State facilitated development applications: What does our analysis of the 11 declared projects reveal?

In this Rede, we provide insight as to what our analysis reveals about the exercise to date of Ministerial and chief executive powers under the Planning Act 2016 (Qld) to declare and assess State facilitated development applications aimed at unlocking additional housing supply by fast-tracking developments.

Key Takeaway Points:

• The Ministerial power to declare development applications as ‘State facilitated development’ has been exercised in respect of 11 projects, all within South East Queensland region, since its introduction in July 2024.
• All projects are required to be primarily for residential purposes, with some mixed-use developments declared as part of the assessment scheme. The projects vary significantly in scale, ranging in yield from approximately 40 dwellings to 2,750 dwellings.
• The pathway represents an alternate process for approval. For some developers, this process which must incorporate an affordable housing component, has been preferred to development approvals already issued.
• Four projects declared under the SFD pathway which already benefited from a local government development approval for the site represent an increase in the density and scale of development.
• Amendments made by the Brisbane Olympic and Paralympic Games Arrangements and Other Legislation Act 2024 assented to on 29 November 2024 enable the Planning Minister to amend or revoke a declaration, and to request an applicant to change an application.

The State facilitated development pathway

State facilitated development (SFD) is an alternative development assessment pathway in Chapter 3 Part 6A of the Planning Act 2016 (Planning Act) which allows prioritised development applications to be assessed by the chief executive under an accelerated assessment process. The purpose of the SFD pathway is to fast-track the delivery of housing, with priority given to projects featuring affordable housing, especially for low to moderate income households.

The State Government’s fact sheet indicates that the SFD pathway does not currently require application fees, so developers can submit their proposals without the financial burden of application costs.

To be declared SFD, a development application must be an existing development or change application, or a new proposed development or proposed change application. Pursuant to section 106D(2)(b) of the Planning Act, for an application to be an eligible for SFD declaration it must meet the following criteria prescribed by the Planning Regulation 2017:

1. the development must be for predominantly residential development and include an affordable housing component equating to at least 15% of all dwellings;
2. the affordable housing component must provide a diverse mix of dwelling types or diversity in the number of bedrooms contained in dwellings; and
3. the premises must either be completely within a zone supporting residential development or otherwise must not be within an environmental zone or limited development zone (as defined under the Regulation) and must satisfy the Minister it is capable of being readily serviced by infrastructure for the development.

There has been reported resistance to the SFD assessment pathway expressed by some local governments on the basis that it usurps their role as assessment manager and allows departure from compliance with local planning schemes. The SFD process requires that notice of a proposed declaration be provided to the local government (as decision-maker or otherwise), among other persons/entities and any resulting representations must be considered by the Minister.

Once declared, the chief executive becomes the decision-maker and must assess and decide or reassess and redecide the application. Chapter 2 of the Development Assessment Rules provides the rules for administering an application for SFD.

The following Planning Act assessment and decision provisions do not apply to a declared SFD development application:

• sections 45(3) – (8), being the usual rules for code and impact assessment;
• part 3 division 1 (referral agency assessment);
• sections 60 and 61 (deciding development applications and assessing and deciding variation requests, respectively);
• section 62 (complying with referral agency’s responses);
• section 64 (deemed approval);
• section 275ZI (restrictions on impact assessment and conditions for heritage places).

For SFD change applications, usual Planning Act sections 81, 81A and 82 do not apply.

Instead, in deciding or redeciding the application, section 106J(4) enables the chief executive to consider the following matters:

1. any State interests relating to the development the subject of the application;
2. any planning instruments applying to the premises the subject of the application;
3. any information or advice given to the chief executive in relation to the application, including information or advice in a submission or representation or from a referral agency; and
4. any other matter the chief executive considers relevant.

Projects that have been declared as SFD

Since the SFD pathway was introduced in the Planning Act in July 2024, 11 applications have been declared. We examine the proposals which were determined to be a priority for the State and identifies trends within those applications which will now be assessed by the chief executive under the Planning Act.

After expressions of interest opened in April 2024, the now former Minister exercised the discretionary power to declare SFD in respect of 11 applications. All declarations to date are for new proposed development; no change applications have been declared.

All of the declared applications are located in South East Queensland:

• six are in the City of Brisbane local government area (at Woolloongabba, Indooroopilly, Lutwyche, Wakerley, Forest Lake and Milton);
• two are in the Noosa local government area (Noosa Heads and Tewantin);
• there is one in each of Gold Coast, Toowoomba and Redland local government areas.

These declarations were met with mixed reception by local governments who would otherwise have been the decision-maker or in some circumstances had already approved development applications at those sites.

The Brisbane Olympic and Paralympic Games Arrangements and Other Legislation Act 2024 assented to on 29 November 2024 (the first of the new Government) effects amendments to the Planning Act SFD provisions. The Planning Minister is now empowered to amend a declaration. The Planning Minister can also revoke a declaration. This can occur if the Planning Minister is satisfied that the following do not apply in relation to the relevant application:

1. it will assist in delivering development that is for an urban purpose and is an identified priority for the State; or
2. the application complies with the prescribed qualification criteria; or
3. the Minister is satisfied it is appropriate for the chief executive to assess and decide all or part of the application instead of the decision-maker for the application.

However, the Planning Minister also has a broad power to revoke a declaration if the Minister considers that the declaration is no longer appropriate in all the circumstances. Revocation on this basis is not contingent on the above matters being satisfied.

The amendments also enable the Planning Minister to request the applicant to change a relevant application.

Four SFD application sites already had a development approval in effect – three in Brisbane (at Lutwyche, Milton and Woolloongabba) and one at Robina on the Gold Coast. The existing Woolloongabba and Robina development approvals are variation approvals. A local government approval decision for development at the Indooroopilly site is the subject of a submitter appeal.

The proposed development the subject of the SFD declarations for these sites increase the scale of residential development approved by the local governments, including incorporation of an affordable housing component.

Landowners who have submitted expressions of interest under the SFD assessment pathway consist of developers, corporate entities and trusts, groups of private landowners, Toowoomba Regional Council and the Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (Brisbane Catholic Archdiocese).

Of the declared projects, the most significant affordable housing requirement was that a minimum of 85% affordable housing allocation be provided for the Brisbane Catholic Archdiocese’ development of approximately 45 x 2 and 3 bedroom dwellings in Wakerley. This is followed by Toowoomba Regional Council’s application which required a 66% affordable housing allocation for studio and 1 and 2 bedroom typologies for a development of approximately 75 residential units. In both declarations, dwellings or units were to be rented out at no greater than 74.9% market rent. For the Brisbane Catholic Archdiocese’ application, there is a requirement to undertake audits every 3 years to ensure tenants meet eligibility criteria. Typology, rental rate and audit stipulations were also included in three other declared projects which had higher proposed yields of at least 300 dwellings. For these, the rental rate is to be no more than 75% market rent. The audit requirement is elevated in respect of the application at the site of the new Lamington Markets Precinct at Lutwyche, Brisbane, which is subject to annual audits.

Terms of the affordable housing component generally have a lifetime of 20 – 25 years, except for the Lutwyche application which (again) has an elevated requirement, for a lifetime of 40 years from first occupancy.

Of locational attributes, the named attribute in all declarations was proximity to services, including to the following:

• public transport
• community services;
• employment nodes, CBDs and town centres;
• shopping centres;
• parks;
• schools; and
• health precincts.

The scale and density of development varies widely across declared projects, with the most significant of the developments being the application declared in Robina on the Gold Coast for a preliminary approval for a material change of use (MCU) that includes a variation request, preliminary approval for MCU and operational work, an MCU development permit for Stage 1A (159 dwellings) and development permits for reconfiguring a lot and operational work, proposing a total yield of up to 2,750 build-to-sell residential dwellings. This represents an 84% increase in yield (1,250 dwellings) from the variation approval which varied the effect of the Gold Coast planning scheme for the development of a residential estate of up to 1,500 dwellings. The additional yield has been accommodated by increased site cover and by more than doubling the proposed maximum height from 32m to 72m. The application proposes the affordable housing will be sold for an amount that is less than the first home concession limit due to the type, composition, method of construction, size or level of finish of the housing, as defined by the Real Estate Institute of Queensland or as assessed by a valuer.

The SFD applications for the following sites which already had a development approval in effect or approval decision subject to appeal propose increased building height and density:

• increase in height from 12 storeys to proposed 12 – 20 storeys and a 157% increase in yield (+211 dwellings) for the mixed use, build-to-rent development of up to 345 dwellings at the new Lamington Markets Precinct at Lutwyche, Brisbane;
• increase in height from 20 storeys to proposed 28 – 31 storeys and a 138% increase in yield (+180 dwellings) for the residential, build-to-rent development of up to 310 dwellings in Milton, Brisbane; and
• increase in height from 21 storeys to 23 storeys in respect of the two northern towers and a 10.6% increase in yield (+46 dwellings) for the residential-led mixed use, combination build-to-rent and build-to-sell development of approximately 480 dwellings in Indooroopilly, Brisbane.

The proposed development of part of the South City Square Precinct in Woolloongabba may almost double allowable height of up to 18 storeys on the Approved Master Plan of the variation approval applying to the site, proposing a building height of 30 – 35 storeys in their SFD application for a build-to-rent mixed use development of up to 440 dwellings.

Comparatively low yield developments have also been declared, with four declared projects each having a yield less than 100 dwellings. The smallest project is a proposal for approximately 40 dwellings at Tewantin.

Collectively, the proposals represent mixed use developments and residential developments which are built-to-rent, built-to-sell or a combination. There is not an observable relationship between the nature of the proposed use (eg. mixed use v residential only), the succession of ownership and their yield.

Since the appointment of the current Deputy Premier, Minister for State Development, Infrastructure and Planning and Minister for Industrial Relations, there have been no new declarations under the SFD regime.

What will an SFD approval look like?

So far, six SFD applications have been issued confirmation notices which include the requirement for public notification of the development application, pursuant to the chief executive’s power to require that an applicant notify and consult with the public about an application, allowing the opportunity for submissions to be made. The timeframe within which the six confirmation notices were issued ranges from 23 to 44 business days since SFD declaration. Published materials resemble those of a typical development application made to a local government assessment manager, with the notification process resembling that of the typical public notification process for impact assessable development.

There are no appeal rights (for applicants or submitters) in respect of the chief executive’s decision on an SFD application – it is an ‘excluded application’. Declaratory proceedings in the Planning and Environment Court for matters pertaining to SFD may be started under section 12 of the Planning and Environment Court Act 2016 – ie. by the assessment manager but only if when the SFD declaration took effect, the assessment manager had not decided or had refused the development application, and then only in respect of the declaration. Declaratory proceedings can also be commenced in relation to the effect of a revocation and in relation to the process for administering the development application or change application under the Planning Act in respect of a revoked declaration.

No notices of decisions have been published for any of the SFD applications since the applications were declared in mid to late September 2024. Notices of decisions are required to be published on the department’s website.

It remains to be seen what a development approval for a SFD application will look like and how closely it resembles an approval issued by a local government assessment manager or an application decided pursuant to the Ministerial call in power, or whether this takes on a new form of development approval in Queensland.

We wait to see whether the SFD pathway indeed delivers the intended fast-tracking of delivering housing supply on the ground and what the impacts are on infrastructure provision in the local government areas where an SFD development approval effects a significant increase in yield, noting that (unlike infrastructure designation development) local governments can still give an infrastructure charges notice for development approvals given by the chief executive for SFD.

Contact our Planning and Environment experts for assistance regarding the implications of the SFD assessment pathway.