Putting the SEQ Regional Plan into perspective – the legal perspective

Introduction

Land use and infrastructure planning framework

The South East Queensland Regional Plan 2009-2031 (SEQ Regional Plan) and the accompanying South East Queensland Regional Plan 2009-2031 State Planning Regulatory Provisions (SEQ SPRP) provide a land use and infrastructure planning framework for the South East Queensland region (SEQ region).

This regional land use and infrastructure planning framework is relevant to the following policy decisions for the SEQ region:

• The decisions of the State government, local governments and other entities about land use and infrastructure plans and investments.
• The preparation of a state and local government planning instrument, plan, policy and code.
• The preparation of a structure plan and the determination of a master plan under a structure plan for a declared master plan area.
• The determination of an application for development including an application for preliminary approval to vary the effect of a local planning instrument.

Themes of paper

This paper considers from a legal perspective the general land use and infrastructure planning framework created by the SEQ Regional Plan and the SEQ SPRP. It focuses on four matters:

• First, the regional land use and infrastructure planning framework created by the SEQ Regional Plan and the SEQ SPRP.
• Second, the effect of the SEQ Regional Plan and the SEQ SPRP on the preparation of a State and local government planning instrument, plan, policy and code.
• Third, the impact of the SEQ Regional Plan and the SEQ SPRP on the preparation of a structure plan and the determination of a master plan under a structure plan for a declared master planned area.
• Fourth, the impact of the SEQ Regional Plan and the SEQ SPRP on the determination of an application for development, including an application for preliminary approval to vary the effect of a local planning instrument.

Regional land use and infrastructure planning framework

The SEQ Regional Plan and the SEQ SPRP create a regional land use and infrastructure planning framework for the SEQ region which has three broad elements:

• First, a regional land use pattern (see Part C of the SEQ Regional Plan).
• Second, regional policies (see Part D of the SEQ Regional Plan).
• Third, a process for the planning of future urban development areas (see section 8.10 of the SEQ Regional Plan).

Regional land use pattern

The SEQ Regional Plan and the SEQ SPRP provide for a regional land use pattern that has four broad components:

• First, all land in the SEQ region is allocated to a regional land use category comprising an urban footprint, rural living area and regional landscape and rural production area which are specified on regulatory maps under the SEQ SPRP. (See Map 2 of the SEQ Regional Plan and section 1.4(2) and Schedule 1 of the SEQ SPRP.)
• Second, future urban development areas in the urban footprint are specified as regionally significant (regional development areas) or locally significant (local development areas). (See section 8.10 of the SEQ Regional Plan and section 5.1(1)(a) and (b) of the SEQ SPRP.)
• Third, future urban development areas in the regional landscape and rural production area are specified as identified growth areas. (See sub-regional narratives in Part C of the SEQ Regional Plan.)
• Fourth, some areas in the regional landscape and rural production area are specified as a rural precinct, a rural subdivision precinct and a rural residential purpose area. (See section 5.1(c), (d) and (e) of the SEQ SPRP.)

Regional policies

The SEQ Regional Plan and the SEQ SPRP specify three types of regional policies:

• First, the policies for the regional land use categories that have become provisions of the SEQ SPRP. (See p.152 and pp.15-16 of the SEQ Regional Plan.)
• Second, the narratives for each sub-region in the SEQ region which are stated to have the status of policies. (See p.17 of the SEQ Regional Plan.)
• Third, the regional policies which set out the desired regional outcomes, the principles to achieve the outcomes and the specific policy statements for the principles to have effect. (See p.38 of the SEQ Regional Plan.)

Planning process for future urban development areas

The SEQ Regional Plan and the SEQ SPRP also provide for the planning of future urban development areas to be initiated by the local government, landowners and the State government. (See p.104 of the SEQ Regional Plan.)

The planning of an identified growth area in the regional landscape and rural production area can be initiated by submitting information to the Minister demonstrating compliance with the following:

• the urban footprint principles (See section 8.2 of the SEQ Regional Plan.)
• the development area delivery principles (See section 8.10 of the SEQ Regional Plan.)
• the relevant sub-regional narrative policies. (See Part C of the SEQ Regional Plan.)

The Minister can adopt the planning by including the identified growth area in the urban footprint through a change to the regulatory maps under the SEQ SPRP.

The planning of a regional development area in the urban footprint can be initiated by submitting a structure plan to the Minister demonstrating compliance with the following:

• the development area delivery principles (See section 8.10 of the SEQ Regional Plan.)
• the sub-regional narrative policies
• the proposed regional and local development area plan content guidelines. (See section 8.10 of the SEQ Regional Plan.)

The structure plan for the regional development area can be adopted by the Minister through the following:

• a structure plan for a master planned areamaster-planned area (See part 5B of the Integrated Planning Act 1997 and chapter 4 of the Sustainable Planning Bill 2009)
• a planning scheme amendment
• a preliminary approval to vary the effect of a local planning instrument for the regional development area. (See section 3.1.6 of the Integrated Planning Act and section 242 of the Sustainable Planning Bill)

The planning of a local development area in the urban footprint can be initiated by submitting a plan to the Minister demonstrating compliance with the following:

• an adopted regional development area plan
• the proposed regional and local development area plan content guidelines.

The plan for the local development area can be adopted by the Minister through the following:

• a master plan for a master planned area
• a planning scheme amendment
• a preliminary approval to vary the effect of a local planning instrument for the local development area.

The reference in the SEQ Regional Plan to a master plan as a means of implementing a plan for a local development area appears to be problematical given that the current drafting of the master plan provisions of the Integrated Planning Act (the Act) and the Sustainable Planning Bill (the Bill) only apply to a declared master planned area for which a structure plan has been prepared. (See section 2.5B.6 of the Act and section 150 of the Bill.)

It is suggested that the relevant provisions could be amended to enable the master planning provisions to be accessed where a structure plan, planning scheme amendment or preliminary approval which varies the effect of a local planning instrument specify that a subsequent master plan is to be approved. This will ensure that where a master planning process is considered appropriate, there is a uniform master planning process in operation for regional and local development areas.

Preparation of a planning instrument, plan, policy and code

Legal requirements

The Act sets out the following legal requirements for the preparation of a planning instrument, plan, policy and code:

• First, the SEQ Regional Plan is to prevail over a State or local government planning instrument, plan and code to the extent of any inconsistency. (See section 2.5A.21 (3) of the Act and section 26(3) of the Bill.)
• Second, a State or local government planning instrument, plan, policy and code is to take account of and state how the SEQ Regional Plan is reflected in the document. (See section 2.5A.21 (2) of the Act and section 26(2) of the Bill.)
• Third, a local government planning scheme in the SEQ region is to deal with the matters reflected in the SEQ Regional Plan as the regional dimension of a planning scheme matter. (See section 90(3)(b) of the Bill.)

The SEQ Regional Plan also specifically identifies that a State and local government planning instrument, plan, policy and code is to be consistent with the following parts of the SEQ Regional Plan:

• the sub-regional narratives in Part C which have the status of policies under the SEQ Regional Plan (pp.17 and 152)
• the desired regional outcomes (DRO), principles and policies in Part D in particular sustainability and climate change (DRO1), compact settlement (DRO8) and employment location (DR09) (pp.38 and 152)
• any policy of the SEQ Regional Plan which is a provision of the SEQ SPRP to which the assessment manager will have regard to in determining a development application (p.152)
• the future planning intent in the SEQ Regional Plan for a development area (p.152).

Implications for a drafter

The provisions of the SEQ Regional Plan in the context of the Act and the Bill therefore have the following legal implications for the drafter of a State or local government planning instrument, plan, policy and code:

• First, the drafter is to identify any conflict which may exist between the document and the SEQ Regional Plan and is to amend the document to ensure consistency with the SEQ Regional Plan.
• Second, the drafter is to include an express statement in the document as to how the SEQ Regional Plan has been reflected in the document.

Whilst each drafter will employ their own methodology to address these legal requirements, the following is intended to provide some suggestions for those embarking on the journey.

Review of SEQ Regional Plan, SEQ SPRP and supporting documents

As an initial step it is suggested that the drafter review the SEQ Regional Plan, SEQ SPRP and their supporting documents, including the following:

• the South East Queensland Infrastructure Plan and Program (SEQIPP)
• associated guidelines and codes such as the following:
  • the implementation guidelines prepared for the SEQ Regional Plan;
    • the implementation guidelines prepared for the previous regional plan for the SEQ region which are referred to in the SEQ Regional PlanSouth East Queensland Regional Plan 2005-2006 Implementation Guidelines No 5 (Social Infrastructure), No 6 (Rural Precinct Guidelines), No 7 (Water Sensitive Urban Design and Design Objectives for Urban Stormwater Management), No 8 (Identifying and Protecting Scenic Amenity);
  • the proposed guidelines referred to in the SEQ Regional Plan such as the proposed regional and local development area plan content guidelines for development areas
• maps indicating an area to which the SEQ Regional Plan and SEQ SPRP apply such as the following:
  • the regulatory maps which show the regional land use categories (section 1.4(2) and Schedule 1 of SEQ SPRP)
  • the maps showing development areas (section 5.1(1) of SEQ SPRP)
  • the maps showing a rural precinct, rural subdivision precinct and rural residential purpose area
  • associated strategies and non statutory plans.

Each supporting document is to be reviewed in the context of the SEQ Regional Plan and the SEQ SPRP to determine the following matters:

• First, the statutory basis. of the supporting document is to be identified to determine the extent to which the supporting document is legally relevant to the SEQ Regional Plan and the SEQ SPRP.
• Second, having determined the extent of the legal relevance of the supporting document, the planning intent stated in the supporting document is to be identified to determine its relevance to the document that is being prepared.

The SEQ Regional Plan contains specific policy statements which indicate that a variety of supporting documents are relevant, albeit to a different extent. For example:

• Some policy statements require a supporting document to be complied with:
  • the proposed regional and local development area plan content guidelines are to be complied with for proposed plans for regional and local development areas (see steps 2A and 3A of Figure 3 in section 8.10 of the SEQ Regional Plan.)
  • the South East Queensland Regional Plan 2009-2031 Implementation Guideline No. 7 Water Sensitive Urban Design is to be complied with for the planning and management of urban stormwater (see policy 11.1.2 of section 11.1 of the SEQ Regional Plan.)
  • the Queensland Government Environment Offsets Policy is to be complied with where an impact on an area of significant biodiversity values cannot be avoided (see policy 2.1.4 of section 2.1 of the SEQ Regional Plan.)
  • the Environmental Protection (Air) Policy 1997, Environmental Protection (Noise) Policy 2008 and the Road Traffic Noise Management Code of Practice are to be complied with for air, odour and noise emission impacts on sensitive land uses (see policy 2.3.2 of section 2.3 of the SEQ Regional Plan.)
  • the Queensland Coastal Plan is to be complied with to ensure that development avoids an erosion prone area, storm tide inundation hazard area and the undeveloped section of a tidal waterway. (See policy 2.4.2 of section 2.4 of the SEQ Regional Plan.)
• Some policy statements require a supporting document to be implemented:
  • the South East Queensland Outdoor Recreation Strategy is to be implemented to coordinate outdoor recreation services (See policy 3.7.2 of section 3.7 of the SEQ Regional Plan.)
  • the South East Queensland Natural Resource Management Plan 2009-2031 is to be implemented to co-ordinate natural resource management. (See policy 4.1.1 of section 4.1 of the SEQ Regional Plan.)
• Some policy statements require a supporting document to be used. For example, the Crime Prevention Through Environmental Design (CPTED) Guidelines for Queensland is to be used for development to optimise community safety. (See policy 6.3.47 of section 6.3 of the SEQ Regional Plan.)
• Some policy statements specify an outcome which is to be consistent with a supporting document. For example it is a specific policy statement intent to ensure sustainable rural communities which are consistent with the Rural Futures Strategy for South East Queensland 2009. (See policy 5.1.1 of section 5.1 of the SEQ Regional Plan.)

Preparation of a local planning instrument

For those involved in the drafting of a local planning instrument the following suggestions are offered to minimise the extent of any inconsistency with the SEQ Regional Plan and to more easily demonstrate and explain how the SEQ Regional Plan has been taken account of and reflected in the local planning instrument. These suggestions are made in the context of the standard planning scheme provisions under the Bill:

• Consistency of terminology – The local planning instrument could use the terminology employed in the SEQ Regional Plan to identify relevant land use and infrastructure elements.
• Land use categories – The local planning instrument could identify in the strategic outcomes maps of the strategic framework, the extent of the regional land use categories in the local government area and in particular those parts of the urban footprint and rural living area which are not suitable for an urban purpose and rural residential purpose respectively.
• Development areas and identified growth areas – The strategic outcomes maps could also identify the regional and local development areas in the urban footprint and the identified growth areas in the regional landscape and rural production area.
• Activity centre elements – The strategic outcomes maps could also identify activity centres specified as primary, principal and major in the SEQ Regional Plan as well as other sub-regional and locally significant centres which could be identified as district activity centres and local activity centres.
• Other land use elements – The strategic outcomes maps could also identify land use.
• Opportunity areas incorporating regionally significant designations (as reflected in the SEQ Regional Plan) as well as sub-regional and local designations. The land use opportunity areas could relate to the enterprise, science and technology, health and education and training elements identified in the SEQ Regional Plan.
• Infrastructure elements – The strategic outcomes map could also identify the regionally significant infrastructure and services as reflected in the SEQ Regional Plan as well as sub-regional and locally significant infrastructure and services.

Preparation of a structure plan and master plan for a master planned area

Legal requirements

The Act provides for the identification of a master planned area in a regional plan, a document made under a regional plan, a state planning regulatory provision, a planning scheme or a declaration of a master planned area. (See section 2.5B.2 of the Act and section 132 of the Bill.)

The Act also provides for the making of a declaration of a master planned area. (See section 2.5B.3 of the Act and section 133 of the Bill.) A local government is required to prepare a structure plan for a declared master planned area. (See section 2.5B.7 of the Act and section 140 of the Bill.) A structure plan may require a master plan for all or part of a declared master planned area. (See section 2.5B.8(2)(b) and 2.5B.13 of the Act and sections 141(2)(b) and 150 of the Bill.)

Where a master planned area is identified, an application for a preliminary approval to vary the effect of a local planning instrument for the master planned area cannot be made unless a structure plan has taken effect and the structure plan states that such an application can be made. (See section 2.5B.4 of the Act and section 134 of the Bill.)

Identified master planned areas

The draft SEQ Regional Plan identified the Ripley Valley, Caloundra South, Palmview and Ebenezer as master planned areas as well as other development areas as potential master planned areas. (See p.101)

However, the SEQ Regional Plan departs significantly from the draft SEQ Regional Plan and the previous regional plan for the SEQ region in the following respects:

• First, no master planned areas are identified. Rather regional development areas and local development areas are identified.
• Second, landowners and the State government in addition to the local government can initiate the planning for a development area by preparing a structure plan for a regional development area or a plan for a local development area and submitting those documents to the Minister.
• Third, the Minister can adopt a structure plan for a regional development area or a plan for a local development area through the following processes:
  • a structure plan and master plan for a declared master planned area 
  • planning scheme amendment
  • an application for a preliminary approval to vary the effect of a local planning instrument.

Declared master planned areas

It is therefore envisaged that a master planned area will only be identified and declared for a limited number of development areas with the remainder being delivered by a planning scheme amendment which is initiated by a local government or by an application for a preliminary approval to vary the effect of a local planning instrument which is initiated by a landowner.

Determination of an application for development

The SEQ Regional Plan and the SEQ SPRP also impact on the determination of an application for development in three ways:

• First, some development is exempted from the operation of the SEQ Regional Plan whilst other development is prohibited under the SEQ Regional Plan.
• Second, some development is identified as requiring impact assessment.
• Third, additional assessment criteria for an application for development are specified.

Exemption from making a development application

Sections 1.5(1) and (2) of the SEQ SPRP exempts the following development from the operation of the SEQ Regional Plan:

• development in an urban area under a planning scheme made under the Act (as opposed to a transitional planning scheme made under an act prior to the Act)
• development in a state biodiversity development offset area
• development which is consistent with a rural precinct
• exempt development under the Act
• development carried out under a development permit
• development consistent with a preliminary approval which varies the effect of a local planning instrument
• development which is generally in accordance with a rezoning approval
• development which is a significant project or in a State development area under the State Development Public Works Organisation Act 1971.

Prohibition on making a development application

Section 3.1(1) of the SEQ SPRP also prohibits an application being made for a subdivision in the regional landscape and rural production area other than in a limited number of circumstances, which are generally consistent with those specified in the previous regional plan for the SEQ region.

Significantly the SEQ Regional Plan and the SEQ SPRP do not operate to prohibit the making of a preliminary approval to vary the effect of a local planning instrument, as was the case with the major development areas identified under the previous regional plan for the SEQ region and the master planned areas identified in the draft SEQ Regional Plan.

This is a significant policy shift in that it recognises that a landowner can initiate the land use and infrastructure planning for a future urban development area; a role which has traditionally been reserved for local government.

Whilst the integrated development assessment system is unsuited to the carrying out of integrated land use and infrastructure planning for large development areas and can result in development leading infrastructure, it could be argued especially by the property development sector that is necessary given the fact that the structure planning under the previous regional plan for the SEQ region and the draft SEQ Regional Plan of some urban development areas has not progressed as quickly as was anticipated.

Development requiring impact assessment

The SEQ SPRP requires impact assessment for the following development for a material change of use of premises outside the urban footprint:

• a community, sport and recreation and tourist activity over 5,000m² gross floor area (GFA)
• indoor recreation over 3,000m² GFA
• a residential or rural residential development other than on an existing lot
• an industrial and commercial development over 750m² GFA
• a service station over 1,000m² GFA.

(See tables 2B, 2C, 2D and 2E of section 2.1(b) of the SEQ SPRP for the details of the development outside of the urban footprint which requires impact assessment.)

The SEQ SPRP also requires impact assessment for the following development in a development area in the urban footprint:

• a material change of use where the GFA of the premises exceeds I0,000m²
• a subdivision.

(See Table 2F and Table 3B of sections 2.2(b) and 3.2(b) of the SEQ SPRP.)

Additional assessment criteria

The SEQ Regional Plan and the SEQ SPRP also specify additional assessment criteria for assessable development.(See section 3.5.4(2)(c)(ii)(iii) of the Act and section 313(2) of the Bill for code assessment and section 3.5.5(2)(ii)(iii) of the Act and section 314(2) of the Bill for impact assessment.)

The SEQ Regional Plan requires assessable development to be assessed against (see p.5) the following:

• the sub-regional narratives in Part C
• the regional policies in Part D.

The SEQ SPRP also specifies the following additional assessment criteria for development requiring impact assessment under the SEQ SPRP:

• development outside of the urban footprint for a community, sport and recreation and tourist activity must comply with the site, use and strategic intent requirements(see table 2B of section 2.1(b).)
  • other development outside of the urban footprint which requires impact assessment must comply with the following assessment criteria (see tables 2C, 2D and 2E)
• the locational requirements or environmental impacts of the development must necessitate its location outside of the urban footprint;
  • there is an overriding need for the development in the public interest (see schedule 3)
• development in a development area in the urban footprint which requires impact assessment must be consistent with the future planning intent for the area (see table 2F).

Whilst the test of overriding need for the development in the public interest which is applicable to development outside the urban footprint is defined in the SEQ SPRP, the test for development in a development area in the urban footprint being that the development is "consistent with the future planning intent for the area" is not defined in the SEQ SPRP.

A development which would prejudice the values of the regional land use designation or cut across the SEQ Regional Plan in a way which would render it more difficult to implement in the future or require its review would not be consistent with the future planning intent for the area. (See Chesol Pty Ltd v Logan City Council [2007] QPELR 285 at paragraph 187.)

However, a development which departs from the SEQ Regional Plan but does not otherwise prejudice the values of the regional land use designation or render the SEQ Regional Plan more difficult to implement in the future or require its review may be arguably consistent with the future planning intent for the area.

Conclusions

This is an important question which will undoubtedly arise for consideration by the Courts given the new era that is to unfold where the planning for future urban development areas may be initiated by a landowner through an application for a preliminary approval to vary the effect of a local planning instrument.

This is arguably the most significant policy change effected by the SEQ Regional Plan. It was also a policy change that was not reflected in the draft SEQ Regional Plan when it was publicly notified.

Some local governments will undoubtedly be concerned by the prospect of integrated land use and infrastructure planning being achieved through the integrated development assessment system. This is especially the case for large development areas such as new cities or towns which will be developed well beyond the planning horizon of the SEQ Regional Plan and where a preliminary approval granted today may continue to prevail over subsequent planning schemes for decades to come.

However, on the other hand it could be strongly argued especially by the property development sector that this policy change is necessary given the fact that the planning of some future urban development areas under the previous regional plan for the SEQ region and the draft SEQ Regional Plan has not been progressed as quickly as was anticipated.

It is therefore clear that a new era of landowner initiated planning is to commence. I fear that the significant commercial and financial interests that guide State and local governments and landowners may give rise to a new era of contested planning based on the Integrated Development Assessment System decisional rules of assessing a development application which override the planning scheme as opposed to the negotiated planning involved in the preparation of a planning scheme amendment.

Whilst the outcome is uncertain and my concerns may prove unfounded, it is certain that the game will be a very interesting one for all participants. May the force be with the good guys whoever they may be.