The Housing Availability and Affordability (Planning and Other Legislation Amendment) Bill 2023 (Bill) was recently introduced to Queensland Parliament to address current housing supply and affordability challenges. Its primary aim is to simplify and expedite new housing development while contributing to Queensland's commitment to deliver its share of the National Cabinet's 1.2 million well-located homes initiative.
In this insight, we explore the key amendments introduced by the Bill, particularly in the context of the Planning Act 2016 (Qld) (Planning Act), including a series of ‘growth area tools’ that look to optimise Queensland’s planning framework in response to housing challenges. Specifically, we examine how these revisions support key housing priorities which are vital to the economic growth, liveability and sustainability of our cities.
In addition to the proposed amendments to the Planning Act, the Bill provides consequential and operational amendments to the Economic Development Act 2012 (Qld), Planning and Environment Court Act 2016 (P&E Court Act), Environmental Offsets Act 2014 and Acquisition of Land Act 1967 (ALA).
Snapshot of proposed reforms under the Bill
The Bill introduces various amendments to the Planning Act, including:
1. State Facilitated Development: The Bill proposes a new assessment pathway for development that is a State priority, such as infill and affordable housing, to be known as ‘State Facilitated Development’. The pathway has been introduced to help ‘unlock’ land to facilitate housing and was informed by a review of 75 underutilised urban footprint sites intended for residential development in Southeast Queensland. It was found that development of these sites was constrained by fragmented land ownership, which is slowing down the delivery of housing, and unlocking this land was considered a key deliverable in the State’s Draft ShapingSEQ Regional Plan 2023 (see our previous alert here).
Key proposed amendments to the Planning Act to enable State Facilitated Development include:
- The Planning Minister can identify and declare projects as State facilitated applications for any development application where the Minister or the Chief Executive is not the original decision-maker. As part of the broader criteria for declaration as a State facilitated application, the Minister is to consider whether the project will assist in delivering development that is for an ‘urban purpose’ and is identified as a priority to the State. An ‘urban purpose’ includes various land uses such as residential, industrial, sporting, recreational and commercial activities but not rural residential, environmental, conservation, rural, natural or wilderness purposes. Accordingly, land uses other than affordable housing may form part of a project declaration.
- If a project is declared a State facilitated application, any decision made, or notice given by, the decision-maker stops having effect. This means that any current development application on foot for a project will ‘restart’ the approval process and instead be assessed through the State Facilitated Development pathway. In addition, any appeal against a decision made on the development application upon the declaration is discontinued.
- The Director-General of the Department of State Development, Infrastructure, Local Government and Planning takes on the role of assessing and deciding State facilitated applications. Several sections of the Planning Act do not apply (i.e., the categories of development assessment and Referral agency assessment processes) to expedite and provide for a streamlined assessment process.
- Amendments to the P&E Court Act are proposed to vary the circumstances where a declaration can be sought by an assessment manager in the Planning and Environment Court to include where a development application is declared to be a State facilitated application under the Planning Act by the Planning Minister.
2. New Acquisition Power: The Bill proposes to introduce a new power in the Planning Act for the Planning Minister to take or purchase land or create easements for planning purposes to deliver critical development infrastructure. Currently, local governments have powers under the Planning Act to take or purchase land for planning purposes. The new acquisition power given to the Planning Minister is to be considered a ‘reserve’ power, meaning the Minister is to only acquire land where they are satisfied that the development infrastructure is essential to facilitate development and all reasonable steps have been taken to reach an agreement with the landholder.
Key proposed amendments to the Planning Act to facilitate acquisition of land for development infrastructure include:
- The State can take land even if the taking of the land will confer the right and interest in the land to another entity and where a person gains a benefit from the taking the land. Notably, the State can also take land for another purpose which is incidental to the provision of development infrastructure.
- The State can take land and create an easement over land. However, an easement may only be created if the entity who will have the benefit of the easement and the relevant local government has agreed to the terms of the easement.
- The process for the acquisition and the payment of compensation for taking the land under the ALA will apply as if the land was being taken under the ALA. The same process will also apply to the taking of land for an easement. The Bill clarifies that reference to an easement is a public utility easement under the Land Act 1994 (Qld) or the Land Title Act 1994 (Qld).
- Prior to the taking of land, a person who is gaining a benefit from the acquisition may enter into an infrastructure agreement with the State about the costs of the land. The agreement may require the person to give a guarantee or provide security to the State for the costs of taking the land (i.e., operational, administrative, and legal costs and any compensation payable for the taking of the land). If the person does not pay the costs of taking the land, those costs may be recoverable as debt owed to the State.
Consequential amendments to the ALA are proposed to facilitate the use of the acquisition process under that Act for the taking of land by the Planning Minister and calculation of compensation payable to an affected landowner.
3. Urban Investigation Zone: The Bill proposes to introduce a new Urban Investigation Zone that will allow local governments to ‘pause’ development to finalise land use and infrastructure planning for growth areas. The zone will prohibit development that is a material change of use of a premises or reconfiguring a lot for an urban purpose (with exceptions for particular development including, development that was accepted development immediately before the planning change to an urban investigation zone, a State Facilitated Development, and development carried out under a development approval).
The rezoning process will allow the landowner to make submissions to the local government about the proposed rezoning of land. Prior to rezoning land, the local government is required to consider all other feasible alternatives and review its use of the urban investigation zone every five years.
4. Additional operational amendments: The Bill proposes a suite of amendments to the Planning Act to address operational issues and inefficiencies around the Planning Minister’s powers and processes. Particularly of note are the following proposed amendments:
- removing the requirement for public notices to be published in a hard copy newspaper and clarifying that submissions can be made electronically without needing to be signed by each person making the submission;
- a local categorising instrument may not include assessment benchmarks about the impact of development on the cultural heritage significance of a local heritage place that is also a Queensland heritage place; and
- regarding urban encroachment, creates a new change registration application where an existing affected area is modified or expanded and simplifies the renewal process which now does not require public consultation when there is an impending lapse in registration and no change to the affected area.
Next Steps
The proposed changes recognise the need for updated processes to deliver urban development that is a priority to the State. The Bill aims to create a practical framework that not only presents an opportunity to alleviate housing shortages but also streamlines development assessment and decision-making process, ultimately accelerating the construction of housing and residential projects.
Submissions in response to the Bill closed on 31 October 2023. The State Development and Regional Industries Committee’s report is due on 24 November 2023.
Developers and individuals should stay informed and consider how the proposed changes may impact their current and planned projects under the Planning Act.
