Last updated 14 September 2020
The Planning Act
The Planning Act 2016 (Qld) (Planning Act) is the principal law regulating planning and development in two main ways:
- It provides a framework for local governments to prepare planning schemes and for the state government to prepare regional and statewide planning instruments.
- It provides a process by which development applications are assessed on their merits, usually by reference to a planning scheme and other planning instruments such as state planning policies. This process is known as the development assessment process.
What is a planning scheme?
Planning schemes are documents prepared by local governments to plan for the future development of their local government areas. They allocate land for different uses (e.g. housing, industry and agriculture), provide for infrastructure (e.g. roads and sewerage) and protect the natural environment and quality of life in those areas. They are legally binding documents that affect private rights to use land.
While statewide and regional planning documents provide important layers of planning above local government planning schemes and can override them in some cases, the bulk of detailed planning controls are found at the local level. For this reason, local government planning schemes contain the bulk of rules and other measures that affect the use and development of land at a day-to-day level.
Local government planning schemes can be very complex. They typically include:
- a strategic plan that sets out the broad objectives and future planning intent of the local government area
- tables of assessment that identify the categories of development, the category of assessment and the assessment benchmarks for assessable development within the planning scheme area
- zoning plans that apply to the whole local government area and describe the purpose, location and other planning provisions for specific areas such as a low-density residential zone, a conservation zone or an industry zone
- local or neighbourhood plans, which indicate the purpose, location and other planning provisions for areas such as the town centre or a particular suburb where a special character or integrity is to be developed or maintained
- overlays that identify areas with particular issues such as bushfire or flooding risk
- development codes that identify the assessment benchmarks and other requirements for particular planning issues such as landscaping, storm water management or biodiversity
- planning scheme policies that set out the policies that the local government will adopt in addressing particular issues such as cultural heritage protection
- a local government infrastructure plan that sets out future planning for public infrastructure for matters such as sewerage, water supply and parklands, and the calculation of infrastructure charges associated with them.
The following images from the Brisbane City Council’s website show an aerial image for an area in Brisbane and the corresponding map of zones under the planning scheme for the area and extracts from the key to this map. Note how the development of the area (residential below the creek line and industrial above it) corresponds with its zoning. (Click to see full-size images)
The planning scheme typically reflects the historical reality of development in an area as well as constraining future development to be consistent with what is permitted by the planning scheme.
It is common to find statements in different parts of a planning scheme that appear to conflict (e.g. support for economic development and protection of the environment). A sensible, practical approach should be adopted when interpreting a planning scheme, and it should not be read too narrowly or pedantically.
An example of the relevant principles to be applied when interpreting a planning scheme and exercising the discretion for approval of impact assessable development under the Planning Act is Ashvan Investments Unit Trust v Brisbane City Council  QPEC 19.
A lecture explaining how planning schemes regulate development in Queensland is available from a workshop on A guide through the maze of planning law in Queensland:
Preparation of planning schemes
A local government must prepare and amend its planning scheme by following the process established in the Minister’s Guidelines and Rules made under the Planning Act. Adoption of a new planning scheme or major amendments to an existing planning scheme require, amongst other things:
- state interest review
- public consultation.
Submission about a planning scheme
During public consultation about a new planning scheme or major amendments to an existing planning scheme, any person can make a submission to the local government.
A fundamental principle of planning law in Queensland is that development should be consistent with the relevant planning scheme and any other relevant layer of government planning (e.g. a regional plan and state planning policies).
If a person wishes to have a particular local area protected, they should ensure it is recognised in the preparation of any planning scheme for the area. If environmental values are not recognised or protected in the relevant planning scheme, it is generally too late in the process to fight against a development proposal that is otherwise consistent with a planning scheme in force for the area.
Therefore, it is important to make a public submission during the preparation or review of any planning scheme to protect the environmental values of the local area. Reviews of planning schemes are advertised by local governments on their websites and in local news outlets.
The focus of a submission
Submissions about draft planning schemes will be most persuasive if they are clear, logical and based on evidence. There should be a focus on the particular things sought to be changed in the draft planning scheme, and the submission should be as specific as possible. As a general checklist, ask a few questions:
- Is the draft planning scheme clear and able to be understood by members of the general public? If it is not easily understood, the lack of clarity may allow unwanted development to occur.
- Does the draft planning scheme clearly identify and protect areas and places that should be protected through clear assessment benchmarks and mapping? This is a critical issue.
- Is the development, that may be contentious and that the public should be notified of and able to make submissions on, made ‘impact assessable’?
- Are the development codes clear, specific and understandable? Do they control development appropriately?
Formal requirements for a submission
Only a properly made submission must be considered by a local government in making or amending its planning scheme. Such a submission must:
- be in writing
- be signed by every person making the submission
- be received on or before the last day of the consultation period
- state the name and address of every person making the submission
- state the grounds of the submission and the facts and circumstances relied on in support of the grounds
- be made to the relevant local government.
A useful factsheet on making effective submissions on a planning scheme is available from the Environmental Defenders Office (EDO).
While local government planning schemes continue to provide the bulk of detailed regulation of land use and development, regional plans provide an additional layer of planning that can be important in some cases, particularly where development is proposed outside existing urban areas.
Regional plans are quite broad, but they override local government planning schemes to the extent that they are inconsistent.
Importantly, the South-East Queensland Regional Plan 2017 provides a footprint within which urban development must be contained to address concerns about urban sprawl.
State planning policy
The Planning Act allows state planning policies to be made about matters of state interest. These policies have a legally binding effect and must be appropriately reflected in any subsequent planning schemes. They may also need to be considered when individual applications for development approval are being decided.
A single state planning policy 2017 deals with 17 state interests grouped in five themes:
- liveable communities and housing
- economic growth
- environment and heritage
- resilience to hazards.
State plans for large residential and industrial areas
While relatively rare, some state-level plans override local government planning schemes for large residential and industrial developments.
Special state-level planning also applies to state development areas declared under the State Development and Public Works Organisation Act 1971 (Qld), such as the Gladstone State Development Area.
Some large projects even have their own legislation providing special planning arrangements, such as the Townsville Zinc Refinery Act 1996 (Qld).