On the 7th November, the Queensland Heritage and Other Legislation Amendment Act 2014 received assent. The Act makes a number of minor but important amendments to the Sustainable Planning Act 2009.
One of the more interesting changes is an amendment to section 88(1)(e) of the SPA that removes an LGIP from being a key element of a planning scheme. As a consequence, a local government is no longer required to include an LGIP in its planning scheme.
This would appear to be recognition of the fact that many local governments have little or no growth and that trying to ‘force’ these local governments to include an LGIP in their planning scheme has been a policy failure.
The DSDIP has now adopted an approach that will encourage local governments who are experiencing growth to include an LGIP in their planning scheme. This has been achieved through the insertion of new section 628A into the SPA. This section only permits a local government to make and adopt a charges resolution, levy infrastructure charges and impose conditions about trunk infrastructure if the local government’s planning scheme includes an LGIP. The new section does not restrict a local government from using its non-trunk infrastructure conditioning powers, irrespective of whether its planning scheme includes an LGIP.
For local governments that have a planning scheme that does not currently include an LGIP and did not include a PIP before 4 July 2014, a new transitional provision included in section 996 of the SPA will allow these local governments to adopt charges, give infrastructure charges notices or impose conditions about trunk infrastructure until 1 July 2016. This transitional provision operates despite the commencement of section 628A.
Another interesting change to the SPA is the amendment of section 647(3) to remove reference to the PIA. This amendment will now mean that where the LGIP does not identify trunk infrastructure to service development outside the PIA, the local government may condition a development to provide necessary trunk infrastructure if the development is consistent with the assumptions about development stated in the LGIP.
This appears to provide an alternative to section 650(1)(a)(iii) of the SPA which continues to allow a local government to impose a condition requiring the payment of additional trunk infrastructure costs if the development is for premises completely or partly outside the PIA. The loss of clarity in the SPA as to when trunk infrastructure would be considered necessary or additional was an unfortunate result of the Sustainable Planning (Infrastructure Charges) and Other Legislation Amendment Act 2014. The most recent amendment to the SPA will exacerbate this problem.
Given the offset and refund requirements arising from the necessary trunk infrastructure condition power, the choice of condition to be imposed would need to be carefully considered.
PIE Solutions has considerable experience in the interpretation of the SPA’s infrastructure conditioning powers, including the correct use of infrastructure conditions as they relate to development applications. We also provide expert advice on the drafting of LGIPs and charges resolutions to comply with the SPA.