other provisions in respect of referral agency assessment do not apply to SFD applications

We note the following in respect of SFDs:

• The SFD pathway does not apply to an application that has been decided by the Planning and Environment Court (P&E Court) (or that is not substantially different to an application that has been decided by the Court).
• Conditions can be imposed for the provision of affordable housing, including the period for which the affordable housing component is to be maintained.
• Environmental offsets can be conditioned (and are not limited to matters of state environmental significance) for SFD approvals.
• Local government may still give an infrastructure charges notice for SFD approvals.
• The effect of an SFD declaration is that any decision made and decision notice given by the decision-maker (including a deemed approval) stops having effect or any appeal made against the decision is discontinued. The process for administering the application will restart from the point stated in the declaration.
• A notice of a proposed declaration is not subject to the same time limitations as a proposed call-in notice under s 47 of the Planning Regulation.

New powers to take land and easements 

HAAPOLA establishes a new power for the State to take land or an easement in order to deliver development infrastructure. This new acquisition power has been developed for use where it has been determined that the infrastructure is necessary to facilitate development and the ability to provide development infrastructure is a barrier to development proceeding and where all other options have been exhausted, for example negotiation and reaching out to the relevant local government).

The requirements are summarised below.

1	Land must be for ‘development infrastructure’
2	Take complies with the criteria in the Planning Regulation (N/A currently)
3	Governor in Council approves the take by regulation
4	Infrastructure agreement(s) in place in relation to providing or paying for the infrastructure and the costs of taking the land
5	Minister must be satisfied: infrastructure is necessary to facilitate development reasonable steps taken to obtain agreement of owner for land to vest in public sector entity other than department, entity consulted

The requirements for taking an easement are slightly different; an easement can only be created if the local government and the entity in which the easement will vest agree to the terms (s 263B(2)).

Development Control Plan areas

The Planning Act has been amended so that development occurring within Development Control Plan (DCP) areas (namely Kawana Waters, Mango Hill and Springfield) is made, assessed, decided and otherwise dealt with as a development application under the Planning Act.

The amendments follow the 2022 Planning and Environment Court decision of JH Northlakes Pty Ltd v Moreton Bay Regional Council [2022] QPEC 18, which determined that development in DCP areas was to be made, assessed and decided using the IDAS system under the repealed Integrated Planning Act 1997. The amendments validate development approvals in DCP areas.

The Government has flagged amendments to the Planning Regulation to support the transition of DCPs under the Planning Act framework.

Other changes

Other noteworthy changes to the Planning Act and the Planning Regulation are summarised in the below table.

Urban encroachment Streamlining of the renewal and registration processes, including: Requirements to amend registrations to include additional land in an affected area Setting out the matters the Minister must consider in assessing amendment application and additional requirements for applications for registration or renewal Additional obligation on Minister to consider outcomes of public consultation when considering application to register premises	Affordable housing component Ability to impose a condition on development approvals that proposed an affordable housing component, or a SFD approval (e.g. a condition requiring the affordable component be maintained for at least 15 years). Defines affordable housing component to mean housing that is affordable to particular households and that complies with certain criteria. Definition includes existing definition of affordable housing to assist with transition.	Temporary use licences Provisions that require the registering of temporary use licences to reflect those that are amended, cancelled or suspended and also identify application requirements for amendments and extensions to temporary use licences. These details include the applicant’s name and contact details, the details of the amendment sought, or the period of the extension sought and the grounds for the amendment or extension.
New definition for ‘Build-to-rent’ “in relation to a use of premises, means the use of a new or existing building on the premises for residential accommodation for long-term residential tenancies under a tenancy agreement”	Queensland Heritage Places Amendments limit local governments from including assessment benchmarks for Queensland heritage places and adjoining areas in planning schemes and assessing applications for development on or adjoining these places This is even where the place is also a local heritage place New ministerial direction power covers the above instances Amendments seek to address issue with duplication of assessment processes	Directions to change local planning instruments New process for Minister to direct local government to amend planning scheme without first giving notice (in limited circumstances) Applies where Minister considers local government should amend its planning scheme to be consistent with regulated requirements, a regulation (to the extent the regulation categorises development as prohibited or accepted) and to give effect to a State interest (adequate consultation must have been carried out in relation to the amendment)

 

Changes to MGR and DA Rules

Mostly consequential changes have also been made to the MGR and the DA Rules, which are briefly summarised below.

Ministers Guidelines and Rules – New Version 3.0	Minister can direct local government to amend planning scheme without prior notice Criteria for what constitutes an administrative and minor amendment to a planning scheme Minister can condition TLPI or TLPI amendment Modernised public notice and submission requirements (requirement that notices be published in hard-copy newspaper removed) Other administrative changes
Development Assessment Rules – New Version 2.0	Process for assessing and deciding SFD applications Modernising public notification requirements (advertisement in local newspaper no longer required) Enabling local governments to determine how to publish public notices Other administrative improvements

 

Written by Kathryn Pacey, Partner, Holly Vaughan, Senior Associate and Madelize Breet, Paralegal.