5 February Dear Sir, Submission Planning Bill 2015 supporting instrument consultation

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1 5 February 2016 Mr Frankie Carroll Director General Department of Infrastructure, Local Government and Planning PO Box City East, QLD Dear Sir, Submission Planning Bill 2015 supporting instrument consultation Thank you for the opportunity to make a submission on the Planning Bill 2015 supporting instruments. As you are aware, the Planning Institute of Australia (PIA) in 2015, advocated for then, Planning and Development Bill and subsequent Planning Bill. The aims of both Bills were supported and in particular the objective to have the best planning system in Australia. PIA remains committed to any planning reform agenda that assists our members and all other participants in the planning system. On this basis and in recognition of the expected delivery of the new planning legislation and supporting instruments in 2016, please find attached a series of specific comments to assist in further refinement of those instruments. PIA recognises that the supporting instruments to the Planning Bill 2015 will have the biggest impact on our members operationally. It is on this basis that we would emphasise the importance of continuing to engage with the industry in order to understand the practical implications of how the proposed supporting instruments will affect the core business and operations of the private and public sector. PIA sees great value in the Department of Infrastructure, Local Government and Planning (DILGP) working with the industry to carry out road testing of the proposed new functionalities and processes contained within the supporting instruments. This will also assist in the industry themselves, being better equipped to manage the change at such time the Planning Bill and supporting instruments are given formal effect. It is at this time PIA will also be setting up an online feedback process for our members to facilitate ongoing engagement with the State Government on implementation matters. These matters will then form part of our ongoing discussions to ensure over time that we do have the best planning system in Australia. Planning Institute of Australia Leading effective planning for people and places QUEENSLAND OFFICE PO Box 295 Lowood QLD 4311 ABN: Phone: Planning Institute of Australia planning.org.au

2 Should you wish to clarify any components contained within this submission, please contact PIA Qld s State Manager, Dan Molloy, (via dan.molloy@planning.org.au or phone ), who can arrange a time with relevant PIA members to discuss our submission. Yours sincerely, Todd Rohl MPIA Qld President Amanda Taylor MPIA PIA Qld Policy Committee Planning Institute of Australia Leading effective planning for people and places QUEENSLAND OFFICE PO Box 295 Lowood QLD 4311 ABN: Phone: Planning Institute of Australia planning.org.au

3 DRAFT STATUTORY INSTRUMENT DEVELOPMENT ASSESSMENT RULES 3 - General Generally this instrument would benefit from some structural modifications to improve its legibility and overall readability. Some potential suggestions to improve the overall readability and functionality may include: o Provision of a third layer of headings in order to break down larger sections of the document that will be used regularly. I.e. Section 2 provides the development assessment rules over a number of tables that cannot be navigated from the table of content. This will be a high use part of the instrument and should be readily navigable for uses. o Inclusion of summary process/stage flowcharts o Consideration of the use of colour to identify process phases or types of activity (i.e. variable vs fixed actions) Whilst it is recognised that the Development Assessment Rules are provided as a detailed supporting instrument to the proposed Bill it is important that they consider the range of audiences that it must communicate to. Whether or not to some extent the rules must remain procedural, it is necessary that the Department consider how the reformed process an rules are communicated to the general public, applicants, Local Government, etc. It may be that a range of tools are necessary to assist in supporting the reform. These should not be simply limited to written guides, but also consider, electronic and web tools, face to face Department support, etc. Prior to finalising the Development Assessment Rules it is recommended that the Department carry out further engagement, particularly with Local Government in order to understand the practical implications of implementing some of the reform initiatives. It is important that the Department is aware of the functional processes, systems and delegations that exist for Local Government, as the assessment manager for the vast majority of development applications. Engagement with Local Government should not be limited to medium to large Council s, rather seek to engage with a broad cross section in order to truly understand the implications of the proposed changes. Finally, it is queried whether or not the Department has carried out any hypothetical testing on the proposed Development Assessment rules. Similar to the process of developing a new planning scheme, where a variety of test applications are often carried out in order to understand potential bugs, it is recommended that this may be beneficial in finalising the instruments, and also as example scenarios as supporting material for stakeholders. 1 Early referral response The expansion of this ability is supported as it gives the applicants the opportunity to resolve significant issues prior to lodging the application. Consideration of inclusion of timeframes may be an additional recommendation.

4 4 - Change in terminology The instrument proposes the introduction of a number of new terms to replace those used and functioning under the SPA IDAS process. In particular the use of Confirmation in place of Acknowledgement. PIA is of the view that terminology and procedural changes come at substantial cost to Local Government and the Development Sector. This is not to say change is opposed entirely on this basis, however it is necessary that changes result in a benefit that clearly outweighs the cost of implementation of the change. In this instance it is not clear what benefit would be sought from changing terminology from Acknowledgement to Confirmation. 4 Properly made The requirement for the assessment manager to provide a confirmation notice appears optional. Under (6) it is noted that a confirmation notice must be provided when public notification is required. The confirmation notice is considered to place an important role in capturing an application at a particular point in time, specifically with regard to: - Acknowledging that an application has been received/exists - Confirming it is properly made - Setting a properly made date - Stating referral agencies - Stating any requirement for public notification - Whether or not an information request will be made - Each of these items are considered valuable to the development assessment process, and it is generally recommended that the requirement for a Confirmation/Acknowledgement Notice is provided but the Assessment Manager for all development applications. 9 Opt-out of the further PIA does not see value in the opt-out step, particularly given that the process does not prevent assessment manager informally seeking information, which already regularly occurs in practice.

5 5 information step 15 Referral step It is not clear why Division 4 Referral Step sits after, Division 3 Further Information Step. It reads out of sequence with the general process, particularly given that Division 3 refers to instances when a referral agency may give an information request. 16 Giving referral agency material Consideration should be given to the Referral Step being brought forward to sit before the Further Information Step. Similar to the Note comments, the referral process could be simplified if it did not occur at the same time the application was lodged, but after it was properly made. 26 Floating public notification 27 Public notification requirements 31 Considering submissions The option for notification to be undertaken at any time complicates rather than simplifies the process and will have a significant impact on the systems and processes used by councils. In addition to the cost, this change also creates uncertainty for stakeholders, in particular the public. Development assessment is about managing expectations, delivering consistency and fostering confidence. Notification requirements should be clear and prescriptive to give certainty to Council, the applicant and the community as to when and how notification should be undertaken. Flexibility in the execution of the notification process introduces an administrative burden and inconsistency. Perceptionally this may be considered a regressive step in terms of removing the confidence of the public to predict when an application might be available for comment, and presents little or no value to the applicant. An early notification carries a risk that a proposal may be altered through consequent negotiations. Depending on changes, the proposal may have to be re- notified, resulting in an extension of assessment timeframes, further uncertainty and inconvenience to the community. Consistent with aforementioned comments, some general concern is raised with regard to the management of public expectation of minimum notification requirements. The provisions of a 10 day timeframe for assessment managers to consider submissions is a welcome addition as the ability to extend the decision making period without the applicant s agreement has been removed. Apart from allowing extra time to consider submissions it will allow councils to better manage the Council meeting cycles should delegations require such applications to be decided by full Council.

6 Decision period 37 Native Title Act The reduction in timeframes is supported. Under SPA, the responsibilities under the Native Title Act are carried out after the decision on the application is made. It is unclear exactly what the implications are for all parties by requiring the Native Title responsibilities to be executed prior to the decision being made on the application. 48 Extending periods of time 50 When an application lapses 48 Lapsed applications 53 Deciding change representatio ns Schedule 1 Substantially different 46.1 (3) states that no period of time can be extended where a DA is required by an enforcement notice. This should be at the assessment manager s discretion where the assessment manager is also taking compliance or enforcement action. Often in these circumstances Council is negotiating to have someone cease doing something or to move from a site. The ability to give people time in this instance is an important element of negotiations. This section should be amended accordingly, otherwise it will create pressure and adversarial behaviour. The extension of the revival timeframe for lapsed applications from 5 days to 20 days is a welcome addition and will allow more applicants to revive their applications. 48 (4) Requiring a lapsed applications to be returned is an administrative burden. Many Councils operate a paperless office and the applicant will ordinarily hold the original documents in both hard and electronic format. Similar to previously expressed views regarding the change in terminology, the proposed change from request for a negotiated decision is generally not supported. The introduction of a 20 day timeframe for these requests is a welcome initiative. It is suggested that the stop the clock provisions not extend to this phase of the assessment as it stands alone, and applicants have had the benefit of their appeal period in which to consider their position. Furthermore the 20 days can be extended by agreement between the parties. The concept of substantially different has several applications under the draft Bill. It exists for the early referral provisions, the change provisions and the public notification provisions. The DA rules provide a good starting point for defining the concept however a more detailed guide or implementation notes would be very beneficial in reducing uncertainty and differences of opinion/interpretation.

7 7 Schedule 2 Public notice requirements The inclusion of public notice requirements within this instrument is supported. Generally the content within the current Guide on public notification of certain development applications is acceptable, however should the concept of floating notification remain within the Planning Bill it is recommended additional details regarding the implementation and management of this is provided. Guidance should be provided specific to the following audience: - Local Government, in particular how to determine what notification requirements are required for particular applications - General public/stakeholders, why notification requirements may be different in different circumstances and how this affects the notification process Schedule 5 Definitions Definitions provided in this schedule appear to simply be provided as a glossary of terminology used throughout the instrument rather than standalone terms, therefore the functional purpose appears unclear. DRAFT STATUTORY INSTRUMENT PLAN MAKING RULES Clause Title Comments - General Generally this instrument would benefit from some structural modifications to improve its legibility and overall readability. Some potential suggestions to improve the overall readability and functionality may include: Inclusion of summary process/stage flowcharts Consideration of the use of colour to identify process phases or types of activity (i.e. variable vs fixed actions) Prior to finalising the Making and Amending Local Planning Instrument guideline it is recommended that the Department carry out further engagement, particularly with Local Government in order to understand the practical implications of implementing some of the reform initiatives. It is important that the Department is aware of the functional processes, systems and delegations that exist for Local Government, as the assessment manager for the vast majority of development applications. Engagement with Local Government should not be limited to medium to large Council s, rather seek to engage with a broad cross section in order to truly understand the implications of the proposed changes. Finally, it is queried whether or not the Department has carried out any hypothetical testing on the proposed guidelines and rules. Similar to the process of developing a new planning scheme, where a variety of test applications are often carried out in order to understand potential bugs, it is recommended that this may be beneficial in finalising the instruments, and also as example scenarios as supporting material for stakeholders.

8 8 Clause Title Comments 1.1 &1.2 Plan Making Principles/Minis ters Guidelines 3.2 Statement of State Interests 3.16 Significantly Different The provision of timeframes is notably missing from the instrument. The permanent removal of timeframes is not supported. The making and amending of planning schemes often represent the most significant policy projects that a Local Government may carry out. The ability to provide timeframes and appropriately program the general process of preparing and adopting a new or amended planning scheme relies on the establishment, at the very least, of timeframe benchmarks. It is recommended that the re-establishment of timeframes for each step/action is provided in the final instrument. The inclusion of these principles and guidelines is supported in its role of clarifying roles and responsibilities. The optional requirement for Local Government to provide a Statement of State Interests is supported as it is considered in some instances of limited value to the plan making/amendment process. The State should provide each Local Government in writing what State Government interests need to be addressed in making or amending an instrument. The requirement for repeated public consultation where the draft planning scheme amendment is taken to be significantly different requires further clarification as it creates uncertainty to the process. It is important that the interpretation of this term is clear, particularly given those stakeholders involved in this process (i.e. general public, elected representatives).