海角社区

Planning Scheme Drafting for the Future

Thursday 12.15pm-1.15pm

Stuart Macnaughton and Rachel Jones M海角社区

It’s long been accepted by the Courts that although Planning documents have the force of law, they are not drawn with the precision of an Act of parliament. Yet, we find ourselves in circumstances where principles of statutory interpretation are increasingly being applied to planning schemes. Coupled with the significant change to the assessment regime (with the introduction of the Planning Act) and the decisions of Ashvan, Abeleda and Murphy, Councils are finding that the Planning Scheme as a primary document to guide development in Queensland, is losing its primacy. Indeed, recent Court decisions indicate that the Court appears to be favouring an absence of adverse impacts over planning scheme requirements.

While this is a win for performance-based planning advocates, for Councils looking to manage community expectations and plan necessary infrastructure (including budgeting requirements) this presents a significant challenge. This is only exacerbated when Council’s are operating on the basis of a Planning Scheme drafted for the ‘conflict and grounds test’, and attempting to retrofit the application of an older Scheme into the new assessment regime.

Many Councils are in the process of reviewing their planning schemes and are seeking to make changes to address the ‘new’ assessment regime and ensure that their Planning Scheme – if challenged in Court, is upheld. This workshop will assist with those drafting planning schemes; to ensure that they address the current approach of the Court and have regard to basic principles of statutory interpretation.

This workshop will comprise of three components:

1. a back to basics on statutory interpretation;
2. recent approaches to Scheme interpretation by the Planning and Environment Court; and
3. an opportunity for active participation by delegates (by breaking into small groups of 5 or 6) to identify poorly drafted provisions of schemes – what is wrong with them and how they could be fixed, and an opportunity to draft scheme provisions.