Queensland planning laws risk alienating communities, expert warns

Queensland’s planning laws are alienating the very communities they are meant to serve, an expert warns.

In her new book on the state’s planning legislation, Griffith Law School academic Philippa England warns the laws have created an increasingly disparate planning landscape that risks leaving communities behind.

Planning laws mean many development applications can be approved with no public consultation.Credit: Tammy Law

The recent case of a resident taking Brisbane City Council all the way to the Court of Appeal over the proposed “champagne flute” development in Toowong was just one example of the frustrations residents felt in trying to have their voices heard, Dr England said.

Her book, Planning in Queensland: Law, Policy and Practice, is a revised version of her original text on the subject she teaches at Griffith.

Dr England updated the book in the past to focus on understanding the legislation but said in the latest edition she had looked increasingly at the impact on Queensland communities.

“This time round ... I just feel this discontent in the community, that things are going too far,” Dr England said.

“I guess this is in a context where we’re seeing the corruption scandals in local government and now we’re also seeing complaints about the building regulatory authorities.

“It’s all part of the same thing.”

Dr England said the seeds of discontent had been sown as far back as 1997 when performance-based legislation was introduced for developments, sparking expert warnings it could favour developers over communities.

More than 20 years on, she said, those warnings were manifesting.

“I do think the latest legislation - 2016 brought into effect in 2017 - has enabled and pushed councils in the directions of making this worse, not better,” Dr England said.

“And now you’re getting the backlash.”

Dr England cited Brisbane City Council’s recently announced ban on townhouses in low-density-zoned suburbs as an example of a council’s “knee-jerk” reaction in the face of community frustration.

“I think we’ve swung too much in favour of code-assessable development,” she said.

“Once you get into code-assessable development you’re almost under an obligation to approve a development application, whether or not it fits with the site and whether or not there’s a public uproar or not.

“There’s not a lot even council can do about it, let alone the public.”

A code-assessable development application is assessed against the local planning scheme codes and may also need to be assessed against state legislation. The public has no notification and no right of appeal.

Dr England gave the recent example of Maleny State School on the Sunshine Coast, where a code-assessable development application for a large-scale fuel stop was approved directly opposite the school.

This was despite strong community concern and a campaign against the application, which Sunshine Coast Council approved in April.

In contrast, an impact-assessable development is broader and often used for more controversial or higher-impact proposals.

Those applications are assessed against the local planning schemes and state legislation.  But Dr England said assessors would also have to take into account submissions from the public and could assess the development against the overall strategic framework for the legislation.

Bell v Brisbane City Council, the case that won a final appeal against the Toowong development, was an impact-assessable development.

That Court of Appeal judgment noted the judge in the original case had not properly recognised the overall aim of planning legislation that required “both a community need and an economic need for the development”.

Dr England said with no ability to appeal a code-assessable development application, the community was left out of the decision-making process.

That meant sensible or practical solutions were often lost and the experience and input of residents who knew their own homes best was wasted.

“There should be a more genuine attempt to deal with public sentiment at that early stage, not just setting everybody up for a conflict,” she said.

Dr England said councils were often fearful of being dragged through the court system if they refused an application but in reality most courts backed up the councils if they had a serious belief there were concerns with a development application.

She warned the end result of community frustration with planning laws would be felt throughout society - at the polls and in homes as green space was reduced, unwelcome developments were approved and “disjointed streetscapes” emerged.

“I think it’s going to be a battleground in the suburbs," she said.

"I don’t feel positive for the timber and tin. There’s just not enough regulation out there."