A legal analysis of planning scheme complexity in Queensland: Understanding the problem and exploring the benefits and limitations of a risk-based response to it

Abstract

My research applies risk theory to the long-standing problem of planning scheme complexity in Queensland. For the purpose of my thesis, planning scheme complexity has two elements. Firstly, the process of preparing a planning scheme is complex, taking years and costing a lot of money. Secondly, the documents created out of the process are unclear and their lack of clarity generates uncertainty. Much has been written to criticise planning schemes in terms of their complexity but it is a legal problem that, so far, defies solving. Before the problem can be solved, there is a need to understand planning scheme complexity and its fundamental cause/s. My thesis provides that understanding but it goes further. It provides a novel and significant contribution to the debate by exploring the potential application of risk-based regulation (RBR) to help understand the causes of complexity and then address them. RBR has gained popularity and generated excitement in the regulatory space. It has become widely endorsed as a way to achieve better regulatory outcomes. My thesis provides a deep analysis of the causes of complexity and identifies where a risk-based response to planning scheme complexity is well suited and where other responses are needed. It highlights that RBR is useful in helping to understand the causes of planning scheme complexity. It also shows, as a regulatory response to planning scheme complexity, RBR offers some potential benefits but it also suffers from some important limitations. The substantive part of my thesis begins with an overview of RBR. An understanding of RBR is critically important to my thesis because I apply it to provide a novel way to understand and address planning scheme complexity in Queensland. Presenting my research about risk, up front, has allowed me to investigate the relevance of risk concepts to my discussion of the causes of planning scheme complexity as well as the potential role of risk theory in addressing it. To varying degrees, my research about risk permeates my entire thesis. It informs my conclusions about a response to planning scheme complexity but it also helped me piece together the causes of planning scheme complexity. In particular, in analysing the causes of the problem, I apply concepts such as risk perception, risk appetite, trade-offs, societal and institutional risk.1 After introducing the concept of RBR, I trace the evolution of planning scheme complexity, which identifies that the start of the problem aligns with the introduction of the Integrated Planning Act 1997 (Qld) (the IPA). Identifying that the problem started with the IPA guided me to a legal analysis of those reforms, bringing to light that the introduction of two key aspects of the IPA reforms fundamentally shaped planning schemes. Introducing ecological sustainability (ES) as a purpose for planning broadened the scope and complexity of planning scheme goals. Introducing performance-based planning (PBP) changed the way that planning schemes regulate. Logically, my research moves on to deeply analyse those two concepts, unearthing that (a) the challenge of advancing ES complicates the process of preparing a planning scheme and leads to a lack of clarity around planning scheme goals; and (b) Queensland’s implementation of PBP has favoured the production of unclear planning scheme provisions that advance uncertainty. My thesis provides a deep analysis of ES as a cause of planning scheme complexity. Attempting to prepare a planning scheme that balances goals to advance the community’s economic, social/cultural and ecological wellbeing is complex. It is not a matter of giving each element of ES equal weight. The appropriate balance between the elements of ES depends on what is most important, in each context, but there is no objectively ‘right’ answer to that question. Local governments are given the discretionary power (and responsibility) to shape the balance between these considerations. Paralysed by the complexity and institutional risk that arises out of deciding the weight that ought to be given to each element of ES, local governments are eschewing their responsibility to clearly articulate meaningful planning scheme goals. Without clear goals, it becomes difficult to prepare a planning scheme that clearly articulates measures to advance them. The complexity of choices about ES not only complicates the process of preparing a planning scheme; it can also manifest itself in the resulting document, lead to planning schemes that provide an incomplete and unclear picture about how planning decisions will be made. The lack of clarity in planning schemes also arises out of the way that PBP has been implemented. Queensland’s implementation of PBP has overemphasised flexibility and produced uncertainty because local governments are not allowed to choose to prohibit development and because of a misconception that vague planning schemes align with PBP. The result is a distortion of PBP that leads to planning schemes which are less clear than might otherwise be the case. What is more, because there is a lack of understanding of PBP, local councils are able to hide behind rhetoric about a need to encourage flexibility in PBP schemes in order to avoid being more transparent about decisions about ES. The key to producing clearer and more succinct planning schemes is to address the causes of complexity. Armed with an understanding of the problem and its causes, my thesis identifies the benefits and limitations of a risk-based response to planning scheme complexity. It identifies where a risk-based response to the causes of planning scheme complexity is well suited and where other responses are needed. It contributes ideas about how to reduce the complexity of the process of preparing a planning scheme and the resultant document itself. I explore the application of RBR to help local governments choose the shape of (and clearly articulate) their planning scheme goals. I highlight the limitations of applying RBR to this end, concluding that it fails to sufficiently answer questions about how to synthesise and weigh up expert knowledge and knowledge about values in order to make complex decisions. If local governments are to be successful in deciding upon and declaring their planning scheme goals, they need a more specific decision-making tool that can help them navigate those matters. Participatory multi-criteria decision analysis (PMCDA) is one such tool that could help local governments build the courage to decide and declare their planning goals. PMCDA does not dissolve the need to make complex decisions or value judgments but it provides an aid to manage their complexity. Ultimately, the process of preparing a planning scheme will continue to be complex but putting the effort in would be worthwhile because the planning scheme created out of the process can be clearer if it is based on clear goals. However, even with clearly declared goals, planning schemes will continue to be unclear unless there is an understanding that clarity is consistent with PBP. In Queensland, PBP underpins the way in which planning schemes regulate development but there is confusion about the role of clear and measurable performance criteria. There is a misconception that vague and subjective planning scheme provisions align with PBP because they allow for flexibility. For that reason, I propose the need for a legislative definition of PBP and I argue in favour of legislating to allow local governments to choose to categorise development as prohibited where it represents a proportionate response to risk. If a prohibition represents a proportionate response to risk, it is the simplest and most appropriate way to send a clear and concise message about when development is so risky that it is inappropriate.