Property, planning and environment alert

16 June 2009 Topics: Property and planning law, Planning and environment

In this alert

Replacement for IPA

Replacement for Freedom of Information Act

Update – Land Tax Recovery under leases revisited

Update – extension of moratorium on clearing endangered regrowth

Replacement for IPA

The Sustainable Planning Bill 2009 (Bill), which will replace the Integrated Planning Act 2007 (IPA), was approved by Cabinet last week and looks set to be introduced to Parliament this week.

The Bill incorporates long awaited changes to the planning system including the introduction of:

  • Deemed approvals – this will address the problem of applications which fall victim to unnecessary delay and will require Councils to introduce systems to enable applications to be dealt with more quickly and efficiently.
  • Compliance assessment – this will fast track development approval for low risk assessments.

These measures are designed to improve the planning system and to encourage development.

We will deliver a more comprehensive review of the Bill once it is tabled in Parliament.

Replacement for Freedom of Information Act

On 12 June 2009 the new Right to Information Bill 2009 (Qld) (Bill) received Royal assent.

The Bill will replace the existing Freedom of Information Act 1992 (Qld) (FOI Act) and associated legislation and regulations.

The Bill has arisen out of the Solomon Report which produced 141 recommendations to Government for the reform of Queensland’s public access to information laws.

Importantly the Bill introduces a general presumption that people have an inherent right to access information held by the government and other public authorities unless, on balance, such access would be contrary to the public interest.

Following on from the ambit of the FOI Act, the Bill will apply to State Government Departments, Local Governments and public authorities. In an important jurisdiction extension though, the Bill will also apply to some government owned corporations, particularly those whose operations do not compete with the private sector.

We will deliver a more comprehensive review of the Bill once all supporting information is available.

Update – Land Tax Recovery under leases revisited

In line with our previous alert on this topic we are now able to report that the recent Revenue and other Legislation Amendment Bill 2009 (Bill) has been presented to the Queensland Parliament.

The Bill proposes to amend the Land Tax Act 1915 (Act) so that landlords of commercial and industrial properties can recover land tax from their tenants.

Inability to Recover

Under the transitional provisions in the Bill a landlord will not be able to recover land tax from their tenants where:

  1. a lease is entered into prior to 1 July 2009 (pre-existing lease); or
  2. a lease arises from an option to renew being exercised under a pre-existing lease; or
  3. a lease arises from an assignment or transfer of a pre-existing lease.

The Bill has not been accepted as final and questions have arisen as to the commerciality of the prohibitions against a landlord’s ability to recover land tax from a tenant where an option to renew is exercised under a pre-existing lease particularly where the pre-existing lease already allows for the recovery of land tax.
It is uncertain at this stage whether Parliament will consider amending the Bill in this regard.

Agreement to Lease

Currently, the Bill does not prohibit a landlord recovering land tax from a tenant where an agreement to lease was entered into prior to 1 July 2009 and the lease commences after 30 June 2009.

If a lease commences after 30 June 2009 as a result of an agreement to lease entered prior to 1 July 2009, a landlord may be able to recover land tax from their tenant.

Conclusion

Because of the sizeable amounts involved in the recovery process, it will be important for landlords and tenants to safeguard their positions. When contemplating whether to enter into a lease, landlords and tenants should have regard to the changes proposed by the Bill.

We will continue to monitor the Bill’s progress and provide updates as and when they become available.

We can advise you regarding lease negotiations and the contents of letters of offer as part of any lease negotiations. We can also assist with drafting appropriate clauses to allow or prohibit land tax recovery.

Update – extension of moratorium on clearing endangered regrowth

Following on from our previous alert on the moratorium, we confirm that the Bligh Government has extended its moratorium on clearing endangered regrowth from 7 July 2009 to 7 October 2009.

During this time the Government will deal with the 363 submissions made to the proposals for the long term protection of endangered regrowth.

In addition, a regulatory impact statement will be issued next week, which proposes new fees for vegetation management applications. It is anticipated that routine applications will only incur modest increase in fees.

However larger scale more complicated applications will attract larger fees.

The moratorium came into effect on 8 April 2009 under the Vegetation Management (Regrowth Clearing Moratorium) Act 2009 and affects more than one million hectares of land in Queensland.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.