Our ref: DGBN14/846

9 JUL 2014

Mr David Gibson MP Chair State Development, Infrastructure and Industry Committee Parliament House BRISBANE QLD 4000

Email: sdiic@pad iament.qld.gov.au

Dear Mr Gibson

Queensland Government

Department of

S1ate Development, Infrastructure and Planning

On 3 July 2014, the State Development, Infrastructure and Indusu·y Comnuttee (the Committee) held a public briefing about the State Development, lnfrastructure and Planning (Red Tape Reduction) and Other Legislation Amendment Bill 2014.

Please find enclosed answers to the questions taken on notice by officers of the Department of State Development, Infrastructure and Planning at the briefing. Also provided is additional information for the Committee on the explanatory notes for the repeal of the Wild Rivers Act 2005.

If you require any further information, please contact Ross Alcorn, Director, Strategic Policy, Department of State Development, Infrastructure and Planning, on 3452 6975 or ross.alcorn@dsdip.qld .gov.au, who will be pleased to assist.

Director-General

Enc (2)

State Development, Infrastructure and Industry Committee

Department of State Development, Infrastructure and Planning

Response to Questions on Notice (QoN)

State Development, Infrastructure and Planning (Red Tape Reduction) and Other Legislation Amendment Bill 2014

Mr James Coutts (pp 38-39 of the transcript):

Mr Coutts: The Director-General is on leave. Mrs MILLER: So why is not the person who has replaced the Director-General here? Mr Coutts: I am sorry, I do not know the answer to that. Mrs MILLER: Can you find out, please? Can you take that on notice? I would also like to ask: why is not the Coordinator-General here. Mr Coutts: I do not know. Mrs MILLER: Can you take that on notice and provide the answer to us, please? Thank you.

Response:

The Committee's correspondence to the Director-General of 6 June 2014 requested the nomination of an appropriate departmental officer to be the Committee's point of

communication with the department for its inquiry, and invited departmental officers to attend the Public Briefing. The departmental officers that participated in the Public Briefing

were those best placed to provide factual and technical background to the legislation subject of the inquiry. This is consistent with the requirements of the Standing Orders of the Legislative Assembly (Section 8, Schedule 8 - Code of Practice for Public Service Employees

Assisting or Appearing before Parliamentary Committees).

The names of the departmental officers that participated in the Public Hearing were provided to the Committee's Research Director by email on 2 July 2014 and included

Mr James Coutts, Acting Deputy Director-General, Planning and Property. The Committee did not at any time request the attendance of the Director-General or Coordinator-General. The Department's experience to date has been that the Committee has preferred to manage

the number of departmental officers attending a Committee briefing to being those essential

to informing the Committee's inquiry. In the context of this public hearing and with the breadth of technical expertise and seniority of the officers nominated to participate in the

Public Briefing, it was not considered necessary for the Acting Director-General and

Coordinator-General to also attend the Public Briefing.

Mr Phillip Kohn (p 41 of the transcript):

Mr YOUNG: There was an expansion of the state development area from 200 hectares to 375 hectares. I am assuming that 175 hectares of that is land that was formerly under the management or the operational control of the Gladstone Ports Corporation. Mr Kohn: Sorry, I will not be able to answer that question. The Gladstone State Development Area is about 26 OOO hectares in size. It has been amended, I believe, about seven times since it first came into effect. One of the latest amendments included the

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expansion of state development area on to Curtis Island to enable the facilitation of the liquid natural gas plants on Curtis Island. That included the Gladstone Ports Corporation site on Fisherman's Landing. So an expansion did occur recently- I think it was in 2012. The extent of the land which was included I cannot be certain of. CHAIR: Could you take that on notice and find out? Mr Kohn: Certainly.

Response:

It is not clear where the 175 hectare figure or other figures used by Mr Young in the public hearing came from as they are not related to the expansion of the Gladstone State Development Area (GSDA). However, the figures may be related to the figures used by Gladstone Port Corporation early in the Committee hearing.

The most recent amendments to the GSD A boundaries occurred in 2010 - this resulted in an expansion of the GSDA by around 260 hectares, but did not impact any Strategic Port Land (SPL) identified by Gladstone Ports Corporation (GPC). At this point in time there was no duplication of boundaries.

Subsequently, in 2012, around 227 hectares of SPL were created in the GSDA by GPC through the GPC Land Use Plan 2012, including in relation to Curtis Island, Wiggins Island and Clinton Precinct. The entire Curtis Island SPL designation fell within existing GSDA boundaries, and Wiggins Island SPL and Curtis Island SPL both overlapped partially with existing GSDA boundaries.

The GPC Land Use Plan 2012 correctly identifies the Coordinator-General as being responsible for the assessment of material change of use applications within the GSDA, including where it overlaps with GPC SPL. Proposed changes to the GSDA (which have been released for public consultation) include an additional 1 663 hectares (in an Industry Investigation Precinct) - there are no proposed new boundary duplications between the GSDA and GPC SPL, and it is proposed to reduce areas of existing duplication by around 125 hectares.

Gladstone Port is one of five ports that have been identified under the Queensland Ports Strategy as Priority Port Development Areas. These areas are intended to undergo Port Master Planning which aims to streamline existing planning and decision making processes.

Ms Meredith Sinclair (pp 41-42 of the transcript):

CHAIR: If there are no further questions on this, we move to the Economic Development Act. We heard from the LGAQ and Logan City Council about the changes to the PPDA. A question was raised as to which councils have actually requested that. Could you advise the committee? Ms Sinclair: Yes. I understand it was Bundaberg and Mackay. CHAIR: And you are confident that it was only those two? Ms Sinclair: As far as I am aware. Mrs MILLER: How were those submissions received? Was it by letter? How were you aware that Bundaberg and Mackay requested that?

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Ms Sinclair: I will have to take that on notice. It was a colleague at work who had the dealings with Bundaberg and Mackay. Mrs MILLER: Could you provide the committee with any letters or any notes of meetings or any telephone conversations in relation to either the mayor, councillors or officers of those councils, please? Ms Sinclair: Yes.

Response:

To provide clarification for the Committee, Bundaberg and Mackay Regional Councils have been involved in investigating the declaration of a PPDA, rather than specifically requesting

the proposed amendments in relation to Provisional Priority Development Areas (PPDAs) in

the Economic Development Act 2012 (ED Act).

No PPDAs have been declared under the ED Act. While the intention of this function under the ED Act was to quickly enable development that facilitates economic development or

development for community purposes, the current criteria requiring consistency with the

local government's planning scheme unnecessarily constrains the declaration of a PPDA.

The ED Act requires that the Minister for Economic Development Queensland (MEDQ)

must consult with local government when planning for a Priority Development Area (PDA). To meet his obligations under the ED Act the MEDQ has indicated that it is his strong

preference that PDAs be formally requested by local governments before he decides whether

to support the declaration of a PDA.

In practice this has meant that the Department of State Development, Infrastructure and Planning (DSDIP) works very closely in partnership with local government when a

potential site for a PPDA or PDA is being investigated.

Two examples of where the declarations of a PPDA have been investigated are in Mackay

and Bundaberg. DSDIP worked with Mackay Regional Council (MRC) on the potential declaration of a PPDA at Bucasia. In March 2013, a formal request was received for the declaration from MRC (see Attachment - Please note MRC have indicated that this letter be provided for the Committee's consideration only and is not intended for publication).

During the investigation phase there were some concerns raised about whether the declaration would meet the 'consistency test' in the ED Act. Although it was concluded that a PPDA could be declared, there remained a potential but low risk that this could be

challenged and that this function of the ED Act could be improved to achieve the ED Act's

purpose.

In the Bundaberg example, the Regional and Resource Towns Action Plan (RRTAP), which was publicly released in March 2013, identified the north side of the Port of Bundaberg for potential economic development. DSDIP staff worked with Bundaberg Regional Council councillors and staff to investigate whether a PPDA could be declared to facilitate this

action. Unfortunately, it was immediately identified that while the Wide Bay Burnett Regional Plan and Council supported proposed development, the local planning scheme

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(Burnett Shire Planning Scheme) did not support this proposal as the land is zoned for rural purposes. The Bundaberg Regional Council Planning Scheme provisions are being included to facilitate development on the site.

In surrunary, the two examples detailed above demonstrate the need for this function of the ED Act to be reviewed and improved to achieve the ED Act's purpose; however no council has specifically requested the proposed amendments in relation to PPDAs in the ED Act. DSDIP is involved in other sensitive and commercially confidential discussions with other local governments about PPDAs. The proposed amendments to the ED Act will assist in progressing these proposals once they meet all relevant criteria.

Ms Rachel Lay (p 44 of the transcript):

Mrs MILLER: Thank you. The question is in relation to whether or not the department will provide advice to the minister that further work has to be done in relation to those particular provisions, therefore those particular provisions should be withdrawn at present before it is considered by the parliament as a whole and come back to the parliament when you have all these issues worked out? Ms Lay: Member for Bundamba, I am very happy to answer that question, thank you very much. If you don't mind, it will be a slightly lengthy answer. I may have to answer in parts. CHAIR: We are over the time that we have so I am going to ask you to take that question on notice, if you could, and provide that for us.

Response:

Following a review of the submissions and discussions with stakeholders, DSDIP is of the view that:

• the amendments proposed by submitters to the 'party house' definition and enforcement would not assist with achieving the policy objectives of the Bill which responds to requests received from local government to provide a basis for dealing with party houses in planning schemes

• matters in relation to local government powers of entry are more appropriately considered in the context of the reform of the planning and development system in consultation with the Department of Local Government, Community Recovery and Resilience to ensure that any amendments to these powers don't result in unintended consequences

• given the support for the amendment package by Gold Coast City Council (GCCC) and the heightened concerns of the members of the community directly impacted by this activity, the proposed amendment package should not be delayed.

In response to specific submitter concerns relating to enforcement, the following points are provided:

• given the proposed definition of 'partt; house' already applies to penthouses, apartments and units, no further amendment is necessary to ensure its applicability to those purposes

• the 'less than 10 days' parameter is based on the following considerations:

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o the common length of accommodation stay is between three and seven days (as reported by the Queensland Tourism Industry Council) so 10 days would cover the overwhelming majority of circumstances

o the 10 day timeframe was suggested by local government on the basis of its experience with dealing with the issue

• the provisions enable a local government to 'opt in' for all or part of its local government area, or to refrain from exercising the provisions. This enables a local government to specifically regulate an existing and a new 'party house' though the planning scheme or through a temporary local planning instrument

• the provisions do not impact on existing approved short term accommodation activities.

Local government powers of entry are provided under the Local Government Act 2009, administered by the Department of Local Government, Community Recovery and Resilience. DSDIP is of the view that any change to these powers should be considered in the context of the reform of the planning and development system. As this issue was raised by GCCC, the following comments are relevant:

• during consultation on the proposed provisions, GCCC indicated its support for the introduction of a 'parhJ house' definition

• increased powers of entry have not been requested by any other local government or the Local Government Association of Queensland. There arc several considerations in relation to increasing powers of entry:

o any endeavour to increase this power would have to ensure that there is no effect on fundamental legislative principles

o increased powers may increase public expectations that local government will attend party house incidents and take action at that time. Local government has advised this is not desirable given limited staff resources and workplace health and safety considerations

o it is uncertain if increased powers will enable better evidence collection. For example:

- evidence may first be required before the powers of entry can be exercised (similar to the requirements that apply to the issuing of a warrant for police to enter premises)

- the impacts of party house activities on the neighbouring residences must be visible or audible enough to cause concern. Consequently, it is questionable what evidence could be obtained from within the premises that could not be obtained from properties adjoining the premises.

DSDIP notes that some 'unlawful' activities are more difficult to enforce than others. For instance, the collection of evidence relating to an unlawful quarry is a more straight forward

exercise (because of the very obvious physical impacts of the quarrying activity) than collecting evidence for an activity which becomes a problem because of the behaviours of

occupants (because of the usually unpredictable and sporadic nature of these behaviours). While the state will make every effort to ensure the workability of the provisions, it is not able to remove or reduce the burden of proof for local government in a way that would

adversely affect the rights and liberties of individuals.

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Where there are substantial complaints about the activities of a party house, a council is in a position to advise the party house owner of the existence and nature of the complaints and of the extent to which the activities taking place are consistent with the lawful use of the premises. Under the Sustainable Planning Act 2009 (SPA), a council is also able to ask the owner to 'show cause' why an enforcement notice should not be given. This process assists local government in evidence collection and places an onus on the owner to demonstrate why an enforcement notice should not be given.

Mr James Coutts (pp 44-45 of the transcript):

CHAIR: I am going to ask you to take these two questions on notice just because of time. They come from yesterday's discussions. The first is was there any consideration within the definition to include the number of people within a party house? I am happy for you to take that on notice and come back to us with an answer. The second question is in relation to a concern as to whether there was an ability within that definition if the accommodation was provided for a period greater than 10 days. The example I think that was discussed in the round table was 'I am the owner. My brother runs the business. I have a lease with him for 30 days. He then goes forward and engages in that activity.' The penalty comes back to the owner of the property, not the operator of the party house business. So if you could look at that and clarify that for us that would be appreciated as well.

Response:

The provisions give local government the flexibility to regulate party houses in a way that is

appropriate to the local area.

In relation to the first question, a number of submitters have indicated that the proposed definition of 'parh; house' should include the number of persons at the premises, such as two persons per bedroom plus an extra two persons.

However, noting that local government is concerned about the enforcement obligations of the presently proposed party house definition, adding an element relating to the number of occupants in a party house is considered to present an almost insurmountable enforcement hurdle because of the difficulty in obtaining adequate evidence about the number of people on the premises at any given time and whether these people are in residence or simply visiting.

The practicality of enforcement was also considered in relation to what was meant by the 'regular' use of the premises. For example, thought was given to specifying, say, 10 events in 12 months. However, this was not included because it would mean enforcement action can only be initiated after there is evidence that this number of events has occurred. It is also considered that a 'regular' occurrence in one particular local government area may be a different threshold for another local government area.

In relation to the second question, this type of contractual arrangement between a tenant and an owner is not a planning consideration. The definition pertains to the use of the land,

and in the scenario mentioned, the use of the land would constitute a 'parhJ house'.

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Under SPA, the need to ensure the lawful use of land is the responsibility of the owner of the land. However, where the premises are unlawfully used without the consent or knowledge of the owner, the owner has the opportunity to provide this information during the investigation process. The matter would be investigated and prosecuted in the same manner

as any other alleged development offence.

Point of clarification about the repeal of the Wild Rivers Act and the explanatory notes

Mr James Ross (pp 39 - 40 of the transcript):

CHAIR: Whilst we are still on wild rivers, earlier today we heard with regard to the explanatory notes concerns expressed by both the Environmental Defenders Office and the Wilderness Society that the statement on page 12-... repeal of the Wild Rivers Act . . . the . . . policy outcomes are now achieved through Queensland' s existing land use planning and development assessment framework. .. Consequently, the ... Act is no longer required. They disputed that. Would anyone in the department care to make a comment with regard to that comment that is in the explanatory notes? Mrs MILLER: They actually said it was quite wrong. CHAIR: They said it was wrong. They disputed the statement. Mrs MILLER: They said that it was wrong. The Hansard will reflect that. CHAIR: The Hansard will. Mr Ross: The explanatory notes talked about the policy objectives of the Wild Rivers Act and the policy objectives through the Regional Planning Interests Act, the Sustainable Planning Act and the SPP instruments. The intent is there for the policy objectives to be addressed through this process. If there is concern that it is incorrect, we gladly take the information on board to look at that further and we can come back to the committee on that. Mrs MILLER: Can I suggest that, if it is the view of the department that the explanatory notes are, in fact, wrong or may be misleading in any way, that these explanatory notes should be withdrawn. CHAIR: An erratum could be added to them. Mrs MILLER: Or an erratum added to it, because we cannot have a situation where the parliament of Queensland is compromised because of these explanatory notes. CHAIR: Are there any other questions on wild rivers? We will go in blocks because there is a fair bit to get through. Mr HART: Yes. That particular issue was raised. I raised the point that if the outcomes are similar then there possibly is not an issue. Can you confirm that the outcomes of the wild rivers and these changes are the same or similar? Mr Ross: The outcomes between the two frameworks-I will just loosely call them frameworks here-are very much similar, yes. The Wild Rivers Act was introduced at a time when you did not have the other policy instruments or planning instruments that do support it, and it needed to go across the land use planning framework under the then Integrated Planning Act and the subsequent Sustainable Planning Act, but it also needed to have effect for those activities that were outside the planning act's jurisdiction, particularly resource activities. So it worked in that framework and it then filtered into all the various other pieces of legislation. With the framework that is now in place through the Sustainable Planning Act, the Regional Planning Interests Act and particularly also with the introduction of the SPP last year, those policy outcomes are now addressed.

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Mr HART: So the wild rivers maps have been translated to the SEA maps and the outcomes from wild rivers are translated to the outcomes in the regional-Mr Ross: At the policy objective level, yes, not at the prescriptive level that was -Mr HART: Not at the prescriptive level but the outcomes-Mr Ross: Yes.

Response:

The committee hearing raised a question about the need for an erratum to the explanatory notes to correct or clarify the parts about the repeal of the Wild Rivers Act (see extract above). While this was not the subject of a question on notice, nor did the committee expressly dispute the explanatory notes, the following advice is provided for clarity.

The statements contained in the explanatory notes to the Bill provide an accurate description of the government's policy objectives for the repeal of the Wild Rivers Act. The reasons for these policy objectives stated in the explanatory notes also correctly explain the government's alternative way of achieving the wild rivers policy objectives. This is achieved primarily through mechanisms such as Queensland' s existing land use planning and development assessment framework and the new Regional Planning Interests Act 2014 (RPI Act).

The mechanism for the RPI Act to carry forward wild rivers policy objectives is through the use of strategic environmental areas (SEA). Five SEAs, and their associated environmental attributes, have been prescribed in the RPI Regulation. The environmental attributes broadly relate to riparian processes, wildlife corridors, water quality, hydrologic processes, geomorphic processes, and beneficial flooding. In addition, water storage dams and broadacre cropping have been prescribed as regulated activities in the SEAs.

If a resource activity or a regulated activity is proposed in a SEA, it will be subject to the provisions of the RPI Act. If a regional interests development approval is required, the proposed activity will be assessed against the SEA assessment criteria contained in the RPI Regulation. The required outcome of these criteria is that the activity will not result in a widespread or irreversible impact on an environmental attribute of a SEA.

The key tool within Queensland's land use planning framework that gives effect to wild rivers policy objectives is the State Planning Policy (SPP). The SPP contains the state's interest in biodiversity which is: Matters of environmental significance are valued and protected, and the health and resilience ofbiodiversihJ is maintained or enhanced to support ecological integrihJ.

Matters of state environmental significance (MSES) are a component of the biodiversity state interest. The wild river high preservation areas are a component of MSES, and protection of these areas will be carried forward.

The SPP requires local governments, when making or amending a planning scheme, to integrate the biodiversity state interest by (among other things):

1. considering matters of national environmental significance in the local government area, and the requirements of the Environment Protection and BiodiversihJ Conservation Act 1999

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3. locating development in areas that avoids significant adverse impacts on MSES 4. facilitating the protection and enhancement of MSES 5. maintaining or enhancing ecological connectivity.

There may be a period where the local government planning scheme has not yet appropriately integrated the state interests in the SPP. In these cases, the SPP includes interim development assessment requirements to ensure that local governments appropriately consider state interests when assessing development applications. The interim development assessment requirements will remain in force for a particular local government area until such time as a planning scheme that the Minister is satisfied has appropriately integrated the state interests in the SPP, takes effect. If the SPP is amended, this may result in the interim development assessment requirements again taking effect until the planning scheme is be amended to reflect the change.

For MSES, the interim development assessment requirements apply to development applications for:

• operational work, or • a material change of use (other than for a dwelling house), or • reconfiguring a lot that results in more than six lots or lots less than five hectares.

These development applications are to be assessed against the interim development assessment requirements which include that development:

• enhances matters of state environmental significance where possible • identifies any potential significant adverse environmental impacts on matters of state

environmental significance • manages the significant adverse environmental impacts on matters of state

environmental significance by protecting the matters of state environmental significance from, or otherwise mitigating, those impacts.

Comments made in submissions to the committee concerning the government's alternative way of achieving the wild rivers policy outcomes were addressed in the department's response to the submissions dated 2 July 2014. This response also provides further detail about how other aspects of the wild river policy objectives are achieved through:

• the Water Act 2000 (through water allocations and riverine protection permits) • the Environmental Protection Act 1994 as Environmentally Relevant Activities (such as

intensive aquaculture, cattle feed lots, pig farming, extraction, screening, and manufacturing)

• the Vegetation Management Act 1999 through the use of clearing permits for native vegetation clearing

• amendments to the ForestnJ Act 1959 code of practice for getting forest products in Wild River Areas.

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