Planning

Planning laws in Tasmania are part of the Resource Management and Planning System (the RMPS), which explicitly encourages public involvement in resource management and planning decisions.   The laws provides the following opportunities for you to have your say about proposed changes:

  • Comment on planning schemes and amendments to schemes (such as rezoning land, amending height restrictions or prohibiting or allowing new uses in an area)
  • Comment on interim planning schemes
  • Comment on the proposed Tasmanian Planning Scheme, including Local Planning Schedules
  • Request that a planning scheme be amended
  • Make a representation regarding applications for discretionary uses and developments
  • Request pre-permit mediation with Council and the developer
  • Appeal against planning decisions
  • Report activities that are in breach of planning schemes or permit conditions
  • Seek orders preventing unlawful activities

Scroll down for more information about these opportunities.

 

Responding to government proposals

Planning schemes

Local councils must invite public comments on proposed planning schemes or amendments to planning schemes.  Some Councils will also invite comments on early drafts, however this is not required by the law.  It is a good idea to become involved as soon as possible to have the best chance of influencing the content of the scheme.

New schemes and amendments are advertised in the local newspaper, on the Council website and on the Planning Commission website.  Public comments must be invited for at least the following periods:

  • For new planning schemes – 2 months
  • For amendments to planning schemes – 28 days

During this period, any person may make a representation.  Click here for tips on writing a representation.

The Commission must hold hearings and invite any person who made a representation to appear.  You are not required to appear at the hearing, but it can be a good opportunity to explain any concerns you have about the proposed scheme or scheme amendments.  You can speak for yourself at the hearing or you can choose to be represented at the hearing by a lawyer, an expert (such as a planner, an ecologist or a historian) or just by someone you have asked to speak on your behalf.  You will need to let the Commission know in advance if you will be represented.

Following the hearing, the Commission can do any of the following:

  • reject the proposed planning scheme / amendment
  • approve the planning scheme / amendment as proposed, or with only minor amendments (the Commission needs approval from the Minister before approving a planning scheme / amendment)
  • direct the local Council to make substantial changes to the proposed planning scheme / amendment to address concerns raised in representations.  In this situation, the revised scheme will be re-advertised and further opportunities to comment on the changes will be available before the revised scheme will be approved.

Once a planning scheme or amendment has been approved, it is declared and takes effect.

Please note, most Councils have now adopted interim planning schemes.  The only remaining Planning Schemes are the Sullivans Cove Planning Scheme 1997 and the Flinders Island Planning Scheme 2000.

 

Interim planning schemes

In 2010, the government introduced a new category of planning scheme, interim planning schemes, designed to speed up the process for introducing more modern and consistent schemes.  Interim schemes are required to be consistent with the objectives of the RMPS, the statewide planning scheme template (Planning Directive No 1) and the aims of any relevant Regional Land Use Strategy.

The most significant difference is that an interim planning scheme takes effect when it is declared by the Minister, prior to public comments.  In most cases, local Councils have released draft interim schemes for public comment before they are declared, however this is not required by the legislation.

Once an interim scheme is declared by the Minister and takes effect, the scheme will be advertised in the local newspaper, on the Council website and on the Planning Commission website.  Click here for details of current opportunities to comment on interim planning schemes.

Public comments must be invited for a period of at least 42 days, during which time any person may make a representation.  Click here for tips on writing a representation.

Following changes in late 2014, the Commission is no longer required to hold public hearings to review representations prior to making recommendations to the Minister.  In practice, the Commission will conduct public meetings and invite any person who made a representation to attend.  However, the Commission may only recommend limited types of changes to a proposed interim scheme, including:

  • Very minor changes (including correction of errors)
  • Urgent amendments (and only if the “public interest” will not be compromised)
  • Zoning changes that better reflect a direct “translation” from the previous zoning of land
  • Changes agreed to by all parties (including any affected landowner and the local Council)

Click here for more information about the new process for approving interim schemes.

 

Tasmanian Planning Scheme

The Tasmanian Planning Reform Taskforce is currently developing a draft  Tasmanian Planning Scheme to deliver on an election commitment made by the Tasmanian Government. This Scheme, which replace all existing planning schemes and interim planning schemes, is expected to be finalised by late 2016.  For more information regarding this project, click here.

The Tasmanian Planning Scheme will comprise two components:

  • Statewide Planning Provisions (SPP)- provisions that will apply consistently across all council areas (including exemptions, zone objectives, key development standards and Codes)
  • Local Provisions Schedules (LPS) – provisions that will apply only to a particular municipality and will override the Statewide Planning Provisions. These provisions may take the form of Particular Purpose Zones, Specific Area Plans or site-specific qualifications.

Statewide Planning Provisions

A Draft SPP (or amendments) will be released for public comment for at least 60 days.  During this period, any person may make a representation.  Click here for tips on writing a representation.

The Commission may accept representations made outside the statutory timeframe.  However, they are not required to do so, so it is important to make your representation before the deadline if possible.  If you know you will need an extension (for example, if you are overseas throughout that period), contact the Commission before the deadline and try to get written consent to making a late representation.  Make sure that you clearly explain why you are / were not able to make your representation on time.

The SPP must comply with any terms of reference prepared by the Minister, and must be consistent with the RMPS and any State Policies.  The SPP may impose restrictions on what LPS can and cannot provide for.

The Commission must hold hearings and invite any person who made a representation to appear.  You are not required to appear at the hearing, but it can be a good opportunity to explain any concerns you have about the proposed SPP.  You can speak for yourself at the hearing or you can choose to be represented at the hearing by a lawyer, an expert (such as a planner, an ecologist or a historian) or just by someone you have asked to speak on your behalf.  You will need to let the Commission know in advance if you will be represented.

Following the hearing, the Commission will make recommendations to the Minister about whether to declare the SPP, make minor amendments to the SPP or require significant modifications to be made.  If significant modifications are to be made, the Commission may also recommend that the revised draft SPP be made available for further public comment.

After considering the Commission’s recommendations, the Minister may declare the Statewide Planning Provisions.  The Minister is not bound by the recommendations.

Despite declaration by the Minister, the Statewide Planning Provisions will not come into effect for any given Council area until the Local Provisions Schedule for that Council area has also been declared.

Information about the Planning Reform process is available at http://planningreform.tas.gov.au/

Local Provisions Schedules

After declaration of the SPP, planning authorities (councils) are required to prepare draft Local Provisions Schedules.  The LPS must be consistent with the SPP (other than any local variations allowed by the SPP), the RMPS objectives, State Policies and the relevant Regional Land Use Strategy.

Draft LPS are released for public comment for 60 days.  During this period, any person may make a representation.  Click here for tips on writing a representation.

After the public comment period, the planning authority must prepare a report summarising all the comments and any proposed changes to the LPS to respond to issues raised.  The report will be published and provided to the Commission.

The Commission will hold hearings and invite any person who made a representation to appear.  You are not required to appear at the hearing, but it can be a good opportunity to explain any concerns you have about the proposed LPS, any impacts on your local area and any amendments you can suggest to bring the LPS into line with the RMPS objectives or the Regional Land Use Strategy.

Following the public hearings, the Commission makes recommendations to the Minister.  The Minister will then declare the Local Planning Schedules  (the Minister is not bound by the Commission’s recommendations) and publish a notice in the Gazette giving the date for commencement of the LPS.

 The Tasmanian Planning Scheme (including the SPP and the LPS) will take effect for a municipality ONLY when both the SPP and the relevant LPS have been declared.

 

Requesting an amendment to a planning scheme

Any person can ask the Council to amend the planning scheme.  For example, you could request that a piece of land be rezoned to Environmental Management to increase its protection, or that different standards be applied to development near the coast.  You will need to provide adequate information to explain the change you are proposing, why you are proposing it, and whether the change meets the objectives of the RMPS.   It is a good idea to contact your local planning officer to discuss your proposal before you make an application.

Each Council will have slightly different processes, information requirements and fees for planning scheme amendments.  Hobart City Council has a useful guide, but you should check with your own council to see what they will need from you.

If you are seeking an amendment which affects one or more parcels of land which you do not own, then you must get the written permission of the land owner before making your application.

If the Council decides to initiate your proposed changes, they will prepare a draft amendment and follow the process outlined above for planning scheme amendments (including advertising and assessment by the Tasmanian Planning Commission).

 If the Council refuses to initiate your proposed amendment, you can ask the Tasmanian Planning Commission to review that decision.

 The Minister is required to initiate a review of the Statewide Planning Provisions at least every 5 years.  The Minister may also direct the Commission to review the SPP at any time.

Brendan

 

Responding to development applications

Where an application is made for a discretionary use or development, notice of the application must be:

  • Published in the local newspaper (look for the Council logo in the Public Notices section)
  • Displayed at the Council office
  • Placed on the boundary of the development site (usually A4 signs with a red or bold border)
  • Posted to all adjoining neighbours (“adjoining” does not include people living across the street – you must share a boundary with the development site)

Many Councils also advertise the application on their website, however this is not required by law.

Depending on the type of development, other government agencies may also be involved in the assessment.  For example, where the development relates to a Level 2 activity, representations may be made to the EPA; for projects of State significance, representations must be made to the Planning Commission.

Any person can make a representation regarding an advertised development application.  Check the notice carefully to see:

  • when the representation is due (date and time).  For most developments, representations must be received within 14 days of the date of the notice unless a later date is given in the notice.  Representations received after the deadline will not be valid, even if they are only 10 minutes late.
  • who the representation must be sent to (for example, is it the local council or the EPA?)
  • how the representation can be made.  Unless the notice specifically says that email representations will be accepted (or includes an email address for sending representations), you should send a copy by post and allow extra time for it to arrive.

It is important to make a representation if you have concerns about a development proposal.  In general, only people who have made a representation can appeal against a decision to approve (or refuse) the application (see “Challenging Decisions“)

Click here for a representation checklist and sample representation.

Pre-permit mediation

Any person who has made a representation may also request that Council initiate a mediation conference between the representor, Council and the applicant under s.57A of the Land Use Planning and Approvals Act 1993.  The applicant is not required to agree to mediation.  However, if a mediation conference is held, it can be a great opportunity to set out your concerns and see whether there is any scope to address them by modifying the development proposal.

A planning authority will not be bound by any agreement reached between the parties, and must still assess the proposal against the planning scheme, however if reasonable conditions can be agreed to that will influence the planner’s recommendations regarding the development.

To request mediation, include the following paragraph in your representation:

I would like the opportunity to discuss the concerns raised in this representation, and any options to address them through conditions or modifications to the proposal, with the applicant.  I request that Council notify the applicant that I have requested mediation under s.57A of the Land Use Planning and Approvals Act 1993 and advise me of the applicant’s response.

Some Councils also have specific forms for requesting pre-permit mediation (sometimes called ‘conciliation’).  For example, click here for information about Hobart City Council’s conciliation request process.

Commonwealth matters

Where a proposed development is likely to impact on a matter of national environmental significance, approval may also be required from the Commonwealth Environment Minister.  If this is the case, the public will be given the following opportunities to comment:

  • whether an action referred to the Minister is a “controlled” action that requires assessment by the Commonwealth Minister – 10 business days.  This is also a chance to comment on what level of assessment is appropriate (ranging from preliminary documentation to a full environmental impact statement or public inquiry). Click here for a guide to commenting on referrals.

 The Minister can reject a proposal without further assessment if she or he is satisfied that the project would be “clearly unacceptable”.  Click here for a sample letter asking that the Minister determine that a project is clearly unacceptable.

  • if approval is required, comments on the assessment documentation – 10 business days

Check the public notices on the Department of Environment website for updates on invitations to comment.  For more information about assessments under the EPBC Act, click here.

 

Monitoring and reporting

Councils have a legal obligation to observe and enforce their planning scheme. If you believe that an unlawful activity is occurring (for example, a development that has not been approved, or a factory that consistently operates outside of the hours allowed by its permit), you should notify the Council planning officer in writing and ask them to investigate.

Click here for a sample notification.

Council officers must respond to your notification within 120 days, advising you of any action that they have taken in response to the issue you raised.  Officers have a range of options to deal with unlawful activities, including:

  • informal negotiations with the landowner to address the problem
  • issuing an infringement notice
  • issuing an enforcement notice requiring an activity to cease, or particular action to be taken (for example, for unlawful development to be removed and the land restored)
  • issuing an Environment Protection Notice
  • suspending or cancelling a permit
  • prosecution
  • commencing civil enforcement action against the offender (see below)

For more information about these options, click here.

 

Challenging decisions, enforcing the laws

Appeals

Many decisions made in relation to planning and development issues are subject to appeal to the Resource Management and Planning Appeal Tribunal.   For more information about the appeal process, go to “Challenging Decisions“.

Generally, only people who have made a valid representation are entitled to appeal against a decision.  That is why it is important to make a representation, however brief, if you have concerns about a proposal.  Some people who did not make a representation may be able to join an appeal if they have a good reason for not having made a representation, however this is a very restricted opportunity – it is far better to be able to rely on your own right of appeal if you have made a representation.

Civil enforcement

Any member of the public whose interests are affected by an activity can apply to the Resource Management and Planning Appeal Tribunal if:

  • A use or development is not in accordance with the planning scheme (for example, if a permit is required and no permit has been granted)
  • A use or development is being undertaken in breach of permit conditions
  • The local council is failing to enforce its planning scheme (for example, by refusing to take action against an unlawful activity)

These actions are called “civil enforcement”.  For more information about civil enforcement, click here or go to “Challenging Decisions“.

Strict time limits exist for commencing civil enforcement actions.  You must apply to the Tribunal within 2 years from the date of the unlawful activity.

 Recent changes require anyone who wishes to apply for a civil enforcement order against another person in relation to a breach of the Land Use Planning and Approvals Act 1993 (for example, not complying with permit conditions) to first issue a notice on the relevant planning authority. This commences a 120 day window for the planning authority to decide whether or not to take action. You cannot commence proceedings until that time limit has passed, the authority has told you it won’t take any action, or action is taken but you are not satisfied that it has addressed the problem.

For more information, click here.  For a sample notice to Council, click here.