Toolbox or tightrope? The status of environmental protection in Queensland's Integrated Planning Act

Environmental and Planning Law Journal

Volumn 16, Issue 2, 1999, Pages 124-139

  England, Philippa ^a  

^a GRIFFITH UNIVERSITY   (Australia)

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EID: 73049088870     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (127)

1. Integrated Planning Act 1997, Act No 69 of 1997, Qld.
2. New South Wales, for example, Introduced similar reforms in its Environmental Planning and Assessment (Amendment) Act. 1997 (NSW), Act No 152 of 1997.
3. IPA, s 1.2.1.
4. Local Government (Planning and Environment) Act 1990 (Qld), Act No.61 of 1990.
5. J Humphreys, Overview of Planning Implications of IPA in The New Queensland Integrated Planning Act, 1998, LAAMC Publications, NSW, p 3.
6. P Day, "Integrated Planning Act: the Fiction" in QELA Annual Conference Papers, 13-16/05/1998, Session 7, Speaker 2, ρ 76.
7. PEA, s 1.3 provides - "The objectives of the Act are: (a) to provide a code by which a local government or the Minister may undertake the planning of an area to facilitate orderly development and the protection of the environment".
8. Hilcorp v Council of the City of Logan and Ors (1993) QPLR 199 at 202, per Judge Quirk.
9. IPA, s 1.2.1.
10. IPA, s 1.2.2.
11. IPA si 2 3(1)
12. Acts Interpretation Act 1954 (QId), s 14A (l).
13. Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710; Phosphate Cooperative Co of Australia Ltd v Environment Protection Authority (Victoria) 1977 138 CLR 134; Packham v Minister for the Environment (1993) 80 LGERA 205.
14. Fisher, "Planning for the Environment under the IPA" in No Zone Planning: A Practical Approach to Planning for the Environment, EDO Conference Proceedings, 1998, 21.
15. A Fogg, Queensland's Development Control Revolution - IDAS and Appeals, Emerging Law Program, University of Queensland, Conference Papers, 9-10/10/98, First Session, p 7.
16. Simpson v Edinburgh Corporation (1960)SC313.
17. "Ecologically sustainable development means using, conserving and enhancing the community's resources so that ecological processes, on which life depends, are maintained and the total quality of life, now and in the future, can be increased," Ecologically Sustainable Development: A Commonwealth Discussion Paper, 1990, AGPS, Canberra, p (i).
18. Fogg, op cit n 14, p 7.
19. Hilcorp v Council of the City of Logan and Ors (1993) QPLR 199.
20. th Parliamentary Session, 1997, p 4087. In her second reading speech the Minister argued that ecological sustainability was chosen not in contradistinction to ESD but simply to avoid confusion with more specific references to "development" later in the Act and to show how the key concepts of ESD apply in the planning and development framework.
21. D Fisher, "Planning for the Environment under the Integrated Planning Act (1998) 4(19) Queensland Environmental Practice Reporter 121-129.
22. B Moon, "Reforming the Queensland Land-Use Planning Legislation: An Agenda Driven by Myth and Rhetoric" (1998) 35(1) Australian Planner 24+29.
23. IPA, s 2.1.3(1).
24. "Land use and development" includes - the location of and relationships between land uses; the effects of land use and development; questions of mobility, access and development constraints, IPA, Schedule 1, s 4(2).
25. "Infrastructure" includes land, facilities, services and works used for supporting economic activity and meeting environmental needs, IPA, Schedule 10.
26. IPA, Schedule 1, s 4(3).
27. "Environment" includes - (a) ecosystems and their constituent parts including people and communities; and (b) all natural and physical resources; and (c) those qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony and sense of community; and (d) the social, economic, aesthetic and cultural conditions affecting the matters in paragraphs (a), (b) and (c) or affected by those matters, IPA, Schedule 10.
28. Fisher, op cit n 19, p 127.
29. IPA, ss 3.5.5 and 3.5.14.
30. The discussion below at "Environmental aspects of development assessment, p 132".
31. M Barker, "The Draft Integrated Planning Act: A Short Critique - What's in it for the Community?" (1997) 37(4) Queensland Planner 8, p 8.
32. In Fitzgibbons Hotel Pty Ltd ν Logan City Council (Planning and Environment Ccourt 13/12/96; PE Appeal No 2349 of 1996), Skoien SJDC argued that: [t]he law is that a strategic plan only sets out broad objectives and not every objective in the plan has to be met before the proposal of an applicant may be accepted.
33. Fogg, op cit n 14, Document 14, p 13.
34. For a good example of this reasoning see the discussion of Bowdern's case below under Some case law revisited.
35. IPA, s 5.4.2.
36. Under the IPA, s 5.4.2, an owner is only entitled to compensation if a change reduces the value of his or her interest and (unlike the PEA, s 3.5) the owner makes a development application (superseded planning scheme) which is refused, decided in part or/and subject to conditions under the new scheme.
37. Under the JPA all development is exempt, self-assessable or assessable development, IPA, s 3.1.2(1).
38. Change for an interest in land, means a change to the planning scheme or any planning scheme policy affecting the land, IPA, s 5.4.1.
39. Ray Shaw writes, It is incredible how innovation in local government planning schemes has been stifled by the restrictions of convention and the ever present threat of court action in relation to compensation claims for injurious affection. The disappointing fact about the IPA is that the compensation issues was not finally put to bed once and for all, Integrated Planning Act, the Facts" in Evolution and Integration: QELA Annual Conference Papers, op cit n 5, Session 7, Speaker 1, pp 73+75.
40. IPA, s 2.1.3(1)(a).
41. IPA, s 2.3.2.
42. IPA, Schedule 10.
43. IPA, Schedule 1.
44. IPA, s 2.6.1.
45. IPA, s 2.6.11.
46. IPA, Schedule 5.
47. IPA, s 2.6.7-8, Schedule 6.
48. IPA, s 2.6.5.
49. Members of the public or representatives of community groups may also be asked to sit on RPACs, IPA, s 2.5.2.
50. IPA, Schedulers 5.(1).
51. IPA, Schedule l,s 3.(2).
52. IPA, s 2.2.6, not yet in force.
53. IPA, s 2.2.16(1) and (4), not yet in force.
54. IPA, ss 2.2.18-19, not yet in force.
55. See references at op cit n 5.
56. Planning, Environment and Development Assessment (PEDA) Bill: Exposure Draft for Public Comment, 1995, Foreword. The PEDA Bill was the precursor to the Integrated Planning Bill, 1997
57. IPA, s 3.3.1(b).
58. IPA, s 3.3.15.
59. IPA, s 3.3.19.
60. IPA, s 3.3.18.
61. IPA, s 4.1.43(4).
62. IPA, s 3.3.6-3.3.8.
63. IPA, s 3.3.14(7).
64. IPA, s 3.3.14(1). A referral agency may however change its response any time before the application is decided, s 3.3.17.
65. IPA, s 3.3.14(3).
66. IPA, s 3.4.1.
67. In the case of town planning consent applications, PEA, s 4.12(5).
68. In the case of applications for rezoning, PEA, ss 4.12(5) and 4.3(1).
69. IPA, s 3.4.5.
70. IPA, s 4.1.28. An advice referral agencies may also appeal to the Planning and Environment Court if it told the applicant and assessment manager to treat its response to the application as a submission for the purposes of appeal, s 4.1,29(I).
71. IPA, s 3.3.14(1).
72. M Leong, "Comparative Analysis of Environmental Impact Assessment Under the Integrated Planning Act 1997 and the Local Government (Planning and Environment) Act 1990" (1998) 4(18) Queensland Environmental Practice Reporter 87 at 91. Anecdotal evidence suggests that many local governments are making information requests simply to extend the time available to them in which to make a decision.
73. Under s3.3.8(I) of the IPA.
74. The development applicant is responsible for furnishing the referral agency with the information on which it must base its response. In the first instance, the applicant is only required to supply each referral agency with a copy of the application and the acknowledgment notice, IPA, s 3.3.3(1).
75. IPA, s 3.2.8(1). Under the PEA only the application was available for inspection, PEA, ss 4.3(5) and 4.12(4).
76. IPA, s 3.2.8(2), inserted by the Integrated Planning and Other Legislation Amendment Act (Qld), Act No 33 of 1998.
77. Act No 62 of 1994, Ch 3, Pt 4.
78. IPA, s 4.1.28(1). The general rule remains that each party to litigation in the Planning and Environment Court bears his or her own costs, IPA, s 4.1.23. Also PEA, s 7.6.
79. IPA, s 4.1.21(1).
80. IPA, s 4.3.18.
81. Enforcement proceedings under the EPA, s 194(1), could previously only be brought by - the Minister, the administering authority, someone whose interests are affected by the subject matter of the proceeding or someone else with the leave of the court. The EPA provides a right of appeal to people who make submissions on EPA licence applications, s 200(2) but the section has not yet been brought into effect.
82. EPA, Ch 4.
83. IPA, s 3.5.4(2).
84. IPA, Schedule 10.
85. IPA, s 3.5.5(2).
86. IPA, s 1.2.2.
87. Gosford Shire Council v Anthony George Pty Ltd (No 2) (1968) 16 LGRA 165; Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675.
88. Venus Enterprises Pty Ltd v Sydney City Council (1974) 3 LGATR 152; Kelly v Toowoomba City Council (1995) QPLR 3, MEPC Australia Ltd v Redland Shire Council (1996) QPLR 14; Ogilvy v Redland Shire Council (1996) QPLR 205.
89. In part the inconsistent treatment results from early case law that dealt with strategic plans as policy documents only. See for example. Curtis v Beaudesert Shire Council (1983) QdR 201 at 207, per Judge Kneipp. Fogg writes: [i]t is difficult to identify propositions from this miscellaneous group. The most that can be said is that conceptual propositions in such plans are less likely to be a basis for identification of conflict, that minor inconsistencies are unimportant, that conflict must be plainly identified, but that the generality of propositions in strategic plans and DCPs can produce conflict with detailed proposals".
90. Fogg, op cit n 14. Document 14, p 16.
91. PEA, s 8.2(1).
92. PEA, s 8.2(2).
93. Section 6.1.35c of the IPA carries forward in a modified form the designated development/impact assessment process of s 8.2(2) of the PEA until 30/3/1999.
94. "What the IPA introduces is a system of environmental impact assessment which is non-uniform, discretionary, has a limited assessment period and which does not include a minimum prescribed standard that can be regulated by local government and the courts"
95. Leong, op cit, n 70, p 92.
96. IPA, s 3.5.14(2).
97. IPA, Schedule 10.
98. IPA, s 3.3.1.
99. EPA, s 44(l)(b).
100. IPA, s 3.3.8(1).
101. (1991)QPLR 271.
102. At 276.
103. At 275.
104. At 277.
105. At 277.
106. At 279.
107. IPA, s 3.5.5(2).
108. IPA, Schedule 10.
109. QPLR 271 at 276.
110. Bowden & Ors ν Brisbane City Council & Anor (1991) QPLR 271 at 278.
111. IPA, s 3.5.5(2)(b).
112. IPA, s 3.5.14(2).
113. Bowden & Ors ν Brisbane City Council & Anor (1991) QPLR 271 at 276.
114. An example of where this was established despite the zoning of the land is Sabdoen Pty Ltd ν Redland Shire Council (1989) QPLR 149.
115. IPA, s 1.2.2.
116. IPA, s 1.3.3.
117. (1995) QPLR 334.
118. At 345.
119. At 346.
120. At 349.
121. At 338.
122. Ited at 336 of the judgment.
123. At 338, citing with approval the judgment of Row DCJ in Transtate Developments Pty Ltd ν BCC (1994) QPLR 258.
124. IPA, s 3.5.14(2).
125. Applying the precautionary principle is one way of advancing the Act's purpose, IPA, s 1.2.3(1). The principle is defined as - If there are threats of serious or irreversible environmental damage, careful evaluation must be made to avoid wherever practicable serious or irreversible environmental damage including, if appropriate, assessing risk weighted consequences of various options, s 1.2.3(2). The Explanatory Guide states, "The precautionary principle is crafted specifically for the purposes of the Act. A precautionary approach to decision-making emphasising the need for careful evaluation of consequences is implicit in the Act. However, the inclusion of the principle in this section. reinforces this approach in relation to decisions that could lead to serious or irreversible environmental damage", The Integrated Planning Act: An Explanatory Guide 1997, Queensland Department of Local Government and Planning, Brisbane, p 7.
126. A conclusion supported by Leong, op cit n 70, p 92.
127. K Yearbury, "The Integrated Planning Act: Planning for the New Millenium" (1998) 35(4) Australian Planner 197+200.