The new Planning Act 2016 (Planning Act) and Planning Regulation 2017 (Regulation) commenced in Queensland on 3 July 2017.  This is the first of a series of alerts aimed at highlighting significant difficulties with, and often unforeseen consequences of, the new legislation.

Previously, under the (now repealed) Sustainable Planning Act 2009 (SPA), a development approval for a material change of use for a sensitive land use (eg residential) or a commercial development involving an accessible underground facility (eg a car park) on land listed on the Environmental Management Register (EMR) or Contaminated Land Register (CLR) would be subject to a condition requiring a compliance assessment by an approved contaminated land auditor prior to the development starting, verifying that either:

• The site has been removed from the EMR or CLR; or
• A site suitability statement has been issued which states that the land is suitable for the proposed use.

The new Regulation identifies circumstances where development is prohibited.  A development application cannot be accepted by an assessment manager for prohibited development.

Under the Regulation, a material change of use of a sensitive land use or a commercial use involving an accessible underground facility on land that is listed on the EMR or CLR is prohibited development if:

• The premises are not currently being used for a sensitive land use; and
• A site suitability statement verifying that the premises are suitable for the proposed use has not been issued for the land.

The impact of this change under the Regulation is that a development application for a sensitive use or commercial use involving an accessible underground facility on contaminated land can no longer be made until the land is either remediated or a site suitability statement has been issued verifying that the land is suitable for the proposal.

There is no doubt that the need to carry out costly and time consuming investigations and remediation works in circumstances where a development application cannot be lodged, and may or may not be approved, poses some significant commercial issues for the property industry.

This article was written by Kelly Alcorn, Partner and Patrick Byrne, Solicitor.