DRAFT Infrastructure Designation: Statutory Guideline for Local Government

November 2015

Consultation Draft – Not Government Policy

DRAFT Infrastructure Designation: Statutory Guideline for Local Government - ii -

© State of Queensland, November 2015. Published by the Department of Infrastructure, Local Government and

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D15/119017

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Contents 1. Preliminary .................................................................................................. 4

1.1 Purpose ........................................................................................................... 4

1.2 Objectives ........................................................................................................ 4

1.3 Abbreviations ................................................................................................... 4

1.4 Definitions ....................................................................................................... 4

2. Why designate premises for development of local government infrastructure? ..................................................................................................... 5

2.1 What types of local government infrastructure can have premises designated? ....... 5

2.2 What does the designation provide for? .............................................................. 5

2.3 Infrastructure charges and designations .............................................................. 5

2.4 Relationship to other planning instruments ......................................................... 6

3. Environmental assessment and consultation ................................................... 7

3.1 Environmental assessment and consultation process ............................................ 7 Stage 1 - Planning and preparation .................................................................. 7 Stage 2 - Consultation and state interest review ............................................... 9 Stage 3 - Finalise environmental assessment .................................................. 10 Stage 4 - Decision ........................................................................................ 11

4. Amending an existing designation ................................................................ 13

5. Repealing designation – owner’s request ...................................................... 14

Schedule 1 – Abbreviations .................................................................................. 15

Schedule 2 – Definitions ...................................................................................... 16

Schedule 3 – Infrastructure proposal template ...................................................... 17

Schedule 4 - Templates for proposed designation and notice of designation............. 18

Notice of proposed designation .......................................................................... 18

Notice of designation ......................................................................................... 20

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1. Preliminary

1.1 Purpose

The process for designation of premises for development of infrastructure by a local

government is prescribed in Chapter 2, Part 5 of the Planning Act 2016 (the Act). This

Guideline is a statutory instrument made by the Minister for Infrastructure, Local Government

and Planning under section 36(3) of the Act. As a statutory instrument, a local government

undertaking the process to designate premises for development of infrastructure must have

regard to this Guideline.

This Guideline sets out an environmental assessment and consultation process which should

be followed to satisfy the Chief Executive Officer (CEO) of a local government that adequate

environmental assessment has been carried out in relation to the making or amending an

infrastructure designation and that there was adequate consultation in carrying out the

environmental assessment.

These Guidelines are only one method of satisfying the CEO – the CEO may choose that

adequate environmental assessment and consultation has occurred in another way.

1.2 Objectives

The first objective of this Guideline is to ensure the CEO can be satisfied that due regard has

been given to potential environmental, social and economic impacts and adequate

consultation was undertaken in considering these impacts when designating premises for

development of infrastructure.

The second objective is to provide an overarching streamlined environmental assessment and

consultation process for designating premises for development of local government

infrastructure. This can then be tailored according to the likely environmental, social and

economic impact associated with the infrastructure.

1.3 Abbreviations

Schedule 1 provides a list of abbreviations used in this statutory instrument.

1.4 Definitions

The dictionary in Schedule 2 defines particular words used in this statutory instrument. Other

terms used in this statutory instrument have the meaning given in the Act.

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2. Why designate premises for

development of local government

infrastructure? Infrastructure is vital in connecting our communities, and underpins a productive economy and

our quality of life. Providing infrastructure in a state the size of Queensland with Australia’s

most decentralised population requires a streamlined and efficient environmental assessment

and consultation process to deliver infrastructure to the places that need it most. The

designation provides for simpler and quicker provision of important infrastructure that the

community needs by centralising infrastructure designation assessment of proposals and co-

ordinating State interests.

2.1 What types of local government infrastructure

can have premises designated?

There are many types of infrastructure for which a local government can designate premises.

Schedule 5 of the Planning Regulation 2016 (the Regulation) prescribes the types of

infrastructure that can have premises designated. This provides clear parameters for the

community and local governments around the type of infrastructure that would be able to

follow this process. Examples of infrastructure include active transport infrastructure, storage

depots, and community and cultural facilities. Please refer to the Regulation for the full list of

infrastructure that can have premises designated.

Note that infrastructure for which premises can be designated is not restricted to publicly-

owned infrastructure; privately-owned infrastructure that fits within the types outlined in

Schedule 5 of the Regulation can be infrastructure for which premises can be designated.

2.2 What does the designation provide for?

Under section 35(2) of the Act, a designation may provide for, or include requirements for

infrastructure such as design requirements including building height, landscaping and location

of the works, the use of the future premises and environmental management procedures for

construction or operation of the infrastructure. These will be considered as relevant through

the designation assessment process.

2.3 Infrastructure charges and designations

Infrastructure charges are applicable to all development the subject of a development

application assessed by either the relevant local government or State government. As

designation of premises for infrastructure removes consideration of the infrastructure project

from the development assessment process, infrastructure charges are not applicable to

designated infrastructure. However, it is noted that provision of designated infrastructure will,

in many cases, have impacts on other classes of infrastructure. For example, a community

centre as designated infrastructure will have impacts on the surrounding road network. As

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part of the infrastructure designation process, a local government must provide a scope of

associated infrastructure requirements and are obliged to discuss delivery of these

requirements with the relevant local or state government agencies including roles,

responsibilities and funding arrangements.

2.4 Relationship to other planning instruments

Under section 44(6)(b) of the Act, development of infrastructure on premises that is subject to

a designation is accepted development with the exception of building work that is building

assessment work under the Building Act 1975. This means that the designation of land for

development of infrastructure is exempt from assessment against state and local planning

instruments. However, the assessment process for designation provides a framework to

assess relevant aspects of these requirements. Further, under section 36(7)(a), the local

government CEO can only make or amend a designation if the CEO has considered all relevant

planning instruments.

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3. Environmental assessment and

consultation To satisfy legislative requirements and ensure due regard is given to potential environmental,

economic and social impacts, the CEO must be satisfied that adequate environmental

assessment has been undertaken and consultation has been conducted as part of the

environmental assessment.

Environmental assessment must consider the type and location of the proposed infrastructure

and the potential impacts on the natural, social and economic environments. Environmental

assessment needs to consider how to avoid, mitigate and/or manage any adverse potential

impacts likely to result from the proposed infrastructure.

Consultation allows affected parties, both individuals and organisations, the opportunity to

consider the proposed infrastructure, its potential benefits and impacts and express their

views and have these views considered by the CEO in making a decision on designating

premises for development of infrastructure.

The nature and extent of impacts and community interest, in a proposed designation will differ

between infrastructure classes, the scale of the proposed infrastructure, whether the

proposed infrastructure is on a single site or a linear series of sites and the sensitivity or

hazardous nature of the natural environment.

Accordingly, the environmental assessment and consultation required for individual

designation processes will differ. The CEO has the ability to tailor aspects of the environmental

assessment and consultation process for infrastructure projects based on the likely impact of

the designation while still ensuring the legislative requirements are met and matters of state

interest are recognised and addressed appropriately.

It should be noted that the process described in this section does not preclude a local

government from conducting or undertaking additional steps to assist in the design or siting of

the proposed infrastructure of its own volition.

The high-level infrastructure designation process is outlined in Figure 1.

3.1 Environmental assessment and consultation

process

Stage 1 - Planning and preparation

Stage 1.1

As the first step in the formal planning and preparation stage of the environmental assessment

and consultation process, the local government must complete an infrastructure proposal and

provide to the CEO in the approved format as outlined in Schedule 3 to this guideline.

The infrastructure proposal will address a broader range of matters including:

Site description including the location of the premises proposed to be designated

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Any existing uses on the premises proposed to be designated

Existing uses on adjoining sites

The type of infrastructure and the anticipated size/scale of the infrastructure

Information about the nature, scale and intensity of each use proposed for the

infrastructure

The intended outcomes of the proposed use/s on that site

A statement about the relevant state interests, as identified in the State Planning

Policy, and consistency with any regional plan and local planning instrument/s.

At this stage of the designation process, the plans and descriptions of proposed uses, their

locations on the site and broad impacts can be general in nature and do not need to include

significant technical details or any details that would pose a security or safety risk.

The infrastructure proposal allows the CEO to identify the state interests in land use planning

and development, as articulated in the State Planning Policy, which are applicable to the

proposed designation, and the extent of consultation required with the State and community

for the proposed designation. At this time, the CEO may informally engage with State agencies

to confirm State interests where there may be a concern by the local government.

Infrastructure that is deemed to be low impact, as determined by the CEO, will enable a more

targeted consultation process and require only the minimum 15 business day consultation

period. Low impact designations will also omit the formal state interest review phase. All

other designations will be required to follow a more extensive consultation process and must

be undertaken by the local government for a minimum of 15 business days.

It is expected that a local government will provide evidence of early engagement with the

State to engage on management of significant State interests prior to lodging their

infrastructure proposal with the CEO.

Stage 1.2

Following lodgement of the infrastructure proposal, the relevant state interests and

consultation requirements will be confirmed by the CEO within 5 business days, unless details

are incorrect or the form is incomplete.

The CEO’s response to the infrastructure proposal will provide the platform for the

infrastructure entity to enter into Stage 1.3 of the planning and preparation phase.

Stage 1.3

Stage 1.3 of the planning and preparation phase requires the local government to develop a

draft environmental assessment report. The draft environmental assessment report must

provide more detail around the matters outlined in Stage 1.1 including site plans and

descriptions of individual site uses as well a comprehensive assessment of all environmental,

social and economic impacts (both positive and negative) likely from the development of the

proposed infrastructure and how any negative impacts can be avoided, mitigated or managed.

Whole-of-life impacts (i.e. construction, operation, and decommission as relevant) as well as

off-site impacts from the construction, operation and decommission (if relevant) must be

considered and addressed.

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As part of developing the draft environmental assessment report, the local government must

identify all affected parties and include this information in the draft environmental assessment

report. These parties must be consulted as part of formal consultation. At a minimum this will

always include:

The Department of Infrastructure Local Government and Planning (DILGP);

State Assessment Referral Agency (SARA)

Landowners to which the designation will apply (legislative requirement);

Other relevant state agencies;

All adjoining landowners for site based infrastructure but only those adjoining

landowners within a set distance, as determined by the CEO, where linear

infrastructure.

This list is not exhaustive and the infrastructure entity may identify further affected parties for

consultation.

Stage 2 - Consultation and state interest review

Stage 2.1a

All affected parties identified in the draft environmental assessment report must be notified by

the CEO that the draft environmental assessment report is available and where it can be

accessed and/or provided with a copy of the draft environmental assessment report and

invited to make submissions to the infrastructure entity within the consultation period, if

desired.

After providing the notice to affected parties, the notice should also be placed in a newspaper

generally circulating in the area, and include details on how the draft environmental

assessment report can be accessed.

A notice template is provided at schedule 4 to this Guideline.

The consultation period, as prescribed by the CEO in Stage 1.2, is taken to start from the date

the notification is given to affected parties. For the purpose of these guidelines, a notice is

taken to be given when the notice is reasonably taken to be delivered to the receiving party’s

last known postal address.

Stage 2.1b

If changes, which are not minor changes, are required to the draft environmental assessment

report as a result of consultation, the local government must undertake a second consultation

period. Depending on the changes made, consultation may be limited to those parties

affected by the amendments.

Stage 2.2

For those designations that are not considered by the CEO to be low-impact designations, as

assessed at the commencement of the process, the CEO must provide the draft environmental

assessment report to the State to undertake a State interest review on the same day as

consultation commences under Stage 2.1. The CEO is to complete the formal State interest

review and provide to the local government delegate within 20 business days from receipt of

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the draft environmental assessment report or extended as agreed by both parties. The local

government’s response to the formal State interest review must be included in the final

environmental assessment report submitted to the CEO.

Formal endorsement from a State government department or their delegate regarding the

designation may be required if it is determined a state interest will be considerably affected.

This will occur prior to finalisation of the environmental assessment report for the

infrastructure designation.

In the case of linear infrastructure such as transport infrastructure, the infrastructure proposal

should also provide evidence that there has been early engagement with stakeholders

(including affected landowners) around corridor selection. Under section 36(1), the

infrastructure entity will also need to demonstrate in their infrastructure proposal that the

infrastructure will satisfy either:

statutory requirements, or budgetary commitments, for the supply of the

infrastructure; or

there is or will be a planning need for the efficient and timely supply of the

infrastructure.

Stage 3 - Finalise environmental assessment

Stage 3.1

Following consultation (including second round of consultation if required) and state interest

review, the draft environmental assessment report (now referred to as the final environmental

assessment report) must be updated by the infrastructure entity with the results of all

consultation undertaken, including:

a list of all parties consulted (with their consent);

a summary of all submissions;

the issues raised and how those issues have been addressed.

If any further environmental, social or economic impacts have been identified through the

consultation and interim period, these must also be included in the final environmental

assessment report, as well as how these impacts will be avoided, mitigated or managed as

appropriate.

Any changes which have occurred to the proposed infrastructure following the state interest

review must be clearly articulated in the final environmental assessment report.

For entities that do not have acquisition powers under the Acquisition of Land Act 1967 and

are seeking designation over premises not owned by the entity, assurances must be provided

to the CEO with the final environmental assessment report that the entity will have access to

the premises subject of the proposed designation in order to construct and operate the

infrastructure. This could take a range of forms including, but not limited to, written land

owner consent or a contractual agreement.

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Stage 4 - Decision

Stage 4.1

Prior to making a decision about whether to designate premises for development of

infrastructure, the final environmental assessment report will be assessed by the CEO within

20 business days or as extended by agreement of both parties, taking into account all matters

and consultation undertaken throughout the process.

Stage 4.2

Should the CEO decide to proceed with designating premises for development of

infrastructure, the CEO must:

Notify the local government delegate officer of the decision;

Publish a Gazette notice of the decision;

Provide a notice to State government, land owners and affected parties;

Amend the local government planning scheme where required; and

Provide relevant information to the State government in order to update

databases and GIS mapping layers.

Should the CEO decide not to proceed with the designation of premises for development of

infrastructure, the CEO must:

Notify the local government delegate officer of the decision; and

Provide a notice to State government, land owners and affected parties.

A performance benchmark of 40 business days has been placed around this stage of the

designation process.

It should be noted that designation of premises for the development of infrastructure is a

discretionary decision by the CEO and cannot be appealed in the Planning and Environment

Court.

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Figure 1 - Infrastructure designation process

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4. Amending an existing designation Under section 36 and 37 of the Act, amendments can be made to the designation of premises,

including amending the area of premises that is designated for development. The process for

amending a designation is the same as the process for making a designation as described in

Part 3 with the process in Part 3 applying only to the premises being amended, or the change

in use, the impacts from the amendment only and limited to parties directly affected by the

amendment only.

To remove any doubt, the amendment to an existing designation process is not an opportunity

to reconsider the entire designation and its impacts.

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5. Repealing designation – owner’s

request An owner of an interest in designated premises may make a written request to a local

government CEO to repeal the designation on the basis that the owner is experiencing

hardship because of the designation. Under section 41(3), the request must be accompanied

by any information set out in these guidelines.

A written request must include:

valuation report(s)

proof of ownership of the interest

grounds or reasons for seeking hardship relief including all relevant facts and evidence

a declaration signed by the owner of the premises

any other documentation to support the hardship claim.

The CEO must, within 40 business days of receiving the request either: (a) repeal the designation using the process under section 40; or (b) decide to refuse the request; or (c) decide to take other action that the CEO considers appropriate in the

circumstances. The CEO must, within 5 business days of taking one of these actions, give written notice of the CEO’s decision and the reasons for the decision to the person who made the request.

Further consultation will need to occur on what documentation must be submitted with the request to the CEO to repeal a designation.

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Schedule 1 – Abbreviations DILGP – Department of Infrastructure, Local Government and Planning

CEO – Chief Executive Officer of a Local Government

SARA – State Assessment Referral Agency

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Schedule 2 – Definitions CEO - means the CEO for the local government seeking the designation of premises for

development of infrastructure.

Minor change – a change that:

would not result in substantially different infrastructure; and

can be demonstrated that it does not cause additional social, environmental or

economic impacts; and

would not cause any of the following to occur-

o the inclusion of prohibited developed in the development;

o assessment against additional state interests;

o a low impact designation to be reassessed for consultation requirements.

Low impact designation – a designation of premises for development of infrastructure that -

The definition of a low impact designation including objective criteria and appropriate examples will be developed in consultation with relevant state agencies and infrastructure entities in the coming months.

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Schedule 3 – Infrastructure proposal

template

This template will be developed in consultation with relevant state agencies and local governments in the coming months.

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Schedule 4 - Templates for proposed

designation and notice of designation

Notice of proposed designation

The CEO must give notice of the proposed designation to each State agency that will be

affected by the designation and each owner of premises to which the designation will apply.

This template is for a notice of proposed designation relating to Stage 2.1a in this guideline. It

provides a sample format and content of the public notice that may be used—

in a local newspaper;

for the owner of any premises to which the proposed designation applies. Where

multiple properties are under single ownership, only one notice is required; and

for each other party notified or given a copy of the report in Stage 2.1a.

Matters addressed in the template are consistent with minimum requirements for notification

stated in Stage 2.1a.

Notice of proposed local government designation of land for infrastructure under the Planning Act 2016

Proposal for the CEO to designate land [Name of local government] has requested [CEO’s name], CEO of [name of local government], to designate land for infrastructure under the Planning Act 2016 chapter 2, part 5. [Name of local government] invites submissions about the proposed designation of land and development of the infrastructure. Description of the land to which the proposed designation applies The proposed local government designation applies to land located at [street number, name and suburb or commonly known name of site] [and shown in the attached plan]. The land is described as Lot [lot number] on [insert plan number e.g. RP1234], Parish of [Parish name], County of [County name] [insert multiple lot descriptions if required]. If designation involves more than five parcels of land, use suggested format below – this can be amended to include easements if required. Type of infrastructure for which the land is proposed to be designated The land is proposed to be designated for [broadly describe the proposed project –e.g. the name/title of the project and its purpose (the John Smith medical school that will provide higher education and include associated teaching, research, conference and car parking facilities)]. The infrastructure is described under the Planning Regulation 2016, schedule 5 as- [List the type/s of infrastructure proposed]

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The following format is suggested when the designation involves more than five parcels of land.

How to view details of the proposed designation of land and development for the infrastructure Example 1 – A copy of the environmental assessment report [including other details such as plans, etc] about the proposed designation of land and development for the infrastructure may be viewed at the [name of local government] offices at [location of office], between [day month year] and [day month year]. Example 2 – A copy of the environmental assessment report [including other details such as plans, etc] may also be downloaded from the [name of local government] website at [www.XXX]. Example 3 – Any person is also invited to attend a [insert consultation mechanism e.g. information forum] about the proposed designation of land and development for the infrastructure. The [information forum] will be held at [address], [time am/pm] on [day month year] Example 4 – [details of any other consultation to be undertaken] For further information about the proposed designation Any questions about the proposed designation of land and development for the infrastructure should be directed to [contact officer’s name, position, division] on telephone [XXXXXXXX] or at [email address]. Making a submission about the proposed designation Any person or entity may make a submission about any aspect of the proposed designation of land and development for the infrastructure. The submission should- Be in writing, dated and signed by each person or entity who made the submission;

State the name and address of each person or entity who made the submission; and

State the ground of the submission and the facts and circumstances relied on in support of

the grounds.

Submissions are to be addressed to [contact officer name and PO Box address] and received

on or before [day month year].

Description of the premises to which the proposed designation applies The proposed local government designation applies to premises located at [street number, name and suburb or commonly known name of site]. The premises is described as Parish of [Parish name], County of [County name]-

Lot number Plan number

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Notice of designation

In addition, section 38(1) states that the CEO must publish a gazette notice stating that the

designation has been made, the description of the premises, and the type of infrastructure for

which the premises has been designated.

Notice of local government designation of land for infrastructure under the Planning Act 2016

A local government designation has been made I, [CEO’s name], CEO of [name of local government], give notice under the Planning Act 2016, Chapter 2, Part 5, that I made a local government designation of land for infrastructure on [day month year e.g. 5 May 2013] The designation will take effect from [day month year e.g. 1 June 2013]. Description of the land to which the designation applies The local government designation applies to land located at [street number, name and suburb or commonly known name of site] [and shown in the attached plan]. The land is described as Lot [lot number] on Registered Plan [RP number], Parish of [Parish name], County of [County name] [insert multiple lot descriptions if required]. If designation involves more than five parcels of land, use suggested format below. Type of infrastructure for which the land has been designated The land has been designated for [broadly describe the proposed project –e.g. the name/title of the project and its purpose (the John Smith medical school that will provide higher education and include associated teaching, research, conference and car parking facilities)]. The infrastructure is described under the Planning Regulation 2016, schedule 5 as- [List the type/s of infrastructure proposed, e.g.- Matters included as part of the designation under the Planning Act 2016, section 35(2) The designation for infrastructure is made subject to the following requirements- (1)

(2)

[List requirements about the works or use of land for the infrastructure, and any other

requirements included in the designation that are designed to lessen the impacts or use of

the land for the infrastructure]

[CEO’s Name]

CEO of [name of Local Government]

Dated: [day month year]

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The following is the suggested format when the designation involves more than five parcels of land.

Description of the premises to which the designation applies The local government designation applies to premises located at [street number, name and suburb or commonly known name of site]. The premises is described as Parish of [Parish name], County of [County name]-

Lot number Plan number