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Planning (Urban Encroachment--Milton Brewery) Bill 2008
Planning (Urban Encroachment--Milton
Brewery) Bill 2008
Explanatory Notes
Introduction
The purpose of the Planning (Urban Encroachment--Milton Brewery) Bill
2008 (the Bill) is to ensure clarity and certainty in an environment of
increasing development and intensification, therefore creating an enabling
environment for development in the area.
The Milton Rail Station Precinct, directly opposite the Milton Brewery,
provides an opportunity for Transit Orientated Development (TOD). TODs
are mixed use residential and employment areas designated to maximise
the efficient use of land through high levels of access to public transport.
While such planning strategies maximise land use efficiencies and address
Queensland's significant growth, Queensland recognises it must balance
and address the impacts of urban encroachment on industries and
landowners.
Development at Milton Rail Station Precinct will lead to increased
population densities and reduce the distance between residences and the
Brewery, which has been operating since the 1870s and is of heritage
significance. Urban encroachment thereby increases the risk of litigation
from landowners and tenants affected by the Brewery emissions, even
though the Brewery operates within its current licence conditions.
The Bill specifically protects the established Brewery, by conferring
immunity from criminal (local law) and civil proceedings for releasing
contaminants in the atmosphere, noise and light emissions based nuisance
complaints where the Brewery is operating within its licence conditions.
The protection only applies to new development that results in
intensification. Specifically this is an application for a material change of
use of premises or reconfiguring a lot (but not class 1a, 1b or 10 buildings
or structures), a relevant development application made after the
commencement of this Act, and a relevant development application made
but not decided before commencement of this Act.
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Planning (Urban Encroachment--Milton Brewery) Bill 2008
Short Title of the Bill
The short title of the Bill is the Planning (Urban Encroachment--Milton
Brewery) Bill 2008
Objectives of the Bill
The Bill confers immunity from criminal (local law) and civil proceedings,
for releasing contaminants in the atmosphere, noise and light emissions
based nuisance complaints in relation to certain development where the
Brewery is operating within its licence conditions.
Policy rationale
The Bill addresses the impacts of encroaching development and creates an
enabling environment for significant transit oriented development in
Milton.
Legislation is required to develop a viable model that addresses urban
encroachment with sufficient flexibility to meet State and Local
Government, industry and community needs.
The Environmental Protection Agency has determined acceptable levels of
air and noise emissions from the Brewery relevant to its current location
and proximity to other land uses, as articulated in its licence. The Brewery
is currently operating within its licence conditions. It is possible that
repeated complaints of nuisance may result in changed conditions for the
Brewery regardless of its lawful operations. The certainty provided
through legislative protection will allow the Brewery to operate as an
existing use.
The Bill does not override the common law rights of residents of existing
development or prescribe emission levels for releasing contaminants into
the atmosphere, noise and light.
How objectives are achieved
The Bill achieves its objectives by conferring statutory immunity from
criminal (local law) and civil proceedings for nuisance complaints based on
releasing contaminants into the atmosphere, noise and light emissions,
where the Brewery is operating within its licence conditions. The Bill only
applies to new development where intensification, as defined in the Bill,
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Planning (Urban Encroachment--Milton Brewery) Bill 2008
results from that development in the relevant area outlined in schedule one
of the Bill.
Residents and prospective residents are made aware of the conferred
immunity through notation on land titles.
Alternative method of achieving the policy objectives
There are no other viable alternatives that would achieve the Government's
policy objectives.
Estimated cost for Government implementation
There are no costs to Government resulting from the proposed legislation.
Consistency with Fundamental Legislative Principles
The proposed Bill impacts on the rights and liberties of individuals,
particularly in relation to the right of a landowner to the use and enjoyment
of his or her land, through conferred immunity for the Brewery from
proceedings or prosecution. The common law rights of residents of
existing development will not be overridden as protection will apply to new
development after the date of enactment.
As the criteria includes development applications already lodged but no
decision made, or approved but no certificate of classification issued, the
legislation may apply to a small group of people, if any, who may have
already purchased properties (e.g. off the plan) prior to the commencement
of the legislation. Urgent introduction of the proposed Bill will ensure as
few people as possible, if any, are impacted by this component.
The proposed Bill also allows for a person to end a contract to purchase
affected premises if the applicant for a relevant development application
has failed to advise the registrar to place a notice on the title (section 10), or
any seller of relevant premises has failed to advise the purchaser (section
11). While this affects the developer's or seller's contractual rights, there is
in these circumstances, a greater and over-riding need to protect the
purchaser's rights. Other common law rights remain available to all
relevant parties.
Under the proposed Bill, no criminal proceedings under local laws or civil
proceedings may be taken against the Brewery with respect to emission of
noise, releasing contaminants into the atmosphere within its current licence
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Planning (Urban Encroachment--Milton Brewery) Bill 2008
conditions; or with respect to light emissions of no more intensity than that
emitted at any time before commencement of the Bill. The legislation is
subject to five-yearly reviews.
Consultation
Lion Nathan has been consulted to discuss its concerns regarding the
potential impact of encroaching development on its existing use. The
Brisbane City Council has also been consulted with respect to the Bill.
Consultation has occurred with key government departments that may have
an interest in the Bill.
Notes on Provisions
Part 1 Preliminary
Clause 1 states the short title of the Bill.
Clause 2 provides for commencement of the Act on a day to be fixed by
proclamation.
Clause 3 states the main purpose of the Act. The main purpose of the Act
is to protect the existing use of the Milton Brewery from encroachment by,
and the intensification of, development. It does this by limiting civil and
criminal (local law) proceedings against the Brewery when operating in
accordance with authorised levels of noise, light and the release of
contaminants into the atmosphere.
Part 2 Interpretation
Clause 4 states that a schedule to the Act contains a dictionary of particular
words used in the Act.
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Planning (Urban Encroachment--Milton Brewery) Bill 2008
Clause 5 outlines what a relevant development application is for the
purposes of the Act. Although a development application for a material
change of use of premises or reconfiguring a lot applies, certain types of
buildings are not caught by the Act. These are class 1a and 1b buildings
and class 10 buildings or structures. The definitions of these types of
buildings are contained in the Act.
Under subsection 2 of clause 5, a map called "Milton Rail Precinct" is
contained in schedule 1. The map outlines the geographical area to which
this Act pertains.
Clause 6 clarifies that words used in this Act that are also defined in the
Environmental Protection Act 1994 and the Integrated Planning Act 1997
have the same application and meaning as words in both of those Acts.
Part 3 Legal Proceedings
Clause 7 explains the application of this section to relevant development
applications (as defined in clause 5) once this section of the Act
commences. The Act applies to a relevant development application made
after the commencement of this section, and to a relevant development
application made but not decided before commencement of this section.
Except for approval of development applications for class 1a, 1b and 10
buildings and structures, an approval of a relevant development application
given before the commencement of this section is still subject to the Act.
Subsection 2 of clause 7 defines classification of relevant buildings that are
subject to this section.
Clause 8 provides for a limitation of civil or criminal proceedings that can
be taken by an affected person against Milton Brewery. The brewery
registration certificate, (as defined in the dictionary in the schedule) allows
Milton Brewery to carry out chapter 4 activities. If Milton Brewery is
complying with the brewery registration certificate, an affected person
cannot bring civil or criminal proceedings against the Brewery relating to
the development conditions of the Brewery's development approval and
any code of environmental compliance applying to the relevant act. The
inability of an affected person to litigate in these circumstances applies
despite any other Act providing to the contrary.
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Planning (Urban Encroachment--Milton Brewery) Bill 2008
Subsection 8(2)(b) provides that an affected person cannot bring civil or
criminal proceedings against the Brewery if the relevant act was, or caused
by, the emission of light and the emission was not more than the intensity
of light emitted at any time before the commencement of this section.
Subsection 4 of clause 8 states that if there is either an amendment to, or
the issue of, a new development approval or registration certificate which
authorises greater emissions of light, noise or release of contaminants into
the atmosphere, then there is no immunity provided for Milton Brewery.
Part 4 Particular Obligations
Clause 9, subsections 1 and 2, provide for relevant development
applications to be recorded in the appropriate register. Within 20 business
days of making a relevant development application, the applicant for a
relevant development must give the registrar written notice in an approved
form, asking that the registrar record an affected area notation. There is a
maximum penalty of 200 penalty units for non-compliance. Under
subsection 2, the registrar records that information on the appropriate
register.
Under subsections 3 and 4, in the event the application is refused,
withdrawn or lapsed, the applicant notifies the registrar in writing in the
approved form, to remove the record (affected area notation) from the
registrar's records and the registrar does so. There is a maximum penalty
of 20 penalty units for failure by the applicant to notify the registrar to
remove the record.
Subsection 5 provides for removal of a notation from the registrar's records
if the registrar is satisfied that the notation is no longer relevant.
Under subsection 6 there is no cost to the applicant for the recording or
removal of an affected area notation by the registrar.
Clause 10 addresses a situation where the applicant for a relevant
development application does not notify the registrar pursuant to section 9.
Where a contract for sale of the premises or part of the premises has been
entered into, failure to notify gives the prospective buyer the right to end
the contract before settlement if written notice is given to the applicant's
agent.
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Planning (Urban Encroachment--Milton Brewery) Bill 2008
Under subsection 4 the application must refund any deposit made by the
buyer within 14 days of ending the contract. A maximum penalty of 200
penalty units applies to subsection 4.
Clause 11 addresses a situation where a relevant development application
has been approved and property or premises of that relevant development is
offered for sale to a prospective buyer. In this situation, before entering a
contract, the seller must notify the prospective buyer in writing of the
restrictions applicable under part 3 and that a record on the relevant register
(pursuant to section 9) applies.
Under subsections 3 and 4 failure of the seller to so notify the prospective
buyer gives the prospective buyer the right to end the contract before
settlement if written notice to that affect is given to the applicant's agent. If
the contract is terminated, under subsection 6, the seller must within 14
days after termination of the contract, refund to the prospective buyer any
deposit paid. A maximum penalty of 200 penalty units applies to
subsection 6. Subsection 8 makes clear that the provision applies to the
applicant for the relevant development application and all subsequent
sellers of the property.
Part 5 Miscellaneous provisions
Clause 12 requires that the registered operator named in the brewery
registration certificate must publish the brewery registration certificate and
details relevant to it, on the registered operator's website. Failure to do so
does not affect the operation of section 8.
Clause 13 provides for a regulation to be made under this Act and that the
maximum penalty such a regulation can impose is 20 penalty units.
Clause 14 provides that the Minister must review the operation and
effectiveness of this Act within 5 years after the date of assent and that a
report on the review must be laid before the Legislative Assembly as soon
as practicable once the review is finished.
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Planning (Urban Encroachment--Milton Brewery) Bill 2008
Part 6 Transitional provision
Clause 15 provides that section 9(1) applies to a relevant development
application mentioned in section 7(1)(b) or (c) as if a reference to "20
business days after making the application" was replaced by "20 business
days after the commencement of this section".
Subsection 2 provides that sections 9(3) and (4) do not apply to a relevant
development application mentioned in section 7(1)(c).
Clause 16 is a transitional provision for section 11. It provides that if a
prospective buyer entered into a contract to which section 11 applies, to
buy a property before commencement of this section, the prospective buyer
does not have a right to end the contract or claim damages if the seller has
not given an affected area notice to the prospective buyer. Subsection 3
states that the failure to give the prospective buyer an affected area notice
does not constitute a breach of contract by the seller.
Schedule 1
Schedule 1 provides a map of the affected area referred to under section
5(2).
Schedule 2
Schedule 2 is the dictionary referred to under section 4.
© State of Queensland 2008
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