Queensland: Planning Act 2016 (Qld)

Planning Act 2016 An Act providing for an efficient, effective, transparent, integrated, coordinated and accountable system of land use planning and development assessment to facilitate the achievement of ecological sustainability Chapter 1 Preliminary 1 Short title This Act may be cited as the Planning Act 2016. 2 Commencement This Act, other than section 324, commences on a day to be fixed by proclamation. 3 Purpose of Act (1) The purpose of this Act is to establish an efficient, effective, transparent, integrated, coordinated, and accountable system of land use planning (planning), development assessment and related matters that facilitates the achievement of ecological sustainability. (2) Ecological sustainability is a balance that integrates— (a) the protection of ecological processes and natural systems at local, regional, State, and wider levels; and (b) economic development; and (c) the maintenance of the cultural, economic, physical and social wellbeing of people and communities. (3) For subsection (2)— (a) protecting ecological processes and natural systems includes— (i) conserving, enhancing or restoring the life-supporting capacities of air, ecosystems, soil and water for present and future generations; and (ii) protecting biological diversity; and (b) achieving economic development includes achieving diverse, efficient, resilient and strong economies, including local, regional and State economies, that allow communities to meet their needs but do not compromise the ability of future generations to meet their needs; and (c) maintaining the cultural, economic, physical and social wellbeing of people and communities includes— (i) creating and maintaining well-serviced, healthy, prosperous, liveable and resilient communities with affordable, efficient, safe and sustainable development; and (ii) conserving or enhancing places of special aesthetic, architectural, cultural, historic, scientific, social or spiritual significance; and (iii) providing for integrated networks of pleasant and safe public areas for aesthetic enjoyment and cultural, recreational or social interaction; and (iv) accounting for potential adverse impacts of development on climate change, and seeking to address the impacts through sustainable development (sustainable settlement patterns or sustainable urban design, for example). 4 System for achieving ecological sustainability The system to facilitate the achievement of ecological sustainability includes— (a) State planning policies (including temporary ones) setting out planning and development assessment policies about matters of State interest; and (b) regional plans setting out integrated planning and development assessment policies about matters of State interest for particular regions of the State; and (c) planning schemes setting out integrated State, regional and local planning and development assessment policies for all of a local government area; and (d) temporary local planning instruments (TLPIs) setting out planning and development assessment policies to protect all or part of a local government area from adverse impacts in urgent or emergent circumstances; and (e) planning scheme policies setting out policies, for all or part of a local government area, that support— (i) planning and development assessment policies under planning schemes; and (ii) action by a local government in making or amending local planning instruments; and (iii) action by a local government under the development assessment system; and (f) a development assessment system, including SARA, for implementing planning instruments and other policies and requirements about development by— (i) categorising development; and (ii) categorising types of assessment for particular development; and (iii) stating the processes for making, receiving, assessing and deciding development applications; and (iv) establishing rights and responsibilities in relation to development approvals; and (g) arrangements to expeditiously identify and authorise development of key infrastructure; and (h) planning, development assessment, charging and other arrangements for infrastructure, to promote— (i) integrated land use and infrastructure planning; and (ii) the cost-effective provision of infrastructure to service development; and (i) a variety of offences and enforcement arrangements; and (j) Ministerial powers to protect, or give effect to, the State's interests relating to planning and development assessment; and (k) dispute resolution (including appeals and declarations) for administrative decisions. 5 Advancing purpose of Act (1) An entity that performs a function under this Act must perform the function in a way that advances the purpose of this Act. (2) Advancing the purpose of this Act includes— (a) following ethical decision-making processes that— (i) take account of short and long-term environmental effects of development at local, regional, State and wider levels; and (ii) apply the precautionary principle, namely that the lack of full scientific certainty is not a reason for delaying taking a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage; and (iii) seek to provide for equity between present and future generations; and (b) providing opportunities for the community to be involved in making decisions; and (c) promoting the sustainable use of renewable and non-renewable natural resources, including biological, energy, extractive, land and water resources that contribute to economic development through employment creation and wealth generation; and (d) valuing, protecting and promoting Aboriginal and Torres Strait Islander knowledge, culture and tradition; and (e) conserving places of cultural heritage significance; and (f) providing for housing choice, diversity and affordability; and (g) encouraging investment, economic resilience and economic diversity; and (h) supplying infrastructure in a coordinated, efficient and orderly way; and (i) applying amenity, conservation, energy use, health and safety in the built environment in ways that are cost-effective and of public benefit; and (j) avoiding, if practicable, or otherwise minimising the adverse environmental effects of development (climate change, urban congestion or declining human health, for example). 6 Definitions The dictionary in schedule 2 defines particular words used in this Act. Note— For the meanings of some defined words used in particular contexts, see section 280. 7 Act binds all persons (1) This Act binds all persons, including— (a) the State, other than the Coordinator-General when performing functions under the State Development Act; and (b) the Commonwealth and the other States, to the extent Parliament's legislative power allows. (2) However, the Commonwealth or a State can not be prosecuted for an offence against this Act. Chapter 2 Planning Part 1 Introduction 8 What are planning instruments (1) A planning instrument is an instrument that sets out policies for planning or development assessment, and is either— (a) a State planning instrument; or (b) a local planning instrument. (2) A State planning instrument is a planning instrument made by the Minister to protect or give effect to State interests, and is either— (a) a State planning policy (including a temporary State planning policy); or (b) a regional plan. (3) A local planning instrument is a planning instrument made by a local government, and is either— (a) a planning scheme; or (b) a TLPI; or (c) a planning scheme policy. (4) To the extent of any inconsistency— (a) a State planning policy applies instead of a regional plan or local planning instrument; and (b) a regional plan applies instead of a local planning instrument; and (c) a planning scheme applies instead of a planning scheme policy; and (d) a TLPI applies instead of a planning scheme or planning scheme policy. Note— A TLPI may also suspend, or otherwise affect, the operation of a planning scheme or planning scheme policy—see section 23(3). (5) A local planning instrument must not include a provision about building work, to the extent the building work is regulated under the building assessment provisions, unless allowed under the Building Act. (6) To the extent a local planning instrument does not comply with subsection (5), the local planning instrument is of no effect. 9 When planning instruments and designations have effect (1) This section explains when certain instruments made under this chapter start to have effect. (2) The effective day is the day when the following instruments start to have effect— (a) a planning instrument or designation; (b) an amendment or repeal of a planning instrument or designation. (3) If this chapter requires public notice of the instrument to be published, the effective day is— (a) the day on which the notice is published in the gazette; or (b) a later day stated in— (i) the notice; or (ii) the instrument. (4) However, with the Minister's agreement in writing, the effective day for the making or amendment of a TLPI is the day when the local government, at a public meeting, resolved to give the TLPI or amendment, and the request for an earlier effective day, to the Minister for approval. (5) Also, if under this chapter a planning instrument may be repealed by a later planning instrument, the repeal starts to have effect when the later planning instrument starts to have effect. Part 2 State planning instruments 10 Making or amending State planning instruments (1) This section applies if the Minister proposes to make or amend a State planning instrument. (2) The Minister must publish a public notice that states— (a) where copies of the proposed State planning instrument, or proposed amendment, (the instrument) may be inspected or purchased; and (b) a phone number or email address to contact for information about the instrument; and (c) any person may make a written submission about the instrument to the Minister; and (d) the requirements for properly making a submission; and (e) the period, after the public notice is gazetted, within which a submission may be made. (3) The period for subsection (2)(e) must be at least— (a) for making a State planning policy—40 business days; or (b) for amending a State planning policy—20 business days; or (c) for making a regional plan—60 business days; or (d) for amending a regional plan—30 business days. (4) The Minister must give a copy of the public notice and instrument to each affected local government. (5) After the Minister considers all submissions that are made as required under the public notice, the Minister must decide— (a) to make the instrument; or (b) to make the instrument with the changes that the Minister considers appropriate; or (c) not to make the instrument. (6) If the Minister decides to make the instrument (with or without changes), the Minister must— (a) publish the decision by a public notice that states— (i) the day when the instrument was made; and (ii) where a copy of the instrument may be inspected or purchased; and (b) give a copy of the notice, and the instrument, to each affected local government. (7) A State planning instrument that is made or amended substantially in compliance with this section is valid, as long as any noncompliance does not— (a) restrict the public's opportunity to properly make submissions about the instrument; or (b) adversely affect public awareness of the existence and nature of the instrument. (8) If the Minister decides not to make the instrument, the Minister must publish the decision by a gazette notice. 11 Minor amendments to State planning instruments (1) The Minister may make a minor amendment to a State planning instrument without complying with section 10. (2) Instead, the Minister may make a minor amendment by publishing a public notice that states— (a) the day when the amendment was made; and (b) where a copy of the amended State planning instrument may be inspected or purchased. (3) A minor amendment, of a State planning instrument, is an amendment that— (a) corrects or otherwise changes— (i) a spelling, grammatical or mapping error; or (ii) an explanatory matter about the instrument; or (iii) the format or presentation of the instrument; or (iv) a factual matter incorrectly stated; or (v) a redundant or outdated term; or (vi) inconsistent numbering of provisions; or (vii) a cross-reference in the instrument; or (b) the Minister considers only reflects— (i) a part of another State planning instrument, if the Minister considers adequate public consultation was carried out in relation to the making of that part of the other State planning instrument; or (ii) this Act or another Act; or (c) is prescribed by regulation. (4) The Minister must give a copy of the public notice, and the amendment, to each affected local government. 12 Making temporary State planning policies (1) This section applies if the Minister considers a State planning policy is urgently required to protect or give effect to a State interest. (2) The Minister may make a State planning policy (a temporary State planning policy) that has only temporary effect. (3) A temporary State planning policy may suspend or otherwise affect the operation of, but does not amend or repeal, a State planning instrument. (4) Instead of complying with section 10, the Minister may make a temporary State planning policy by publishing a public notice that states— (a) the name of the temporary State planning policy; and (b) if the temporary State planning policy suspends or otherwise affects the operation of another State planning instrument—the name of the other State planning instrument; and (c) if the temporary State planning policy has effect only in a part of the State—the name, or a description, of the part of the State; and (d) where a copy of the temporary State planning policy may be inspected or purchased. (5) The Minister must give a copy of the notice, and the temporary State planning policy, to each affected local government. (6) The temporary State planning policy has effect for 2 years from the effective day, or a shorter period stated in the policy, unless repealed sooner. 13 Repealing State planning instruments (1) The Minister may repeal a State planning instrument by— (a) making another State planning instrument that specifically repeals the instrument; or (b) publishing a public notice that states— (i) the name of the State planning instrument; and (ii) if the State planning instrument has effect only in a part of the State—the name, or a description, of the part of the State; and (iii) that the State planning instrument is repealed. (2) The Minister must give a copy of the public notice to each affected local government. 14 Advice to Minister about regional plans (1) The Minister may establish a regional planning committee for a region by a gazette notice that states the committee's name and membership. (2) When developing and implementing a regional plan, the Minister must consider the advice of any regional planning committee for the region. Part 3 Local planning instruments Division 1 Introduction 15 What part is about (1) This part sets out— (a) the process for making, amending or repealing a local planning instrument; and (b) the State's powers in relation to local planning instruments. (2) A local planning instrument, or amendment of a local planning instrument, (the instrument) that is made substantially in compliance with the process in division 2 is valid, as long as any noncompliance does not— (a) for the making or amending of a planning scheme or TLPI—restrict the Minister's opportunity to consider whether the instrument would adversely affect State interests; or (b) if the process provides for public consultation about the instrument— (i) restrict the public's opportunity to properly make submissions about the instrument under that process; or (ii) adversely affect public awareness of the existence and nature of the instrument. 16 Contents of local planning instruments (1) A planning scheme must— (a) identify strategic outcomes for the local government area to which the planning scheme applies; and (b) include measures that facilitate the achievement of the strategic outcomes; and (c) coordinate and integrate the matters dealt with by the planning scheme, including State and regional aspects of the matters. (2) A regulation may prescribe requirements (the regulated requirements) for the contents of a local planning instrument. (3) The contents prescribed by regulation apply instead of a local planning instrument, to the extent of any inconsistency. Note— For the application of this section to a planning instrument change under the Economic Development Act 2012, see also sections 40L(3), 41(4) and 42K(2) of that Act. 17 Minister's guidelines and rules (1) The Minister must make an instrument that contains— (a) guidelines setting out the matters that the chief executive must consider when preparing a notice about making or amending planning schemes; and (b) rules about— (i) making amendments including amendments to LGIPs, of a type stated in the rules, to planning schemes; and (ii) making LGIPs, whether as part of a proposed planning scheme or as an amendment of a planning scheme; and (iii) reviewing LGIPs; and (iv) making or amending planning scheme policies; and (v) making or amending TLPIs; and (vi) making a planning change of a type mentioned in section 30(4)(e)(i), whether as part of a planning scheme or as an amendment of a planning scheme. (2) Section 10 applies to making or amending the guidelines or rules as if the guidelines or rules were a State planning policy. (3) However, section 10(6) applies as if a reference in section 10(6)(a)(i) to the day when the instrument was made were a reference to the day the guidelines or rules, or the guidelines or rules as amended, took effect. (4) Also, the Minister must comply with section 10(6), as applied under subsection (3), immediately after a regulation prescribes the guidelines or rules or the amended guidelines or rules. (5) In addition, if an amendment of the guidelines or rules is a minor amendment, section 10 does not apply to the amendment. (6) If the Minister makes a minor amendment of the guidelines or rules, immediately after a regulation prescribes the amended guidelines or rules, the Minister must— (a) publish a public notice that states— (i) the day when the amendment took effect; and (ii) where a copy of the amended guidelines or rules may be inspected or purchased; and (b) give a copy of the public notice, and the amended guidelines or rules, to each affected local government. (7) The guidelines and rules, or the amended guidelines and rules, start to have effect when prescribed by regulation. (8) In this section— minor amendment, of the guidelines or rules, has the meaning given by section 11(3) as if the guidelines or rules were a State planning instrument. Division 2 Making, amending or repealing local planning instruments 18 Making or amending planning schemes (1) This section applies if a local government proposes to make or amend a planning scheme. (2) The local government must give notice of the proposed planning scheme, or proposed amendment, (the instrument) to the chief executive. (3) After consulting with the local government, the chief executive— (a) must give a notice about the process for making or amending the planning scheme to the local government; and (b) may give an amended notice about the process for making or amending the planning scheme to the local government. (4) The chief executive must consider the Minister's guidelines when preparing the notice or an amended notice. (5) The notice, or amended notice, must state at least— (a) the local government must publish at least 1 public notice about the proposal to make or amend the planning scheme; and (b) the local government must keep the instrument available for inspection and purchase for a period (the consultation period) stated in the public notice of at least— (i) for a proposed planning scheme—40 business days after the day the last public notice is published; or (ii) for a proposed amendment—20 business days after the day the last public notice is published; and (c) the public notice must state that any person may make a submission about the instrument to the local government within the consultation period; and (d) a communications strategy that the local government must implement about the instrument; and (e) the local government must consider all properly made submissions about the planning scheme or amendment; and (f) the local government must notify persons who made properly made submissions about how the local government dealt with the submissions; and (g) the local government must give the Minister a notice containing a summary of the matters raised in the properly made submissions and stating how the local government dealt with the matters; and (h) after the planning scheme is made or amended, the local government must publish a public notice about making or amending the planning scheme. (6) The local government must make or amend the planning scheme by following the process in the notice or amended notice. (7) If the notice requires the Minister to approve the instrument, the Minister may approve the instrument if the Minister considers the instrument appropriately integrates State, regional and local planning and development assessment policies, including policies under an applicable State planning instrument. (8) A planning scheme replaces any other planning scheme that the local government administers. 19 Applying planning scheme in tidal areas (1) A local government may apply a planning scheme as a categorising instrument in relation to prescribed tidal works in the tidal area for its local government area— (a) even if the tidal area is outside its local government area; and (b) to the extent prescribed under the Coastal Act, section 167(5)(c). (2) However, subsection (1) does not apply to the extent the tidal area for the local government's local government area is also the tidal area for strategic port land. (3) In this section— strategic port land see the Transport Infrastructure Act, section 286(5). tidal area, for a local government area or strategic port land, means— (a) the part or parts of a river, stream or artificial waterway that are— (i) tidal water in or next to the area or land; and (ii) between the high water mark and the middle of the river, stream or artificial waterway; and (b) to the extent the boundary of the area or land is, or is seaward of, the high water mark and outside a river, stream or artificial waterway—tidal water that is seaward and within 50m of the high water mark. tidal water see the Coastal Act, schedule. 20 Amending planning schemes under Minister's rules (1) This section applies to an amendment of a planning scheme that the Minister's rules apply to. (2) Instead of complying with section 18, a local government may amend a planning scheme by following the process in the Minister's rules. (3) The Minister's rules must provide for the local government to publish a public notice about the planning scheme being amended. 21 Making or amending LGIPs Despite sections 18 and 20, a local government must follow the process in the Minister's rules for making or amending an LGIP, if the local government— (a) proposes to include an LGIP in a planning scheme; or (b) amends a planning scheme to include an LGIP; or (c) amends an LGIP. 22 Making or amending planning scheme policies (1) A local government may make or amend a planning scheme policy by following the process in the Minister's rules. (2) The Minister's rules must provide for the local government to publish a public notice about the making or amendment of a planning scheme policy. 23 Making or amending TLPIs (1) A local government may make a TLPI if the local government and Minister decide— (a) there is significant risk of serious adverse cultural, economic, environmental or social conditions happening in the local government area; and (b) the delay involved in using the process in sections 18 to 22 to make or amend another local planning instrument would increase the risk; and (c) the making of the TLPI would not adversely affect State interests. (2) A local government may amend a TLPI if the Minister decides the amendment of the TLPI would not adversely affect State interests. (3) A TLPI may suspend or otherwise affect the operation of another local planning instrument, but does not amend or repeal the instrument. (4) The local government may make or amend a TLPI by following the process in the Minister's rules. (5) The Minister's rules must provide for— (a) the Minister to approve a TLPI or amendment before the TLPI or amendment is made; and (b) the local government to publish a public notice about the making of a TLPI or amendment. (6) The TLPI, with or without an amendment, has effect for 2 years after the effective day, or a shorter period stated in the TLPI, unless repealed sooner. (7) A TLPI— (a) does not create a superseded planning scheme; and (b) is not an adverse planning change. 24 Repealing TLPIs or planning scheme policies (1) A local government may repeal a TLPI, or planning scheme policy, (the instrument) by resolution. (2) However, if the instrument was made by, or at the direction of, the Minister, the local government must get the Minister's written approval before making the resolution. (3) As soon as practicable after the local government makes the resolution, the local government must publish a public notice that states— (a) the name of the local government; and (b) the name of the instrument being repealed; and (c) the day when the resolution was made. (4) The local government must give a copy of the public notice to the chief executive. (5) A local government may repeal a TLPI by making, or amending, a planning scheme to specifically repeal the TLPI. (6) The planning scheme policies for a local government area are repealed by making (but not amending) a planning scheme for the local government area. 25 Reviewing planning schemes (1) A local government must— (a) review its planning scheme within 10 years after— (i) the planning scheme was made; or (ii) if the planning scheme has been reviewed—the planning scheme was last reviewed; and (b) decide, based on that review, whether to amend or replace the planning scheme. (2) If the local government decides not to amend or replace the planning scheme, the local government must— (a) give written reasons for the decision to the chief executive; and (b) publish a public notice, in the approved form, about the decision; and (c) keep a copy of the public notice in a conspicuous place in the local government's public office, for a period of at least 40 business days after the notice is published. (3) Despite subsection (1), a local government must review any LGIP (an LGIP review) in its planning scheme within 5 years after— (a) the LGIP was included in the planning scheme; and (b) if the LGIP has been reviewed—the LGIP was last reviewed. (4) When conducting an LGIP review, the local government must follow the process in the Minister's rules. (5) An LGIP review is not a review for subsection (1). Division 3 State powers for local planning instruments 26 Power of Minister to direct action be taken generally (1) This section applies to the following made by a local government— (a) an existing local planning instrument or designation; (b) a proposed local planning instrument or designation; (c) a proposed amendment of a local planning instrument or designation. (1A) However, this section does not apply to a local government's existing planning scheme to the extent section 26A(1) applies to the scheme. (2) If the Minister considers the local government should take action— (a) to ensure an instrument is consistent with this Act; or (b) to protect, or give effect to, a State interest; the Minister may give the local government a notice that complies with subsection (3). (3) The notice must state— (a) the action that the Minister considers the local government should take; and (b) the reasons for taking the action; and (c) that the local government may, within the reasonable period stated in the notice, make a submission to the Minister about the local government taking the action. (4) After the Minister considers all submissions made as required under the notice, the Minister must decide— (a) to direct the local government to take the action stated in the notice; or (b) to direct the local government to take other action; or (c) not to direct the local government to take any action. (5) Without limiting subsection (4), the Minister may direct the local government— (a) to review a planning scheme, as required under section 25, and report the results of the review to the Minister; or (b) to review a designation, and report the results of the review to the Minister; or (c) to make, amend or repeal a local planning instrument as provided for in sections 18 to 24; or (d) to amend a designation as required under the process in the designation process rules under section 37 or to repeal a designation under section 40. (6) If the Minister decides to direct the local government to take action, the Minister must give the local government a notice that states— (a) the nature of the action; and (b) a reasonable period within which the local government must take the action. (7) If the local government does not take the action, the Minister may— (a) take the action; and (b) recover any expense the Minister reasonably incurs in taking the action from the local government as a debt. (8) The action taken by the Minister has the same effect as if the local government had taken the action. 26A Power of Minister to direct particular amendment of planning schemes (1) This section applies if the Minister considers— (a) a local government should amend its planning scheme to ensure the planning scheme is consistent with— (i) the regulated requirements; or (ii) a regulation made under section 43(1) or 44(5) to the extent the regulation categorises development as prohibited development or accepted development; or (iii) section 43(5); or (b) both of the following apply— (i) a local government should amend its planning scheme to protect, or give effect to, a State interest; (ii) adequate public consultation was carried out in relation to the subject matter of the amendment. (2) The Minister may direct the local government to amend its planning scheme as provided for in section 20. (3) The Minister may act under subsection (2) without consulting with any person. (4) If the Minister decides to direct the local government to amend its planning scheme, the Minister must give the local government a notice that states— (a) the nature of the amendment; and (b) the reasons for making the amendment; and (c) a reasonable period within which the local government must make the amendment. (5) If the local government does not make the amendment as directed, the Minister may— (a) take action to make the amendment; and (b) recover any expense the Minister reasonably incurs in taking the action from the local government as a debt. (6) The action taken by the Minister has the same effect as if the local government had taken the action. 27 Power of Minister to take urgent action (1) This section applies if the Minister considers— (a) either— (i) action should be taken under section 26(2)(b) to protect, or give effect to, a State interest; or (ii) section 26A(1)(b) applies in relation to taking action to amend a planning scheme to protect, or give effect to, a State interest; and (b) the action must be taken urgently. (2) The Minister may give the local government a notice that states— (a) the action that the Minister intends to take; and (b) the reasons for taking the action. (3) After giving the notice, the Minister may take the action as required under the process in the Minister's rules without— (a) giving a direction to the local government under section 26 or 26A; or (b) consulting with any person before taking the action. (4) The action taken by the Minister has the same effect as if the local government had taken the action. (5) Any expense the Minister reasonably incurs in taking the action may be recovered from the local government as a debt. 28 Limitation of liability A local government does not incur liability for anything the local government does or does not do in complying with a direction of the Minister, or any action taken by the Minister, under this division in relation to— (a) an existing local planning instrument or designation; or (b) a proposed local planning instrument or designation; or (c) a proposed amendment of a local planning instrument or designation. Part 4 Superseded planning schemes Division 1 Applying superseded planning scheme 29 Request to apply superseded planning scheme (1) This section applies if a person wants a superseded planning scheme to apply to a proposed development application or proposed development. (2) A superseded planning scheme is a planning scheme, together with related planning scheme policies, that was in effect immediately before any of the following events (a planning change) happens— (a) the planning scheme was amended or replaced; (b) any of the planning scheme policies were amended, replaced or repealed; (c) a new planning scheme policy was made for the planning scheme. Note— For a planning instrument change under the Economic Development Act 2012, see also sections 40L(3), 41(4) and 42K(2) of that Act. (3) A person may, within 1 year after the planning scheme and related policies become a superseded planning scheme, make a superseded planning scheme request in relation to the superseded planning scheme. (4) A superseded planning scheme request is a written request to a local government— (a) to accept, assess and decide a development application (a superseded planning scheme application) under a superseded planning scheme; or (b) to apply a superseded planning scheme to the carrying out of development that was accepted development under the superseded planning scheme. (5) A regulation may prescribe the following in relation to a superseded planning scheme request— (a) that the request must be made in an approved form; (b) the information that must be given with the request; (c) how the local government may set a fee for considering the request; (d) the period for deciding the request, and how the period may be extended; (e) when and how a local government must notify the person making the request of the local government's decision; (f) another matter related to deciding the request. (6) The local government must decide whether or not to agree to a superseded planning scheme request within the period prescribed by, or extended as required under, the regulation. (7) The local government must, within 5 business days after making the decision, give a decision notice to the person who made the superseded planning scheme request. (8) If, within 5 business days after the end of the period or of the period extended under subsection (6), the local government does not give a decision notice to the person, the local government is taken to have agreed to the superseded planning scheme request. (9) If the local government decides to agree, or is taken to have agreed, to a request under subsection (4)(a)— (a) the superseded planning scheme application must be made within 6 months after the local government— (i) gives a decision notice to the person who made the request; or (ii) is taken to have agreed to the request; and (b) despite section 45(6) to (8), the assessment manager for the superseded planning scheme application must assess the application as if the superseded planning scheme to which the application relates was in effect instead of— (i) the planning scheme; and (ii) a planning scheme policy for the local government area. (10) If the local government decides to agree, or is taken to have agreed, to a request under subsection (4)(b)— (a) the development may be carried out under the superseded planning scheme; and (b) the following apply to the decision as if the decision were a development approval, given by the local government as the assessment manager, that took effect on the day when the decision notice was given or the local government is taken to have agreed to the request— (i) chapter 3, part 5, division 4; (ii) schedule 1, table 1, item 3. 29A When superseded planning scheme application for prohibited development may be made (1) This section applies if— (a) a local government agrees, or is taken to have agreed, to a request under section 29(4)(a) to accept, assess and decide a superseded planning scheme application under a superseded planning scheme; and (b) the superseded planning scheme application is for development that is categorised as prohibited development under the planning scheme. (2) Despite section 50(2), the superseded planning scheme application may be made if it does not include development categorised as prohibited development under— (a) the superseded planning scheme; or (b) a categorising instrument other than the planning scheme. Division 2 Compensation 30 When this division applies (1) This division applies in relation to an adverse planning change. (2) An adverse planning change is a planning change that reduces the value of an interest in premises. Note— For a planning instrument change under the Economic Development Act 2012, see also sections 40L(3), 41(4) and 42K(2) of that Act. (3) An adverse planning change includes a planning change (a public purpose change) that limits the use of premises to— (a) the purpose for which the premises were lawfully being used when the change was made; or (b) a public purpose. (4) However, an adverse planning change does not include a planning change that— (a) has the same effect as another statutory instrument, other than a TLPI, for which compensation is not payable; or (b) is made to comply with the regulated requirements; or (c) includes infrastructure in a planning scheme, or removes or changes the infrastructure shown in a planning scheme, including under a designation; or (d) is about matters included in a LGIP; or (e) is made— (i) to reduce a material risk of serious harm to persons or property on the premises from natural events or processes (bush fires, coastal erosion, flooding or landslides, for example); and (ii) under a provision of the Minister's rules that applies specifically to the making of a planning change to reduce the risk; or (f) is about the relationships between, the location of, or the physical characteristics of, buildings, works or lots, if the yield achievable is not substantially different from the yield achievable before the change; or (g) is made under section 276(1)(c) to identify all or part of a local government area as a party house restriction area. (5) For subsection (4)(e), the Minister's rules must require a local government to prepare a report assessing feasible alternatives for reducing the risk stated in subsection (4)(e), including imposing development conditions on development approvals. (6) For subsection (4)(f), the yield achievable is not substantially different from the yield achievable before the change, in relation to building work for a residential building, if the gross floor area of the residential building— (a) is not more than 2,000m2; and (b) is reduced by not more than 15%. (7) In this section— gross floor area means the sum of the floor areas, including all walls, columns and balconies, whether roofed or not, of all stories of every building located on premises, other than— (a) the areas used for building services, a ground floor public lobby or a public mall in a shopping centre; or (b) the areas associated with the parking, loading and manoeuvring of motor vehicles. yield means— (a) for buildings and works—the gross floor area, the density of buildings or persons, or the plot ratio, achievable for premises; or (b) for reconfiguring a lot—the number of lots in a particular area of land. 31 Claiming compensation (1) This section is about when a person (an affected owner) with an interest in premises, at the time an adverse planning change starts to have effect for the premises, may claim compensation because of the adverse planning change. (2) An affected owner may claim compensation if the adverse planning change is a public purpose change. (3) An affected owner may claim compensation in relation to development that is or becomes assessable development after the adverse planning change has effect, if— (a) the local government refuses a superseded planning scheme request in relation to the development; and (b) a development application has been made for the development; and (c) the development application is— (i) refused; or (ii) approved with development conditions; or (iii) approved in part, with or without development conditions. (4) An affected owner may claim compensation in relation to development that becomes prohibited development after the adverse planning change has effect, if the local government refuses a superseded planning scheme request in relation to the development. (5) However, an affected owner may not claim compensation because of an adverse planning change— (a) to the extent that compensation— (i) is payable under another Act; or (ii) has been paid to a previous owner of the interest; or (b) for anything done in contravention of this Act. (6) An affected owner must make a claim for compensation to a local government within— (a) for subsection (2)—2 years after the adverse planning change has effect; or (b) for subsection (3) or (4)—6 months after notice of the decision under subsection (3)(c) or (4) is given to the affected owner. 32 Deciding compensation claim (1) If an affected owner makes a compensation claim to a local government, the local government must decide— (a) to approve all or part of the claim; or (b) to refuse the claim; or (c) if the claim relates to a public purpose change—to give a notice of intention to resume the affected owner's interest in premises under the Acquisition Act, section 7. (2) If the claim relates to a public purpose change, the local government may also decide to amend the planning scheme to allow premises to be used for the purposes that the premises could be used for under the superseded planning scheme. (3) The local government's chief executive officer must, within 70 business days after the claim is made, give the affected owner— (a) if subsection (1)(c) applies—the notice of intention to resume; or (b) otherwise—a notice that states— (i) the local government's decision; and (ii) if the local government decides to approve all or part of the claim—the amount of compensation to be paid; and (iii) the affected owner's appeal rights. (4) If a notice of intention to resume is withdrawn or lapses, the local government's chief executive officer must comply with subsection (3)(b), within 20 business days after the notice of intention to resume is withdrawn or lapses. (5) If the local government approves all or part of the claim, the local government must pay the compensation within 30 business days after— (a) if the decision is not appealed—the appeal period ends; or (b) if the decision is appealed—the appeal ends. 33 Amount of compensation payable (1) The amount of compensation payable to the affected owner is the difference between the market value of the owner's interest in premises immediately before, and immediately after, the adverse planning change. (2) When deciding the market value immediately after the adverse planning change, the local government must consider— (a) any benefit to the owner's interest in the premises, or in neighbouring premises, because of the adverse planning change; and Example— the likelihood of improved amenity in the locality of the premises (b) any benefit to the owner's interest in neighbouring premises because, after the adverse planning change but before the compensation claim was made— (i) another planning change started to have effect; or (ii) infrastructure, other than infrastructure that the owner funds, was constructed or improved on the neighbouring premises; and (c) any conditions or other limitations that might reasonably have applied to development of the premises under the superseded planning scheme; and (d) for an adverse planning change that was the subject of a superseded planning scheme request— (i) the effect of any other planning change that started to have effect after the adverse planning change but before the superseded planning scheme request was made; and (ii) the effect of any development approval mentioned in section 31(3)(c)(ii) or (iii). (3) However, the local government must not consider the effect of— (a) any TLPI; or (b) the land being joined with, or separated from, other land. 34 Recording payment of compensation on title (1) This section applies if the local government pays compensation to the affected owner of an interest in premises. (2) The chief executive officer of the local government must give notice of the payment of the compensation to the registrar of titles. (3) The notice must be in the form approved by the registrar of titles. (4) The registrar of titles must keep the information in the notice under— (a) to the extent the interest in the premises is recorded on the freehold land register under the Land Title Act—section 34 of that Act; or (b) to the extent the interest in the premises is recorded on a register under the Land Act—section 281 of that Act. Part 5 Designation of premises for development of infrastructure 35 What is a designation (1) A designation is a decision of the Minister, or a local government, (a designator) that identifies premises for the development of 1 or more types of infrastructure that are prescribed by regulation. (2) A designation may include requirements about any or all of the following— (a) works for the infrastructure (the height, shape, bulk, landscaping, or location of works, for example); (b) the use of premises, for example— (i) vehicular and pedestrian access to, and circulation on, premises; and (ii) operating times for the use; and (iii) ancillary uses; (c) lessening the impact of the works or use (environmental management procedures, for example). (3) The chief executive may, by notice, require a local government to include a matter in subsection (2) in a designation made by the local government. Note— For the effect of a designation on the categorisation of development, see section 44(6)(b). 36 Criteria for making or amending designations (1) To make a designation, a designator must be satisfied that— (a) the infrastructure will satisfy statutory requirements, or budgetary commitments, for the supply of the infrastructure; or (b) there is or will be a need for the efficient and timely supply of the infrastructure. (2) To make or amend a designation, if the designator is the Minister, the Minister must also be satisfied that adequate environmental assessment, including adequate consultation, has been carried out in relation to the development that is the subject of the designation or amendment. (3) The Minister may, in guidelines prescribed by regulation, set out the process for the environmental assessment and consultation. Note— See section 42B for the process for making or amending the guidelines. (4) The Minister is taken to be satisfied of the matters in subsection (2) if the process in the guidelines is followed. (5) However, the Minister may be satisfied of the matters in another way. (7) To make or amend a designation, a designator must have regard to— (a) all planning instruments that relate to the premises; and (b) any assessment benchmarks, other than in planning instruments, that relate to the development that is the subject of the designation or amendment; and (c) if the premises are in a State development area under the State Development Act—any approved development scheme for the premises under that Act; and (ca) if the premises are in a priority development area, or on PDA-associated land for a priority development area, under the Economic Development Act 2012— (i) any development scheme for the priority development area under that Act; and (ii) any place renewal framework for a place renewal area in which the premises are located that is in effect under that Act; and (d) any properly made submissions made as part of the consultation carried out under section 37; and (e) the written submissions of any local government. 37 Process for making or amending designation (1) This section is about the process for— (a) making a designation for premises; or (b) amending a designation for premises, including by amending— (i) the area of the premises; or (ii) the type of infrastructure for which the premises were designated; or (iii) a requirement included in the designation under section 35(2). (2) If the Minister proposes to make or amend a designation, the Minister must give notice of the proposal to the affected parties. (3) However, the Minister need not give the notice to an owner of premises if— (a) a notice has already been given to the owner as part of the consultation for an assessment under section 36(2); or (b) the Minister can not notify the owner after making reasonable efforts. (4) A notice under subsection (2) must state the following— (a) that a submission about the proposal may be given by an affected party to the Minister; (b) the period, of at least 15 business days after the notice is given, in which the submission may be made; (c) the requirements for a properly made submission. (5) If, after considering any properly made submissions, the Minister decides not to proceed with the proposal, the Minister must give a decision notice to the affected parties. (6) If a local government proposes to make or amend a designation, the local government must follow the process in the designation process rules, before the local government makes or amends the designation. (7) In this section— designation process rules means rules made by the Minister and prescribed by regulation. Note— See section 42B for the process for making or amending the rules. 38 Process after making or amending designation (1) If, after considering any properly made submissions, the designator decides to make or amend a designation, the designator must publish a gazette notice that states— (a) that the designation has been made or amended; and (b) a description of the designated premises; and (c) the type of infrastructure for which the premises were designated; and (d) for an amendment—the nature of the amendment. (2) The designator must give the following things to each affected party and the chief executive— (a) a copy of the gazette notice; (b) a notice of any requirements included in the designation under section 35(2); (c) a notice of how the designator dealt with any properly made submissions. 39 Duration of designation (1) A designation stops having effect on the day (the end day) that is 6 years after the designation starts to have effect, unless— (a) on the end day— (i) a public sector entity owns, or has an easement for the same purpose as the designation over, the designated premises; or (ii) another entity owns, or has an easement over, the designated premises and construction of the infrastructure for which the premises were designated started before the end day; or (b) before the end day— (i) a public sector entity gave a notice of intention to resume the designated premises under the Acquisition Act, section 7; or (ii) a public sector entity signed an agreement to take designated premises under the Acquisition Act or to otherwise buy the premises; or (iii) the designator complies with subsection (3). (2) The designator may extend the duration of a designation, for up to 6 years, by publishing a gazette notice about the extension before the designation stops having effect. (3) The designator must give notice of the extension of the designation to— (a) if the Minister is the designator—each of the affected parties and the chief executive; or (b) if a local government is the designator—the owner of the premises and the chief executive. (4) If a public sector entity discontinues proceedings to resume designated premises, either before or after the end day, the designation stops having effect on the day when the proceedings are discontinued. 40 Repealing designation—designator (1) A designator may repeal a designation made by the designator by publishing a gazette notice that states— (a) that the designation is repealed; and (b) a description of the designated premises; and (c) the type of infrastructure for which the premises were designated; and (d) the reasons for the repeal. (2) The designator must give a copy of the notice to— (a) if the Minister is the designator—each of the affected parties and the chief executive; or (b) if a local government is the designator—the owner of the premises and the chief executive. (3) Any development started under the designation may be completed as if the designation had not been repealed. (4) Subject to any requirements under section 35(2), a use of the premises that is the natural and ordinary consequence of the development is taken to be a lawful use. 41 Repealing designation—owner's request (1) An owner of an interest in designated premises may request a designator to repeal a designation made by the designator on the basis that the designation is causing the owner hardship. (2) Subsection (1) does not apply if— (a) the premises are subject to an easement for the infrastructure for which the premises are designated; or (b) the designation also applies to other premises and relates to a land corridor for the infrastructure; or (c) the premises are a road. (3) The request must be in writing, and contain any information that the guidelines made under section 36(3) require. (4) The designator must, within 40 business days after receiving the request— (a) repeal the designation, using the process under section 40; or (b) decide to refuse the request; or (c) decide to take other action that the designator considers appropriate in the circumstances. (5) The designator must, within 5 business days after making a decision under subsection (4)(b) or (c), give a decision notice to the owner. 42 Noting designation in planning scheme (1) This section applies if a local government— (a) makes, amends, extends or repeals a designation; or (b) receives a notice about the Minister making, amending, extending or repealing a designation. (2) The local government must include a note about the making, amendment, extension or repeal in— (a) the local government's planning scheme; and (b) any planning scheme that the local government makes before the designation stops having effect. (3) The note must— (a) identify the premises that were designated; and (b) describe the type of infrastructure for which the premises were designated; and (c) state the day when the designation, amendment, extension or repeal started to have effect. (4) The local government must include the note in the planning scheme in a way that ensures the other provisions of the scheme that apply to the designated premises remain effective. (5) To remove any doubt, it is declared that— (a) the note is not an amendment of a planning scheme; and (b) a designation is taken to be part of a planning scheme; and (c) a designation is not the only way that a planning scheme may identify infrastructure; and (d) a designation does not affect the provisions of a planning scheme that apply to designated premises, even after the designation stops having effect. 42A Amending and repealing designations under old Act To remove any doubt, it is declared that the Minister may, under this part, amend or repeal a designation of land under the old Act made by another Minister. 42B Process for making or amending guidelines under s 36 or the designation process rules (1) Section 10 applies to the making or amendment of— (a) the guidelines under section 36(3); or (b) the designation process rules under section 37. (2) However, section 10(6) applies as if a reference in section 10(6)(a)(i) to the day when the instrument was made were a reference to the day the guidelines or designation process rules, or the guidelines or rules as amended, took effect. (3) Also, the Minister must comply with section 10(6), as applied under subsection (2), immediately after a regulation prescribes the guidelines or designation process rules or the amended guidelines or rules. (4) In addition, if an amendment of the guidelines or designation process rules is a minor amendment, section 10 does not apply to the amendment. (5) If the Minister makes a minor amendment of the guidelines or designation process rules, immediately after a regulation prescribes the amended guidelines or rules, the Minister must— (a) publish a public notice that states— (i) the day when the amendment took effect; and (ii) where a copy of the amended guidelines or rules may be inspected or purchased; and (b) give a copy of the public notice, and the amended guidelines or rules, to each affected local government. (6) The guidelines or designation process rules, or the amended guidelines or rules, start to have effect when prescribed by regulation. (7) In this section— minor amendment, of the guidelines under section 36(3) or the designation process rules under section 37, has the meaning given by section 11(3) as if the guidelines or rules were a State planning instrument. Chapter 3 Development assessment Part 1 Types of development and assessment Division 1 Instruments and categories 43 Categorising instruments (1) A categorising instrument is a regulation or local categorising instrument that does any or all of the following— (a) categorises development as prohibited, assessable or accepted development; (b) specifies the categories of assessment required for different types of assessable development; (c) sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against. (2) An assessment benchmark does not include— (a) a matter of a person's opinion; or (b) a person's circumstances, financial or otherwise; or (c) for code assessment—a strategic outcome under section 16(1)(a); or (d) a matter prescribed by regulation. Examples of assessme