Ministerial Infrastructure Designation MID compliance responsibilities

A MID is a statutory planning approval issued by the Queensland Government that permits certain community infrastructure projects, such as schools, hospitals and housing.

Unlike a development approval, a MID does not go through Council’s normal development assessment process. Development carried out in accordance with a MID is exempt from assessment by Council and is considered accepted development.

Traditionally, MIDs have been planning instruments used to approve State-delivered infrastructure under State control. The increasing application of MIDs to a broader range of private community infrastructure projects has highlighted uncertainty regarding how compliance and enforcement provisions operate in practice.

MIDs are approved by the Queensland Government, generally by the Minister responsible for planning or their delegate.

A MID may include requirements relating to:

• construction works (such as height, location, design and landscaping)
• future use of the site (such as operating hours, access arrangements and capacity)
• measures to reduce impacts on the surrounding area (such as environmental management).

A MID does not allow Council to collect infrastructure charges for the development to offset costs to run public infrastructure networks.

For a MID, Council’s enforcement powers are limited under the Planning Act 2016. 

Under section 160A of the Planning Act 2016 local government is identified as the default enforcement authority under the Planning Act 2016 for development offences – however this authority only applies if there is a specific development offence provision that applies to a development.

The only specific offence relating to a MID concerns the use of premises in a manner that is inconsistent with the designation. It is legally well established that a use offence only arises when the lawfully approved use of the land commences, or a new use commences. 

Undertaking preparatory works is not sufficient to establish that a use has commenced. For example, Council may be able to take enforcement action if approved infrastructure is used in a manner that is inconsistent with the requirements of the MID (e.g. operating outside approved operating hours) – or a new use commences that is inconsistent with the MID (e.g. a shop as part of an education facility designation). 

The Planning Act 2016 does not provide a development offence provision relating to construction activities (works) or impact mitigation requirements undertaken pursuant to a MID, including matters referenced in supporting reports such as Environmental or Construction Management Plans. Examples may include how vegetation clearing is undertaken, how site works are monitored, or how earthworks are carried out. 

A MID is determined under Part 5 of the Planning Act 2016 and effectively designates infrastructure as accepted development rather than assessable development. Therefore, a MID is not a development approval and does not contain development conditions in the same manner as a development permit, meaning that typical Planning Act 2016 offences relating to assessable development and compliance with conditions do not apply. 

As a result, Council has no power or lawful ability to take compliance action in relation to many construction activities undertaken pursuant to a MID because there is no relevant offence provision within the Planning Act 2016. In the absence of such offence provisions, the Queensland Government retains powers to administer and manage MIDs under Part 5 of the Planning Act 2016.

Council may become the enforcement authority if:

• assessable development occurs that was not included within the approval under the MID;
• activities are unrelated to the approved infrastructure;
• the use of the premises is not consistent with the MID; or
• the use of the premises breaches MID requirements.

The Queensland Government advises that a MID functions as a single planning instrument, with the requirements of the MID forming part of the authorisation it provides for development to occur as accepted development (no development approval needed). The Queensland Government also advises that where development approved under a MID does not align with those requirements, there may be implications for the extent to which the MID continues to authorise the development. In such circumstances, the ability to undertake development without a separate development approval may no longer apply e.g. additional development permits may be required.

As the authority that approves and administers a MID, including any amendment or cancellation of the designation, the Queensland Government is best placed to determine whether development is being undertaken in accordance with the MID and to respond to compliance matters. 

Council is not formally provided with the documentation associated with a MID and the Queensland Government is not obliged under the Planning Act 2016 to provide Council with records relating to the MID, including the basis of approval, specified requirements or acceptance of supporting reports. If Council were intended to undertake compliance and enforcement functions for all aspects of a MID, it would be expected that providing documentation would be mandatory. 

The Queensland Government may also nominate itself as the enforcement authority under section 160A(2) of the Planning Act 2016 should it consider that a relevant development offence applies in relation to a MID. 

While Council cannot take enforcement action for many compliance matters related to works undertaken pursuant to a MID, it will continue to:

• advocate on behalf of the community
• raise substantiated concerns with the Queensland Government
• advocate for appropriate action by the Queensland Government when issues are identified
• consider matters that remain within Council’s jurisdiction. 

Council has also advocated for amendments to the Planning Act 2016 that would provide clearer compliance and enforcement provisions for MIDs, including greater certainty regarding enforcement responsibilities and the ability for appropriate compliance action to be undertaken where required. This would benefit the community by improving transparency and clarity regarding how compliance with MID requirements is monitored and enforced.