Marine Farming Planning Amendment Act 2001

Marine Farming Planning Amendment Act 2001

An Act to amend the Marine Farming Planning Act 1995

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 Marine Farming Planning 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 Marine Farming Planning Act 1995 is referred to as the Principal Act.

4.    Section 3 amended (Interpretation)

Section 3 of the Principal Act is amended as follows:

(a) by omitting "draft plan" from the definition of draft amendment and substituting "plan";

(b) by omitting the definition of marine farming development plan and substituting the following definition:

marine farming development plan means a marine farming development plan approved under section 31(3)(a) or section 42(4) ;

(c) by inserting the following definition after the definition of maximum leasable area :

modify, in relation to a draft marine farming development plan, includes to change any boundary or area to which the plan relates;

(d) by inserting the following definition after the definition of use :

vary includes substitute, add or delete;

5.    Section 8 amended (Marine Farming Planning Review Panel)

Section 8(2) of the Principal Act is amended as follows:

(a) by omitting "7" and substituting "8";

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

(fa) one is a person with expertise in local government issues; and

6.    Section 9 amended (General functions and powers of Panel)

Section 9 of the Principal Act is amended as follows:

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

(a) to consider draft plans, draft amendments to marine farming development plans and draft modifications to marine farming development plans following reviews under section 48 ; and

(ab) to consider environmental impact statements; and

(b) by inserting in subsection (1)(b) ", draft modifications" after "plans";

(c) by inserting in subsection (1)(c) ", draft modifications" after "plans";

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

(3)  The Panel must conduct a hearing if a request for the hearing is made under section 27(2)(c) or section 39(2)(c) .

7.    Section 12 amended (Hearings)

Section 12 of the Principal Act is amended by inserting after subsection (1) the following subsections:

(1A)  The Panel may hold one hearing in relation to as many representations as it determines.

(1B)  The Panel is to –

(a) give notice in writing to each person who made a request under section 27(2)(c) or section 39(2)(c) of the date, time and place of the hearing not less than 14 days before the date of the hearing; and

(b) by public notice, advertise the date, time and place of the hearing.

(1C)  A notice under subsection (1B)(a) is taken to have been given to a person –

(a) in the case of hand delivery, when delivered at the person's last known address; or

(b) if sent by prepaid post, on the fifth day after the date of posting to the person's last known address; or

(c) if sent by facsimile transmission to the person's last known facsimile number and the sending facsimile machine produces a print-out which records the time and date of the transmission –

(i) if completion is within ordinary business hours at the place to which the transmission is sent, at that recorded date and time; or

(ii) if completion is outside ordinary business hours, at 9.00am on the next ordinary business day in that place.

8.    Section 20 amended (Directions for assistance)

Section 20(3) of the Principal Act is amended by omitting "land," and substituting "land upon".

9.    Section 21 amended (Draft marine farming development plan)

Section 21 of the Principal Act is amended as follows:

(a) by omitting paragraph (b) from subsection (1) and substituting the following paragraphs:

(b) designate any area as a marine farming zone within the area covered by the draft plan; and

(ba) specify the area to which the marine farming development plan relates; and

(b) by omitting from subsection (1)(e) "ensure" and substituting "seek";

(c) by inserting the following paragraph after paragraph (g) in subsection (1) :

(ga) be consistent with State Policies made under section 11 of the State Policies and Projects Act 1993 ; and

(d) by omitting paragraph (b) from subsection (2) and substituting the following paragraph:

(b) provide for the maximum area that at any one time may be a lease area within a marine farming zone; and

10.    Section 23 amended (Environmental impact statement)

Section 23 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "as part of a draft plan or an amendment" and substituting "to accompany a draft plan, a modification to a draft plan, a draft amendment to a plan and a modification to a draft amendment to a plan";

(b) by omitting from subsection (2)(a) "proposal" and substituting "draft plan";

(c) by omitting from subsection (2)(b) "or amendment" and substituting ", a modification to a draft plan, a draft amendment to a plan and a modification to a draft amendment to a plan";

(d) by omitting from subsection (3) "an amendment" and substituting "a modification";

(e) by omitting from subsection (3) "that amendment" and substituting "the modification".

11.    Section 24 amended (Draft management controls)

Section 24(1) of the Principal Act is amended as follows:

(a) by omitting from paragraph (a) "to accompany" and substituting "as part of";

(b) by omitting from paragraph (b) "to accompany any significant amendment" and substituting "as part of any significant modification".

12.    Section 25 amended (Approval of draft plan)

Section 25 of the Principal Act is amended as follows:

(a) by omitting from subsection (2) "6" and substituting "9";

(b) by omitting subparagraph (i) from subsection (2)(b) and substituting the following subparagraph:

(i) must alter it and refer it to the Minister for approval for the draft plan, as altered, to be publicly exhibited; or

(c) by omitting from subsection (2)(b)(ii) "amend" and substituting "alter";

(d) by omitting from subsection (3)(d) "contains" and substituting "is accompanied by";

(e) by omitting from subsection (4) "amended" and substituting "altered".

13.    Section 26 amended (Public exhibition of draft plan)

Section 26(2) of the Principal Act is amended as follows:

(a) by omitting from paragraph (a) "3" and substituting "6";

(b) by omitting from paragraph (b)(iv) "plan." and substituting "plan; and";

(c) by inserting the following subparagraphs after subparagraph (iv) in paragraph (b) :

(v) that written representations may be made under section 27 to the planning authority in relation to the draft plan; and

(vi) the date by which representations are to be lodged; and

(vii) the place of lodgment of representations; and

(viii) that a hearing may be requested under section 27 in relation to a representation.

14.    Section 27 amended (Representations in respect of draft plan)

Section 27 of the Principal Act is amended by omitting subsection (2) and substituting the following subsection:

(2)  A representation –

(a) is to be made in writing; and

(b) is to state the name of the person making the representation; and

(c) is to be accompanied by a written request for a hearing if the person wishes a hearing to be conducted in relation to that representation; and

(d) is to state the address for receipt of any notice in relation to the hearing; and

(e) is to be lodged by the date referred to in section 26(2)(b)(vi) .

15.    Section 28 amended (Report of representations relating to draft plan)

Section 28 of the Principal Act is amended by inserting after paragraph (a) the following paragraph:

(ab) a copy of each request received under section 27(2)(c) or, if no request has been received, a statement to that effect; and

16.    Section 29 amended (Consideration of draft plan, management controls and representations)

Section 29 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "draft management controls and report" and substituting "any accompanying environmental impact statement and the report";

(b) by omitting from subsection (2) "draft management controls and report" and substituting "report and any accompanying environmental impact statements";

(c) by omitting from subsection (2)(a) "and draft management controls";

(d) by omitting from subsection (2)(b) "and draft management controls";

(e) by omitting paragraph (c) from subsection (2) and substituting the following paragraph:

(c) require the planning authority to modify a specified provision of the draft plan; or

(f) by omitting from subsection (2)(d) "and draft management controls";

(g) by omitting subsection (3) and substituting the following subsections:

(3)  The Panel may determine that a modification of a draft plan is not of a substantial nature.

(3A)  The Panel, by notice in writing, is to notify the planning authority of –

(a) any modification it makes and the reasons for the modification; and

(b) any modification to the draft plan it requires and the reasons for the modification; and

(c) its rejection or acceptance of the draft plan; and

(d) any determination made under subsection (3) .

(h) by omitting from subsection (4) "or draft management controls".

17.    Section 30 amended (Modification of draft plan)

Section 30 of the Principal Act is amended as follows:

(a) by omitting from subsection (2) "Part" and substituting "Division";

(b) by omitting from subsection (3) "or draft management controls";

(c) by omitting from subsection (3)(b) " sections 15 (2) , 17 , 20 , 25 (1) and 31 " and substituting " sections 15 (2) , 17 , 20 and 25 (1) ";

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

(4)  If the Panel determines under section 29(3) that a modification of a draft plan is not of a substantial nature, it may direct that the provisions relating to public exhibition, representation and hearings do not apply to that modification.

18.    Section 31 amended (Final approval of draft plan)

Section 31 of the Principal Act is amended as follows:

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

(b) by omitting from subsection (2)(a)(ii) "or draft management controls".

19.    Section 35 amended (Certification of draft amendment)

Section 35(3) of the Principal Act is amended as follows:

(a) by omitting from paragraph (b) "contains" and substituting "is accompanied by";

(b) by omitting paragraph (c) .

20.    Section 37 amended (Panel may dispense with certain requirements)

Section 37 of the Principal Act is amended as follows:

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

(1)  The Panel may recommend to the Minister that sections 23 ,  35(3)(b) , 38 , 39 , 40 and 41 do not apply in relation to a draft amendment if satisfied that the draft amendment –

(a) is to correct an error; or

(b) is not of a substantial nature; or

(c) is to remove any anomaly to clarify or simplify the marine farming development plan.

(b) by inserting the following subsections after subsection (2) :

(3)  The Panel may determine that a modification to a draft amendment is not of a substantial nature.

(4)  If a Panel makes a determination under subsection (3)  –

(a) an environmental impact statement is not required; and

(b) sections 38 , 39 , 40 and 41 do not apply in relation to the modification to a draft amendment.

21.    Section 38 amended (Public exhibition of draft amendment)

Section 38(2)(b) of the Principal Act is amended as follows:

(a) by omitting from subparagraph (ii) "exhibited." and substituting "exhibited; and";

(b) by inserting the following subparagraphs after subparagraph (ii) :

(iii) the place at which a copy of the draft amendment may be obtained; and

(iv) any cost of obtaining a copy of the draft amendment; and

(v) that written representations may be made under section 39 to the planning authority in relation to the draft amendment; and

(vi) the date by which representations are to be lodged; and

(vii) the place of lodgment of representations; and

(viii) that a hearing may be requested under section 39 in relation to a representation.

22.    Section 39 amended (Representations in respect of draft amendment)

Section 39 of the Principal Act is amended by omitting subsection (2) and substituting the following subsection:

(2)  A representation –

(a) is to be made in writing; and

(b) is to state the name of the person making the representation; and

(c) is to be accompanied by a written request for a hearing if the person wishes a hearing to be conducted in relation to that representation; and

(d) is to state the address for receipt of any notice in relation to the hearing; and

(e) is to be lodged by the date referred to in section 38(2)(b)(vi) .

23.    Section 40 amended (Report of representations relating to draft amendment)

Section 40 of the Principal Act is amended by inserting after paragraph (a) the following paragraph:

(ab) a copy of each request received under section 39(2)(c) or, if no request has been received, a statement to that effect; and

24.    Section 41 amended (Consideration of draft amendment)

Section 41 of the Principal Act is amended by omitting subsection (3) and substituting the following subsections:

(3)  The Panel, by notice in writing, is to notify the planning authority of –

(a) any modification it makes and the reasons for the modification; and

(b) any modification to the draft amendment it requires and the reasons for the modification; and

(c) its rejection or acceptance of the draft amendment; and

(d) any determination made under section 37(3) .

(4)  The provisions of this Division, other than sections 33 , 34 , 37(1) and (2) , apply in relation to the modification of a draft amendment as if it were a draft amendment.

25.    Section 42 amended (Final approval of draft amendment)

Section 42 of the Principal Act is amended by inserting after subsection (6) the following subsection:

(7)  If the Minister gives final approval to a draft amendment –

(a) the approved amendment prevails over an existing plan to the extent of any inconsistency; and

(b) a marine farming development plan replaced by an approved amendment ceases to have effect on the signing of the replacement marine farming development plan by the Minister.

26.    Section 43 amended (Emergency order)

Section 43 of the Principal Act is amended as follows:

(a) by omitting from subsection (1)(c) "species of";

(b) by inserting in subsection (3) "on application or on its own instigation" after "order".

27.    Section 45 amended (Emergency plans)

Section 45 of the Principal Act is amended as follows:

(a) by inserting in subsection (1) "in respect of any lease area or other area" after "emergency plan";

(b) by omitting from subsection (1)(a) "the lease area" and substituting "a lease area";

(c) by omitting from subsection (1)(b) "affects or is likely to affect the water" and substituting "substantially affects or is likely to substantially affect the water or fish in a lease area";

(d) by omitting from subsection (1)(c) "affect or are likely to affect the water" and substituting "affect or are likely to affect substantially the water or fish in a lease area";

(e) by inserting the following subsection after subsection (1) :

(1A)  An emergency plan may include a provision restricting or prohibiting the use of a lease area for a specified period.

28.    Section 48 amended (Review of marine farming development plans)

Section 48 of the Principal Act is amended as follows:

(a) by inserting in subsection (1) "when required to do so by the Minister or" after "plan";

(b) by omitting subsections (2) and (3) and substituting the following subsections:

(2)  If the planning authority considers that a marine farming development plan should be modified as a result of the review, it is to notify the Minister accordingly.

(3)  If the Minister is of the opinion that the marine farming development plan requires modification –

(a) the Minister is to direct the planning authority to prepare a draft modification; and

(b) the provisions of Division 1 of this Part, other than sections 15(2) , 16 , 17 and 25(1) , apply in relation to a draft modification to the plan as if it were a modification to a draft marine farming development plan; and

(c) the marine farming development plan ceases to have effect on the date the Minister gives final approval to the plan as modified.

(4)  A marine farming development plan approved as a result of a review prevails to the extent of any inconsistency over any other marine farming development plan existing at the date of the approval and continuing in existence after that date.

(5)  A lease in respect of an area that is covered by a marine farming development plan approved as a result of a review remains in force for the remainder of the period for which it was granted if a marine farming development plan does not provide for –

(a) the relocation of the lease area; and

(b) the continued marine farming under a marine farming licence of the species of fish being farmed within the lease area as at the date of approval of the marine farming development plan.

(6)  The Minister may renew a marine farming licence in respect of the area to which a lease referred to in subsection (5) relates during any period during which a lease continues to be in force –

(a) despite any inconsistency between that licence and the marine farming development plan as approved; and

(b) only if the licence relates to the marine farming of the species of fish being farmed within the lease area as at the date of approval of the marine farming development plan.

29.    Section 52 amended (Participation in allocation process)

Section 52 of the Principal Act is amended by inserting after subsection (5) the following subsection:

(6)  This section does not apply to –

(a) a lease granted under section 62 ,  69(2) or 81(6) ; or

(b) a lease issued under section 84(4)(b) ; or

(c) a lease renewed under section 66 ; or

(d) a lease varied under section 67 .

30.    Section 53 amended (Method for allocation of lease)

Section 53 of the Principal Act is amended by inserting after subsection (4) the following subsection:

(5)  This section does not apply to –

(a) a lease granted under section 62 ,  69(2) or 81(6) ; or

(b) a lease issued under section 84(4)(b) ; or

(c) a lease renewed under section 66 ; or

(d) a lease varied under section 67 .

31.    Section 55 repealed

Section 55 of the Principal Act is repealed.

32.    Section 62 amended (Granting of emergency lease)

Section 62 of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:

(1)  The Minister may only grant an application for an emergency lease if satisfied that –

(a) the area specified in the original lease should not be used for a temporary period due to a situation affecting water quality; or

(b) the area or the fish within that area are substantially affected, or likely to be substantially affected, by pollution, pests or diseases.

33.    Section 63 amended (Duration of emergency lease)

Section 63(2)(d) of the Principal Act is amended by inserting "emergency" after "terminates the".

34.    Section 66 amended (Renewal of lease)

Section 66(1) of the Principal Act is amended by omitting "10" and substituting "15".

35.    Section 67 amended (Variation of lease)

Section 67 of the Principal Act is amended as follows:

(a) by inserting in subsection (1) "or a lease area" after "a lease";

(b) by inserting the following subsections after subsection (5) :

(6)  Before varying a lease area, the Minister must –

(a) consult with any other lessees who may reasonably be expected to have the water quality in their lease areas affected by the proposed variation; and

(b) be satisfied that the proposed variation is not likely to unreasonably affect the quality of the water in any other lease area.

(7)  The Minister, by notice in writing, must notify any lessee referred to in subsection (6) of any variation made to a lease area.

36.    Section 69 amended (Cancellation of lease by consent)

Section 69(1) of the Principal Act is amended by inserting "or the lease area" after "if the lease".

37.    Section 71 amended (Removal of equipment and fish from area)

Section 71 of the Principal Act is amended as follows:

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

(1)  The Minister, by notice in writing, may require the person who is the holder of a lease or permit under the Living Marine Resources Management Act 1995 immediately before the lease or permit ceases to be in force for any reason –

(a) in respect of any area, to remove within a specified period from that area or any other area, whether covered by the lease or permit or not, any equipment, debris and fish stock resulting from the occupation of that area by the holder or a sublessee of the holder; or

(b) in respect of a particular area, to remove within a specified period from that area or any other area not currently covered by the lease or permit any equipment, debris and fish stock resulting from the occupation of that area by the holder or a sublessee of the holder.

(b) by omitting from subsection (3) "the cancelled lease" and substituting "a lease or permit".

38.    Section 72 amended (Costs of removal of equipment and fish)

Section 72 of the Principal Act is amended as follows:

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

(a) seize any marine farming equipment, debris or fish stock within the area referred to in section 71(1) ; and

(b) by omitting from subsection (2) "cancelled lease" and substituting "lease or permit referred to in section 71(1) ".

39.    Section 73 amended (Transfer of lease)

Section 73(5) of the Principal Act is amended by omitting "a licence" and substituting "an existing licence".

40.    Section 78 amended (Death of lessee)

Section 78(4) of the Principal Act is amended by inserting after paragraph (b) the following paragraph:

(ba) the lease is transferred;

41.    Section 89 amended (Deposits)

Section 89 of the Principal Act is amended as follows:

(a) by inserting in subsection (1)(a) "or a person acting on behalf of a lessee" after "lessee";

(b) by inserting in subsection (2) "or a person acting on behalf of a lessee," after "lessee";

(c) by inserting in subsection (3) "or a person acting on behalf of a lessee" after "lessee".

42.    Section 92 amended (Unlawful removal, disturbance and deposit)

Section 92(1) of the Principal Act is amended by omitting paragraph (c) and substituting the following paragraphs:

(c) do any act within or outside a lease area or an area to which a permit under the Living Marine Resources Management Act 1995 relates that causes or is likely to cause harm or damage to a lease area, an area to which the permit relates or any marine farming equipment or fish stocks within a lease area or an area to which the permit relates; or

(d) hinder or obstruct the operation of marine farming.

43.    Section 94 amended (Location of marine farming equipment)

Section 94 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "lessee" and substituting "person, unless otherwise authorised,";

(b) by omitting from subsection (3)(b) "Minister" and substituting "planning authority".

44.    Section 95 amended (Appeals against amendments and grants)

Section 95 of the Principal Act is amended as follows:

(a) by omitting paragraph (c) from subsection (1) and substituting the following paragraphs:

(c) the grant of a new lease for a larger area on the ground that the quality of the water in another lease area is likely to be unreasonably affected by the granting of that lease; and

(d) the variation of a lease area on the ground that the quality of the water in any other lease area is likely to be unreasonably affected by that variation.

(b) by omitting paragraph (b) from subsection (2) and substituting the following paragraphs:

(b) 14 days after receipt of a notice under section 67(7) ; or

(c) 14 days after receipt of a notice under section 81 (7) .

45.    Section 144A inserted

After section 144 of the Principal Act , the following section is inserted in Division 10:

144A.   Transitional provisions

(1)  Anything done under the provisions of Division 2 of Part 2 and Divisions 1 , 2 and 4 of Part 3 before the commencement of the Marine Farming Planning Amendment Act 2001 is, on that day, taken to be done under those provisions as in force on that commencement.

(2)  The Minister may give approval under section 31(3)(a) or 42(4) in relation to draft plans and draft amendments in respect of which anything was done before the commencement of the Marine Farming Planning Amendment Act 2001 .

[Second reading presentation speech made in:

House of Assembly on 21 AUGUST 2001

Legislative Council on 29 AUGUST 2001]