Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Southern Moreton Bay Islands Development
Entitlements Protection Bill 2004
Southern Moreton Bay Islands
Development Entitlements Protection Bill
2004
EXPLANATORY NOTES
GENERAL OUTLINE
Short Title
The short title of the Act is the Southern Moreton Bay Islands Development
Entitlements Protection Act 2004.
Objectives
The primary policy objective of the Act is to provide for special
arrangements to ensure that owners of land on the Southern Moreton Bay
Islands (SMBI) as prescribed within a regulation can personally exercise
their existing development entitlements to construct a dwelling on the
SMBI into the future (subject to engineering and development
requirements set out in Redland Shire Council's current planning scheme),
notwithstanding proposed changes under the new Integrated Planning Act
1997 (IPA) planning scheme for Redland Shire.
Reasons for the Act
The provisions proposed within the Act will enshrine in law the right of
prescribed SMBI land owners to exercise their existing development
entitlements to construct a dwelling on land in the Conservation zone of the
SMBI. These entitlements may otherwise be lost by the adoption of
revised statutory planning instruments applicable to the SMBI. The Act is
consistent with Cabinet's commitment of 29 May 2000 to protect existing
development entitlements of SMBI land owners.
Estimated Administrative Cost to Government
It is anticipated that no extraordinary costs to government will arise as a
result of the proposed Act.
2
Southern Moreton Bay Islands Development
Entitlements Protection Bill 2004
Consistency with Fundamental Legislative Principles
The Act has been prepared taking into consideration fundamental
legislative principles. It is considered that the Act is consistent with
fundamental legislative principles.
There is no alternative available to the use of a regulation. The Act needs to
be put to Parliament prior to Redland Shire Council's draft IPA compliant
planning scheme being publicly notified (anticipated in October 2004).
This will assist in ensuring anyone affected by either the draft IPA planning
scheme or this proposed legislation, who wishes to make a submission to
Council during the public notification of the draft planning scheme, is more
fully informed.
Given this context, the first reason why there is no alternative available to a
regulation is that the lots zoned Conservation in the IPA compliant
planning scheme for Redland Shire cannot be definitively determined at
this stage; and further in cases of lots zoned Conservation and subject to
some drainage constraints the land owner may be able to demonstrate
subsequently that s/he is able to overcome those drainage constraints and
has a development entitlement. Therefore, the lots potentially requiring the
protection of the Act cannot be ultimately determined until Council's IPA
planning scheme is approved by the Minister for Local Government,
Planning and Women for adoption. Redland Shire Council's IPA planning
scheme is still to be publicly notified, during which time submissions may
be received and subsequently further evidence may be gathered by Council
in relation to which lots should or should not be zoned Conservation and
which lots may still be built upon. Council is required to consider all
submissions, make any changes to its draft planning scheme it considers
appropriate and re-submit it to the Minister for a second consideration of
State interests prior to the Minister's approval for Council to adopt it. The
Minister's approval can be with conditions, and these conditions provide a
further instance where the exact lots subject to a Conservation zoning in
Redland Shire Council's IPA planning scheme may change. This
Ministerial approval is expected in mid 2005, given that Council is required
to adopt its IPA planning scheme by 31 August 2005.
The second reason why there is no alternative to the use of a regulation is
that Council is currently in the process of progressing a program of
voluntary land purchases or exchanges on the SMBI to assist with its
overall SMBI conservation strategy. It is expected that this program will be
finalised in September 2004. Lots proposed to be zoned Conservation in
Redland Shire Council's IPA planning scheme but acquired by Council as
3
Southern Moreton Bay Islands Development
Entitlements Protection Bill 2004
part of this program will not require protection (and in fact should not be
protected) by the Act.
Consultation
Consultation has been undertaken with Crown Law; the Department of the
Premier and Cabinet; Queensland Treasury; the Department of Local
Government, Planning, Sport and Recreation; the Department of Natural
Resources, Mines and Energy; the Environmental Protection Agency and
the Department of Emergency Services.
The Office of the Queensland Parliamentary Counsel has prepared the Act.
Notes on Provisions
Short Title
Clause 1 sets out the short title of the proposed Act as the Southern
Moreton Bay Islands Development Entitlements Protection Act 2004.
Definitions--the dictionary
Clause 2 outlines that a dictionary in the schedule defines particular terms
used throughout the Act.
Application of Act
Clause 3 provides that the Act applies for a "SMBI application", as defined
in clause 4.
What is a SMBI application
Clause 4 states a "SMBI application" is a "development application
(superseded planning scheme)". A `SMBI application' must also:
· Be an application in relation to a class 1 building (a dwelling
house as defined by the Standard Building Regulation 1993) on
"prescribed land" (see clause 5 below). (The term "in relation
to" reflects the fact that a development application under the
4
Southern Moreton Bay Islands Development
Entitlements Protection Bill 2004
superseded planning scheme may need to be for several aspects
of development such as a material change of use, and not merely
for building work).
· Be made by or on behalf of an "owner" (see clause 6 below) of
prescribed land.
· State the applicant wishes this Act to apply for the assessment of
the application.
What is prescribed land
Clause 5 states that "prescribed land" is land on the "Southern Moreton
Bay Islands" which is zoned Residential A, Comprehensive Development
or Rural Non Urban immediately before the commencement of Redland
Shire Council's IPA planning scheme (as defined). However such
"prescribed land" must also be contained entirely within the Conservation
zone of the first IPA planning scheme for the Redland Shire and be
prescribed under a regulation under this Act. Not all former Residential A,
Comprehensive Development or Rural Non Urban-zoned lots contained in
the Conservation zone will be prescribed under the regulation, reflecting
the fact that (based on detailed investigation undertaken by Council) not all
these lots are capable on engineering grounds of development for a
dwelling house. Owners of such lots will still be able to avail themselves
of the normal arrangements under the IPA for a superseded planning
scheme application and compensation (if appropriate).
Who is an owner
Clause 6 states an "owner" of prescribed land is an individual or
individuals, legally or beneficially entitled to "an estate of freehold in
possession in the land" immediately before the end of the consultation
period for the Redland Shire Council's first IPA planning scheme. The
definition specifically excludes executors, administrators, trustees,
corporations and mortgagees in possession. Use of the term an "estate of
freehold" is intended to include a life estate but exclude a lease.
The effect of excluding mortgagees in possession (in addition to executors,
administrators and trustees) from the definition of "owner" is that if a
dwelling is not complete, and the mortgagee wishes to sell the partially
built house, the development approval will not flow on to a subsequent
purchaser. In order for the house to be completed under the existing
5
Southern Moreton Bay Islands Development
Entitlements Protection Bill 2004
development approval, construction of the house would need to be
completed prior to sale.
Modified application of Integrated Planning Act 1997
Clause 7(1) states that for assessing and deciding a SMBI application,
sections 3.2.5 (1)(b) and (3)(b) of the IPA do not apply.
Section 3.2.5(1)(b) of the IPA states that where an applicant seeks to have
the superseded planning scheme apply to a development application, an
acknowledgement notice must state that a development permit is required
for the application. The Act precludes the requirement for such a
statement.
Section 3.2.5(3)(b) of the IPA allows a council to opt to assess a
development application (superseded planning scheme) under a new IPA
compliant planning scheme. This would detract from the intent of the Act,
which is to allow affected landowners to determine under which planning
scheme (superseded or current) they wish to make a development
application.
Clause 7(2) states any development approval made under the Act lapses if
the relevant land is sold or transferred to an individual (other than another
"owner" of the land) before a final inspection certificate under the Standard
Building Regulation 1993 is issued. This provision applies despite section
3.5.28 of the IPA providing development approvals attach to the land the
subject of the approval. In the event a final inspection certificate has not
been issued, a subsequent purchaser of the land (who does not constitute an
"owner" under the Act) will be required to apply for further development
approvals to complete construction of the dwelling. Any application in this
regard will be made under Redland Shire Council's IPA planning scheme
unless the ability to make a development application (superseded planning
scheme) still applies under the IPA.
Clause 7(3) states that section 5.5.1 of the IPA does not apply unless all
"owners" of the land enjoying the protection of the Act agree to have it
apply. Section 5.5.1 of the IPA effectively allows local governments to
compulsorily acquire land under the Acquisition of Land Act 1967 to effect
achievement of "desired environmental outcomes" contained within their
planning scheme. Its application without the agreement of all "owners"
would detract from the intent of the Act.
The Act is not intended to limit the application of other legislation, other
than in the manner explicitly identified.
6
Southern Moreton Bay Islands Development
Entitlements Protection Bill 2004
Certain IPA rights unaffected
Clause 8 clarifies an "owner" to whom the Act applies can claim
compensation under section 5.4.3 of the IPA, if they have not made a
"SMBI application" under the Act.
Section 5.4.3 (together with section 5.4.8) of the IPA applies if the only
purpose for which land can be used under a new planning scheme is a
public purpose, and effectively allows the owner of the land to directly seek
compensation or the purchase of their land without first having to submit a
development application (superseded planning scheme). It is not intended
that the Act negate this option in the event that the Redland Shire Council's
IPA planning scheme has such an effect for "prescribed" land.
Council may buy land at any time
Clause 9 clarifies the Redland Shire Council may still purchase land that is
the subject of protection afforded by the Act. This provision clarifies
circumstances where SMBI land owners may voluntarily wish to sell their
land to Council.
Regulation-making power
Clause 10 clarifies the Governor in Council may make regulations under
this Act.
Schedule
The schedule to the Act contains definitions necessary for interpretation of
the Act. Most of the definitions refer to defined terms in the IPA.
Of note, however, is the definition of "development application
(superseded planning scheme)" which, while intended to apply for
development applications under the IPA in the same way as a development
application (superseded planning scheme) defined under schedule 10 of the
IPA, contains one key difference from that definition. This is that the 2
year period within which application may be made mentioned in the IPA
definition is extended to 10 years under the Act.
© State of Queensland 2004