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Sustainable Planning (Housing Affordability and Infrastructure Charges Reform)
Amendment Bill 2011
Sustainable Planning (Housing
Affordability and Infrastructure Charges
Reform) Amendments Bill 2011
Explanatory Notes
Short title
The short title of the Bill is the Sustainable Planning (Housing
Affordability and Infrastructure Charges) Amendment Bill 2011.
Policy objectives and the reasons for them
The objectives of the Bill are to:
1. Enable the establishment, through a State planning regulatory
provision (SPRP), of a new "adopted infrastructure charge" for trunk
infrastructure;
2. Suspend the collection of infrastructure charges under the Sustainable
Planning Act 2009 (SPA), chapter 8, part 1, division 4, and regulated
infrastructure charges under SPA, chapter 8, part 1, division 5 and the
collection of charges for Distributor-retailers under chapter 9 part 7A,
in favour of the new adopted infrastructure charge (for local
governments) and a new charge for water and waste water services
based on the adopted infrastructure charge (for Distributor-retailers);
3. Allow for the operation of some aspects of development sequencing,
benchmarking and price signalling already provided for under SPA in
relation to the new adopted infrastructure charge, pending completion
by local governments of their priority infrastructure plans;
4. Amend the Local Government Act 2009 (LGA09) to continue
implementation matters ancillary to certain local government
boundary changes determined under the repealed Local Government
Act 1993 and implemented under the LGA09; and
5. Amend the Building Act 1975 to provide an extension, for pool
owners to register their swimming pool with the Department of Local
Government and Planning.
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In responding to the final report (March 2011) of the Infrastructure Charges
Taskforce, the Queensland Government committed to introducing a
maximum infrastructure charge to apply throughout Queensland as an
interim arrangement for three years, pending development of long term
reforms to the infrastructure charging framework under SPA.
Achievement of policy objectives
To achieve its objectives, the Bill:
1. provides for a SPRP to:
· establish a new "maximum adopted infrastructure charge" for
trunk infrastructure under an "adopted infrastructure charges
schedule"; and
· depict priority infrastructure areas for individual local
governments, to allow for continuation of a basic form of
development sequencing pending completion of local
government priority infrastructure plans.
2. allows for local governments to pass a resolution to:
· increase (up to the maximum adopted infrastructure charge),
reduce or dispense with the adopted infrastructure charge; and
· provide additional information supporting the charge and related
sequencing arrangements.
3. modifies existing charging arrangements for distributer retailers under
the South East Queensland Water (Distribution and Retail
Restructuring) Act 2009 and SPA to apply a charge based on the
adopted infrastructure charge; and
4. amends the LGA09 to continue implementation matters ancillary to
certain local government boundary changes; and
5. amends the Building Act 1975 to provide an extension until 4
November 2011, or another date prescribed as under a regulation, for
pool owners to register their swimming pool with the Department of
Local Government and Planning.
This approach is a reasonable and proportionate means of achieving the
objectives of the Bill. Existing arrangements within SPA are insufficient to
facilitate introduction of a maximum infrastructure charging system. The
new arrangements mirror existing charging mechanisms in SPA to a degree
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appropriate to achieving the objects of the legislation while minimising
disruption to the scheme of the Act, and consistent with the government's
response to the Infrastructure Charges Taskforce Final Report (Taskforce
Report.
Achieving the objectives in relation to charging arrangements
in South East Queensland
In South East Queensland (SEQ), local governments only levy
infrastructure charges for three of the infrastructure networks (local roads,
stormwater and community facilities/parks) with Distributor-retailers
responsible for water and wastewater networks. Some changes are
necessary to achieve the policy objective for adopted infrastructure charges
for local government and Distributor-retailers in SEQ.
Part of the institutional changes for water supply in SEQ was the creation
of three new Distributor-retailers, each owned by a cluster of local
governments. The Distributor-retailers are Unitywater (owned by Sunshine
Coast and Moreton Bay); Queensland Urban Utilities (owned by Brisbane,
Ipswich, Somerset, Scenic Rim and Lockyer Valley); and Allconnex Water
(owned by Gold Coast, Logan and Redland).
The water and wastewater distribution networks previously owned by each
council moved to the relevant Distributor-retailer, which plans and owns
infrastructure and provides distribution and retail water and wastewater
services to the areas of their owner councils. Distributor-retailers rely on
revenue from water and wastewater services (i.e. user charges and
infrastructure charges), to fund their operations and build infrastructure.
For an interim 3 year period to 1 July 2013, Distributor-retailers are
operating under a variation of development and compliance assessment
under the SPA. Local governments are using powers delegated from
Distributor-retailers to undertake assessment of a development's impact on
the Distributor-retailer's water and wastewater networks and services, on
behalf of the Distributor-retailers. While a local government issues a
development approval or compliance permit, the relevant
Distributor-retailer has the powers to set infrastructure charges for an
approved development.
Therefore, while the Bill provides for applying an adopted infrastructure
charges regime to Distributor-retailers, this regime will only apply for the
remainder of the interim period for Distributor-retailers which ends at 30
June 2013. From 1 July 2013, the Distributor-retailers will no longer be
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operating under the SPA for assessment of the water and wastewater
components of development applications. It is intended to legislate to
provide the Distributor-retailers with separate powers to assess and approve
applications to connect to their infrastructure networks in place of
development applications or requests for compliance assessment.
Therefore it is intended that the new infrastructure charging regime ceases
to have effect on Distributor-retailers from 1 July 2013.
The Bill provides that the SPRP may set out the arrangements for a
proportional split of an adopted infrastructure charge between a
Distributor-retailer and the relevant local government for the period ending
30 June 2013. Distributor-retailers may, under the Bill, effectively levy a
charge for their water and wastewater services separate from the adopted
infrastructure charge. The minimum and maximum amounts a
Distributor-retailer can levy will be determined having regard to the
adopted infrastructure charges framework, and apportionment
arrangements agreed between the Distributor-retailer and the relevant local
government, or, in the absence of an agreement, stated in the SPRP.
However, SEQ local governments have been given the opportunity to opt
out of Distributor-retailers and re-establish their local government's water
and wastewater businesses - with a decision on this matter to be provided
to the Government by 1 July 2011. Should any local government wish to
opt out, the State Government intends to implement this via amendments to
the South East Queensland Water (Distribution and Retail Restructuring)
Act 2009 in early 2012, with any new local government water and
wastewater businesses to be in place by 1 July 2012. The Queensland
Competition Authority will continue to monitor the price setting (both
infrastructure charges and user/consumption charges) by
Distributor-retailers, and it is intended to apply this to any local
government's that re-establish their water and wastewater businesses. Any
changes needed to ensure the adopted infrastructure charges regime
continues to apply to all water and wastewater service providers in SEQ,
would be provided for in the 2012 Bill.
Achieving the objectives in relation to Local Government Act
2009 (LGA09) amendments
The objectives of the LGA09 are to continue implementation matters
ancillary to certain local government boundary changes determined by the
Local Government Electoral and Boundaries Review Commission (the
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Commission) under the repealed Local Government Act 1993 (LGA93) and
implemented under the LGA09.
Before the repeal on 30 June 2010 of the LGA93, Ipswich City Council
(supported by Scenic Rim Regional Council) and Wujal Wujal Aboriginal
Shire Council (supported by Cook Shire Council) made, on 18 May 2010
and 2 June 2010 respectively, application to the Commission to change
their external boundaries under the LGA93. The Commission determined
that the boundaries be changed under the LGA93 and the boundary
changes were implemented under the LGA09.
During the drafting of the regulations to provide for the Ipswich/Scenic
Rim and Wujal Wujal/Cook boundary changes, the Office of the
Queensland Parliamentary Counsel (OQPC) advised that the LGA09 does
not give power to make a regulation to provide for ancillary
implementation matters as was previously provided for under the LGA93.
Implementation matters include the transfer of ownership of Local
Government assets, such as any material associated with a road or a bridge,
and the continuation of planning schemes for persons affected by the
boundary changes.
OQPC advised that two regulations were required. The regulations made
on 17 September 2010, amended the Local Government (Operations)
Regulation 2010 to give effect to the Ipswich/Scenic Rim and Wujal
Wujal/Cook boundary changes and the Local Government (Transitional)
Regulation 2010 (2010 Transitional Regulation) dealt with implementation
matters ancillary to those boundary changes.
The head of power in the LGA09 to make a transitional regulation and
2010 Transitional Regulation will expire on 2 July 2011.
The amendments to the LGA09 continue implementation matters
necessary to facilitate the change in external boundaries between Ipswich
City Council and Scenic Rim Regional Council, and between Wujal Wujal
Aboriginal Shire Council and Cook Shire Council, following expiry of the
Transitional Regulation 2010 on 2 July 2011.
The implementation matters that are to continue in force under the LGA09
relate to actions started by the former Local Government, including the
performance of a function or the exercise of a power; assets and public
works; planning schemes; and document references.
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Achieving the objectives in relation to Building Act 1975
amendments
As part of the Queensland Government's comprehensive pool safety
improvement strategy, a requirement was introduced for swimming pool
owners to ensure their pool was registered on the State pool register. This
was to assist with pool safety improvement and education activities,
contribute to water safety research and assist Local Governments to
administer the laws by allowing them to focus their enforcement activities.
The Building Act 1975 (BA) previously required pool owners to register
their pools by 4 May 2011. A maximum penalty of 20 penalty units
(currently equivalent to $2 000) applies to homeowners for failure to
register a pool by the required date. Both State and Local Governments
have the ability to enforce these provisions under the BA.
Significant natural disasters affected the majority of the State in late 2010
and early 2011. Many swimming pool owners are expected to have
suffered significant property damage due to these disasters and it is
considered unreasonable to require these property owners to register their
pool under these circumstances. In consideration of these sensitivities, and
in order to reduce any potential impediment of community disaster
recovery, an extension of time is required for pool owners to register their
pools. The objective of the amendments is to protect pool owners who may
have been seriously affected by natural disasters from prosecution for
failing to register their pool by 4 May 2011.
Alternative ways of achieving policy objectives
The introduction of a maximum infrastructure charging framework under
the SPA framework necessitates legislative change. There are no means
under subordinate legislation, statutory instruments or administrative
arrangements to achieve a charging system with the features announced by
the Government in its response to the Taskforce Report.
Estimated cost for government implementation
Administrative costs to government in the implementation of the Bill are:
1. costs associated with the development and introduction of the SPRP
facilitating the charge, including costs in the preparation, public
consultation, evaluation of submissions, and approval and publication
of the SPRP
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2. costs associated with amending existing statutory guidelines on the
preparation of local government priority infrastructure plans to
accommodate the new charging mechanism
3. costs associated with training and development of educational
materials in relation to the introduction of the new charge
4. costs to local government in adjusting administrative systems to
accommodate the new charge, and making resolutions under the
arrangements
5. costs to local governments in terms of possible revenue forgone in
cases where funds collected through current infrastructure
charging/conditioning mechanisms exceed those obtainable under the
adopted infrastructure charge
6. costs to Distributor-retailers in terms of any adjustment to
administrative systems and of possible revenue forgone, in the same
way as would apply to a local government under the preceding two
points.
These costs will be offset by efficiency benefits obtainable through the
standardisation of charging. In particular, it will no longer be necessary for
local governments to individually develop complex infrastructure charging
schedules in support of their priority infrastructure plans. Other aspects of
priority infrastructure plans are also likely to be simplified under a
maximum infrastructure charging regime. State agencies will no longer
need to devote time and resources to the evaluation of draft Infrastructure
charges schedules.
Costs to the State government can be absorbed from within existing
departmental budgets.
The key financial benefits resulting from the Bill will benefit the
community, through improved housing affordability arising from the
introduction of a maximum infrastructure charging framework.
Changes proposed to the LGA09 are of a technical nature and there are no
costs to Government.
Consistency with fundamental legislative principles
The Rights and Liberties of Individuals
The Bill provides for a maximum infrastructure charge to be established
under a statutory instrument (a SPRP), to replace a range of charges under
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existing mechanisms, most of which are less transparent than the new
charge. The Bill provides for local governments to vary a limited number
of aspects of the charge through a publicly accountable and available
resolution, always in a manner beneficial to individuals subject to the
charge (e.g. through reducing the amount of the charge). Consequently
individuals potentially subject to the charge will always be able to ascertain
the exact amount of the maximum charge and the circumstances under
which it will apply.
The Bill introduces no new administrative decision-making processes and
no decisions under the Bill are subject to administrative discretion.
Notwithstanding this, the Bill expands existing appeal provisions under
SPA, section 478, dealing with the quantum and reasonableness of
particular charges, to include the new adopted infrastructure charge. Also,
extensive declarations and orders powers available under SPA will be
available in relation to the adopted infrastructure charge.
Natural Justice
As the Bill provides for a uniform and clearly ascertainable charge, there is
little or no scope for bias or a lack of procedural fairness in its application.
Notwithstanding this, extensive powers of review and appeal are afforded
in relation to the charge, as indicated above.
Most existing mechanisms for requiring monetary contributions for
infrastructure, which will be replaced by the charge, have considerably
greater potential for inconsistency with principles of natural justice, as they
rely on an administrative decision making processes (the Integrated
Development Assessment System (IDAS) under SPA, chapter 6).
Delegation
The Bill does not provide for delegation of administrative decision-making.
Consequently any delegation of administrative decision-making powers
would be within the established frameworks under the relevant Acts
amended by the Bill.
Onus of Proof
The Bill does not provide for the reversal of onus of proof in criminal
proceedings.
Powers of Entry
The Bill contains no powers of entry, search or seizure.
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Self-incrimination
The Bill does not affect existing protections against self-incrimination.
Retrospectivity
The Bill contains no provisions with direct retrospective affect.
The Bill introduces a new infrastructure charging mechanism which will
replace three other existing mechanisms. As charges under SPA are levied
in relation to development approvals, a situation could arise where a
development application has been made but not decided on the day the new
charging arrangements commence. In these circumstances the new
charging arrangements will apply to any development approval given after
the commencement of the arrangements.
Immunity from proceeding or prosecution
The Bill does not confer immunity from proceeding or prosecution.
Compulsory Acquisition with fair compensation
The Bill does not provide for compulsory acquisition. Clause 17 (section
648H(2)) provides for a local government, in addition to or instead of a
charge notice, issue a notice requiring the giving of land in fee simple in
lieu of a charge. The value of the land required under the notice cannot
exceed the value of the charge. This accommodates circumstances where
trunk infrastructure to which the charge will be applied is located on the
premises subject to the application (for example parkland). This is a
longstanding legislative arrangement in respect of existing charging
mechanisms and does not amount to compulsory acquisition, the taking of
the land is in lieu of a statutory charge, and the owner has a choice about
whether or not to develop the premises, and hence whether the land is
taken.
Clarity
The infrastructure funding framework under SPA is complex, as it deals
with complex costing and funding mechanisms within a framework of
competitive neutrality, transparency and fairness. The new adopted
infrastructure charge has been designed to be consistent as far as possible
with existing charging mechanisms under SPA, with which users are
already familiar.
All key terms are clearly defined and each new definition affords an
accurate précis of the meaning of the term it defines. As far as possible
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existing defined terms have been used, or if necessary, adapted or expanded
for the purposes of the Bill.
Rights and Liberties Generally
The Bill provides for a charge to be imposed to fund trunk infrastructure
made necessary by development approved under a development approval
or compliance permit. It also extends existing arrangements for applicants
to be required, through a condition of the approval, to mitigate additional
costs imposed due to unanticipated or out-of-sequence development.
The Bill contains extensive provisions to ensure that these arrangements
work in a fair, equitable and proportionate way. For example:
· To the extent the Bill abrogates rights to the enjoyment of property
through imposing a charge, this is only in the context of the conferral
of a significant benefit to the owner in the form of a development
approval. If rights under the approval are not exercised, the Bill
requires the charge to be refunded. The Bill requires the charge to be
applied to fund trunk infrastructure to service development generally,
so cannot be applied to fund items unrelated to the benefit obtained
through the approval.
· The amount of the maximum adopted charge will be clearly
articulated in the SPRP, and will be capped.
· There are extensive, consistent and transparent means of determining
and applying the charge.
· The Bill provides for extensive rights of review and appeal against the
calculation and application of the charge.
· As additional cost requirements form a condition on a development
approval, there are extensive rights of merit based appeal available.
The Bill allows for the Minister to escalate the maximum charge under the
SPRP by an annual amount no greater than the three year rolling average of
the Australian Bureau of Statistics PPI Construction Index (Queensland
Roads and Bridges). This effectively amends the SPRP without applying
the normal consultation arrangements under the SPA. SPA already contains
similar arrangements with respect to infrastructure charges schedules (see
SPA, section 631(3)) reflecting widely accepted expectations that costs will
rise annually generally in line with inflation.
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Consultation
SPA amendments
The Bill reflects the recommendations of the Infrastructure Charges
Taskforce established in response to the outcomes of the 2010 Growth
Summit. The Taskforce's composition was representative of a broad range
of interests including the development industry, finance sector, local
government and State agencies.
The Taskforce presented an interim report, which was released for public
consultation on 18 November 2010, with the final day for submissions
being 15 December 2010. Seventy-three submissions were received and
were considered by the Taskforce in presenting its final report.
A key vehicle for setting the amount of the charge under the Bill is a SPRP.
SPA requires SPRP's to be subject to public consultation for at least 30
business days, ensuring the final proposed charge rates under the Bill will
be subject to further public scrutiny.
LGA09 amendments
As the amendments to the LGA09 are technical in nature and continue
existing implementation matters for the Ipswich/Scenic Rim and Wujal
Wujal/Cook boundary changes, no consultation has been undertaken.
BA amendments
Members of the Pool Safety Council have been consulted and support the
proposed amendment to the BA.
Consistency with legislation of other jurisdictions
There is no national scheme in relation to the matters covered by the Bill.
All other State jurisdictions make legislative provision for funding of trunk
infrastructure through development charges or contributions, however there
is no consistency in approach between States.
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Notes on provisions
Part 1 Preliminary
Short Title
Clause 1 states the short title of the Bill. The title reflects the important role
of simple, transparent and fair infrastructure charging in contributing to
housing affordability.
Commencement
Clause 2 states that Part 3 commences on 2 July 2011.
The amendments to the Sustainable Planning Act 2009 will commence on
assent, but will not have substantive effect until the SPRP mentioned in the
provisions takes effect. Early commencement will, however, allow for the
preparation of the SPRP, the making of adopted infrastructure charges
resolutions (see new section 648C) by local government, the entering into
of agreements between participating local governments and
Distributer-retailers, and for necessary administrative arrangements to be
put into effect before the commencement of the SPRP.
Part 2 Amendment of the Building Act
1975
Act amended
Clause 3 states this part amends the Building Act 1975.
Amendment of s 246AR (Owner's obligation to give notice of
existing regulated pool)
Clause 4 will extend the period in which the owner of a swimming pool
must give the Chief Executive of the Department of Local Government and
Planning details of that pool. The deadline will be extended from 4 May
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2011 to a date prescribed by Regulation. The amendment takes effect from
4 May 2011. In the event that the Bill is passed by the House, it is the
intention of the Government to recommend that a regulation be made to
extend the pool registration date to 4 November 2011.
This amendment was introduced in light of the natural disasters that
affected the majority of the State in late 2010 and early 2011. It was
intended to reduce any impediment of community disaster recovery.
Insertion of new ch 11, pt 12
Clause 5 prohibits the starting or continuation of a proceeding against a
pool owner under the pre-amended section 246AR of the BA for failing to
notify the Chief Executive of details of their pool.
The intention of the clause is to ensure that pool owners are protected from
prosecution in the period between 4 May 2011 and the commencement of
the amendments to clause 246AR explained in clause 4.
Part 3 Amendment of Local
Government Act 2009
Act amended
Clause 6 states this part amends the Local Government Act 2009.
Insertion of new ch 10
Clause 7 inserts new chapter 10 (Transitional provision for Sustainable
Planning (Housing Affordability and Infrastructure Charges Reform)
Amendment Act 2011) and new section 293.
New section 293 continues in force implementation matters required to
facilitate the change in external boundaries between Ipswich City Council
and Scenic Rim Regional Council, and between Wujal Wujal Aboriginal
Shire Council and Cook Shire Council following expiry of the Local
Government (Transitional) Regulation 2010 on 2 July 2011.
Before the repeal on 30 June 2010 of the Local Government Act 1993,
Ipswich City Council (supported by Scenic Rim Regional Council) and
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Wujal Wujal Aboriginal Shire Council (supported by Cook Shire Council)
made, on 18 May 2010 and 2 June 2010 respectively, application to the
Local Government Electoral and Boundaries Review Commission (the
Commission) to change their external boundaries under the Local
Government Act 1993. The Commission determined that the boundaries be
changed under the Local Government Act 1993 and the boundary changes
were implemented under the Local Government Act 2009.
On 17 September 2010, the Local Government (Operations) Regulation
2010 was amended to give effect to the Ipswich/Scenic Rim and Wujal
Wujal/Cook boundary changes and the Local Government (Transitional)
Regulation 2010 was made to deal with implementation matters ancillary
to those boundary changes. The head of power in the Local Government
Act 2009 to make a transitional regulation and the Local Government
(Transitional) Regulation 2010 will expire on 2 July 2011.
The implementation matters provided for under new section 293 relate to
actions started by the former local government, including the performance
of a function or the exercise of a power; assets and public works; planning
schemes; and document references.
Part 4 Amendment of Sustainable
Planning Act 2009
Act amended
Clause 8 states this part amends the Sustainable Planning Act 2009.
Amendment of s 20 (Power to make State planning regulatory
provision)
Clause 9 adds a reference to an adopted infrastructure charges schedule to
the existing infrastructure charging mechanisms which a SPRP can provide
for stated under section 20.
Amendment of s 185 (Representations about conditions and
other matters)
Clause 10 includes a reference to adopted infrastructure charges notices
and negotiated adopted infrastructure notices to existing arrangements for
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giving new charges notices when an applicant makes successful
representations resulting in a change to a decision notice for a development
approval.
Amendment of s 282 (Referral agency assesses application)
Clause 11 adds a reference to an adopted infrastructure charges resolution
to the matters a referral agency, with relevant jurisdiction, can assess.
Amendment of s 313 (Code assessment - generally)
Clause 12 adds a reference to an adopted infrastructure charges resolution
to the matters an assessment manager can assess when carrying out code
assessment. As for a priority infrastructure plan (which is part of a planning
scheme), this would provide a basis for the assessment manager to impose
any relevant conditions under chapter 8, part 1, divisions 6 or 7, dealing
with necessary trunk infrastructure or additional costs for development
outside a priority infrastructure area.
Amendment of s 314 (Impact assessment - generally)
Clause 13 adds a reference to an adopted infrastructure charges resolution
to the matters an assessment manager can assess when carrying out impact
assessment. As for a priority infrastructure plan (which is part of a planning
scheme), this would provide a basis for the assessment manager to impose
any relevant conditions under chapter 8, part 1, divisions 6 or 7, dealing
with necessary trunk infrastructure or additional costs for development
outside a priority infrastructure area.
Amendment of s 364 (Giving new infrastructure charges notice
or regulated infrastructure charges notice)
Clause 14 adds a reference to an adopted infrastructure charges notice to
arrangements for a local government to give a new notice, if development
in a negotiated decision notice differs from that originally approved to such
an extent that the amount payable under the relevant charges notice is
changed.
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Amendment of s 388 (Deciding request)
Clause 15 amends the current reference to an infrastructure charge to a
charge under chapter 8 part 1. This encompasses both regulated
infrastructure charges, and the new adopted infrastructure charge, in
addition to the existing reference to infrastructure charges. The clause
provides for assessment managers to consider the current policy and
charging environment when assessing a request to extend the currency of a
development application. It is appropriate for this consideration to
encompass charging liabilities under any of the existing charging
mechanisms, as well as the new adopted infrastructure charge.
Amendment of s 478 (Appeals about particular charges for
infrastructure)
Clause 16 adds a reference to the adopted infrastructure charge to existing
appeal provisions for the Planning and Environment Court in relation to
charges. Section 478(5) is replaced, reflecting the inclusion of adopted
infrastructure charges, and a change in the reference to "the methodology"
to "any methodology". The latter change reflects the possibility that either
a regulated infrastructure charge or an adopted infrastructure charge may
not necessarily be established according to a "methodology" but may
simply be stated in a regulation or SPRP respectively.
Amendment of s 535 (Appeals about charges for infrastructure)
Clause 17 makes similar changes to those in the previous clause in relation
to Building and Development Dispute Resolution Committees.
Insertion of new chapter 8, pt 1, div 2A
Clause 18 inserts a new division 2A in chapter 8, part 1, consisting of a
new section 626A. This section provides for powers to impose conditions
for the supply of certain development infrastructure similar to those for
"non-trunk" infrastructure in the preceding section 626. The new section
626A will apply in circumstances where there is no priority infrastructure
plan or adopted infrastructure charges resolution identifying trunk
infrastructure for the relevant local government area.
Current section 626 relies on there being a priority infrastructure plan in
effect identifying trunk infrastructure. That section provides that a
condition can require provision of infrastructure not identified as trunk
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infrastructure in a priority infrastructure plan (non-trunk infrastructure) in
circumstances set out in that section.
Unlike existing charging mechanisms, the new adopted infrastructure
charge may be applied in circumstances where there is no priority
infrastructure plan, or adopted infrastructure charges resolution identifying
trunk infrastructure. For consistency with existing charges, which must be
applied to "trunk infrastructure", the definition of "trunk infrastructure" in
schedule 3 has been amended to state that, where there is no priority
infrastructure plan or adopted infrastructure charges resolution, "trunk
infrastructure" means all development infrastructure, excluding
infrastructure that has been required to be supplied under the limited
circumstances set out in section 626A (primarily infrastructure internal to
the premises). In this context "non-trunk" infrastructure is defined
progressively as such conditions are imposed and not identified beforehand
in a priority infrastructure plan, as with the current arrangements.
Amendment of s 629 (Funding trunk infrastructure for local
governments)
Clause 19 amends section 629 by inserting a reference to division 5A.
Insertion of new chapter 8, pt 1, div 5A
Clause 20 inserts the following new sections providing for the adopted
infrastructure charge -
Section 648A (Meaning of adopted infrastructure charge) - defines an
adopted infrastructure charge for trunk infrastructure.
Section 648B (Charges for infrastructure under State planning
regulatory provision) - allows for a SPRP to provide for an adopted
infrastructure charge, identify development to which the charge applies,
and include an adopted infrastructure charges schedule. The SPRP may
establish different maximum charges in different locations, or for different
types of development.
The SPRP can also include a priority infrastructure area. This is intended to
form a basis, together with aspects of an adopted infrastructure charges
resolution under section 648C for a basic form of cost impact mitigation
conditioning, similar to that available in relation to a priority infrastructure
plan.
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Section 648C (Minister may change adopted maximum charge) -
provides for the amount of the charge to be adjusted for inflation.
Section 648D (Local government may decide matters about charges for
infrastructure under State planning regulatory provision) - allows for
local governments to pass a resolution (an "adopted infrastructure charges
resolution") which may increase (up to the amount of the maximum
adopted infrastructure charge), reduce or dispense with the charge in all or
part of its local government area.
The resolution may also provide for discounting the charge to reflect the
usage of the trunk infrastructure for which the charge is levied by the
premises for which the charge is stated. This is commonly referred to as a
"credit". For example, if the development for which the charge is stated
involves six dwelling units which are proposed to replace an existing single
dwelling on the premises, a credit may be given reflecting the use of the
premises by the existing dwelling.
The resolution may include some basic information about trunk
infrastructure similar to that in a priority infrastructure plan. This
information can include the identification and costing of trunk
infrastructure networks, as a basis for conditioning for the cost impacts of
out of sequence development.
Section 648D also provides that for a participating local government under
chapter 9, part 7A, a resolution cannot:
· reduce the amount of the adopted infrastructure charge below that
which represents the Distributor-retailer's "standard amount" (see
explanatory note on clause 36 - section 755A); or
· increase the adopted charge beyond an amount equal to the sum of the
Distributor-retailer's standard amount and the local government's
"relevant proportion" of the maximum charge.
The "relevant proportion" for a local government and a Distributor-retailer
is defined in the dictionary as the proportion agreed on between the local
government and the Distributor-retailer, or in the absence of an agreement,
the proportion stated in the SPRP.
Section 648D also deals with aspects of the process for publicly notifying
the resolution.
Section 648E (When adopted infrastructure charge cannot be levied) -
states that the charge may not be levied in relation to development:
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· under particular mining, petroleum and gas legislation;
· in an Urban Development Area under the Urban Land
Development Authority Act 2007; or
· in a declared master planned area, unless a local government
adopted infrastructure charges resolution states the charge
applies for development in the area.
Section 648F (adopted infrastructure charges notices) - provides for the
levying of the charge through an adopted infrastructure charges notice, and
the process for recovering and applying the charge. These arrangements are
similar to those for regulated infrastructure charges notices under chapter 8,
part 1, division 5.
Section 648G (Limitation on adopted infrastructure charge for
participating local government) - provides that a participating local
government (i.e. a local government that is a part owner of a
Distributor-retailer and whose local government area provides part of the
Distributor-retailer's geographic area) may enter into a written agreement
with the Distributor-retailer about the proportion of the adopted
infrastructure charge that each may levy for trunk infrastructure.
The local government is then limited, when levying an adopted
infrastructure charge, to the agreed proportion of the adopted infrastructure
charge.
However, if a participating local government and the relevant
Distributor-retailer have not entered into such an agreement, the proportion
of the adopted infrastructure charge that may be levied by the local
government will be as set under the State planning regulatory provision.
An agreement between the Distributor-retailer and local government that is
entered into after the commencement of the SPRP may replace the
proportional allocation of the adopted infrastructure charge set in the SPRP.
Whether proportional allocation of the adopted infrastructure charge is set
by agreement or by default in the SPRP, either a local government or a
Distributor-retailer may decide (by local government resolution or Board
decision) to charge up to or less than their "relevant proportion" of a
maximum adopted charge. For example, if there is a maximum adopted
charge of $28 000 for particular development, with an agreed proportional
allocation of 50:50 between the local government and the
Distributor-retailer, either party may independently decide to charge up to
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their maximum allowable figure of $14 000 (ie 50% of $28 000) or set their
charge at a lower figure.
If a local government has passed an adopted infrastructure charges
resolution under section 648D which varies the adopted charge initially
established under section 648A(1)(b), the local government is limited to
charging the adopted charge less the Distributor-retailer's "standard
amount" established under chapter 9, part 7. This ensures that the amount
the local government levies is always within its proportion of the maximum
adopted charge, and does not include any amount the Distributor-retailer
may obtain, either as its "standard amount", or a greater amount decided by
the Distributor-retailer's board under section 755KA.
Section 648H (When adopted infrastructure charges are payable) -
establishes when adopted infrastructure charges are payable. These
arrangements are similar to those for regulated infrastructure charges
notices under chapter 8, part 1, division 5.
Section 648I (Application of adopted infrastructure charge) - requires
the charge to be used to fund the trunk infrastructure identified in the
adopted infrastructure charges resolution, or if there is no resolution, trunk
infrastructure generally. (In circumstances where there is no priority
infrastructure plan or adopted infrastructure charges resolution, trunk
infrastructure is defined as development infrastructure, excluding
development infrastructure supplied through a condition under section
626A).
Section 648J (Accounting for adopted infrastructure charge) -
confirms that an adopted infrastructure charge need not be held in trust.
Section 648K (Agreements about, and alternatives to, paying adopted
infrastructure charge) - provides for a person who receives an adopted
infrastructure charges notice to reach an agreement with the local
government about paying the charge at a different time than that stated in
the notice, or about supplying infrastructure instead of the charge. An
agreement under this section is an infrastructure agreement for chapter 8,
part 2. This allows for an applicant and a local government to agree in a
transparent and accountable way for the charge to be "off-set" through the
construction of physical infrastructure.
Section 648L (Adopted infrastructure charge taken to be rates) -
provides that an adopted infrastructure charge is taken to be a rate for the
purposes of recovery.
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Amendment of s 649 (Conditions local governments may
impose for necessary trunk infrastructure)
Clause 21 inserts references to adopted infrastructure charges resolutions
and adopted infrastructure charges into this section to allow for a condition
on a development approval to require extension of necessary trunk
infrastructure to the development in certain circumstances. The resolution
is intended to perform the same function as a priority infrastructure plan in
relation to this section, identifying planned trunk infrastructure as a basis
for conditions to mitigate the cost and other impacts of out of sequence or
unanticipated development.
Amendment of s 650 (Conditions local governments may
impose for additional trunk infrastructure costs)
Clause 22 adds to this section a reference to an adopted infrastructure
charge. Section 650 enables local governments to impose a condition on a
development approval to mitigate the cost of providing trunk infrastructure
to unanticipated or out of sequence development.
Section 648B allows for the SPRP establishing an adopted infrastructure
charge to also identify a priority infrastructure area for a local government
area, and section 648C allows an adopted infrastructure charges resolution
to add information relevant to the calculation of additional costs. Together
these arrangements provide a basis for imposing a condition for additional
costs under SPA, section 650(1)(a)(ii), outside a priority infrastructure area
identified in a priority infrastructure plan or the SPRP. Such a condition
could also be imposed if there was no adopted infrastructure charges
resolution identifying matters related to trunk infrastructure, but the
condition would need to be based on other information such as local
government asset management plans and may not be as sustainable as a
condition based on a resolution.
It is not intended that a condition under section 650(1)(a)(i), in relation to
unanticipated development within a priority infrastructure area, be able to
be imposed in the absence of a priority infrastructure plan, as detailed
assumptions about the type, location and timing of development required to
support such a condition would not be available under an adopted
infrastructure charges resolution. Consequently there is no proposed
amendment to section 650(1)(a)(i) referencing such a resolution.
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Amendment of s 653 (Conditions State infrastructure provider
may impose)
Clause 23 amends section 653 by adding references to an adopted
infrastructure charges resolution and adopted infrastructure charge.
Amendment of s 655 (Requirements for conditions about
additional infrastructure costs)
Clause 24 amends section 655 by omitting the term "trunk". State agencies
generally do not provide development infrastructure (which forms the basis
for the definition of trunk infrastructure). Section 653, subsections (1) and
(2), which provides the authorisation for conditions of the type mentioned
in section 655, applies to "infrastructure" and not "trunk infrastructure".
The omission of the term "trunk" in section 655 consequently provides for
consistency with section 653.
Amendment of s 659 (Sale of particular land held on trust by
local governments)
Clause 25 amends section 659 by adding a reference to an adopted
infrastructure charge. This extends the effect of this section, which requires
particular accountable processes to be followed in the sale of land obtained
for public parks infrastructure by way of a charge, to include land obtained
through an adopted infrastructure charge.
Amendment of s 660 (Definition for pt 2)
Clause 26 amends section 660 by adding references to agreements made
under new sections 648K and 648L. This characterises those agreements as
infrastructure agreements for chapter 8, part 2.
Amendment of s 665 (Infrastructure agreements prevail if
inconsistent with particular instruments)
Clause 27 amends section 665 by adding a reference to an adopted
infrastructure charges notice.
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Amendment of s 675 (Definition for pt 4)
Clause 28 amends section 675 by adding a reference to an adopted
infrastructure charges notice to the definition of "relevant appeal period" in
that section.
Amendment of s 676 (Application of pt 4)
Clause 29 amends section 676 by adding a reference to an adopted
infrastructure charges notice. The effect is to allow a person who has been
given such a notice to seek a negotiated change to the notice.
Amendment of s 678 (Consideration of representations)
Clause 30 amends section 678 by adding a reference to an adopted
infrastructure charges notice.
Amendment of s 679 (Decision about representations)
Clause 31 amends section 679 by providing for a "negotiated adopted
infrastructure charges notice" to be given as a result of representations
made under section 677.
Amendment of s 680 (Suspension of relevant appeal period)
Clause 32 amends section 680 by adding references to an adopted
infrastructure charges notice.
Amendment of s 724 (Documents local governments must keep
available for inspection and purchase - general)
Clause 33 amends section 724 by establishing a register (an "adopted
infrastructure charges register") similar to registers for existing charging
mechanisms, and inserting references to adopted infrastructure charges
resolutions.
Amendment of s 738 (Limited planning and development
certificates)
Clause 34 inserts a note after section 738 confirming that SPRP's
mentioned in this section include any relevant SPRP's establishing an
adopted infrastructure charge under chapter 8, part 1, division 5A.
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Amendment of s 739 (Standard planning and development
certificates)
Clause 35 amends section 739 by adding a reference to an adopted
infrastructure charges register.
Amendment of s 755A (Definitions for pt 7A)
Clause 36 amends section 755A by inserting new definitions for part 7A,
being "standard amount" and "standard charge day."
Amendment of s 755J (Conditions about non-trunk
infrastructure)
Clause 37 amends section 755J by adding a reference to section 626A,
which enables a local government to impose conditions under this section
about non-trunk infrastructure for a Distributor-retailer's water service or
wastewater service.
Amendment of s 755K (Funding trunk infrastructure)
Clause 38 amends section 755K to limit the scope of this section to only
charges levied by a Distributor-retailer before the "standard charge day"
when the adopted infrastructure charges regime will commence.
Insertion of new ss 755KA and 755KB
Clause 39 inserts new sections 755KA and 755KB:
Section 755KA (Distributor-retailer to decide matters about adopted
infrastructure charge) - provides that a Distributor-retailer's Board may
decide to adopt a charge for supplying water or wastewater trunk
infrastructure that is not more than the Distributor-retailer's proportional
allocation of the maximum amount for an adopted infrastructure charge.
This charge may apply to all or part of a Distributor-retailer's geographic
area. A Distributor-retailer's Board may also decide not to charge an
adopted infrastructure charge for either its water service or wastewater
service for all or part of its geographic area. The Distributor-retailer's
Board may choose to charge up to or less than its proportional allocation of
the maximum adopted infrastructure charge, irrespective of any local
government decision to charge up to or less than its proportional allocation
of the maximum adopted infrastructure charge. If the Distributor-retailer's
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Board does not decide to set the charge in this way, its "standard amount"
will apply.
Section 755KB (Funding trunk infrastructure - levying charge on and
from standard charge day) provides that a Distributor-retailer may levy a
charge for supplying trunk infrastructure for its water or wastewater
services, from the commencement of the adopted infrastructure charge
regime (i.e. on and from the standard charge day).
A Distributor-retailer and its participating local government for the area in
which the trunk infrastructure in question is supplied, can enter into a
written agreement about the proportion of the adopted infrastructure charge
that may be levied by the Distributor-retailer for the trunk infrastructure. In
that case, the Distributor-retailer may not levy a charge that is more than
the amount of the agreed proportion.
If a Distributor-retailer and its participating local government have not
entered into such an agreement, a SPRP made pursuant to section 648B
will set the proportion of an adopted infrastructure charge for the
Distributor-retailer. In that case, the Distributor-retailer may not levy a
charge that is more than the amount of the proportion set in the SPRP. In
either case, the Distributor-retailer may not levy as its adopted
infrastructure charge, a charge that exceeds the Distributor-retailer's
proportion of the maximum infrastructure charge, irrespective of whether
the participating local government resolves to charge less than or the
maximum infrastructure charge as the local government adopted
infrastructure charge.
A Distributor-retailer may give a person an adopted infrastructure charges
notice to levy its charge, but this may only be given in relation to a
development approval or compliance permit, and within specified times.
The charge is not recoverable unless the entitlements under the approval or
permit are exercised. The infrastructure charges notice lapses if the
approval or permit stops having an effect. This section also provides for
the Distributor-retailer to replace an adopted infrastructure charges notice
when a negotiated decision notice is given for a development application.
Insertion of new s 755MA
Clause 40 inserts a new section 755MA (Agreements about and
alternatives to paying adopted infrastructure charge) which provides
for a Distributor-retailer to enter into certain infrastructure agreements.
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This applies firstly where the relevant participating local government has a
priority infrastructure plan. The Distributor-retailer may enter into an
agreement varying conditions under an adopted infrastructure charges
notice or a negotiated adopted infrastructure charges notice with the person
who has been given the notice. In these circumstances, the agreement may
provide for payment of the charge at a different time or by instalments;
supplying infrastructure or providing land in fee simple in place of paying
all or part of the charge; or supplying alternative infrastructure to that in the
notice but which delivers the same level of service.
For development infrastructure that is land, the Distributor-retailer may
give a development applicant or a person who requested compliance
assessment, a notice that is instead of, or in addition to, an earlier notice.
This new notice may require the person to give the Distributor-retailer land
in fee simple where this land is part of the land for which a development
application or compliance request was submitted. Alternatively, the notice
may require the person to give the Distributor-retailer a combination of
such land and an adopted infrastructure charge. In either case, the value of
the land alone, or land together with any charge, must not be more than the
Distributor-retailer's standard amount. The person given such a notice
must comply as soon as possible.
An agreement amended under this section is an infrastructure agreement.
A further situation is where the relevant participating local government
does not have a priority infrastructure plan. The Distributor-retailer may
enter into an agreement varying conditions under an adopted infrastructure
charges notice or a negotiated adopted infrastructure charges notice with
the person who has been given the notice. In this circumstance, the
agreement may provide for payment of the charge at a different time or by
instalments; or supplying infrastructure or providing land in fee simple in
place of paying all or part of the charge.
Amendment of s 755O (Application of particular provisions -
generally)
Clause 41 amends section 755O which applies certain sections of chapter 8
of the SPA to the Distributor-retailers. It applies the new sections 648E to
648J to the Distributor-retailers.
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Amendment of s 755P (Application of ss 636 and 646)
Clause 42 amends section 755P by adding the new section 648J dealing
with accounting for adopted infrastructure charges, to the sections applying
to Distributor-retailers.
Amendment of s 755W (Appeals about infrastructure charge or
regulated infrastructure charge)
Clause 43 amends section 755W by adding an appeal in relation to an
adopted infrastructure charges notice to the matters to which section 478
(Appeals about a particular charges for infrastructure) applies.
Insertion of new ch 10, pt 4
Part 4 Transitional provision for
Sustainable Planning (Housing
Affordability and Infrastructure
Charges Reform) Amendment
Act 2011
Clause 44 inserts a new part 4 in chapter 10 containing the following
transitional provisions:
Section 879 (Extended application of s 856 for adopted infrastructure
charges) extends the application of section 856 (dealing with rezoning
agreements under repealed legislation) to include adopted infrastructure
charges. The effect is to prevent "double dipping" by ensuring that the
amount of the charge is adjusted to take account of any money payable
under the agreement.
Section 880 (When local government must not levy particular charges
for infrastructure) extends the effect of section 847(8), dealing with the
payment of contributions levied through a condition of a development
approval in accordance with a planning scheme policy.
Subsection 2 effectively "switches off" the ability to impose a condition
under a planning scheme policy to which section 847 applies, or levy an
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infrastructure charge or regulated infrastructure charge, from the day the
SPRP establishing an adopted infrastructure charge takes effect, until the
SPRP expires or is repealed. Subsection (3) confirms that rights, liabilities
and actions in relation to a charge or contribution already levied or imposed
at the time the SPRP takes effect are not affected.
Section 881 (Effect of local government resolution made before
commencement of amending Act) provides for a local government to
make an adopted infrastructure charges resolution before the day the SPRP
establishing the charge takes effect. This will allow local governments to
establish the particular aspects of their charging framework, such as
varying the amount of the charge, and identifying trunk infrastructure
networks to which the charge will be applied, in preparation for the
commencement of the new charging arrangements, thereby providing
certainty for applicants.
Section (3) provides that the resolution has no effect to the extent the
amount of the charge under the resolution exceeds the maximum charge
under the SPRP.
Amendment of sch3 (Dictionary)
Clause 45 inserts references in the dictionary to newly defined terms under
the Bill, including "relevant proportion", and amends the definitions of
"desired standard of service", "negotiated regulated State infrastructure
charges notice" and "priority infrastructure area".
© State of Queensland 2011
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