Transferable development rights for natural heritage conservation in Queensland

Sean Patrick Ryan (2005). Transferable development rights for natural heritage conservation in Queensland MPhil Thesis, T. C. Beirne School of Law, The University of Queensland.

       
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Author Sean Patrick Ryan
Thesis Title Transferable development rights for natural heritage conservation in Queensland
School, Centre or Institute T. C. Beirne School of Law
Institution The University of Queensland
Publication date 2005
Thesis type MPhil Thesis
Supervisor Dr Jackie Robinson
Dr William Crane
Total pages 184
Language eng
Subjects 18 Law and Legal Studies
Formatted abstract

The objective of this thesis is to determine the conditions necessary for an effective Transferable Development Right (TDR) program to conserve natural areas in Queensland. A TDR program is a planning tool that allows development pressure to be redirected from high value conservation areas to more suitable areas through a tradeable, proprietary right. TDRs have been applied extensively to conserve natural areas in the United States of America but their application in Australia has been limited. 

This thesis describes the operation and rationale of TDRs before examining considerations of conservation, planning and economics. These considerations are then used to examine a number of case studies from Australia and the USA. Experiences from these case studies are used to provide a comparative analysis of the feasibility of using TDRs to conserve natural areas in Queensland.

The thesis shows that TDRs are not a use right, severed from the 'bundle of rights' in property, but are more accurately described as a right to have the local authority consider allowing additional development in return for the conservation activities. They operate on a number of principles including compensating reductions in development potential and reducing 'unearned' increases in property value due to increases in development potential. Provided they can be freely traded in a competitive market, TDRs can lead to cost effective conservation of natural areas.

The thesis considers whether notions of sustainability can be incorporated into TDR program to ensure consistency with federal and state policy and local government planning schemes. It was determined that current guides for sustainable development density are either too broad or too narrow to give effective guidance to TDR programs. Sustainability can be best advanced through two design features in a TDR program. Firstly, generation and use of TDRs should consider the value of habitat gained and the impact of additional development to ensure a net gain for conservation. Secondly TDR programs should be linked to comprehensive conservation and land use plans to ensure they do not compromise existing good planning.

Their dependence on planning law is critical. TDRs gain legitimacy and enforceability from planning law, sometimes directly from a statute but more commonly through a planning scheme. In Queensland this can be a problem as the Integrated Planning Act 1997 is based on principles of flexibility and performance-based assessment where as TDR programs rely largely on a rigid zoning system. To ensure TDRs are enforceable will require clear and directive provisions and consistent decision making on the part of the assessment authority. For TDRs to be tradeable and enforceable against third parties they must have a proprietary character. This requires TDRs to be definable, tradeable, enforceable and identifiable by third parties.

To create an efficient and competitive market in TDRs requires a well defined and enforceable good, scarcity in its supply, many buyers and sellers and low transaction costs. Definition and enforceability of TDRs requires the enabling provisions to be clear and directory rather than ambiguous and discretionary. Scarcity requires the amount of development achievable without TDRs to be limited. Market participation can be enhanced by increasing the geographic range of the program and allowing third party participants. Transaction costs can be reduced through supplying information about the market, limiting fees and providing efficient administration.

These economic requirements are often at odds with the requirements of conservation and planning law. For example it is difficult to draft clear and directory provisions when there is limited knowledge of the natural areas being conserved. Reviews of the literature and case studies indicate that the balance between planning, conservation and economics is difficult to achieve and many TDR markets fail. The difficulties are compounded in Queensland by the merit-based planning system. An effective TDR program to conserve natural areas in Queensland would require very careful design and active administration. In many areas other alternatives will be more cost effective. Areas in which TDRs are feasible are likely to be limited to regions that are currently under-developed with high projected growth rates.

Keyword Development rights transfer -- Queensland

 
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