Infrastructure announcements in 2009–10 Federal Budget
The Federal Government has announced funding for a number of infrastructure projects in the 2009–10 Budget, including:
A total of $3.9 billion over six years for the:
- West Sydney Metro project ($91 million)
- Regional Rail Express between West Werribee and Sunshine in Victoria ($3.2 billion)
- East-West Rail Tunnel, Melbourne ($40 million)
- Gawler Rail Line Modernisation, Adelaide ($293 million), and
- Noarlunga to Seaford Rail Extension, Adelaide ($291 million).
A total of $3 billion over six years for roads projects on the Hunter Expressway, Pacific Highway and Ipswich Motorway.
A total of $317 million over six years for the:
- Brisbane Inner City Rail Feasibility Study ($20 million)
- O-Bahn Track Extension, Adelaide ($61 million), and
- Northbridge Rail Link, Perth ($236 million).
All planning controls suspended for Nation Building and Jobs Plan projects
The Nation Building and Jobs Plan (State Infrastructure Delivery) Act 2009 came into force on 13 March 2009. The object of the Act is to ensure the timely delivery in New South Wales of the infrastructure projects funded by the Commonwealth under the Nation Building and Jobs Plan to implement the COAG partnership agreement of 5 February 2009.
The Act creates an office of NSW Infrastructure Co-ordinator General (Co-ordinator General) and grants the holder of that office extensive powers to determine the infrastructure projects to which the Act applies and to order that otherwise applicable planning and development controls do not apply to such projects.
Mr Bob Leece, the former CEO of Tenix and Deputy Director of the Olympic Coordination Authority, has been appointed as Co-ordinator General.
The Act applies to any development which is funded under the National Building and Jobs Plan, a question which is determined by the Co-ordinator General issuing a certificate to that effect.
The Act empowers the Co-ordinator General to declare that a specified infrastructure project, or an infrastructure project in a specified class, is exempt from all or any specified development control legislation or that it is exempt from such legislation if the Co-ordinator General authorises the carrying out of the project. In the latter case, the Co-ordinator General effectively becomes the consent authority for the project.
‘Development control legislation’ is defined to include the Environmental Planning and Assessment Act 1979 (EPA Act) (and all provisions, including environmental plans, made pursuant to the EPA Act) and any other Act that would otherwise prohibit the carrying out of the development or that would require the approval of any person or body before the development is carried out. ‘Development control legislation’ expressly extends to relevant provisions of legislation dealing with pollution, water access and management, threatened species, indigenous and non-indigenous heritage, native vegetation, coastal protection, rural fires and fisheries management.
The Act protects the exercise of various powers and functions by the Minister and the Co-ordinator General, including the certification of a project as a project to which the Act applies, and an exemption of a project from all or specified development control legislation, from all forms of appeal or review in any court or administrative tribunal, with the sole exception of an investigation by the Independent Commission Against Corruption.
The Act is to be repealed by proclamation after the Co-ordinator General provides the Minister with a certificate to the effect that the Act is no longer required.
Mining wardens’ jurisdiction transferred to Land and Environment Court
On 7 April 2009, the Wardens’ Courts under the Mining Act 1992 and the Petroleum (Onshore) Act 1991 were abolished and their jurisdiction transferred to the Land and Environment Court.
On that day, relevant provisions of the Courts and Crimes Legislation Further Amendment Act 2008, together with the Mining Amendment Regulation 2009 and the Civil Procedure Amendment (Fees) Regulation 2009 came into force.
The result is that all civil proceedings under the Mining Act 1992 and the Petroleum (Onshore) Act 1991 will henceforth be treated as a new Class 8 of the Land and Environment Court’s jurisdiction, while criminal proceedings under those Acts will be dealt with under the existing Class 5 of the court’s jurisdiction.
Major projects fast-track provisions found not racially discriminatory
In Dates v Minister for Planning [2009] NSWLEC 38, decided on 6 April 2009, the Land and Environment Court upheld the constitutionality and validity of certain provisions of Part 3A of the Environmental Planning and Assessment Act 1979 (EPA Act), which remove the requirement to separately obtain a permit or consent to (among other things) disturb or move, or knowingly destroy, deface or damage Aboriginal objects.
Section 75U of the EPA Act, which forms part of the scheme contained in Part 3A of that Act for the approval by the Minister for Planning of ‘major projects’, provides that certain ‘authorisations’ which would otherwise be required under various Acts are not required for a project which has received the Minister’s approval under that Part. Paragraph (1)(d) of that section lists, among the authorisations which are not required in the stated circumstances, a permit under section 87 or a consent under section 90 of the National Parks and Wildlife Act 1974 (NPW Act).
Section 87 of the NPW Act provides for the issue of a permit to (amongst other things) disturb or remove an Aboriginal object (an action which is otherwise forbidden by section 86 of the NPW Act). Section 90 of the NPW Act provides for the grant of a consent to (amongst other things) knowingly destroy, deface or damage an Aboriginal object or an Aboriginal place (an action which is otherwise forbidden by the section).
On 9 July 2007, the Minister for Planning granted an approval (Approval) under Part 3A of the EPA Act for the NSW Roads and Traffic Authority to construct a dual-carriageway highway bypass to the east of Bulahdelah. Certain conditions of the Approval related to the treatment of a ‘Guardian Tree’, a ‘Healing Stream’, and any artefacts of Aboriginal significance.
The applicant in the case, a member of the Aboriginal Worrimi Nation who described himself as a traditional owner of the relevant land, sought declarations that:
- the Approval was in breach of sections 9 and 10 of the Racial Discrimination Act 1975 (Cth) (RD Act) and therefore invalid, pursuant to section 109 of the Commonwealth Constitution to the extent that it purported to allow the destruction, damage or movement of Aboriginal objects, or
- alternatively, that the application of section 75U of the EPA Act to the Approval is invalidated by section 109 of the Commonwealth Constitution to the extent that it fails to comply with the provisions of sections 9 and 10 of the RD Act.
Section 9(1) of the RD Act makes it unlawful for a person ‘to do any act involving a distinction, exclusion, restriction or preference based on race … which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life’.
Section 10(1) of the RD Act provides that if, by reason of, or a provision of, a law of the Commonwealth or of a state or territory, ‘persons of a particular race … do not enjoy a right that is enjoyed by persons of another race …or enjoy a right to a more limited extent than persons of another race … then, notwithstanding anything in that law, persons of the first mentioned race … shall, by force of this section, enjoy that right to the same extent as persons of that other race…’.
Section 109 of the Commonwealth Constitution provides, in full, as follows: ‘When a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’
The Land and Environment Court (Justice Biscoe) rejected each of the applicant’s claims.
To the extent that the applicant’s claims related to section 9 of the RD Act, his Honour followed High Court authority in Gerhardy v Brown (1984–85) 159 CLR 70 to the effect that section 109 of the Commonwealth Constitution has little work to do in relation to section 9 of the RD Act, and would only operate so as to render a state law invalid in the case where ‘the state law is a law dealing with racial discrimination and the Commonwealth law intends to occupy that field of operation exclusively, or a state law makes lawful the doing of an act which section 9 forbids. Neither of those circumstances arises here.’
In relation to section 10 of the RD Act, his Honour found that, likewise, ‘usually there will be no need to resort to section 109 of the Constitution. If a state law merely omits to confer universal enjoyment of a relevant right on persons of a particular race, s 10 [of the RD Act], of its own force, complements the state law and confers the right, thus achieving racial equality.’
His Honour noted that sections 87 and 90 of the NPW Act do not confer any right of consultation to Aboriginal or any other people, but that guidelines published by the relevant department had required applicants to consult with the Aboriginal community about the Aboriginal cultural heritage values of Aboriginal objects and places within an area being considered for development.
Without deciding whether the existence of those guidelines had raised a ‘legitimate expectation’ of consultation, his Honour found that even if that were so, the result would be that, in enacting section 75U of the EPA Act, the NSW Parliament had merely taken away a right of consultation which the Parliament itself had previously granted: ‘Such a right, even if enshrined in a statute, could be taken away by a statute. ‘The power to make laws includes the power to unmake them’: Kartinyeri v Commonwealth … (1998) 195 CLR 337 at [13].
Victorian budget focuses on infrastructure spending
The Victorian Government has handed down the 2009–10 Budget, with a record $11.5 billion infrastructure investment focusing on transport, roads, water and energy.
The budget allocates $3 billion for transport, which represents the first stage of the $38 billion Victorian Transport Plan. Specific projects include:
- $651 million for 20 new X-trapolis trains to meet increased passenger demand
- $562 million for rail track duplication between Keon Park and Epping and the extension of the Epping line to South Morang
- $205 million for the electrification of the Sydenham line to Sunbury, and
- $153 million for the construction of four new train stations in Melbourne’s largest growth areas.
A further $2.4 billion has been allocated to roads projects including:
- $354 million over four years for Peninsula Link
- $206 million for road improvements in both metropolitan and regional areas, and
- $28 million for Green Transport initiatives
Also included in the Budget is a commitment to spend $2.8 billion on water projects to combat the impacts of climate change and an additional $1 million towards facilitation of the first stages of large-scale Solar plant.
Development Assessment Committees to be established in Victoria: new planning authorities to decide permit applications for Principal Activity Centres and areas of combined metropolitan, regional or state significance
Overview
The Victorian Government took the first legislative steps towards new planning authorities for Principal Activity Centres. In late March 2009, the Planning Legislation Amendment Bill 2009 (Bill) was introduced into Parliament. The Bill seeks to introduce a new type of planning authority in Victoria with special powers to decide permit applications in certain areas where matters significant to local, regional and state planning overlap.
The Victorian Government envisions that Development Assessment Committees (DACs) will decide planning applications in the Principal Activity Centres across metropolitan Melbourne. The proposed amendments to the Planning and Environment Act 1987 (Vic) (PE Act) establish the mechanisms for the creation of DACs, their jurisdiction, administration and relationship with other planning authorities.
DACs may be established to decide on permit applications, amendments to a permit or other specified matters within a certain area. DACs will replace councils only as the decision-maker on the applications covered by the jurisdiction of the DAC. Local councils will remain as the responsible authority, including for the purposes of processing applications before and after the decision by the DAC. Appeal rights and Ministerial call-in powers under the PE Act will not be affected.
The Victorian Government foreshadowed the establishment of DACs in Planning for all of Melbourne, the State Government’s response to the audit of Melbourne 2030. The audit process perceived difficulties with the current planning permit assessment system where only individual councils or the Minister for Planning determine planning permit applications. A need for an alternative arrangement to assess developments affecting multiple councils and broader metropolitan interests was identified.
DACs for Principal Activity Centres
The Victorian Government has indicated that DACs will initially be established for the Principal Activity Centres located in Camberwell, Coburg, Doncaster Hill, central Geelong and Preston (High Street). After consultation with local governments, DACs will eventually be established for all of the Principal Activities Centres across metropolitan Melbourne.
Proposed powers to DACs
Under the Bill, upon the recommendation of the Minister for Planning, the Governor-in-Council may establish a DAC by means of an order published in the Government Gazette. The order will determine the classes of applications which may be decided by the DAC and the area or areas to which the DAC’s jurisdiction extends.
In addition to the classes of permit applications specified in the order, a DAC may also determine applications to amend permits granted by the DAC, or which were previously issued by the responsible authority but relate to a class of permits now under the jurisdiction of the DAC. Decisions by DACs will be taken to be the decision of the responsible authority. However, DACs may not decide applications referred to the Minister for Planning (including the Ministerial call-in power) or subject to the combined planning permit and planning scheme amendment process established under the PE Act. This includes applications to amend permits issued under those separate processes.
In deciding applications before it, a DAC will have all of the powers that a responsible authority typically would enjoy. Responsible authorities must provide documents and information to DAC in relation to the application. Responsible authorities are also charged with providing assistance to DACs, including covering their costs and expenses.
Importantly, the Bill does not propose to amend or remove any of the appeal rights and review provisions for applications currently provided in the PE Act. Decisions by DACs may be appealed to the Victorian Civil and Administrative Tribunal (VCAT). The notice provisions are also not proposed to be altered by the Bill.
DAC membership
Membership of the DAC will be determined by the Governor-in-Council according to the requirements of the Bill. Under the Bill, DACs will be composed of five members:
- three members (including a chairperson) nominated by the Minister for Planning, and
- two members nominated by the council for the municipal district to which the land subject of the permit application relates.
The council members must be drawn from a group of five councillors or council staff members nominated by the council. The Bill sets out detailed provisions for the replacement of DAC members, conditions on members, meeting procedures, conduct of members, misuse of the position, and conflicts of interest.
The Bill also proposes a number of minor amendments to other legislation. Most important amongst these is an amendment to the PE Act which will allow growth areas to be declared for any part of Victoria. Under the current provisions, growth areas may only be declared within specified growth area councils listed in section 46AP of the PE Act.
Status of the Bill
The Bill passed the Legislative Assembly on 7 May 2009 and received its second reading in the Legislative Council on the same date. We will keep you updated as the legislation progresses through Parliament.
Planning scheme amendment VC57 in response to bushfires
The Victorian Government has introduced a new planning scheme provision designed to fast-track the rebuilding process for properties affected by the 2009 bushfires.
Amendment VC57 (Amendment) to the Victorian Planning Provisions (VPPs) and all planning schemes introduces a new Clause 52.39 to exempt the rebuilding of houses and agricultural buildings damaged or destroyed in the bushfires from the normal requirements of the planning scheme, including the requirement that a planning permit be obtained, and some of the usual restrictions on native vegetation removal.
The Amendment requires the following conditions be met before construction can commence:
- a site plan must be submitted to the relevant local council for approval before 30 June 2012
- building must commence within two years of the site plan being approved and must be in accordance with the site plan
- a building permit must still be obtained
- conditions requiring the provision of water, sewerage, vehicle access and power supply are imposed for land in the Farming Zone, Rural Conservation Zone, Rural Activity Zone, Green Wedge Zone, Green Wedge A Zone or the Rural Living Zone, and
- additional conditions are imposed where the land is subject to flooding, erosion or other special requirements.
Strategic assessment agreement for program to revise Melbourne’s Urban Growth Boundary
The Victorian and Commonwealth Governments have entered into a strategic assessment agreement (Agreement) under section 146(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The Agreement requires a strategic assessment of the impacts of actions resulting from the program to revise Melbourne’s Urban Growth Boundary (the Program) as described in the Melbourne 2030: a planning update – Melbourne @ 5 Million report (Melbourne @ 5 Million) released in December 2008.
Strategic assessments are an alternative assessment method under the EPBC Act which may be used to assess government policies, plans or programs which impact on protected matters of national environmental significance. The benefits of the strategic assessment process are primarily two-fold.
First, it allows for an early assessment under the EPBC Act of a range of impacts which may result from the government policy, plan or program. Second, it allows for approvals to be granted under separate powers in relation to strategic assessments in section 146B of the EPBC Act for certain actions subsequently taken under the endorsed government policy, plan or program. If the Federal Minister for the Environment, Heritage and the Arts (Environment Minister) endorses the policy, plan or program, then EPBC Act approvals may be granted for the taking of certain actions or classes of actions in accordance with the endorsed policy, plan or program. The effect of this is to remove the need to obtain further approvals under the EPBC Act for the actions or classes of actions which are in accordance with the endorsed policy, plan or program.
The strategic assessment will include the following components of the Program:
- implementation of the Urban Growth Zone, from the expansion of the Urban Growth Boundary within the designated areas identified by Melbourne @ 5 Million
- Outer Metropolitan Ring Transport Corridor, and
- Regional Rail Link Corridor Reservation (West Werribee to Deer Park).
Specifically, the Agreement establishes Terms of Reference for the strategic assessment, which require:
- a detailed description of the planning process underlying the Program
- a description of the option assessment and selection process, with reference to the consideration given to environmental, social and economic outcomes
- a statement as to how the Program promotes principles of ecologically sustainable development, including: inter-generational equity, conservation of biological diversity and ecological integrity and the precautionary principle
- a detailed description of the environment likely to be affected by the program. This includes indirect affects, such as those resulting from the creation of new infrastructure to support the growth areas
- identification of listed environmental and heritage assets located within the affected area
- analysis of the potential and likely impact of the Program upon the environment. Particular attention will be directed toward the impact upon matters of national environmental significance, areas of high biodiversity and heritage values, and
- a description of the measures to be implemented prior, during and post implementation of the Program, that seek to prevent, minimise, rehabilitate or offset the environmental impacts.
The Agreement also provides endorsement criteria for the Environment Minister.
A draft Impact Assessment Report is currently being prepared and was due for release in April 2009. As of publication, the draft Impact Assessment Report has not been released. (Note: not yet released as at 19/5/09).
After consideration of public submissions, a Final Report will be presented to the Environment Minister, who will either endorse the Program or make recommendations to the Victorian Government in respect of its implementation. Endorsement will occur where the Minister considers the Program will protect the environment, promote ecologically sustainable development and conservation of biodiversity and provides for the protection and conservation of heritage. Where the Minister elects to make recommendations, the Victorian Government must incorporate them into the Final Report and advise of any modifications to be made the implementation of the Program.
Extension to Urban Growth Boundary investigation area
The Victorian Government has announced it will extend the Investigation Areas for the Urban Growth Boundary (UGB), by shifting the Western boundary.
The decision to extend the UGB was initially announced as part of the Melbourne @ 5 Million report released in December 2008. That report identified a number of areas for possible inclusion within the UGB (Investigation Areas), including extensions of the Melton-Caroline Springs, Wyndham, Hume, Whittlesea and Casey-Cardinia growth areas. The recent announcement broadens the Wyndham-Caroline Springs-Melton Investigation Area.
The extension to the Investigation Area complements VicRoads’ extension of the study area for the Outer Metro Ring Transport Corridor in Rockbank and Werribee. The Victorian Government suggests that together, the two changes will result in better alignment between town planning and transport infrastructure.
The extension of the Investigation Area boundary has delayed consultation on the revised UGB. This will now occur from mid June to mid July 2009, with the final boundary expected to be presented to the government by November.
Modernising Victoria’s Planning & Environment Act
The Victorian Department of Planning and Community Development (DPCD) has released a discussion paper titled ‘Modernising Victoria’s Planning Act’ (Paper). The Paper identifies opportunities to modernise the Planning and Environment Act 1987 (Vic) (Act), with the aim of improving the Act’s efficiency and effectiveness in responding to Victoria’s changing development needs and objectives. The need for simplification of procedure, certainty and timeliness of decisions is a key focus of the review.
The discussion paper identifies the following opportunities for improvement:
- a review of the objectives of planning in Victoria set out in the Act, in particular whether it is necessary to reconsider the meaning of ‘environment, social and economic effects’ of a development, and whether the Act should explicitly refer to other objectives such as climate change or health and wellbeing
- a range of potential procedural amendments, including:
- creating a shorter application process for minor permit applications
- different notice requirements depending on the nature of a permit application
- a more comprehensive permit application form to reduce delays caused by poor quality applications
- a requirement that an objection specify precisely how the grant of a permit or planning scheme amendment would affect the objector
- clarification of the enforceability of conditions on a permit that are intended to survive the completion of the development, to reduce the need for section 173 agreements to secure compliance, and
- the introduction of a standardised process for amending a permit, with related changes to the ability for a permit to allow changes to plans.
- review of enforcement of the Act, including timeliness and cost
- potential changes to the planning scheme amendment process, in particular the introduction of timeframes for decision making and a review mechanism
- modifications to the way in which the Act deals with development proposals of state significance, including whether the Minister or a new Development Assessment Committee should be the responsible authority and the method by which impacts should be assessed
- reduction in the regulatory burden, by encouraging a level of assessment appropriate of the nature of the proposal, and
- review of the content and procedure for entering into section 173 agreements.
Building Amendment (Bushfire Construction) Interim Regulations 2009
On 11 March 2009, the new building Standard AS 3959 – 2009 Construction of buildings in bushfire prone areas was incorporated into the Building Regulations 2006 by the Building Amendment (Bushfire Construction) Interim Regulations 2009. With the aim of safeguarding occupants from injury and protecting buildings from the effects of bushfires, the Standard applies to residential buildings only. It requires dwellings in bushfire-prone areas to be designed and constructed in such a way as to reduce the reduce the ignition risk in the event of an approaching bushfire front. Specific requirements include the use of non-combustible materials in the constructions of roofs and verandas and wall and roof joints sealed against ember attack.
Further regulations of other types of buildings, including commercial buildings, are possible within the Terms of Reference of the Victorian Bushfires Royal Commission.
Circumstances in which a third party may seek review of a decision to grant a works approval: Thirteenth Beach Coast Watch Inc v the Environment Protection Authority [2009] VSC 53
The Victorian Supreme Court recently ruled upon the circumstances in which a third party may seek review of a decision by the Victorian EPA to grant a works approval or licence to a proponent. In Thirteenth Beach Coast Watch Inc v the EPA & anor [2009] VSC 53, the court confirmed the narrow scope of the ‘interests’ required to satisfy section 33B(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
An environmental association, Thirteenth Beach Coast Watch Inc (Coast Watch), sought review of the EPA’s decision to grant a works approval to Plenary Environment (Barwon) Pty Ltd (Plenary). The works approval was issued to Plenary for the construction of a biosolids thermal drying facility to process sewerage sludge around Thirteenth Beach, near Connewarre. In its mission statement, Coast Watch stated it sought to represent the community’s concerns for the 13th beach Coastal Area and stop the building of the Sewage Sludge Factory at Black Rock.
To successfully seek the review, Coast Watch was required to establish both:
- standing under section 33B(1): Coast Watch needed to demonstrate that its interests were affected by the decision, and
- grounds for review under section 33B(2): Coast Watch needed to demonstrate that its interests would be unreasonably and adversely affected by the use of the proposed works, or that the approval was inconsistent with State Environment Protection Policies (SEPPs), or where no SEPPs existed, that the works would cause pollution or an environmental hazard.
Coast Watch initially sought review by the Victorian Civil and Administrative Tribunal (Tribunal). The Tribunal affirmed the EPA’s decision to issue the works approval on the basis that Coast Watch’s interests, as ascertained from its mission statement, were not unreasonably and adversely affected. However, the Tribunal did not define the meaning of ‘interests’ for the purposes of section 33B(2)(a).
On appeal in the Supreme Court, neither the EPA nor Plenary challenged Coast Watch’s standing to seek review. Consequently Justice Cavanough did not rule on the meaning of interests for standing purposes and the broad standing principles of section 33B(1) continue to apply. He did however note that the word ‘interests’ in section 33B is used in two different contexts, standing to appeal and grounds of appeal.
The focus of the Supreme Court was on the nature of interests required to establish grounds for review under section 33B(2)(a). Justice Cavanough rejected Coast Watch’s submission that ‘interests’ in this context should be given a wide meaning, as in the test for standing. He ruled that for the purpose of section 33B(2)(a), an applicant must demonstrate that a ‘financial, physical or other like personal interest’ has been unreasonably or adversely affected by the use of the proposed works. Interests of a mere intellectual or philosophical nature, or emotional interest in environmental protection are not sufficient ‘interests’ for the purposes of section 33B(2)(a). Here, Coast Watch’s interest in protecting the environment surrounding Thirteenth Beach was not the type of interest to which section 33B(2)(a) applied.
Justice Cavanough reached this conclusion by reference to the fact that section 33B(2)(b) makes exhaustive provision as to the grounds of review available to a party with no personal stake in the outcome, by allowing review where the works approval is inconsistent with SEPPs. Parliament did not intend that the objective standards set by the SEPPs could be replaced by the subjective environmental standards of an entity like Coast Watch which had no financial, property or personal stake in the outcome.
The Supreme Court also considered whether section 33B(2) required that the works would in fact result in a discharge, emission or deposit of waste to the environment or whether a mere risk of this occurring would be sufficient. Justice Cavanough held that an SEPP may be drafted in such a way that a mere risk would involve consistency or amount to an ‘environmental hazard.’ However, as Coast Watch could not establish that the Tribunal would have made a different decision even if a mere risk was sufficient, this ground of appeal also failed.
The Supreme Court dismissed Coast Watch’s appeal on both grounds, upholding the EPA’s decision to grant the works approval.
Protection of buildings that contribute to neighbourhood character, other than via a Heritage Overlay: Minawood Pty Ltd v Bayside City Council [2009] VCAT 440 (red dot)
In Minawood Pty Ltd v Bayside CC [2009] VCAT 440 (red dot), the Victorian Civil and Administrative Tribunal (Tribunal) recently considered the circumstances in which a building may be protected, despite not being subject to a Heritage Overlay. The Tribunal held that a building which contributes to neighbour character, but which is not formally protected by a Heritage Overlay, may still be protected using the principles of neighbourhood amenity contained in the Planning Scheme. The Tribunal also considered the effect of a large volume of community objections to a proposal.
Minawood Pty Ltd (Minawood) had earlier been granted a permit to develop the 144 year old Khyat’s Hotel in Brighton, located in the precinct which included the Brighton Town Hall, Court House and Council Chambers. The permit allowed for the retention of the front portion of the hotel in conjunction with the construction of 21 dwellings in a three storey development. In 2008, Minawood sought to amend the permit under section 87A Planning & Environment Act 1987 (Act) to allow it to demolish the remaining portion of the hotel and replace it with an additional five dwellings (Amendment). As the hotel was not subject to a Heritage Overlay, the Tribunal could not directly control the demolition of the hotel. However, as Minawood held an existing permit involving partial retention of the hotel, the Amendment was necessary before the demolition could proceed.
The proposed demolition generated strong opposition within the community and was not supported by the Bayside City Council on the basis that the Amendment:
- did not respect the cultural, social and historic associations and significance of the site
- did not accord with the objectives of the Neighbourhood Character Policy of the Planning Scheme, and
- would dominate and detract from Neighbouring heritage buildings.
The Tribunal balanced the need for increased residential density with the effect of the proposed development on the amenity of the local area. It ruled that even where no formal planning protection exists, good planning principles and the emphasis in the Planning Scheme upon protection of neighbourhood character and cultural identity dictate that features contributing to neighbourhood character, heritage and cultural identity ought to be retained and incorporated into new development. It also took into account the State Planning Policy Framework (Policy), which provides that one objective of the Policy is to create urban environments which have an easily recognisable sense of place and cultural identity. The Tribunal held that the existing permit exhibited these good planning principles and that the new proposal did not represent a net community benefit as the addition of five apartments was outweighed by the loss the demolition would cause to the values of social, heritage and neighbourhood character. Consequently, it refused to amend the permit which effectively amounted to a refusal to permit the demolition of the hotel.
The Tribunal also considered the significance of the 4300 community objections received in response to the proposed demolition. Bayside City Council submitted that the sheer number of objections and their consistent message was evidence of a significant social effect of the development and should be taken into account under section 60(1A)(a) of the Act. The Tribunal disagreed and ruled that the sheer number of objections alone cannot create a ‘significant social effect’, as planning applications should not represent a popularity contest and ‘social effect’ should not be used to take account of the views of individuals with a mere moral aversion to a development proposal. Rather, consideration of ‘social effect’ involves consideration of the consequences of the development to the community as a whole (rather than individuals) such as:
- the generation of demand for increased community facilities & services
- improvement in accessibility to community facilities & services, and
- improvement or reduction in residents safety.
Instead, it held that the volume of objections was evidence of the hotel’s cultural significance, a matter which the Planning Scheme required specific consideration of when making a decision.
Far North Queensland Regional Plan released
The Department of Infrastructure and Planning has released the final version of the Far North Queensland Regional Plan 2009-2031 (Plan), following extensive public consultation last year. It is the first statutory regional plan to be developed outside a major metropolitan area and it builds on the former non-statutory regional plan, Far North Queensland Regional Plan 2010.
The Plan applies to the following five local government areas:
- Cairns Regional Council
- Cassowary Coast Regional Council
- Tablelands Regional Council
- Yarrabah Aboriginal Shire Council, and
- Wujal Wujal Aboriginal Shire Council.
Within these areas, the plan must be adhered to by both state agencies and local governments, when engaged in planning and assessing development. Each local council must also amend its planning scheme to achieve consistency with the Plan.
The Plan provides a framework with which to guide and manage growth, change, land use and development in the region to 2031 and address key regional environmental, social, economic and urban objectives.
Specifically the Plan:
- identifies and allocates sufficient developable land to meet future growth
- addresses various rural and natural resource management issues
- protects and enhances the region’s natural environment, biodiversity and natural resources
- resolves conflicts between state and local planning policies at a regional level
- establishes sound urban development principles that support a compact, well serviced and efficient urban form
- ensures infrastructure is delivered in a timely and cost effective way which supports the community and economic development
- ensures the region’s growth is responsive to the possible impacts of climate change and oil vulnerability
- designated future economic activity centres, and
- gives the private sector greater certainty of future growth and development objectives when they make business investment decisions.
‘Building a Better Planning System’ consultation paper released
The Department for Planning and Infrastructure (DPI) has released a Consultation Paper titled ‘Building a Better Planning System’ (Paper) which sets out an agenda for planning reform. The Paper was released in response to a perceived lack of confidence in the planning system and the belief that the existing framework was restricting development and investment decisions.
Specifically, the Paper identifies six priority reform areas:
- simplification of planning approvals, to address delays and complexity in the approvals process and a lack of transparency in decision making
- more effective planning instruments, to remove the unnecessary complexity and overlap in the existing range of planning instrument
- prioritisation of major projects
- coordination of infrastructure and land use planning
- comprehensive regional planning framework to support regional economic development, and
- strengthening of governance and institutional arrangements by removing ambiguities and overlaps in the allocation of responsibilities.
The DPI has sought public and industry comments on a number of priority actions recommended within each of these reform areas. Submissions have now closed and it is anticipated the DPI will soon release a final strategic statement that will act as the blueprint for reform.
Development (Planning and Development Review) Amendment Act 2009
The
Development (Planning and Development Review) Amendment Act 2009 (SA) (Act) commenced on 1 March 2009. The Act seeks to achieve the key elements of the planning and development review undertaken in 2008 by amending the provisions in Part 4 of the
Development Act 1993 (SA) relating to development assessment and approvals, consultations and procedural matters.
Specifically, the Act:
- provides that regulations may exclude prescribed classes of development from the requirements for a Development Plan and development plan consent
- makes special provisions relating to assessment against a Development Plan. In particular, where a development which can be classified as a minor variation from a complying development, the relevant authority may determine it to still be complying development
- modifies the procedures relating to public notice and consultation
- restricts requests for information by a relevant authority and modifies the timeframes for compliance with such requests, with respect to certain categories of development, and
- modifies the provisions relating to the time in which a decision must be made by the relevant authority.
No developments for this quarter.
No developments for this quarter.
No developments for this quarter.
More information
For information regarding possible implications for your business, contact a member of the Environment & Planning team.