Land Use Planning and Approvals Amendment Act 2001

Land Use Planning and Approvals Amendment Act 2001

An Act to amend the Land Use Planning and Approvals Act 1993

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Land Use Planning and Approvals Amendment Act 2001 .

2.   Commencement

This Act commences on the day on which this Act receives the Royal Assent.

3.   Principal Act

In this Act, the Land Use Planning and Approvals Act 1993 is referred to as the Principal Act.

4.    Section 3 amended (Interpretation)

Section 3 of the Principal Act is amended as follows:

(a) by inserting the following definition after the definition of conservation in subsection (1) :

council has the same meaning as in the Local Government Act 1993 ;

(b) by inserting the following definition after the definition of land in subsection (1) :

modification includes elaboration, enlargement, alteration and substitution;

(c) by inserting "written" after "includes a" in the definition of representation in subsection (1) ;

(d) by omitting from subsection (2) " Local Government Act 1962 " and substituting " Local Government Act 1993 ".

5.    Section 4 amended (Application of Act)

Section 4(3) of the Principal Act is amended by omitting "Public Land Use".

6.    Part 2A inserted

After section 8 of the Principal Act , the following Part is inserted:

PART 2A - Planning Directives

9.   Planning directive

A planning directive may be made in accordance with this Part in respect of the following matters:

(a) land use issues requiring consistency for all municipal areas;

(b) land use issues unique to one municipal area or only some municipal areas;

(c) procedural matters arising from the operation of this Act or a State Policy;

(d) the application of a State Policy;

(e) any other matter the Minister considers appropriate.

10.   Draft planning directive

(1)  The following persons may prepare a draft planning directive at any time:

(a) the Commission;

(b) a planning authority;

(c) a State Service Agency;

(d) any other person.

(2)  A draft planning directive is to be lodged with the Commission.

(3)  The Commission must forward to the Minister a draft planning directive lodged with it or prepared by it together with a recommendation as to whether or not an assessment of the draft planning directive should be undertaken.

11.   Determination to proceed with draft planning directive

(1)  On receipt of a draft planning directive and the recommendation of the Commission under section 10(3) , the Minister may –

(a) direct the Commission to undertake an assessment of the draft planning directive; or

(b) determine that no further proceedings are to be undertaken in respect of the draft planning directive.

(2)  A direction to undertake an assessment of a draft planning directive is to be provided to the Commission in writing.

(3)  If the Minister determines that no further proceedings are to be undertaken in respect of the draft planning directive, the Minister is to give written notice of that determination to the person who prepared the draft planning directive.

12.   Assessment of draft planning directive

(1)  On receipt under section 11 of a direction to undertake an assessment of a draft planning directive, the Commission must undertake that assessment.

(2)  Before undertaking the assessment, the Commission must –

(a) give written notice to the person (other than the Commission) who prepared the draft planning directive and any planning authority or State Service Agency likely to be affected by the planning directive, if issued, that it will be undertaking the assessment; and

(b) invite representations from any person given notice under paragraph (a) ; and

(c) publish notice that it will be undertaking the assessment in a newspaper circulating generally in Tasmania or that part of Tasmania likely to be affected by the planning directive, if issued.

(3)  In undertaking an assessment, the Commission may inform itself of any matter in any manner it considers appropriate, including by the conduct of a hearing.

(4)  Part 3 of the Resource Planning and Development Commission Act 1997 applies in respect of a hearing held by the Commission for the purposes of an assessment.

(5)  On the completion of an assessment, the Commission must provide to the Minister a report of its findings and its recommendations as to whether or not a planning directive in the terms of the draft planning directive, or the draft planning directive modified as recommended by the Commission, should be issued.

13.   Issue of planning directive

(1)  After considering the report and recommendations of the Commission made under section 12(5) in respect of a draft planning directive, the Minister may –

(a) issue a planning directive; or

(b) determine not to issue a planning directive.

(2)  If the Minister issues a planning directive, the Minister must –

(a) give written notice of the planning directive to the Commission and all planning authorities affected by the planning directive; and

(b) publish notice of the issue of the planning directive in the Gazette.

(3)  If the Minister determines not to issue a planning directive, the Minister must –

(a) give written notice of that determination to the person who prepared the draft planning directive and the Commission; and

(b) publish notice of that determination in the same newspaper in which notice of the assessment of the draft planning directive was published under section 12(2)(c) .

(4)  A planning directive may be issued in the same terms as the draft planning directive or in the terms of the draft planning directive modified as recommended by the Commission.

(5)  A planning directive takes effect on the day on which notice of its issue is published in the Gazette or on a later day specified in the planning directive.

14.   Effect of planning directive

(1)  A planning authority is bound by a planning directive and must take all necessary steps to comply with it.

(2)  If compliance with a planning directive requires a planning scheme to be modified, the Commission may modify the planning scheme to ensure that the planning scheme complies with the planning directive.

(3)  Division 2 of Part 3 does not apply in respect of the modification of any planning scheme under subsection (2) .

(4)  The modification of a planning scheme under subsection (2) takes effect on the day specified by the Commission.

(5)  On modifying a planning scheme under subsection (2) , the Commission must give notice, as prescribed, of the modification.

15.   Modification or revocation of planning directive

A planning directive may be modified or revoked and this Part applies to the modification or revocation in the same manner as it applies to the making of a planning directive.

7.    Section 19A repealed

Section 19A of the Principal Act is repealed.

8.    Section 20 amended (What can a planning scheme provide for?)

Section 20(2) of the Principal Act is amended by omitting paragraph (d) .

9.    Section 24 amended (Certification by Commission of draft planning schemes prepared by planning authorities)

Section 24(2)(b)(i) of the Principal Act is amended by inserting "so that it is so suitable, certify it accordingly" after "it".

10.    Section 25 amended (Public exhibition of draft planning schemes)

Section 25 of the Principal Act is amended by omitting " section 24 (2) (a) , (2) (b) (i) or (5) " and substituting " section 24(2)(a) , (2)(b)(i) , (3)(b) or (5) ".

11.    Section 26 amended (Representations in respect of draft planning schemes)

Section 26(2) of the Principal Act is amended by inserting after paragraph (b) the following paragraph:

(ba) if the public exhibition of the draft planning scheme was required by notice under section 24(3)(b) , a statement addressing how the issues identified in that notice and upon which approval of that scheme is conditional have been or may be dealt with; and

12.    Section 28 amended (Modification or rejection, &c., of draft planning schemes before approval)

Section 28 of the Principal Act is amended as follows:

(a) by inserting in subsection (1)(a) "evidence and" after "any";

(b) by inserting the following paragraph after paragraph (a) in subsection (1) :

(ab) modify the draft planning scheme; or

(c) by inserting the following subsection after subsection (4) :

(5)  Where the Commission requires the planning authority to modify the draft planning scheme, the planning authority must not issue a permit or do any other thing that would, if the draft planning scheme modified as required had at that time been approved as a planning scheme, be a contravention of that approved planning scheme.

13.    Section 28C amended (Approval of withdrawal of draft planning scheme)

Section 28C(2) of the Principal Act is amended by omitting "under Division 2 of Part 2 ".

14.    Section 29 amended (Approval of draft planning schemes)

Section 29 of the Principal Act is amended as follows:

(a) by omitting paragraph (a) from subsection (3) and substituting the following paragraph:

(a) the scheme must be signed –

(i) by the chairperson of the Commission; or

(ii) if for any reason the chairperson is unavailable or unable to sign the scheme, by another member of the Commission approved by the Commission under subsection (3A) ; and

(b) by inserting the following subsection after subsection (3) :

(3A)  For the purposes of subsection (3)(a)(ii) , the Commission may approve a member of the Commission –

(a) to sign a particular draft planning scheme if the chairperson is unavailable or unable to sign it; or

(b) to sign draft planning schemes as required during any period during which the chairperson is unavailable or unable to sign them.

15.    Section 34 amended (Amendment of planning scheme)

Section 34(2) of the Principal Act is amended by inserting "within 10 weeks after receiving the direction or such longer period as the Commission allows" after "the direction".

16.    Sections 35 and 36 substituted

Sections 35 and 36 of the Principal Act are repealed and the following section is substituted:

35.   Certification of draft amendments by planning authorities

(1)  After preparing a draft amendment of a planning scheme, the planning authority must determine whether the draft amendment meets the requirements specified in section 32 and –

(a) if satisfied that it does, certify the draft amendment as so meeting those requirements; or

(b) if not so satisfied, proceed to modify the draft amendment until it does meet those requirements and then certify the modified draft amendment as so meeting those requirements.

(2)  For the purposes of subsection (1) , the planning authority must certify the draft amendment by instrument in writing signed by the mayor and general manager of the planning authority.

(3)  In subsection (2) , "mayor" and "general manager" have the same meaning as in the Local Government Act 1993 .

(4)  Within 7 days after certifying under subsection (1) that the draft amendment of a planning scheme meets the requirements specified in section 32 , the planning authority must give a copy of the draft amendment and the instrument containing that certification to the Commission.

17.    Section 38 substituted

Section 38 of the Principal Act is repealed and the following section is substituted:

38.   Public exhibition of draft amendment

After giving to the Commission a copy of a draft amendment of a planning scheme and the instrument certifying that the amendment meets the requirements specified in section 32 , the planning authority must –

(a) cause a copy of the draft amendment to be placed on public exhibition for a period, being not less than 3 weeks and not more than 2 months, determined by the planning authority; and

(b) advertise, as prescribed, the exhibition of the draft amendment.

18.    Section 41 amended (Modification or rejection of draft amendment before approval)

Section 41 of the Principal Act is amended as follows:

(a) by inserting in paragraph (a) "evidence and" after "any";

(b) by inserting the following paragraph after paragraph (a) :

(ab) modify, or alter to a substantial degree, the draft amendment after having regard to the report made under section 39 and any evidence and submissions made in a hearing under section 40 ; or

19.    Section 41AB inserted

After section 41A of the Principal Act , the following section is inserted in Division 2:

41AB.   Limitation on planning authority's actions

If a draft amendment to a planning scheme is required to be modified, or altered to a substantial degree, under section 41(a) , the planning authority must not issue a permit or do any other thing that would, if the draft amendment modified as required had at that time become operative, be a contravention of that planning scheme as amended by that amendment.

20.    Section 42 amended (Approval of draft amendments)

Section 42 of the Principal Act is amended as follows:

(a) by omitting paragraph (a) from subsection (3) and substituting the following paragraph:

(a) the amendment must be signed –

(i) by the chairperson of the Commission; or

(ii) if for any reason the chairperson is unavailable or unable to sign the amendment, by another member of the Commission approved by the Commission under subsection (3A) ; and

(b) by inserting the following subsection after subsection (3) :

(3A)  For the purposes of subsection (3)(a)(ii) , the Commission may approve a member of the Commission –

(a) to sign a particular amendment if the chairperson is unavailable or unable to sign it; or

(b) to sign draft amendments as required during any period during which the chairperson is unavailable or unable to sign them.

21.    Section 43C amended (Applications referred to in section 43A )

Section 43C of the Principal Act is amended by inserting after subsection (2) the following subsection:

(2A)  Section 57(3) , (4) , (5) , (5A) and (5B) does not apply in respect of an application for a permit referred to in subsection (2) .

22.    Section 43F amended (Procedure for determining an application for a permit under this Division)

Section 43F of the Principal Act is amended as follows:

(a) by omitting from subsection (1)(b)(ii) "permit; and" and substituting "permit.";

(b) by omitting paragraph (c) from subsection (1) ;

(c) by omitting from subsection (3) " section 38(a)(ii) ," and substituting " section 38(b) ,";

(d) by omitting from subsection (4) "and the Commission cause" and substituting "causes";

(e) by omitting from subsection (4) "they" and substituting "it".

23.    Part 3, Division 2B repealed

Division 2B of Part 3 of the Principal Act is repealed.

24.    Section 47 amended (Making of special planning orders)

Section 47(4) of the Principal Act is amended by omitting paragraph (a) and substituting the following paragraph:

(a) either –

(i) make the special planning order in the same terms as the order submitted to it; or

(ii) if the planning authority agrees, modify the order submitted to it and then make the special planning order in the terms of the modified order; or

(iii) refuse to make the special planning order; and

25.    Section 51 amended (Permits)

Section 51 of the Principal Act is amended by omitting subsection (3) and substituting the following subsection:

(3)  The decision of a planning authority on an application referred to in subsection (1A) or (1B) is to be made by reference –

(a) to the provisions of the planning scheme or special planning order as in force at the date of that decision; or

(b) if the planning authority has been required under section 28(1)(a) to modify a draft planning scheme and that draft planning scheme has not been approved by the Commission at the date of that decision, to the provisions of the draft planning scheme modified as required; or

(c) if the planning authority has been required under section 41(a) to modify, or alter to a substantial degree, a draft amendment to a planning scheme and that draft amendment has not become operative at the date of that decision, to the provisions of the planning scheme as they would be if the draft amendment modified, or altered to a substantial degree, as required had become operative.

26.    Section 52 amended (What if applicant is not the owner?)

Section 52 of the Principal Act is amended as follows:

(a) by omitting subsection (1) and substituting the following subsection:

(1)  If –

(a) the applicant for a permit is not the owner of the land in respect of which the permit is required; and

(b) the land is not –

(i) Crown land, within the meaning of the Crown Lands Act 1976 ; or

(ii) land owned by a council; or

(iii) land administered by the Crown or a council; and

(c) the planning scheme or special planning order does not provide otherwise –

the applicant must notify the owner of the land, in writing, of the making of the application within 7 days after making it.

(b) by inserting the following subsections after subsection (1A) :

(1B)  If land in respect of which an application for a permit is required is Crown land, within the meaning of the Crown Lands Act 1976 , is owned by a council or is administered or owned by the Crown or a council and a planning scheme or special planning order does not provide otherwise, the application must –

(a) be signed by the Minister of the Crown responsible for the administration of the land or by the mayor of the council or, if the mayor is unavailable or unable to sign the application, the deputy mayor of the council; and

(b) be accompanied by the written permission of that Minister, mayor or deputy mayor to the making of the application.

(1C)  In subsection (1B) , "mayor" and "deputy mayor" have the same meaning as in the Local Government Act 1993 .

(c) by inserting the following subsection after subsection (2) :

(3)  A provision in a planning scheme or a special planning order is of no effect to the extent that it provides that an application for a permit by a person who is not the owner of the land in respect of which the permit is required must be signed by, or accompanied by the written permission of, the owner.

27.    Section 53 amended (When does a permit take effect?)

Section 53 of the Principal Act is amended by omitting subsection (5) and substituting the following subsections:

(5)  If the use or development in respect of which a permit was granted is not substantially commenced, the permit lapses –

(a) after a period of 2 years from the date on which the permit was granted; or

(b) if the planning authority has granted an extension under subsection (5A) , after a further period of 2 years.

(5A)  If the use or development in respect of which a permit was granted is not, or is unlikely to be, substantially commenced before the permit would otherwise lapse under subsection (5)(a) , the planning authority may grant (once only) an extension of the period during which that use or development must be substantially commenced.

28.    Section 54 amended (Additional information)

Section 54(1) of the Principal Act is amended by omitting "28" and substituting "21".

29.    Section 57 amended (Applications for discretionary permits)

Section 57 of the Principal Act is amended as follows:

(a) by omitting paragraph (b) from subsection (2) ;

(b) by omitting paragraph (b) from subsection (6) and substituting the following paragraph:

(b) not later than the expiration of the period of 42 days from the day on which the authority received the application or such further period as is agreed to, in writing, by the authority and the applicant before the expiration of that 42 day period.

(c) by omitting from subsection (7)(b) "representations; and" and substituting "representations.";

(d) by omitting paragraph (c) from subsection (7) .

30.    Section 58 amended (Application for other permits)

Section 58 of the Principal Act is amended as follows:

(a) by omitting subsection (2) and substituting the following subsection:

(2)  If an application for a permit to which this section applies meets the requirements of the planning scheme to which the application relates, a planning authority must grant the application either unconditionally or subject to conditions or restrictions not later than the expiration of the period of 42 days from the day on which the authority received the application or such further period as is agreed to, in writing, by the authority and the applicant before the expiration of that 42 day period.

(b) by omitting from subsection (2A) " subsection (2) (a) or (b) " and substituting " subsection (2) ";

(c) by omitting from subsection (3) "and, if advice has been provided in accordance with section 60 (2A) , on all relevant agencies who provided the advice".

31.    Section 59 amended (Failure to determine an application for a permit)

Section 59 of the Principal Act is amended by omitting subsection (9) .

32.    Section 60 repealed

Section 60 of the Principal Act is repealed.

33.    Section 61 amended (Appeals against planning decisions)

Section 61 of the Principal Act is amended by omitting subsection (7) .

34.    Section 63A inserted

After section 63 of the Principal Act , the following section is inserted in Division 4:

63A.   Enforcing compliance with planning schemes and special planning orders

(1)  A planning authority that does not take all reasonable steps to ensure that a planning scheme or special planning order that has effect in respect of an area within its municipal district is complied with is guilty of an offence punishable on summary conviction.

(2)  A planning authority convicted of an offence against subsection (1) is liable to a fine not exceeding 500 penalty units, and a planning authority who is so convicted in respect of a continuing contravention of this section –

(a) is liable, in addition to the penalty otherwise applicable to that offence, to a fine for each day during which the contravention continued of not more than 500 penalty units; and

(b) if the contravention continues after the planning authority is convicted, is guilty of a further offence and is liable, in addition to the penalty otherwise applicable to that further offence, to a fine for each day during which the contravention continued after that conviction of not more than 50 penalty units.

35.    Section 64 amended (Civil enforcement proceedings)

Section 64 of the Principal Act is amended by inserting after subsection (2) the following subsections:

(2A)  If an application under this section is made by a person other than the planning authority in whose municipal area is situated the land to which the application relates, the planning authority is taken to be a party to the application.

(2B)  At any time after receiving an application made under this section by a person other than the planning authority in whose municipal area is situated the land to which the application relates, the Appeal Tribunal may direct that the planning authority be made an applicant in the application.

(2C)  At any time after receiving an application made under this section by a person other than the Commission, the Appeal Tribunal on the request of the Commission may direct that the Commission be made an applicant in the application.

36.    Section 87 amended (Regulations)

Section 87(2)(a) of the Principal Act is amended by inserting "and planning authorities" after "Commission".

37.    Schedule 4 amended (Savings and Transitional Provisions)

Schedule 4 to the Principal Act is amended as follows:

(a) by omitting the definition of modification from clause 1(1) ;

(b) by omitting from clause 6(b) " section 36 " and substituting " section 35 ".

38.    Resource Planning and Development Commission Act 1997 amended

The Resource Planning and Development Commission Act 1997 is amended as follows:

(a) by inserting the following section after section 11 :

11A.   Representation at hearing

(1)  At a hearing before the Commission, a party to the hearing may appear in person or be represented by some other person (whether or not the person is enrolled as a barrister, solicitor, barrister and solicitor or legal practitioner of the High Court or the Supreme Court of a State).

(2)  The Commission may refuse to allow a party to the hearing to be represented if the Commission is satisfied that another party to the hearing would be significantly disadvantaged by that representation.

(b) by inserting the following section after section 17 :

17A.   Obstruction or improper influence of hearing

A person must not obstruct or improperly influence the conduct of a hearing of the Commission or attempt to do so.

Penalty:  Fine not exceeding 20 penalty units or imprisonment for a term not exceeding 6 months.

39.   Land Use Planning and Approvals (Application of Act) Regulations 1995 rescinded

The Land Use Planning and Approvals (Application of Act) Regulations 1995 are rescinded.

40.   Validations

(1)  In this section –

Panel means the Land Use Planning Review Panel established under section 8 of the Land Use Planning and Approvals Act 1993 as in force before the commencement of the Resource Planning and Development Commission Act 1997 ;

Standing Committee means the Standing Committee on Planning established by the Commission under section 9 of the Resource Planning and Development Commission Act 1997 by an instrument dated 11 February 1998 consequent on a resolution of the Commission made at its meeting on 27 January 1998.

(2)  Any delegation made or purported to have been made before the commencement of the Resource Planning and Development Commission Act 1997 by the Panel is taken to have been validly made.

(3)  A function or power performed or exercised, or purportedly performed or exercised, by a person pursuant to a delegation or purported delegation made before the commencement of the Resource Planning and Development Commission Act 1997 by the Panel is taken to have been validly performed or exercised by that person as a delegate of the Panel.

(4)  Any delegation made or purported to have been made by the Standing Committee is taken to have been validly made.

(5)  A function or power performed or exercised, or purportedly performed or exercised, by a person pursuant to a delegation or purported delegation made by the Standing Committee is taken to have been validly performed or exercised by that person as a delegate of the Standing Committee.

[Second reading presentation speech made in:

House of Assembly on 19 JUNE 2001

Legislative Council on 27 JUNE 2001]