Land Use Planning and Approvals Act 1993
An Act to make provision for land use planning and approvals
[Royal Assent 9 November 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:
PART 1 - Preliminary
This Act may be cited as the Land Use Planning and Approvals Act 1993 .
The provisions of this Act commence on a day or days to be proclaimed.
(1) [Section 3 Subsection (1) amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 104 of 1995, s. 4 and s. 35 and Sched. 1 ]In this Act, unless the contrary intention appears –[Section 3 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998]agreement means an agreement entered into under Part 5 ;Appeal Tribunal means the Resource Management and Planning Appeal Tribunal established under the Resource Management and Planning Appeal Tribunal Act 1993 ;building includes –(a) a structure and part of a building or structure; and(b) fences, walls, out-buildings, service installations and other appurtenances of a building; and(c) a boat or a pontoon which is permanently moored or fixed to land;[Section 3 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Commission means the Resource Planning and Development Commission established under the Resource Planning and Development Commission Act 1997 ;conservation includes preservation, maintenance, sustainable use and restoration of the natural and cultural environment;development includes –but does not include any development of a class or description, including a class or description mentioned in paragraphs (a) to (f) , prescribed by the regulations for the purposes of this definition;(a) the construction, exterior alteration or exterior decoration of a building; and(b) the demolition or removal of a building or works; and(c) the construction or carrying out of works; and(d) the subdivision or consolidation of land, including buildings or airspace; and(e) the placing or relocation of a building or works on land; and(f) the construction or putting up for display of signs or hoardings –land includes –[Section 3 Subsection (1) amended by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997](a) buildings and other structures permanently fixed to land; and(b) land covered with water; and(c) water covering land; and(d) any estate, interest, easement, servitude, privilege or right in or over land;municipality means a council;municipal district means a municipal area;owner means any one or more of the following:[Section 3 Subsection (1) amended by No. 85 of 1997, Applied:01 Jan 1998](a) in the case of a fee simple estate in land – the person in whom that estate vested;(b) in the case of land not registered under the Land Titles Act 1980 and subject to a mortgage – the person having, for the time being, the equity of redemption in that mortgage;(c) in the case of land held under a tenancy for life – the person who is the life tenant;(d) in the case of land held under a lease for a term of not less than 99 years or for a term of not less than such other prescribed period – the person who is the lessee of the land;(e) in the case of land in respect of which a person has a prescribed interest – that person;(f) in the case of Crown land within the meaning of the Crown Lands Act 1976 , the Crown in right of the State of Tasmania;[Section 3 Subsection (1) amended by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] [Section 3 Subsection (1) amended by No. 84 of 1997, s. 4, Applied:01 Jan 1998] permit means any permit, approval or consent required by a planning scheme or special planning order to be issued or given by a municipality in respect of the use or development of any land;person includes a department, or other agency of Government of the State or the Commonwealth and an authority of the State or the Commonwealth;planning appeal means an appeal under section 61 ;[Section 3 Subsection (1) amended by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] planning authority means a council;planning scheme means a planning scheme in force under section 29 ;relevant agency means –declared by the regulations to be a relevant agency for the purposes of the provision in which the expression occurs or for the purposes of a matter prescribed in the regulations;(a) a department or other agency of Government of the State or of the Commonwealth; or(b) an authority of the State or of the Commonwealth established for a public purpose; or(c) a person undertaking a function for the public benefit –representation, in relation to a draft planning scheme, a draft amendment of a planning scheme or an application for a permit, includes a statement of facts or reasons in support of or in opposition to the draft scheme, draft amendment or application;special planning order means an order in force under section 47 ;[Section 3 Subsection (1) amended by No. 21 of 1997, s. 17, Applied:01 Aug 1997] State Policy means a Tasmanian Sustainable Development Policy made under section 11 , or that comes into operation under section 12 , of the State Policies and Projects Act 1993 ;use, in relation to land, includes the manner of utilising land but does not include the undertaking of development;works includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil, but does not include forest practices, as defined in the Forest Practices Act 1985 , carried out in State forests.(2) Words and expressions used both in this Act and in the Local Government Act 1962 have in this Act, unless the contrary intention appears, the same respective meanings as they have in that Act.
(1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.(2) Subject to subsection (3) , this Act applies to all parts of the State except such parts as may from time to time be prescribed in the regulations.(3) Part 3 of this Act does not apply to public land, within the meaning of the Public Land (Administration and Forests) Act 1991 , that is the subject of a reference to the Public Land Use Commission.
It is the obligation of any person on whom a function is imposed or a power is conferred under this Act to perform the function or exercise the power in such a manner as to further the objectives set out in Schedule 1 .
(1) [Section 6 Subsection (1) omitted by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . .(2) [Section 6 Subsection (2) omitted by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . .(3) A planning authority may, by resolution, delegate any of its functions or powers under this Act other than this power of delegation to a person employed by the authority.(4) A delegation may be made either generally or as otherwise provided by the instrument of delegation.(5) [Section 6 Subsection (5) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Notwithstanding any delegation, a planning authority may continue to perform or exercise all or any of the functions or powers delegated.(6) [Section 6 Subsection (6) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] A function or power performed or exercised by a delegate has the same effect as if performed or exercised by a planning authority.
7. Municipalities may exercise powers in respect of accretions from sea, &c.
[Section 7 Amended by No. 30 of 1995, s. 3 and Sched. 1 ]A municipality may exercise its powers under this Act in respect of –(a) any accretion from the sea, whether natural or unnatural, adjoining its municipal district; and(b) any part of the sea-shore to the low-water mark adjoining its municipal district; and(c) [Section 7 Amended by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] all bridges, jetties, wharves, boat-houses and other structures partly within its municipal district and partly in or over the sea adjacent to its municipal district; and(d) [Section 7 Amended by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] any area of the sea directly adjoining its municipal district in, on, over or under which any use or development is related to, or affects, the use of any adjacent land.
PART 2 - Functions of Commission under this Act[Part 2 Substituted by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998]
[Section 8 Substituted by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The functions of the Commission under this Act are to –[Section 9 Subsection (1) amended by No. 104 of 1995, s. 5 ][Section 9 Subsection (1) amended by No. 88 of 1995, s. 41 and Sched. 1 ][Section 9 Subsection (2) amended by No. 104 of 1995, s. 5 ][Section 9 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . . [Section 10 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . . [Section 11 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . . [Section 12 Subsection (1) amended by No. 6 of 1995, s. 4 ][Section 12 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . . [Section 13 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . . [Section 14 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . . [Section 15 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . . [Section 16 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . . [Section 17 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . . [Section 18 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . . [Section 19 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] . . . . . . . .(a) certify and approve planning schemes and amendments to planning schemes; and(b) perform such other functions as are imposed on it by or under this Act.
PART 3 - Planning Schemes
Division 1 - Preparation of planning schemes
19A. Model framework for planning schemes
[Section 19A Inserted by No. 84 of 1997, s. 5, Applied:01 Jan 1998](1) The Minister may issue a model framework for the use of planning authorities in the development of planning schemes.(2) The model framework may specify the structure and format of planning schemes and definitions and provisions which are to be included in all planning schemes.(3) The Minister may direct the Commission to require planning authorities to prepare planning schemes or amend planning schemes in accordance with the model framework referred to in subsection (1) .
20. What can a planning scheme provide for?
(1) [Section 20 Subsection (1) amended by No. 104 of 1995, s. 6 ]A planning scheme for an area –(a) must seek to further the objectives set out in Schedule 1 within the area covered by the scheme; and(b) [Section 20 Subsection (1) amended by No. 21 of 1997, s. 17, Applied:01 Aug 1997] must be prepared in accordance with State Policies made under section 11 of the State Policies and Projects Act 1993 ; and(c) may make any provision which relates to the use, development, protection or conservation of any land in the area; and(d) must have regard to the strategic plan of a council referred to in Division 2 of Part 7 of the Local Government Act 1993 as adopted by the council at the time the planning scheme is prepared.(2) [Section 20 Subsection (2) amended by No. 104 of 1995, s. 6 ]Without limiting subsection (1) , a planning scheme may –(a) set out policies and specific objectives; and(b) regulate or prohibit the use or development of any land; and(c) designate land as being reserved for public purposes; and(d) state the provisions of the planning scheme which would have applied to land reserved for a public purpose under the planning scheme if it had not been reserved for that purpose; and(e) set out requirements for the provision of public utility services to land; and(f) [Section 20 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] require specified things to be done to the satisfaction of the Commission, relevant agency or planning authority; and(g) apply, adopt or incorporate any document which relates to the use, development or protection of land; and(h) provide that any use or development of land is conditional on an agreement being entered into under Part 5 ; and(ha) set out provisions relating to the implementation in stages of uses or developments; and(i) provide for any other matter which this Act refers to as being included in a planning scheme; and(j) provide for an application to be made to a planning authority to bring an existing use of land that does not conform to the scheme into conformity, or greater conformity, with the scheme.(3) [Section 20 Subsection (3) amended by No. 104 of 1995, s. 6 ]Subject to subsections (4) , (5) and (6) , nothing in any planning scheme is to –(a) prevent the continuance of the use of any land, upon which buildings or works are not erected, for the purposes for which it was being lawfully used before the coming into operation of the scheme; or(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation, or the maintenance or repair of such a building; or(c) prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or(d) prevent the use of any building or works for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or(e) require the removal or alteration of any lawfully constructed buildings or works; or(f) prevent a development, which was lawfully commenced but not completed before the coming into operation of the scheme, from being completed within –(i) 3 years of that coming into operation; or(ii) any lesser or greater period specified in respect of the completion of that development under the terms of a permit granted before the coming into operation of the scheme.(4) Subsection (3) does not apply to a use of land –(a) which has stopped for a continuous period of 2 years; or(b) which has stopped for 2 or more periods which together total 2 years in any period of 3 years; or(c) in the case of a use which is seasonal in nature, if the use does not take place for 2 years in succession.(5) Subsection (3) does not apply to the extension or transfer from one part of a parcel of land to another of a use previously confined to the first-mentioned part of that parcel of land.(6) Subsection (3) does not apply where a use of any land, building or work is substantially intensified.(7) [Section 20 Subsection (7) amended by No. 18 of 1995, s. 3 and Sched. 1 ][Section 20 Subsection (7) amended by No. 104 of 1995, s. 35 and Sched. 1 ]Nothing in any planning scheme or special planning order affects –(a) the management of land declared as a private timber reserve under the Forest Practices Act 1985 ; or(b) the undertaking of mineral exploration in accordance with an exploration licence, or retention licence, under the Mining Act 1929 ; or(c) fishing, marine farming, the taking of marine plants or any other activity conducted in accordance with the Living Marine Resources Management Act 1995 or the Marine Farming Planning Act 1995 or any licence, permit or lease issued under those Acts.(8) [Section 20 Subsection (8) amended by No. 104 of 1995, s. 35 and Sched. 1 ]The coming into operation of a planning scheme or a special planning order does not legitimize a use or development which was illegal under a planning scheme or a special planning order in force immediately before that coming into operation.(9) A planning scheme may require a use to which subsection (3) applies to comply with a code of practice approved or ratified by Parliament under an Act.(10) [Section 20 Subsection (10) inserted by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] A planning scheme is not to prohibit or require a discretionary permit for the use or development of a proclaimed wharf area for port and shipping purposes.(11) [Section 20 Subsection (11) inserted by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] In subsection (10) ,proclaimed wharf area means the area of a wharf the boundaries of which have been defined, altered or redefined under the Marine Act 1976 before the commencement of the Port Companies Act 1997 .
21. Co-ordination of planning schemes
(1) Subject to section 20 (1) , a planning scheme for an area must, as far as practicable, be consistent with and co-ordinated with the planning schemes applying to adjacent areas and must have regard for the use and development of the region as an entity in environmental, economic and social terms.(2) [Section 21 Subsection (2) substituted by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] A planning scheme that includes an area referred to in section 7(d) is to be prepared in consultation with the Marine and Safety Authority established under the Marine and Safety Authority Act 1997 .
22. Initiation of preparation of draft planning schemes
(1) A planning authority may prepare a draft planning scheme in respect of such area as it may determine.(2) [Section 22 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission may, with the approval of the Minister, give a written direction to a municipality to prepare a draft planning scheme in respect of the area specified in the direction and the municipality must prepare a draft planning scheme in accordance with the direction.(2A) [Section 22 Subsection (2A) inserted by No. 84 of 1997, s. 6, Applied:01 Jan 1998] The direction referred to in subsection (2) may require a municipality to prepare a draft planning scheme jointly with one or more municipalities if the Commission considers such a requirement would promote a regional approach to planning.(3) [Section 22 Subsection (3) omitted by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] . . . . . . . .(4) [Section 22 Subsection (4) omitted by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] . . . . . . . .(5) [Section 22 Subsection (5) omitted by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] . . . . . . . .(6) [Section 22 Subsection (6) amended by No. 104 of 1995, s. 35 and Sched. 1 ]An area in respect of which a planning scheme is prepared may comprise –(a) the whole or any part, or parts, of a municipal district of the relevant municipality; and(b) [Section 22 Subsection (6) amended by No. 16 of 1997, Applied:30 Jul 1997] the whole or any part of the area referred to in section 7(d) ; and(c) [Section 22 Subsection (6) amended by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] any area in that municipal district covered by an existing planning scheme or special planning order.
23. Notification of commencement of preparation of draft planning scheme
[Section 23 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] A planning authority must, not later than 14 days after making a decision to prepare a draft planning scheme, cause a copy of its decision to be given to the Commission, and must give such other notice as may be prescribed.
24. Certification by Commission of draft planning schemes prepared by planning authorities
(1) [Section 24 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Not later than 12 months after making a decision to prepare a draft planning scheme, or the receipt of a direction under section 22 (2) or (3) , or such longer period as the Commission may allow, the planning authority must cause a copy of the draft planning scheme prepared by it to be submitted to the Commission.(2) [Section 24 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission must, not later than 6 weeks after the submission of a draft planning scheme to it under subsection (1) or such longer period as the Minister may allow, examine the draft and–(a) if it is suitable for exhibition, certify it accordingly and, by notice in writing given to the planning authority, direct that it be publicly exhibited; or(b) if it is not suitable for exhibition–(i) with the agreement of the authority, amend it and, by notice in writing given to the authority, direct that the draft planning scheme, as amended, be publicly exhibited; or(ii) [Section 24 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] by notice in writing given to the authority, specify the respects in which the draft planning scheme is not suitable for exhibition and a period within which a revised draft planning scheme is to be submitted to the Commission.(3) [Section 24 Subsection (3) substituted by No. 84 of 1997, s. 7, Applied:01 Jan 1998] For the purposes of subsection (2) , a draft planning scheme is suitable for exhibition if –(a) it satisfies the requirements of section 20 ; or(b) the Commission, by notice in writing given to the planning authority, directs that the draft planning scheme be publicly exhibited together with a notice from the Commission indicating that its approval of the draft planning scheme will be conditional on issues identified in the notice being dealt with to the satisfaction of the Commission.(3A) [Section 24 Subsection (3A) inserted by No. 84 of 1997, s. 7, Applied:01 Jan 1998] Nothing in subsection (3)(b) limits the Commission's obligations and powers under sections 27 and 28 .(4) [Section 24 Subsection (4) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where the Commission gives a notice to a planning authority under subsection (2) (b) (ii) , the authority must, within the period specified in the notice or such longer period as the Commission may allow, revise the draft planning scheme and resubmit it to the Commission, and subsections (2) and (3) apply in relation to the revised draft planning scheme as if it had not previously been submitted to the Commission.(5) [Section 24 Subsection (5) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where the Commission does not complete its examination within the period first referred to in subsection (2) , the draft planning scheme is deemed to be certified as submitted and the Commission must, by notice in writing given to the planning authority, direct that the draft planning scheme be publicly exhibited.
25. Public exhibition of draft planning schemes
[Section 25 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where the Commission gives notice under section 24 (2) (a) , (2) (b) (i) or (5) directing the public exhibition of a draft planning scheme–(a) the planning authority must–(i) [Section 25 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] within 3 weeks or such longer period as the Commission may allow, cause a copy of the draft planning scheme to be placed on public exhibition for a period of 2 months; and(ii) advertise, as prescribed, the exhibition of the draft planning scheme; and(b) [Section 25 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the Commission must cause a copy of the draft planning scheme to be placed on public exhibition at its office for that period.
26. Representations in respect of draft planning schemes
(1) Where a draft planning scheme is placed on public exhibition by a planning authority in accordance with section 25 , representations in relation to that draft planning scheme may be submitted to the authority by any person before the expiration of the exhibition period referred to in section 25(a) .(2) [Section 26 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The planning authority must, not later than the expiration of 3 months after the exhibition period referred to in section 25(a) or such further period as the Commission allows, forward to the Commission a report comprising–(a) a copy of each representation received by the authority in relation to the draft planning scheme or, where it has received no such representation, a statement to that effect; and(b) a statement of its opinion as to the merit of each such representation, including, in particular, its views as to–(i) the need for modification of the draft planning scheme in the light of that representation; and(ii) the impact of that representation on the draft planning scheme as a whole; and(c) such recommendations in relation to the draft planning scheme as the authority considers necessary.
27. Consideration by Commission of draft planning scheme and relevant representations
(1) [Section 27 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] As soon as practicable after receipt by it of a report under section 26 (2) , the Commission must consider the draft planning scheme and the representations, statements and recommendations contained in the report.(2) [Section 27 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] For the purposes of its consideration under subsection (1) , the Commission must hold a hearing in relation to each representation contained in the report.(3) [Section 27 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission may consolidate any of the representations and hold a hearing in relation to the consolidated representations.
28. Modification or rejection, &c., of draft planning schemes before approval
(1) [Section 28 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] [Section 28 Subsection (1) amended by No. 104 of 1995, s. 7 ]The Commission may, after its consideration under section 27 of a draft planning scheme prepared by a planning authority–(a) require the planning authority to modify the draft planning scheme after having regard to the report made under section 26 , and any submissions made in a hearing under section 27 in relation to it; or(b) by notice in writing given to the authority–(i) reject the draft planning scheme; or(ii) direct that a specified part of the draft planning scheme be done again.(2) [Section 28 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where the Commission rejects a draft planning scheme, the planning authority must, within such period as the Commission may allow, prepare and submit to the Commission another draft planning scheme, and the provisions of this Division (other than sections 22 , 23 and 24 (1) ) apply in relation to that other draft planning scheme as if it had been prepared under section 22 (1) .(3) [Section 28 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where the Commission directs that a specified part of a draft planning scheme be done again–(a) [Section 28 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the planning authority must, within such period as the Commission may allow, prepare and submit to the Commission a substitute version of that part; and(b) the provisions of this Division (other than sections 22 , 23 , 24 (1) and 29 ) apply in relation to the substitute part as if it were a draft planning scheme prepared under section 22 (1) .(4) [Section 28 Subsection (4) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] When directing a part of a draft planning scheme to be done again, the Commission may give directions as to the explanatory material to be included in the public notification of the substitute part and to be available for public inspection with it.
28AA. Direction to undertake modification of draft planning scheme
[Section 28AA Inserted by No. 104 of 1995, s. 8 ](1) [Section 28AA Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] If a draft planning scheme is required to be modified under section 28 (1) (a) , the Commission, by notice in writing to the planning authority, must–(a) direct that it undertake the modification; and(b) specify the manner in which the scheme is to be modified.(2) [Section 28AA Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] A planning authority must undertake a modification to a draft planning scheme in accordance with a direction of the Commission under subsection (1) and submit the modified scheme to the Commission within 28 days from the receipt of that direction or such longer period as the Commission may allow.(3) The period referred to in section 29 (2) does not run after a direction to modify the draft scheme has been made until the period referred to in subsection (2) of this section expires.
28A. Application for withdrawal of draft planning scheme
[Section 28A Inserted by No. 6 of 1995, s. 5 ](1) [Section 28A Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] A planning authority may apply to the Commission to withdraw a draft planning scheme.(2) An application may only be made if –(a) [Section 28A Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] a report under section 26 (2) has not been forwarded to the Commission; and(b) the planning authority proposes to prepare a further draft planning scheme for an area the same as, or greater than, the area to which the scheme to be withdrawn relates; and(c) the planning authority has complied with section 28B .(3) An application is to –(a) be in writing; and(b) attach a statement outlining the proposed replacement draft planning scheme; and(c) attach a copy of any representation made under section 28B ; and(d) state the planning authority's opinion as to the merit of the representation.
28B. Notice of intention to withdraw draft planning scheme
[Section 28B Inserted by No. 6 of 1995, s. 5 ](1) Before making an application under section 28A , the planning authority, by notice in a daily newspaper circulating generally in the area, must notify its intention to withdraw a draft planning scheme.(2) A notice is to –(a) advise that any person may make representations to the planning authority relating to its intention to withdraw a draft planning scheme within 28 days after the date on which the notice was advertised; and(b) specify the places at which, and the hours during which, any person may make representations; and(c) specify the place at which any person may examine the draft planning scheme which the planning authority intends to withdraw; and(d) specify why the draft planning scheme is to be withdrawn.
28C. Approval of withdrawal of draft planning scheme
[Section 28C Inserted by No. 6 of 1995, s. 5 ](1) [Section 28C Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission must consider an application made under section 28A and any representation made in connection with that application.(2) [Section 28C Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] In considering any representation, the Commission may hold a hearing under Division 2 of Part 2 .(3) [Section 28C Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission, after considering an application and any representation and with the Minister's approval, may–(a) approve the withdrawal of a draft planning scheme; or(b) refuse to approve the withdrawal.
28D. Conditions of withdrawal of draft planning scheme
[Section 28D Inserted by No. 6 of 1995, s. 5 ](1) [Section 28D Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] An approval to withdraw a draft planning scheme is subject to any condition the Commission specifies.(2) [Section 28D Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission, with the Minister's approval, may revoke an approval if the planning authority fails to comply with any condition specified by the Commission.
28E. Notification of withdrawal of draft planning scheme
[Section 28E Inserted by No. 6 of 1995, s. 5 ](1) [Section 28E Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission is to notify the planning authority of–(a) its approval of the withdrawal of a draft planning scheme; or(b) its refusal to approve the withdrawal.(2) The planning authority, by notice published in a daily newspaper circulating generally in the area, must notify –(a) that the draft planning scheme is withdrawn; and(b) the date on which the withdrawal takes effect.
28F. Date of withdrawal of draft planning scheme
[Section 28F Inserted by No. 6 of 1995, s. 5 ][Section 28F Amended by No. 104 of 1995, s. 35 and Sched. 1 ]The withdrawal of a draft planning scheme comes into effect –(a) [Section 28F Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] 7 days after the date on which the Commission approved the withdrawal; or(b) if the withdrawn planning scheme is in operation as a special planning order, on the date on which the draft planning scheme prepared under section 28A comes into operation as a planning scheme or a special planning order.
29. Approval of draft planning schemes
(1) [Section 29 Subsection (1) amended by No. 84 of 1997, s. 8, Applied:01 Jan 1998] [Section 29 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where, after consideration by the Commission, under section 27 , of a draft planning scheme (including any modifications made or substitute parts required under section 28 ), the Commission is satisfied that the draft planning scheme is in order, it must, subject to the approval of the Minister, give its approval to the draft planning scheme.(2) [Section 29 Subsection (2) amended by No. 84 of 1997, s. 8, Applied:01 Jan 1998] [Section 29 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission must give its approval to a draft planning scheme not later than–(a) 6 months after–(i) the submission to it, under section 26 (2) , of the report of the planning authority in relation to the draft planning scheme; or(ii) [Section 29 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] where any part of it is required, under section 28 , to be done again, the day on which the report of the authority in relation to the substitute part was submitted to the Commission under section 26 (2) or, where more than one such report was so submitted, the day on which the last such report was so submitted; or(b) such later day as the Minister may approve.(3) [Section 29 Subsection (3) amended by No. 84 of 1997, s. 8, Applied:01 Jan 1998] [Section 29 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] When the Commission gives its approval to a draft planning scheme–(a) [Section 29 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the chairperson of the Commission must sign the scheme; and(b) [Section 29 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] notwithstanding any failure to comply with a procedural provision of this Part, the planning scheme comes into operation on such date as is specified by the Commission, being a date not earlier than the date on which it is signed; and(c) [Section 29 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the Commission must advise the planning authority of its approval; and(d) [Section 29 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the planning authority must give notice of the Commission's approval as prescribed.(4) [Section 29 Subsection (4) amended by No. 84 of 1997, s. 8, Applied:01 Jan 1998] [Section 29 Subsection (4) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] [Section 29 Subsection (4) inserted by No. 6 of 1995, s. 6 ]If a date is not specified under subsection (3) (b) , the planning scheme comes into operation 7 days after the date on which the Commission gives its approval.(5) [Section 29 Subsection (5) inserted by No. 84 of 1997, s. 8, Applied:01 Jan 1998] When a planning scheme comes into operation, any existing planning scheme covering the area to which the new planning scheme applies does not apply to that area.
30. Failure to comply with provision of this Division
(1) Where a planning authority fails to comply with a provision of this Division within the period referred to in that provision –(a) [Section 30 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the Commission may assume the responsibilities and obligations of the authority under this Division in relation to the preparation of a draft planning scheme; and(b) [Section 30 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the authority must pay to the Commission all costs incurred by the Commission in assuming the responsibilities and obligations of the authority in relation to the preparation of the draft planning scheme.(2) [Section 30 Subsection (2) amended by No. 84 of 1997, s. 9, Applied:01 Jan 1998] [Section 30 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The failure to comply with a provision of this Division within the period referred to in that provision does not invalidate a planning scheme approved by the Commission under this Division.
Division 2 - Amendment of planning scheme
31. Interpretation: Division 2
In this Division, amend, in relation to a planning scheme, includes –(a) revoke, in whole or in part, the planning scheme; and(b) alter the area covered by the planning scheme.
32. Requirements for preparation of amendments
(1) An amendment of a planning scheme –(a) must seek to further the objectives set out in Schedule 1 ; and(b) [Section 32 Subsection (1) amended by No. 21 of 1997, s. 17, Applied:01 Aug 1997] must be prepared in accordance with State Policies made under section 11 of the State Policies and Projects Act 1993 ; and(c) may make any provision which relates to the use, development, protection or conservation of any land.(2) The provisions of section 20 (2) , (3) , (4) , (5) , (6) , (7) , (8) and (9) apply to the amendment of a planning scheme in the same manner as they apply to planning schemes.
33. Request for amendment of planning scheme
(1) A person may request a planning authority to amend a planning scheme administered by it.(2) A request is to be in a form approved by the planning authority.(2A) [Section 33 Subsection (2A) inserted by No. 104 of 1995, s. 9 ]If a request under subsection (1) is in respect of one parcel or several parcels of land covered by the planning scheme and is requested by a person who is not the owner of the land to which the proposed amendment applies, the request must be –(a) signed by the owner or owners of the land; or(b) accompanied by the written permission of the owner or owners to the making of the request.(2B) [Section 33 Subsection (2B) inserted by No. 84 of 1997, Applied:01 Jan 1998] Before making a decision as to whether or not to initiate an amendment of the planning scheme, the planning authority must consider –(a) whether the requested amendment is consistent with the requirements of section 32 ; and(b) any advice referred to in section 65 of the Local Government Act 1993 received by it.(3) A planning authority must, within 42 days of the receipt of a request, make a decision as to whether or not to initiate an amendment of the planning scheme and serve on the person who made the request notice of its decision within 7 days of making the decision.(3A) [Section 33 Subsection (3A) inserted by No. 84 of 1997, Applied:01 Jan 1998] Where a planning authority decides not to initiate an amendment of the planning scheme, the person who requested the amendment may, within 14 days of being notified of that decision, request the Commission to review the process by which the planning authority reached its decision.(3B) [Section 33 Subsection (3B) inserted by No. 84 of 1997, Applied:01 Jan 1998] Where the Commission has been requested to review the process by which the planning authority reached its decision, the Commission may request the planning authority to provide it with any material relevant to that process.(3C) [Section 33 Subsection (3C) inserted by No. 84 of 1997, Applied:01 Jan 1998] A planning authority must provide the material requested by the Commission within 7 days of receiving that request.Penalty: Fine not exceeding 100 penalty units.(3D) [Section 33 Subsection (3D) inserted by No. 84 of 1997, Applied:01 Jan 1998] The Commission must, not later than 28 days after receiving the material requested by it or such longer period as the Minister may allow –(a) direct the planning authority to reconsider the amendment; or(b) confirm that in reaching its decision the planning authority took into account the matters specified in subsection (2B) .(3E) [Section 33 Subsection (3E) inserted by No. 84 of 1997, Applied:01 Jan 1998] The Commission must, within 7 days of making its decision, notify the planning authority and the person who requested the review of its decision.(4) Where a planning authority decides not to initiate an amendment of the planning scheme, a person may not request the authority to initiate an amendment which is substantially the same as the first-mentioned amendment within a period of 2 years from the date on which the planning authority made its decision.
34. Amendment of planning scheme
(1) A planning authority may –initiate an amendment of a planning scheme administered by it.(a) in response to a request under section 33 ; or(b) of its own motion –(2) [Section 34 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission may, with the approval of the Minister, give a written direction to a planning authority to initiate an amendment of a planning scheme administered by the authority and the authority must initiate the amendment of the planning scheme in accordance with the direction.
35. Notification of commencement of preparation of amendment of planning scheme
[Section 35 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] A planning authority must, within 7 days of making a decision to initiate an amendment of a planning scheme, cause a copy of its decision indicating the manner in which it is proposed to amend the planning scheme to be given to the Commission, and must give such other notice as may be prescribed.
36. Certification by Commission of draft amendments prepared by planning authorities
(1) [Section 36 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Not later than 10 weeks after the making of a decision to initiate an amendment of a planning scheme or the receipt of a direction under section 34 (2) or such longer period as the Commission may allow, the planning authority must, unless it withdraws the draft amendment, cause a copy of the draft amendment prepared by it to be submitted to the Commission.(2) Except where a direction under section 34 (2) has been given, a planning authority may withdraw a draft amendment to a planning scheme at any time before the expiration of the period referred to in subsection (1) .(3) Where a planning authority withdraws a draft amendment, the authority must cause notice of the withdrawal to be served on –and must give such other notice as may be prescribed.(a) [Section 36 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the Commission; and(b) where the amendment was initiated by a request under section 33 , on the person who made that request –(4) [Section 36 Subsection (4) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] [Section 36 Subsection (4) amended by No. 104 of 1995, s. 10 ]The Commission must, not later than 28 days after the submission of a draft amendment to it under subsection (1) or such longer period as the Minister may allow, examine the draft amendment and–(a) if it is suitable for exhibition, certify it accordingly and, by notice in writing given to the planning authority, direct that it be publicly exhibited; or(b) if it is not suitable for exhibition–(i) with the agreement of the authority, amend it so that it is so suitable, certify it accordingly and, by notice in writing given to the authority, direct that the draft amendment, as amended, be publicly exhibited; or(ii) [Section 36 Subsection (4) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] by notice in writing given to the authority, specify the respects in which the draft amendment is not suitable for exhibition and a period within which a revised draft amendment is to be submitted to the Commission; or(iii) by notice in writing given to the authority, refuse to certify it if it considers that the draft amendment is incapable of revision to enable it to satisfy the requirements of section 32 .(5) [Section 36 Subsection (5) substituted by No. 84 of 1997, s. 11, Applied:01 Jan 1998] For the purposes of subsection (4) , a draft amendment of a planning scheme is suitable for exhibition if –(a) it satisfies the requirements referred to in section 32 ; or(b) the Commission, by notice in writing given to the planning authority, directs that the draft amendment be publicly exhibited together with a notice from the Commission indicating that its approval of the draft amendment will be conditional on issues identified in the notice being dealt with to the satisfaction of the Commission.(5A) [Section 36 Subsection (5A) inserted by No. 84 of 1997, s. 11, Applied:01 Jan 1998] Nothing in subsection (5)(b) limits the Commission's obligations and powers under sections 40 and 41 .(5B) [Section 36 Subsection (5B) inserted by No. 84 of 1997, s. 11, Applied:01 Jan 1998] In determining whether a draft amendment is suitable for exhibition, the Commission must have particular regard to the objective to encourage public involvement in resource management and planning as set out in item 1(c) of Part 1 of Schedule 1 .(6) [Section 36 Subsection (6) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where the Commission gives a notice to a planning authority under subsection (4) (b) (ii) , the authority must, within the period specified in the notice or such longer period as the Commission may allow, revise the draft amendment and resubmit it to the Commission, and subsections (4) and (5) apply in relation to the revised draft amendment as if it had not previously been submitted to the Commission.(7) [Section 36 Subsection (7) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where the Commission does not complete its examination within the period first referred to in subsection (4) , the draft amendment is deemed to be certified as submitted and the Commission must, by notice in writing given to the planning authority, direct that the draft amendment be publicly exhibited.
37. Power of Commission to dispense with certain requirements
[Section 37 Substituted by No. 84 of 1997, s. 12, Applied:01 Jan 1998] Where, on the submission to the Commission of a draft amendment of a planning scheme, the Commission is satisfied that –the Commission may, by notice in writing given to the planning authority, dispense with the requirements of sections 38 , 39 , 40 and 41 in relation to the draft amendment and give its approval to the draft amendment in accordance with section 42 .(a) the draft amendment is for the purpose of –(i) the correction of any error in the planning scheme; or(ii) the removal of any anomaly in the planning scheme; or(iii) clarifying or simplifying the planning scheme; or(iv) removing any inconsistency between the planning scheme and any Act; or(v) making procedural changes to the planning scheme; or(vi) amending the planning scheme to bring it into conformity with the model planning scheme framework; or(vii) for any other prescribed reason; and(b) the public interest will not be prejudiced –
38. Public exhibition of draft amendment
[Section 38 Amended by No. 104 of 1995, s. 11 ][Section 38 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where the Commission gives notice under section 36 (4) (a) , (4) (b) (i) or (7) directing the public exhibition of a draft amendment–(a) the planning authority must–(i) [Section 38 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] within 3 weeks from the date on which notice is given by the Commission or such longer period as the Commission may allow, 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; and(ii) advertise, as prescribed, the exhibition of the draft amendment; and(b) [Section 38 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the Commission must cause a copy of the draft amendment to be placed on public exhibition at its office for that period.
39. Representations in respect of draft amendments
(1) Where a draft amendment of a planning scheme is placed on public exhibition by a planning authority in accordance with section 38 , representations in relation to that draft amendment may be submitted to the authority by any person before the expiration of the exhibition period referred to in section 38(a) .(2) [Section 39 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The planning authority must, not later than the expiration of 35 days after the exhibition period referred to in section 38(a) or such further period as the Commission allows, forward to the Commission a report comprising–(a) a copy of each representation received by the authority in relation to the draft amendment or, where it has received no such representation, a statement to that effect; and(b) a statement of its opinion as to the merit of each such representation, including, in particular, its views as to–(i) the need for modification of the draft amendment in the light of that representation; and(ii) the impact of that representation on the draft amendment as a whole; and(c) such recommendations in relation to the draft amendment as the authority considers necessary.
40. Consideration by Commission of draft amendment and relevant representations
(1) [Section 40 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] As soon as practicable after receipt by it of a report under section 39 (2) , the Commission must consider the draft amendment and the representations, statements and recommendations contained in the report.(2) [Section 40 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] For the purposes of its consideration under subsection (1) , the Commission must hold a hearing in relation to each representation contained in the report.(2A) [Section 40 Subsection (2A) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] [Section 40 Subsection (2A) inserted by No. 104 of 1995, s. 12 ]Despite subsection (2) , the Commission may dispense with the holding of a hearing in relation to a representation contained in the report if, after examining each representation–(a) [Section 40 Subsection (2A) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the Commission is satisfied that all the representations received by the planning authority are in support of the draft amendment; or(b) [Section 40 Subsection (2A) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the Commission has consulted with a person who made a representation and that person has advised the Commission in writing that he or she does not wish to attend a hearing.(2B) [Section 40 Subsection (2B) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] [Section 40 Subsection (2B) inserted by No. 104 of 1995, s. 12 ]The Commission must, within 14 days of making a decision to dispense with the holding of a hearing under subsection (2A) , give notice in writing to each person who made a representation under section 39 (1) of its decision to dispense with the holding of a hearing.(2C) [Section 40 Subsection (2C) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] [Section 40 Subsection (2C) inserted by No. 104 of 1995, s. 12 ]The Commission must hold a hearing in respect of a representation if a person who has been notified under subsection (2B) requests the Commission in writing, within 7 days after the date of that notice, that a hearing be held.(3) [Section 40 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission may consolidate any of the representations and hold a hearing in relation to the consolidated representations.
41. Modification or rejection of draft amendment before approval
[Section 41 Amended by No. 104 of 1995, s. 13 ][Section 41 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission may, after its consideration under section 40 of a draft amendment prepared by a planning authority–(a) require the planning authority to modify, or alter to a substantial degree, the draft amendment after having regard to the report made under section 39 , and any submissions made in a hearing under section 40 , in relation to it; or(b) by notice in writing given to the authority, reject the draft amendment.
41A. Direction to undertake modification or alteration of draft amendment
[Section 41A Inserted by No. 104 of 1995, s. 14 ](1) [Section 41A Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] If a draft amendment is required to be modified, or altered to a substantial degree, under section 41 (a) , the Commission, by notice in writing to the planning authority, must–(a) direct that it undertake the modification or alteration; and(b) specify the manner in which the draft amendment is to be modified or altered.(2) [Section 41A Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] A planning authority must undertake a modification, or an alteration to a substantial degree, to a draft amendment in accordance with a direction by the Commission under subsection (1) and submit the modified or altered amendment to the Commission within 28 days from the receipt of that direction or such longer period as the Commission may allow.(3) The period referred to in section 42 (2) does not run after a direction to modify or alter the draft amendment has been made until the period referred to in subsection (2) of this section expires.
41B. Certification of altered draft amendments
[Section 41B Inserted by No. 104 of 1995, s. 14 ](1) [Section 41B Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] If a draft amendment has been altered to a substantial degree in accordance with section 41A , the Commission must, within 28 days of receipt of the altered draft amendment–(a) certify the altered draft amendment; and(b) by notice in writing to the planning authority, direct that it be publicly exhibited, as prescribed.(2) Sections 38 to 43 apply to a draft amendment certified under subsection (1) .
42. Approval of draft amendments
(1) [Section 42 Subsection (1) amended by No. 84 of 1997, s. 13, Applied:01 Jan 1998] [Section 42 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where, after consideration by the Commission, under section 40 , of a draft amendment (including any modifications made under section 41 ), the Commission is satisfied that the draft amendment is in order, it must give its approval to the draft amendment.(2) [Section 42 Subsection (2) amended by No. 84 of 1997, s. 13, Applied:01 Jan 1998] [Section 42 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission must give its approval to a draft amendment not later than–(a) 3 months after the submission to it, under section 39 (2) , of the report of the planning authority in relation to the draft amendment; or(b) such later day as the Minister may approve.(3) [Section 42 Subsection (3) amended by No. 84 of 1997, s. 13, Applied:01 Jan 1998] [Section 42 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] When the Commission gives its approval to a draft amendment–(a) [Section 42 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the chairperson of the Commission must sign the amendment; and(b) [Section 42 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] notwithstanding any failure to comply with a procedural provision of this Part, the amendment comes into operation on such date as is specified by the Commission, being a date not earlier than the date on which it is signed; and(c) [Section 42 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the Commission must advise the planning authority of its approval; and(d) [Section 42 Subsection (3) amended by No. 17 of 1996, Applied:19 May 1998] the authority must give notice of the Commission's approval, as prescribed.(4) [Section 42 Subsection (4) amended by No. 84 of 1997, s. 13, Applied:01 Jan 1998] [Section 42 Subsection (4) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] [Section 42 Subsection (4) inserted by No. 6 of 1995, s. 7 ]If a date is not specified under subsection (3) (b) , the amendment comes into operation 7 days after the date on which the Commission gives its approval.
43. Failure to comply with provision of this Division
(1) Where a planning authority fails to comply with a provision of this Division within the period referred to in that provision –(a) [Section 43 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the Commission may assume the responsibilities and obligations of the authority under this Division in relation to the preparation of a draft amendment; and(b) [Section 43 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] the authority must pay to the Commission all costs incurred by the Commission in assuming the responsibilities and obligations of the authority in relation to the preparation of the draft amendment.(2) [Section 43 Subsection (2) amended by No. 84 of 1997, s. 14, Applied:01 Jan 1998] [Section 43 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The failure to comply with a provision of this Division within the period referred to in that provision does not invalidate an amendment to a planning scheme approved by the Commission under this Division.
Division 2A - Combined permit and amendment process
43A. Application for a permit when amendment requested
[Section 43A of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) A person who requests a planning authority to amend a planning scheme may also request the planning authority to consider, in accordance with this Division, an application for a permit which would not be allowed if the planning scheme were not amended as requested.(2) Where a planning authority has decided to initiate an amendment under section 33(3) , it may consider the application for a permit under section 43A(1) concurrently with the preparation of the requested amendment to the planning scheme.(3) An application may be made for a permit under this section even if it could not be granted under the existing planning scheme.
43B. Application of certain provisions to draft amendment
[Section 43B of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998] If the planning authority agrees to a request under section 43A , Division 2 of Part 3 , except sections 37 and 43 , applies to the amendment of the planning scheme referred to in section 43A(1) as if in section 38(a)(i) the words " within 3 weeks from the date on which notice is given by the Commission or such longer period as the Commission may allow " were omitted and the words " as soon as practicable after the date on which notice is given by the Commission " were substituted.
43C. Applications referred to in section 43A
[Section 43C of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) In determining an application referred to in section 43A , a planning authority –(a) must seek to further the objectives set out in Schedule 1 ; and(b) must take into consideration such of the prescribed matters as are relevant to the use or development the subject of the application.(2) If an undertaking is in respect of –and under a planning scheme or special planning order any of those uses or developments requires a permit to be granted in respect of them, a person, in one application, may apply to the planning authority for a permit with respect to that undertaking.(a) a combination of uses; or(b) a combination of developments; or(c) a combination of one or more uses and one or more developments –(3) The decision of a planning authority on an application referred to in section 43A or subsection (2) is to be made by reference to the provisions of the planning scheme or special planning order as in force at the date of its decision, as if the planning scheme or special planning order had been amended in accordance with the draft amendment which has been initiated by the planning authority in response to a request under section 43A .(4) A permit to which this section applies may be subject to such conditions or restrictions as the planning authority may impose.
43D. What if applicant referred to in section 43A is not the owner?
[Section 43D of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) If the applicant referred to in section 43A is not the owner of the land in respect of which a permit is required and a planning scheme or special planning order does not provide otherwise, an application is to –(a) be signed by the owner of the land; or(b) be accompanied by the written permission of the owner to the making of the application.(2) Subsection (1) does not apply to an application for a permit to carry out mining operations, within the meaning of the Mineral Resources Development Act 1995 , if a mining lease has been issued under that Act which authorises those operations.(3) A person must not obtain or attempt to obtain a permit by wilfully making or causing to be made any false representation or declaration either orally or in writing.Penalty: Fine not exceeding 20 penalty units.
[Section 43E of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) A planning authority may, by notice in writing served on the applicant within the period of 28 days from the day on which it receives an application for a permit referred to in section 43A , require the applicant to provide it with additional information before it considers the application.(2) If the planning authority requires the applicant to provide it with additional information, the period referred to in section 33(3) or 36(1) , whichever is applicable, does not run while the request for information has not been answered to the satisfaction of the planning authority.
43F. Procedure for determining an application for a permit under this Division
[Section 43F of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) Before a draft amendment of a planning scheme referred to in section 43A is placed on public exhibition in accordance with section 38 –(a) the planning authority must determine the application for the permit in accordance with section 43C(1) ; and(b) the planning authority must –(i) grant the permit unconditionally or subject to such conditions or restrictions as the planning authority may impose; or(ii) notwithstanding section 43C(3) , refuse to grant the permit; and(c) a decision under subsection (1)(b) is of no effect if the Commission refuses to certify the draft amendment referred to in section 43A in accordance with section 36(4)(b)(iii) .(2) Within 7 days of making its decision under subsection (1)(b) , the planning authority must forward to the Commission –(a) a copy of the application for the permit and any documentation submitted with that application; and(b) a copy of the planning authority's decision under subsection (1)(b) and, if a permit is granted, a copy of the permit.(3) When the planning authority advertises the exhibition of the draft amendment in accordance with section 38(a)(ii) , it must advertise the exhibition of the material referred to in subsection (2) .(4) When the planning authority and the Commission cause a copy of the draft amendment to be placed on public exhibition in accordance with section 38 , they must cause a copy of the material referred to in subsection (2) to be placed on public exhibition with the draft amendment for the same period as the draft amendment is on exhibition.(5) Where the material referred to in subsection (2) has been placed on public exhibition, any person may make representations to the planning authority in relation to the application for the permit and the planning authority's decision under subsection (1)(b) .(6) When the planning authority forwards to the Commission a report in accordance with section 39(2) , it must forward to the Commission –(a) a copy of each representation received by the planning authority in relation to the application for the permit or the planning authority's decision under subsection (1)(b) , or where it has received no such representation, a statement to that effect; and(b) a statement of its opinion as to the merit of each representation including, in particular, its views as to the need for modification of the planning authority's decision in the light of that representation; and(c) such recommendations in relation to the planning authority's decision as the planning authority considers necessary.(7) [Section 43F Subsection (7) amended by No. 17 of 1996, Applied:19 May 1998] Where the application for a permit referred to in section 43A has been referred to the Board of Environmental Management and Pollution Control under section 24 or section 25 of the Environmental Management and Pollution Control Act 1994 –(a) the planning authority must, not later than 7 days after the expiration of the exhibition period referred to in section 38 , forward copies of all representations received under subsection (5) to the Board of Environmental Management and Pollution Control; and(b) the Board of Environmental Management and Pollution Control must, within 28 days of receiving the representations referred to in paragraph (a) , provide a report to the Commission containing –(i) the information specified in subsection (6)(b) ; and(ii) such recommendations in relation to the planning authority's decision as the Board considers necessary.
43G. Consideration by Commission of planning authority's decision and relevant representations
[Section 43G of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) When the Commission considers the draft amendment in accordance with section 40 , it must, at the same time, consider the representations, statements and recommendations referred to in section 43F .(2) Section 40 applies to representations, statements and recommendations referred to in subsection (1) as if they were representations, statements and recommendations referred to in that section.
43H. Review of planning authority's decision referred to in section 43F
[Section 43H of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) At the same time as the Commission makes its decision to reject or approve the draft amendment, it must –(a) confirm the decision of the planning authority under section 43F(1) in relation to the permit; or(b) if the planning authority's decision was to grant a permit –(i) refuse the permit; or(ii) modify or delete conditions or restrictions attached to the permit or add new conditions or restrictions to the permit; or(c) if the planning authority's decision was to reject the permit, grant a permit subject to such conditions or restrictions as the Commission thinks necessary; or(d) if the Commission's decision is to reject the draft amendment in accordance with section 41(b) , refuse the permit.(2) When the Commission makes its decision in relation to a permit under subsection (1) , the Commission must give notice in writing of its decision to –(a) the planning authority; and(b) the applicant for the permit; and(c) if representations have been made in relation to the permit, to all persons who made such representations; and(d) if the permit application has been referred to the Board of Environmental Management and Pollution Control under section 24 or section 25 of the Environmental Management and Pollution Control Act 1994 , the Board.
43I. When does a permit referred to in section 43H take effect?
[Section 43I of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) If the Commission makes a decision under section 43H(1) which confirms, or results in, a permit being granted, the permit takes effect on the date of the Commission's approval of the draft amendment under section 42 .(2) The day on which a permit takes effect may be specified in the permit as being a day later than the day on which the permit would otherwise have taken effect under subsection (1) .(3) Where any other approvals under this Act or any other Act are required for the proposed use or development to which the permit relates, the permit does not take effect until all those approvals have been granted.(4) A permit lapses after a period of 2 years from the date on which it was granted if the use or development in respect of which it was granted is not substantially commenced within that period.(5) If under a permit an agreement is required to be entered into, the permit does not take effect until the day the agreement is executed.
43J. Correction of mistake in permits referred to in section 43H
[Section 43J of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998] A planning authority may correct a permit referred to in section 43H if the permit contains –(a) a clerical mistake or an accidental omission; or(b) an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the permit.
43K. Minor amendment of permits referred to in section 43H
[Section 43K of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) The owner of land, or a person with the consent of the owner, may request the planning authority in writing to amend a permit referred to in section 43H which applies to that land.(2) The planning authority may amend the permit if it is satisfied that the amendment –(a) does not change the effect of any decision of the Commission under section 43H ; and(b) will not cause an increase in detriment to any person; and(c) does not change the use or development for which the permit was issued other than a minor change to the description of the use or development.(3) If the planning authority amends a permit referred to in section 43H , it must, by notice in writing served on –notify those persons of the amendments made to the permit.(a) the person who requested the permit to be amended; and(b) if that person is not the owner of the land, the owner; and(c) the owner or occupier of any property which adjoins the land; and(d) any person who made a representation under section 43F(5) in relation to the application for the permit –(4) If the planning authority amends a permit referred to in section 43H containing a condition or restriction which the Board of Environmental Management and Pollution Control has required under section 25(5) of the Environmental Management and Pollution Control Act 1994 , the planning authority must, by notice in writing served on the Board, notify it of the amendments made to the permit.
43L. Application of section 56A
[Section 43L of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998] Section 56A applies to an amendment of a permit referred to in section 43H .
43M. Failure to comply with certain provisions
[Section 43M of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) Where a planning authority fails to comply with a provision of section 43B or 43F within the period referred to in that provision –(a) the Commission may assume the responsibilities and obligations of the planning authority under this Division in relation to the preparation of a draft amendment or the decision in relation to the permit; and(b) the planning authority must pay to the Commission all costs incurred by the Commission in assuming the responsibilities and obligations referred to in paragraph (a) .(2) The failure to comply with a provision of this Division within the period referred to in that provision does not invalidate an amendment to a planning scheme approved by the Commission or a decision in relation to a permit under this Division.
Division 2B - Amendments to model framework for planning schemes
[Section 43N of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998] In this Division –amend has the same meaning as in section 31 ;model framework means the model framework issued by the Minister under section 19A .
43O. Section 32 applies to amendments under this Division
[Section 43O of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998] Section 32 applies to an amendment made under this Division.
43P. Minister may direct Commission to consider amendment
[Section 43P of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) The Minister may direct the Commission to consider amending the model framework in a manner specified by the Minister.(2) If the Minister directs the Commission to consider amending the model framework under subsection (1) , subsections (4) , (5) , (6) and (7) of section 36 apply as if references in those subsections to the planning authority were references to the Minister.
43Q. Public exhibition of draft amendment to model framework
[Section 43Q of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) If the Commission gives notice under section 36(4)(a) , (4)(b)(i) or (7) directing the public exhibition of the draft amendment –(a) the Commission must direct all planning authorities to exhibit the draft amendment for such period and commencing on such date as the Commission may specify; and(b) the Minister must advertise the public exhibition of the draft amendment in one or more daily newspapers circulating throughout the State.(2) The period referred to in subsection (1) must not be less than 21 days or more than 2 months.(3) The Commission must cause a copy of the draft amendment to be placed on public exhibition at its office for the period referred to in subsection (1) .
43R. Representation in respect of draft amendment to model framework
[Section 43R of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) Where a draft amendment to the model framework is placed on public exhibition in accordance with subsection (1) of section 43Q , representations in relation to that draft amendment may be submitted to the Minister or his or her nominee by any person before the expiration of the period referred to in that subsection.(2) The Minister must, not later than 35 days after the expiration of the period referred to in section 43Q(1) or such further period as the Commission allows, forward to the Commission a report comprising –(a) a copy of each representation received by the Minister or his or her nominee in relation to the draft amendment or, where the Minister or his or her nominee has received no such representation, a statement to that effect; and(b) a statement of the Minister's opinion as to the merit of each such representation, including, in particular, the Minister's views as to –(i) the need for modification of the draft amendment in the light of that representation; and(ii) the impact of that representation on the draft amendment as a whole; and(c) such recommendations in relation to the draft amendment as the Minister considers necessary.
43S. Consideration by Commission of draft amendment and relevant representations
[Section 43S of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998] As soon as practicable after receipt by it of a report under section 43R , the Commission must consider the draft amendment and the representations, statements and recommendations contained in the report and subsections (2) , (2A) , (2B) , (2C) and (3) of section 40 apply as if the reference in subsection (2A) to the planning authority were a reference to the Minister.
43T. Application of certain provisions to amendment of model framework
[Section 43T of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) Except as provided in subsection (2) , sections 41 , 41A , 41B , 42 and 43(2) apply to the amendment of the model framework as if a reference to the planning authority in sections 41 , 41A , 41B and 42 were a reference to the Minister.(2) Section 42(3)(c) applies to the amendment of the model framework as if the reference to the planning authority were a reference to the Minister and all planning authorities.
43U. Planning authorities to implement amendment to model framework
[Section 43U of Part 3 Inserted by No. 84 of 1997, s. 15, Applied:01 Jan 1998](1) Where the Commission has approved an amendment of the model framework, it must direct all planning authorities to amend their planning schemes to incorporate the amendment.(2) Where a planning authority amends its planning scheme pursuant to a direction from the Commission under subsection (1) , the amendment of the planning scheme is taken to have been approved by the Commission under section 42 .
Division 3 - Reviews of planning schemes
44. Review of planning schemes
A planning authority must keep its planning scheme or schemes under regular and periodic review for the purpose of ensuring that the objectives set out in Schedule 1 are, having regard to such changing circumstances as may be relevant, achieved to the maximum extent possible.
Division 3A - Abolition of, or change of boundaries of, municipal districts
44A. Abolition of, or change of boundaries of, municipal districts
[Section 44A of Part 3 Inserted by No. 84 of 1997, s. 16, Applied:01 Jan 1998] If a municipal district is abolished or a boundary of a municipal district is changed, the Commission may, by notice published in the Gazette, designate which planning authority has jurisdiction over a planning scheme or part of a planning scheme or a special planning order or part of a special planning order.
Division 4 - Provisions relating to existing interim orders[Part 3, Div. 4 Substituted by No. 104 of 1995, s. 15 ]
45. Interpretation of Division 4
[Section 45 Substituted by No. 104 of 1995, s. 15 ]In this Division, existing interim order means an interim order administered by a planning authority immediately before the commencement of the Land Use Planning and Approvals Amendment Act (No. 2) 1995 .
45A. Validation of existing interim orders
[Section 45A Inserted by No. 104 of 1995, s. 15 ]An existing interim order is valid and effectual and is always taken to have been valid and effectual.
46. Existing interim order taken to be planning scheme
[Section 46 Substituted by No. 104 of 1995, s. 15 ][Section 46 Substituted by No. 84 of 1997, s. 17, Applied:01 Jan 1998] An existing interim order is taken to be a planning scheme for the purposes of this Act.
Division 5 - Special planning orders[Part 3, Div. 5 Inserted by No. 104 of 1995, s. 15 ]
47. Making of special planning orders
[Section 47 Inserted by No. 104 of 1995, s. 15 ](1) [Section 47 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Subject to subsection (2) , the Commission, of its own volition or at the request of a planning authority, may make a special planning order providing for any of the matters for which a planning scheme may provide if it considers that–and it is satisfied that the provisions of Division 1 or 2 would result in an unacceptable delay in addressing the matters referred to in paragraph (a) or (b) .(a) there are contradictions in, or inconsistencies between, the provisions of a planning scheme; or(b) it is necessary to introduce planning provisions for an area for which a planning scheme is not in force or will cease to operate–(2) [Section 47 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission must not exercise its powers under subsection (1) unless it considers that it is in the public interest to do so.(3) [Section 47 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission or a planning authority may prepare a special planning order.(4) [Section 47 Subsection (4) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] If a special planning order has been prepared by a planning authority, it must submit the special planning order to the Commission, and the Commission must–(a) either make or refuse to make the order; and(b) notify the planning authority of its decision.(5) [Section 47 Subsection (5) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] A special planning order must satisfy the requirements of section 32 and may be made in such form and on such terms and conditions as the Commission thinks fit.(6) [Section 47 Subsection (6) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] If the Commission makes a special planning order it must–(a) cause notice of the making of the order to be published in the Gazette and in a daily newspaper published in Tasmania and circulating generally in the area to which the order relates; and(b) nominate a place at which the order may be inspected.
47A. Operation of special planning orders
[Section 47A Inserted by No. 104 of 1995, s. 15 ](1) A special planning order operates from the date specified in the notice published in the Gazette under section 47 (6) .(2) A special planning order overrides any existing planning scheme applying to the same area to the extent of any inconsistency.(3) A special planning order ceases to operate –(a) [Section 47A Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] if the Commission, by notice published in the Gazette, revokes the order; or(b) if either House of Parliament passes a resolution disallowing it; or(c) when a planning scheme or amendment to a planning scheme applying to the area the subject of the special planning order comes into operation.
47B. Revocation of special planning orders
[Section 47B Inserted by No. 104 of 1995, s. 15 ](1) [Section 47B Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission, of its own volition or at the request of a planning authority, may revoke a special planning order.(2) [Section 47B Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] If the Commission revokes a special planning order it must cause notice of the revocation of the order to be published in the Gazette and in a daily newspaper published in Tasmania and circulating generally in the area to which the order relates.(3) The revocation of a special planning order operates from the date specified in the notice published in the Gazette under subsection (2) .
PART 4 - Enforcement of Planning Control
Division 1 - General
48. Enforcement of observance of planning schemes and interim orders
[Section 48 Amended by No. 104 of 1995, s. 35 and Sched. 1 ]Where a planning scheme or special planning order is in force, the planning authority must, within the ambit of its power, observe, and enforce the observance of, that planning scheme or special planning order in respect of all use or development undertaken within the area to which the planning scheme or special planning order relates, whether by the authority or by any other person.
49. Effect of Divisions 2 and 3 on certain planning schemes and interim orders
(1) [Section 49 Subsection (1) amended by No. 104 of 1995, s. 35 and Sched. 1 ]A planning scheme or special planning order, whether made before or after the commencement of this section, has effect subject to Divisions 2 and 3 , and, to the extent to which a planning scheme or special planning order is inconsistent with those Divisions, it is of no effect.(2) [Section 49 Subsection (2) amended by No. 104 of 1995, s. 35 and Sched. 1 ]Without prejudice to the generality of subsection (1) , any provision in a planning scheme or special planning order that –is deemed to be inconsistent with Divisions 2 and 3 .(a) requires notification or publication of an application for a planning approval; or(b) gives a right of appeal in respect of any decision of a planning authority –
Division 2 - Development control
50. Certain applications deemed to be applications for permits
An application of the kind referred to in section 20 (2) (j) is deemed to be an application for a permit.
(1) [Section 51 Subsection (1) substituted by No. 104 of 1995, s. 16 ]A person must not commence any use or development which, under the provisions of a planning scheme or special planning order, requires a permit unless the planning authority which administers the scheme or order has granted a permit in respect of that use or development and the permit is in effect.(1A) [Section 51 Subsection (1A) inserted by No. 104 of 1995, s. 16 ]A person may apply to a planning authority which administers a planning scheme or special planning order for the granting of a permit for a use or development which under that scheme or order requires a permit to be granted in respect of that use or development.(1B) [Section 51 Subsection (1B) inserted by No. 104 of 1995, s. 16 ]If an undertaking is in respect of –and under a planning scheme or special planning order any of those uses or developments requires a permit to be granted in respect of them, a person, in one application, may apply to the planning authority for a permit with respect to that undertaking.(a) a combination of uses; or(b) a combination of developments; or(c) a combination of one or more uses and one or more developments –(2) In determining an application for a permit, a planning authority –(a) must seek to further the objectives set out in Schedule 1 ; and(b) must take into consideration such of the prescribed matters as are relevant to the use or development the subject of the application; and(c) must take into consideration the matters set out in representations relating to the application that were made during the period referred to in section 57 (5) .(3) [Section 51 Subsection (3) amended by No. 104 of 1995, s. 16 and s. 35 and Sched. 1 ]The decision of a planning authority on an application referred to in subsection (1A) or (1B) is to be made by reference to the provisions of the planning scheme or special planning order as in force at the date of its decision.(3A) [Section 51 Subsection (3A) inserted by No. 104 of 1995, s. 16 ]A permit to which section 57 applies may be subject to such conditions or restrictions as the planning authority may impose.(4) [Section 51 Subsection (4) amended by No. 104 of 1995, s. 16 and s. 35 and Sched. 1 ]A permit to which section 58 applies may be granted subject to such conditions or restrictions as the planning authority may impose with respect to any matter specified in the relevant planning scheme or special planning order.
52. What if applicant is not the owner?
(1) [Section 52 Subsection (1) amended by No. 104 of 1995, s. 17 ]If the applicant for a permit is not the owner of the land in respect of which the permit is required and a planning scheme or special planning order does not provide otherwise, an application is to –(a) be signed by the owner of the land; or(b) be accompanied by the written permission of the owner to the making of the application.(1A) [Section 52 Subsection (1A) inserted by No. 84 of 1997, s. 18, Applied:01 Jan 1998] Subsection (1) does not apply to an application for a permit to carry out mining operations, within the meaning of the Mineral Resources Development Act 1995 , if a mining lease has been issued under that Act which authorises those operations.(2) A person must not obtain or attempt to obtain a permit by wilfully making or causing to be made any false representation or declaration either orally or in writing.Penalty: Fine not exceeding 20 penalty units.
53. When does a permit take effect?
(1) Where a planning authority grants a permit, the permit, subject to subsections (2) , (3) and (4) , takes effect on the day on which it is granted by the authority or, where there is a right of appeal against the granting of the permit, at the expiration of 14 days from the day on which the notice of the granting of the permit was served on the person who has the right of appeal.(1A) [Section 53 Subsection (1A) inserted by No. 104 of 1995, s. 18 ]If the applicant is the only person with a right of appeal under section 61 in relation to a permit and does not intend to exercise that right, the use or development in respect of which the permit is granted may, subject to subsections (1B) and (4) , be commenced before the expiration of the 14 day period specified in subsection (1) .(1B) [Section 53 Subsection (1B) inserted by No. 104 of 1995, s. 18 ]If the applicant referred to in subsection (1A) proposes to commence the use or development before the expiration of the 14 day period specified in that subsection, the applicant must notify the planning authority in writing of his or her intention to commence that use or development.(1C) [Section 53 Subsection (1C) inserted by No. 104 of 1995, s. 18 ]If the applicant notifies the planning authority under subsection (1B) , the applicant is taken to have forfeited the right to appeal in relation to the permit.(2) A day later than the day on which a permit would otherwise have taken effect under subsection (1) may be specified in the permit as the day on which it takes effect.(3) Where an appeal has been instituted against the planning authority's decision to grant a permit, the permit does not take effect until the determination or abandonment of the appeal.(4) Where any other approvals under this Act or any other Act are required for the proposed use or development to which the permit relates, the permit does not take effect until all those approvals have been granted.(5) A permit lapses after a period of 2 years from the date on which it was granted if the use or development in respect of which it was granted is not substantially commenced within that period.(6) [Section 53 Subsection (6) inserted by No. 104 of 1995, s. 18 ]If under a permit an agreement is required to be entered into, the permit does not take effect until the day the agreement is executed.
(1) A planning authority may, by notice in writing served on the applicant within the period of 28 days from the day on which it receives an application for a permit, require the applicant to provide it with additional information before it considers the application.(2) If the planning authority requires the applicant to provide it with additional information, the period referred to in section 57(6)(b) or 58(2) , whichever is applicable, does not run while the request for information has not been answered to the satisfaction of the planning authority.
A planning authority may correct a permit granted by it if the permit contains –(a) a clerical mistake or an error arising from any accidental slip or omission; or(b) an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the approval.
56. Minor amendments of permits
(1) The owner of land, or a person with the consent of the owner, may request the planning authority in writing to amend a permit which applies to that land.(2) The planning authority may amend the permit if it is satisfied that the amendment –(a) does not change the effect of any condition required by the Appeal Tribunal; and(b) will not cause an increase in detriment to any person; and(c) does not change the use or development for which the permit was issued other than a minor change to the description of the use or development.(3) [Section 56 Subsection (3) substituted by No. 84 of 1997, s. 19, Applied:01 Jan 1998] If the planning authority amends a permit, it must, by notice in writing served on –notify those persons of the amendments made to the permit.(a) the person who requested the permit to be amended; and(b) if that person is not the owner of the land, the owner; and(c) in the case of a permit granted under section 57 , the owner or occupier of any property which adjoins the land; and(d) any person who made a representation under section 57(5) in relation to the application for the permit –(4) [Section 56 Subsection (4) inserted by No. 84 of 1997, s. 19, Applied:01 Jan 1998] If the planning authority amends a permit containing a condition or restriction which the Board of Environmental Management and Pollution Control has required under section 25(5) of the Environmental Management and Pollution Control Act 1994 , the planning authority must, by notice in writing served on the Board, notify it of the amendments made to the permit.
56A. When amendments to permits take effect
[Section 56A Inserted by No. 84 of 1997, s. 20, Applied:01 Jan 1998](1) If a planning authority amends a permit, the amendment, subject to subsections (5) and (6) , takes effect on the day on which it is made by the planning authority or, if there is a right of appeal against the amendment, at the expiration of 14 days from the day on which the notice of the amendment was served on the person who has the right of appeal.(2) If the person who requested an amendment to a permit is the only person with a right of appeal under section 61 in relation to the amendment and does not intend to exercise that right, the use or development in respect of which the amendment is made may, subject to subsection (3) , be commenced before the expiration of the 14 day period specified in subsection (1) .(3) If the person referred to in subsection (2) proposes to commence the use or development in respect of which the amendment is made before the expiration of the 14 day period specified in subsection (1) , the person must notify the planning authority in writing of his or her intention to commence that use or development.(4) If the person who requested an amendment to a permit notifies the planning authority under subsection (3) , the person is taken to have forfeited the right to appeal in relation to the amendment.(5) The day on which a permit takes effect may be specified in the permit as being a day later than the day on which the permit would otherwise have taken effect under subsection (1) .(6) If an appeal has been instituted against the planning authority's decision to amend a permit, the amendment does not take effect until the determination or abandonment of the appeal.(7) If the amendment requires an agreement to be entered into, the amendment does not take effect until the day on which the agreement is executed.
57. Applications for discretionary permits
(1) [Section 57 Subsection (1) amended by No. 104 of 1995, sched. 1 ][Section 57 Subsection (1) substituted by No. 60 of 1996, s. 4 ]This section applies to an application for a permit in respect of a use or development which, under the provisions of a planning scheme or special planning order –(a) is of a kind specified as being a use or development which a planning authority has a discretion to refuse or permit; or(b) may not proceed as proposed by the applicant unless a planning authority waives, relaxes or modifies a requirement of the scheme or order, or otherwise in its discretion consents to the use or development proceeding.(2) The planning authority may, on receipt of an application for a permit to which this section applies, refuse to grant the permit and, if it does so –(a) it does not have to comply with subsection (3) ; and(b) section 60 (1) does not apply; and(c) it must, within 7 days of refusing to grant the permit, serve on the applicant notice of its decision.(3) Unless the planning authority requires the applicant to give notice, the authority must give notice, as prescribed, of an application for a permit.(4) A notice referred to in subsection (3) is, in addition to any other matters required to be contained in it, to name a place where a copy of the application, and of all plans and other documents submitted with the application, will be open to inspection by the public at all reasonable hours during the period for which representations may be made.(5) Any person may make representations relating to the application during the period of 14 days commencing on the date on which notice of the application is given under subsection (3) or such further period not exceeding 14 days as the planning authority may allow.(5A) [Section 57 Subsection (5A) inserted by No. 104 of 1995, s. 19 ]A person may, by notice in writing to a planning authority, withdraw a representation made under subsection (5) at any time before the planning authority grants or refuses to grant a permit under subsection (6) .(5B) [Section 57 Subsection (5B) inserted by No. 104 of 1995, s. 19 ]If a person withdraws a representation under subsection (5A) , that person is taken not to have made a representation under subsection (5) .(6) [Section 57 Subsection (6) amended by No. 104 of 1995, s. 19 ]Unless the planning authority has refused to grant a permit under subsection (2) , it must grant or refuse to grant the permit –(a) not earlier than the expiration of the period of 14 days, or such further period as may be allowed under subsection (5) , beginning on the date on which notice of the application for a permit is given under subsection (3) ; and(b) not later than the expiration of the period of –(i) where the application for the permit has been referred to relevant agencies, 60 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 60 day period; or(ii) in any other case, 42 days from that day or such further period as is agreed to, in writing, by the authority and the applicant before the expiration of that 42 day period.(6A) [Section 57 Subsection (6A) inserted by No. 104 of 1995, s. 19 ]A further period agreed to by a planning authority and an applicant under subsection (6) (b) (i) or (ii) may be extended or further extended by agreement, in writing, between the planning authority and applicant at any time before the expiration of the period to be extended and, when so extended, is taken to be the further period referred to in subsection (6) .(7) [Section 57 Subsection (7) substituted by No. 104 of 1995, s. 19 ]If a planning authority, on an application for a permit to which this section applies, grants or refuses to grant the permit, it must, within 7 days of granting or refusing to grant the permit, serve notice of its decision –(a) on the applicant; and(b) if representations have been made in relation to the application in accordance with this section, on all persons who made representations; and(c) if objections have, or advice has, been provided in relation to the application in accordance with section 60 (2) , on all relevant agencies who made objections or provided advice.(8) [Section 57 Subsection (8) omitted by No. 104 of 1995, s. 19 ]. . . . . . . .
[Section 57A Inserted by No. 84 of 1997, s. 21, Applied:01 Jan 1998](1) In this section,party means any of the following persons:(a) a person who made an application to a planning authority for a permit under section 57 ;(b) the planning authority to whom the application for a permit under section 57 was made;(c) any person who made a representation under section 57(5) in relation to the application for a permit under section 57 .(2) If the applicant for a permit under section 57 or any person who has made a representation under section 57(5) requires mediation to be conducted in relation to the application, the applicant or other person must notify, in writing, the planning authority.(3) If the planning authority receives notification under subsection (2) or wishes mediation to be conducted in relation to an application for a permit under section 57 , it must notify in writing any other party and seek the agreement of that party for mediation to be conducted in relation to the application.(4) If 2 or all parties agree that mediation should be conducted in relation to an application for a permit under section 57 , the parties must agree on the person who is to conduct the mediation and on any other terms or conditions in relation to the conduct of the mediation.(5) If 2 or all parties agree that mediation should be conducted in relation to an application for a permit under section 57 , the period within which the planning authority must make its decision in relation to the application may be extended under section 57(6A) .
58. Application for other permits
(1) [Section 58 Subsection (1) amended by No. 104 of 1995, s. 20 and s. 35 and Sched. 1 ]This section applies to an application for a permit in respect of a use or development for which, under the provisions of a planning scheme or special planning order, a planning authority is bound to grant a permit either unconditionally or subject to conditions or restrictions.(2) [Section 58 Subsection (2) amended by No. 84 of 1997, s. 22, Applied:01 Jan 1998] [Section 58 Subsection (2) amended by No. 104 of 1995, s. 20 ]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–(a) where the application has been referred to relevant agencies, 60 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 60 day period; and(b) in any other case, 42 days from that day or such further period as is agreed to, in writing, by the authority and the applicant before the expiration of that 42 day period.(2A) [Section 58 Subsection (2A) inserted by No. 104 of 1995, s. 20 ]A further period agreed to by a planning authority and an applicant under subsection (2) (a) or (b) may be extended or further extended by agreement, in writing, between the planning authority and applicant at any time before the expiration of the period to be extended and, when so extended, is taken to be the further period referred to in subsection (2) .(3) [Section 58 Subsection (3) amended by No. 104 of 1995, s. 20 ]Where a planning authority grants a permit to which this section applies either unconditionally or subject to conditions or restrictions, it must, within 7 days of granting the permit, serve notice of its decision on the applicant and, if advice has been provided in accordance with section 60 (2A) , on all relevant agencies who provided the advice.
58A. Permits requiring entering into of agreements
[Section 58A Inserted by No. 104 of 1995, s. 21 ](1) Without limiting section 51 (3A) and despite section 51 (4) , a permit granted by a planning authority under section 57 or 58 may include a condition that an agreement is required to be entered into in respect of a use or development.(2) If a planning authority grants a permit which includes a condition that an agreement is required to be entered into in respect of a use or development, the planning authority must specify in the condition the matters, and the requirements with respect to those matters, to be included in the agreement.(3) If a person is granted a permit which includes a condition under subsection (1) and that person is not the owner of the land in respect of which the agreement to be entered into relates, the planning authority must, within 7 days of granting the permit, serve notice of its decision on the owner.
59. Failure to determine an application for a permit
(1) The failure of a planning authority to determine an application for a permit to which section 57 or 58 applies before the expiration of the period, or, where applicable, the further period, referred to in section 57 (6) (b) or 58 (2) is deemed to constitute a decision to grant a permit on conditions to be determined by the Appeal Tribunal.(2) Where the failure of a planning authority to determine an application for a permit to which section 57 or 58 applies is deemed to constitute a decision to grant a permit on conditions to be determined by the Appeal Tribunal, the authority must, within 7 days of the expiration of the period, or, where applicable, the further period, referred to in section 57 (6) (b) or 58 (2) , serve notice –that the permit has been deemed to have been granted on conditions to be determined by the Appeal Tribunal.(a) on the applicant; and(b) on any person who made representations under section 57 (5) –(3) [Section 59 Subsection (3) amended by No. 104 of 1995, s. 22 ]If a planning authority fails to determine an application before the expiration of the relevant period referred to in section 57 (6) (b) or 58 (2) , the applicant may apply to the Appeal Tribunal for an order determining the conditions on which the permit is granted.(4) After hearing an application under subsection (3) , the Appeal Tribunal may, in addition to its powers under the Resource Management and Planning Appeal Tribunal Act 1993 –(a) grant the permit unconditionally; or(b) grant the permit and direct that the permit must contain specified conditions; or(c) in the case of an application for a permit to which section 57 applies, direct that a permit must not be granted.(5) After hearing an application under subsection (3) , the Appeal Tribunal must direct the planning authority to pay –(a) to the Appeal Tribunal an amount determined by the Appeal Tribunal as being the costs of the appeal; and(b) to each other party to the appeal an amount determined by the Appeal Tribunal as being the appeal costs of that party.(6) For the purposes of the Resource Management and Planning Appeal Tribunal Act 1993 , an application under this section is deemed to be an appeal.(7) Notwithstanding the provisions of this Division, a planning authority may make a decision on an application for a permit to which section 57 or 58 applies at any time before the lodging of an application under subsection (3) .(8) Where a planning authority makes a decision under subsection (7) it must, within 7 days of making the decision, serve notice of its decision on the applicant and, where representations have been made in relation to the application under section 57 (5) , on all persons who made representations.(9) Where the failure of a planning authority to determine an application for a permit to which section 57 or 58 applies before the expiration of the period, or, where applicable, the further period, referred to in section 57 (6) (b) or 58 (2) is due to the failure of a relevant agency to provide comments within the period referred to in section 60 (2) , the planning authority is entitled to be indemnified by the State or the relevant agency, as the case requires, for the payment of costs ordered to be paid by the Tribunal under subsection (5) .(10) Any sum to which a planning authority is entitled under subsection (9) may be recovered as a debt due to the planning authority in any court of competent jurisdiction.
60. Representations from relevant agencies
(1) [Section 60 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] [Section 60 Subsection (1) amended by No. 104 of 1995, s. 23 and s. 35 and Sched. 1 ]Where, under a planning scheme or special planning order, a permit is required in relation to the use or development of land, the planning authority must, within 7 working days of receiving an application for that permit and before determining the application, refer the application to such relevant agencies as may be specified by the Commission for permits of that kind.(2) [Section 60 Subsection (2) substituted by No. 104 of 1995, s. 23 ]A relevant agency to which an application for a permit under section 57 has been referred must provide its objection to the application or its advice as to the conditions or restrictions to which the permit should be subject to the planning authority not later than the expiration of 28 days after the date on which the application was referred to it or such further period as is agreed to by the relevant agency and the authority.(2A) [Section 60 Subsection (2A) inserted by No. 104 of 1995, s. 23 ]A relevant agency to which an application for a permit under section 58 has been referred must provide its advice on the conditions or restrictions to which the permit should be subject to the planning authority not later than the expiration of 28 days after the date on which the application was referred to it or such further period as is agreed to by the relevant agency and the authority.(3) [Section 60 Subsection (3) substituted by No. 104 of 1995, s. 23 ]If a relevant agency fails to provide –within the period referred to in subsection (2) or (2A) , the authority may proceed to deal with the application.(a) its objection or advice on an application under section 57 ; or(b) its advice on an application under section 58 –(4) Unless the Governor, by order, declares otherwise in relation to permits of a kind specified in the order, subsection (1) expires on a day 3 years after the commencement of this section.(5) An order under subsection (4) has effect for one year only, but may be renewed.
Division 3 - Planning appeals
61. Appeals against planning decisions
(1) [Section 61 Subsection (1) omitted by No. 104 of 1995, s. 24 ]. . . . . . . .(2) [Section 61 Subsection (2) omitted by No. 104 of 1995, s. 24 ]. . . . . . . .(3) An applicant for a permit may appeal to the Appeal Tribunal against a requirement by a planning authority for additional information under section 54 within 14 days after the day on which notice was served under section 54 (1) .(3A) [Section 61 Subsection (3A) inserted by No. 84 of 1997, s. 23, Applied:01 Jan 1998] If a planning authority has amended a permit under section 43K or 56 , any person referred to in section 43K(3) or (4) or 56(3) or (4) may appeal to the Appeal Tribunal against the decision of the planning authority within 14 days after the day on which the notice was served under section 43K(3) or (4) or 56(3) or (4) .(4) [Section 61 Subsection (4) amended by No. 104 of 1995, s. 24 ]If a planning authority refuses to grant a permit or grants a permit subject to conditions or restrictions, the applicant for the permit may appeal to the Appeal Tribunal against the decision of the planning authority within 14 days after, as the case may be –(a) the day on which notice was served under section 57 (2) ; or(b) the day on which notice was served on the applicant under section 57 (7) ; or(c) the day on which notice was served under section 58 (3) ; or(d) the day on which notice was served on the applicant under section 59 (8) .(5) [Section 61 Subsection (5) amended by No. 104 of 1995, s. 24 ]If a planning authority grants a permit, any person who or relevant agency which, in respect of the application for that permit, has made a representation under section 57 (5) may appeal to the Appeal Tribunal against the grant of the permit within 14 days after, as the case may be –(a) the day on which notice was served on that person under section 57 (7) ; or(b) the day on which notice was served on that person under section 59 (8) .(6) [Section 61 Subsection (6) inserted by No. 104 of 1995, s. 24 ]An owner notified of the decision of a planning authority under subsection (3) of section 58A may appeal to the Appeal Tribunal against that decision within 14 days after the day on which notice was served under that subsection.(7) [Section 61 Subsection (7) inserted by No. 104 of 1995, s. 24 ]If a planning authority grants a permit, any relevant agency which made an objection or provided advice under section 60 (2) or (2A) may appeal to the Appeal Tribunal against the grant of the permit within 14 days after the day on which notice was served on the relevant agency under section 57 (7) or 58 (3) .
(1) [Section 62 Subsection (1) amended by No. 104 of 1995, s. 25 ]After hearing an appeal, the Appeal Tribunal may, in addition to its powers under the Resource Management and Planning Appeal Tribunal Act 1993 –(a) . . . . . . . .(b) direct that additional information be supplied or that the authority proceed on the basis that the information was supplied; or(c) in the case of an appeal against a grant of a permit, a refusal to grant a permit or a grant of a permit subject to conditions or restrictions –(i) direct the planning authority to grant the permit; or(ii) direct the planning authority to grant the permit and direct the planning authority that the permit must or must not contain any specified conditions; or(iii) [Section 62 Subsection (1) amended by No. 84 of 1997, Applied:01 Jan 1998] direct the planning authority not to grant a permit; or(d) [Section 62 Subsection (1) amended by No. 84 of 1997, s. 24, Applied:01 Jan 1998] in the case of an appeal against the amendment of a permit –(i) direct the planning authority not to amend the permit; or(ii) having regard to the matters specified in section 43K(2) or 56(2) , as the case may be, direct the planning authority to amend the permit in the manner specified by the Appeal Tribunal.(2) Where the Appeal Tribunal has determined an appeal, an application for a permit in respect of a use or development which is substantially the same as the use or development to which the appeal related may not, without the leave of the Appeal Tribunal, be made within a period of 2 years from the date on which the Appeal Tribunal made its decision.
Division 4 - Offences, remedies, &c.
63. Obstruction of sealed schemes
(1) [Section 63 Subsection (1) omitted by No. 104 of 1995, s. 26 ]. . . . . . . .(2) [Section 63 Subsection (2) amended by No. 104 of 1995, s. 26 ]A person must not use land in a way, or undertake development or do any other act, that –(a) is contrary to a State Policy, a planning scheme or special planning order; or(b) impedes or obstructs the execution of any such scheme or order; or(c) constitutes a breach of a condition or restriction of a permit imposed by a planning authority pursuant to any such scheme or order or a determination of the Appeal Tribunal.(3) A person who contravenes subsection (2) is guilty of an offence punishable, on summary conviction, in accordance with subsection (4) .(4) A person convicted of an offence against subsection (3) is liable to a fine not exceeding 500 penalty units, and a person who is so convicted in respect of a continuing contravention of subsection (2) –(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 50 penalty units; and(b) if the contravention continues after the person is convicted, is guilty of a further offence against subsection (3) 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.(5) [Section 63 Subsection (5) amended by No. 104 of 1995, s. 26 ]Where a person is convicted of an offence against subsection (3) , the court may –(a) in addition to any fine imposed under subsection (4) , order that the person pay to the planning authority the reasonable cost incurred by the authority in carrying out any work so as to ensure that the use or development is in accordance with the relevant planning scheme, special planning order, permit or determination; and(b) direct that payment of the amount so ordered to be paid may be enforced in the manner provided by section 78 of the Justices Act 1959 as if the person convicted had been adjudged to pay that amount in a conviction or order made by justices.(6) [Section 63 Subsection (6) amended by No. 104 of 1995, s. 26 ]The application of subsection (2) extends in relation to a permit or a condition or restriction attaching to a permit under a planning scheme or special planning order where the scheme or order was in force immediately before the commencement of this Act and notwithstanding that the permit or the condition or restriction, if any, was imposed before that commencement.(7) Nothing in subsection (6) is to be construed as rendering unlawful any use or development that was completed pursuant to a permit in force before the commencement of this Act.
64. Civil enforcement proceedings
(1) [Section 64 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where a person contravenes or fails to comply with a provision of this Part, the Commission, a planning authority or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.(2) The application may be made ex parte and, if the Appeal Tribunal is satisfied that there are sufficient grounds, it must issue a summons requiring the respondent to appear before the Appeal Tribunal to show cause why an order should not be made under this section.(3) If –(a) after hearing –the Appeal Tribunal is satisfied, on the balance of probabilities, that the respondent to the application has contravened or failed to comply with a provision of this Part; or(i) the applicant and the respondent; and(ii) any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings –(b) the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard –the Appeal Tribunal may, by order –(c) require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and(d) preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates; and(e) require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal.(4) Any person with a legal or equitable interest in land to which an application under this section relates is entitled to appear and be heard in proceedings based on the application before a final order is made.(5) If, in proceedings under this section, the Appeal Tribunal is satisfied that, in order to preserve the rights or interests of parties to the proceedings or for any other reason, it is desirable to make a temporary order under this section, the Appeal Tribunal may at any time during those proceedings make such an order.(6) A temporary order –(a) may be made on an ex parte application before a summons has been issued under subsection (2) ; and(b) may be made subject to such conditions as the Appeal Tribunal thinks fit; and(c) is not to operate after the proceedings in which it is made are finally determined.(7) A person who contravenes, or fails to comply with, an order or a temporary order under this section is guilty of an offence.Penalty: Fine not exceeding 500 penalty units.(8) [Section 64 Subsection (8) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] [Section 64 Subsection (8) amended by No. 104 of 1995, s. 27 ]Where the Appeal Tribunal makes an order under subsection (3) (e) and the respondent fails to comply with the order within the period specified by the Appeal Tribunal, the Commission or a planning authority may, by leave of the Appeal Tribunal, cause any work contemplated by the order to be carried out, and may recover the costs of that work, as a debt, from the respondent.(9) The Appeal Tribunal may, if it thinks fit, adjourn proceedings under this section in order to permit the respondent to make an application for a permit that should have been but was not made, or to remedy any other default.(10) The Appeal Tribunal may, on an application under this section, exercise the powers conferred on it by section 62 (1) in relation to any use or development of land as if the application were a hearing of an appeal.(11) For the purposes of the Resource Management and Planning Appeal Tribunal Act 1993 , an application under this section is deemed to be an appeal.(12) The Appeal Tribunal must make such orders in relation to the costs of proceedings under this section as it thinks fit and in making such orders must take into account –(a) the result of the proceedings; and(b) whether a party has raised frivolous or vexatious issues at the hearing; and(c) whether any party has unnecessarily or unreasonably prolonged the hearing or increased the costs of it; and(d) the capacity of the parties to meet an order for costs.(13) [Section 64 Subsection (13) amended by No. 104 of 1995, s. 27 ]If the Appeal Tribunal is of the opinion that an application under this section is frivolous or vexatious, the Appeal Tribunal must dismiss the application and order the applicant to pay an amount determined by the Appeal Tribunal as being the costs of the proceedings in relation to the application and the costs of any person referred to in subsection (3) (a) (ii) .(14) [Section 64 Subsection (14) amended by No. 104 of 1995, s. 27 ]An order under subsection (12) or (13) may be registered in a court having jurisdiction for the recovery of debts up to the amount ordered to be paid by or under the order.(15) [Section 64 Subsection (15) amended by No. 104 of 1995, s. 27 ]Proceedings for the enforcement of an order under subsection (13) may be taken as if the order were a judgment of the court in which the order is registered.(16) Proceedings under this section may be commenced at any time within 12 months after the date of the alleged contravention of, or failure to comply with, a provision of this Part.
65. Appeal in respect of decision of Appeal Tribunal under section 64
(1) Subject to the Rules of the Supreme Court, an appeal lies to the Supreme Court against –(a) an order of the Appeal Tribunal made in the exercise of the jurisdiction conferred by section 64 ; or(b) a decision by the Appeal Tribunal not to make an order under that section.(2) An appeal under this section must be instituted within 30 days of the date of the decision or order subject to appeal or such longer period as may be allowed by the Supreme Court.
Division 5 - Compensation
[Section 66 Subsection (1) amended by No. 104 of 1995, s. 35 and Sched. 1 ](1) [Section 66 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]The owner or occupier of any land may claim compensation in accordance with Part 5 of the Land Acquisition Act 1993 from a planning authority for financial loss suffered as the natural, direct and reasonable consequence of –(a) the land being set aside for a public purpose under a planning scheme or special planning order; or(b) the land being shown as set aside for a public purpose in a proposed amendment to a planning scheme which has been publicly exhibited under section 38 ; or(c) access to land being restricted by the closure of a road by a planning scheme or special planning order.(2) The owner or occupier of any land may claim compensation from a planning authority for financial loss suffered as the natural, direct and reasonable consequence of a failure by the authority to grant a permit for the land on the ground that the land is or will be needed for a public purpose.(3) A person cannot claim compensation under subsection (1) if the planning authority has purchased or compulsorily acquired the land or part of the land.(4) Where a person would be entitled to claim compensation in respect of any matter or thing under this Division and also under any other enactment, the person is not entitled to receive compensation both under this Division and under the other enactment, nor to receive any greater compensation under this Division than the person would be entitled to receive under the other enactment.
67. Power to withdraw or modify planning scheme or interim order after compensation determined
(1) [Section 67 Subsection (1) amended by No. 104 of 1995, s. 35 and Sched. 1 ]At any time within one month after the determination of the compensation payable under section 66 , the planning authority may give notice to the claimant of its intention to withdraw or modify all or any of the provisions of the planning scheme or special planning order which gave rise to the claim for compensation.(2) [Section 67 Subsection (2) amended by No. 104 of 1995, s. 35 and Sched. 1 ]Not later than 3 months after giving notice, the planning authority must –(a) [Section 67 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] where the notice relates to a planning scheme, submit for the approval of the Commission an amendment of the planning scheme, prepared in accordance with Division 2 of Part 3 , carrying into effect the withdrawal or modification; and(b) where the notice relates to a special planning order, make another special planning order in accordance with the notice and in substitution for the first-mentioned special planning order.(3) [Section 67 Subsection (3) amended by No. 104 of 1995, s. 35 and Sched. 1 ]On the coming into operation of the amendment of the planning scheme or the substitute special planning order, as the case requires, and on payment by the planning authority of the claimant's costs of and in connection with the making of the claim or the award of compensation, as the case may be, the judgment, order or award for payment of compensation is to be discharged, as prescribed, without prejudice to the right of the claimant to make a further claim for compensation under this Division in respect of the planning scheme as amended or the substitute special planning order, as the case may be.
68. Enforcement of judgments, &c., for compensation
[Section 68 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Compensation under this Division is not to be enforced before the expiration of one month from the date of the determination under section 66 or, if a notice has been given by the planning authority under section 67 (1) , until after the expiration of 3 months from the date of the notice or, if within that period a variation of the scheme is submitted to the Commission, until that variation has either come into operation or been disapproved by the Commission.
69. Indemnification of planning authorities for liability to pay compensation
(1) [Section 69 Subsection (1) amended by No. 104 of 1995, s. 35 and Sched. 1 ]Where an entitlement to compensation under this Division arises out of the inclusion in a planning scheme or special planning order, at the written request, or with the written consent, of a relevant agency, of a provision reserving land for a public purpose, the planning authority is entitled to be indemnified by the State or the relevant agency, as the case requires, for the payment of that compensation.(2) Any sum to which an authority is entitled under subsection (1) may be recovered as a debt due to the planning authority in any court of competent jurisdiction.
PART 5 - Agreements
[Section 70 Amended by No. 104 of 1995, s. 28 ]In this Part –infrastructure includes services, facilities, works and other uses and developments which provide the basis for meeting economic, social and environmental needs;Recorder means the Recorder of Titles.
71. Planning authority may enter into agreements
(1) [Section 71 Subsection (1) amended by No. 104 of 1995, s. 35 and Sched. 1 ]A planning authority may enter into an agreement with an owner of land in the area covered by a planning scheme or a special planning order.(2) A planning authority may enter into the agreement on its own behalf or jointly with any other person.(3) A planning authority may enter into an agreement under subsection (1) with a person in anticipation of that person becoming the owner of the land.(4) The planning authority is not entitled to apply to have the agreement referred to in subsection (3) registered under section 78 until the person becomes the owner of the land but the agreement is binding on the parties.(5) An agreement is binding on the parties to the agreement on the day on which it is executed.
72. Form and contents of agreement
(1) An agreement must be under seal and binds the owner to the covenants specified in the agreement.(2) [Section 72 Subsection (2) amended by No. 104 of 1995, s. 29 and s. 35 and Sched. 1 ]An agreement may provide for any one or more of the following matters:(a) the prohibition, restriction or regulation of use or development;(b) the conditions subject to which a use or development may be undertaken;(c) any matter intended to achieve or advance –(i) the objectives listed in Schedule 1 ; or(ii) any State Policy or draft State Policy upon which a report has been submitted to the Minister in accordance with section 11 (1) of the State Policies and Projects Act 1993 ; or(iii) the objectives of the planning scheme or special planning order, a draft planning scheme which has been publicly exhibited under section 25 or any amendment to the planning scheme which has been publicly exhibited under section 38 ;(d) any matter incidental to any one or more of the matters referred to in paragraphs (a) to (c) .
(1) An agreement may include a condition that the owner is to deposit with the planning authority –(a) a sum of money fixed by or determined in accordance with the agreement; or(b) an undertaking to pay that sum together with security in a form determined by or in accordance with the agreement.(2) The agreement may provide that the sum or part of the sum is forfeited if there is any failure by the owner to carry out the agreement to the satisfaction of the planning authority.(3) Any money paid must be returned to the owner on a date or dates specified in the agreement to the extent that it has not been forfeited.(4) Any money payable under this section is a charge on any land which is the subject of the agreement.
73A. Payments and contributions for infrastructure
[Section 73A Inserted by No. 104 of 1995, s. 30 ](1) An agreement may include a provision for a payment or other contribution for infrastructure to be made by any party to the agreement.(2) Without limiting subsection (1) , an agreement may make provision –(a) for a payment or other contribution for infrastructure to be made in stages; or(b) for works or other development to be undertaken by the owner on behalf of the planning authority or any other party to the agreement.(3) The matters provided for under section 86 of the Local Government (Building and Miscellaneous Provisions) Act 1993 may be dealt with in whole or in part under an agreement required –(a) as a condition of a permit; or(b) under the provisions of a planning scheme or special planning order.
(1) An agreement may provide that the agreement or any specified provision of the agreement comes into operation on or after –(a) the coming into operation of a specified amendment to a planning scheme; or(b) the granting of a permit permitting use or development for a specified purpose; or(c) the happening of a specified event; or(d) a specified time; or(e) the start or completion of a use or development or a specified part of a use or development.(2) An agreement may provide that the agreement ends on or after –(a) the happening of any specified event; or(b) a specified time; or(c) the cessation of a use or development for a specified purpose.(3) [Section 74 Subsection (3) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] An agreement may be ended by the planning authority with the approval of the Commission or by agreement between the authority and all persons who are bound by any covenant in the agreement.
An agreement may be amended by agreement between the planning authority and all persons who are bound by any covenant in the agreement.
76. Agreement to be lodged with Commission
(1) [Section 76 Subsection (1) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The planning authority must lodge a copy of an agreement at the office of the Commission without delay after the agreement is made.(2) The planning authority must keep a copy of each agreement, indicating any amendment made to it, available at its office for any person to inspect during office hours free of charge.
77. Agreement may not breach planning scheme
[Section 77 Amended by No. 104 of 1995, s. 35 and Sched. 1 ]An agreement must not require or allow anything to be done which would contravene or not comply with a planning scheme, a special planning order or a permit.
78. Registration of agreements, &c.
(1) [Section 78 Subsection (1) amended by No. 87 of 1997, Sched. 3, Applied:15 Jan 1998] A planning authority may lodge with the Recorder an executed copy of an agreement, together with particulars of title to the land to which the agreement relates and must do so if it has made the agreement with an owner of land in respect of which a determination under section 4(1)(c) of the Crown Lands (Shack Sites) Act 1997 has been made.(2) Where an agreement is registered, the planning authority must, as soon as practicable, lodge with the Recorder notification, in a form approved by the Recorder, of the amendment or ending of the agreement, together with particulars of title to any land to which the agreement relates.(3) Subject to the provisions of the Land Titles Act 1980 , the Recorder must register –lodged pursuant to subsection (1) or (2) on the folio of the Register, within the meaning of that Act, constituting the title to any land to which the agreement relates.(a) each agreement; and(b) each notification of the amendment or ending of the agreement –(4) If the whole or any part of the land referred to in subsection (3) is not under the Land Titles Act 1980 , the relevant agreement may be dealt with by the Recorder in the same manner as if it were a conveyance on sale within the meaning of section 28 (1) (a) of that Act .(5) The Recorder may require the planning authority to deposit with the Recorder –to which an agreement relates.(a) a plan of any land; or(b) a plan of a part of any land –(6) For the purpose of subsection (5) , the Recorder may require a plan to be made from actual survey and certified correct by a surveyor who is registered under the Land Surveyors Act 1909 .
79. Effect of registration of agreements, &c.
After the registration of an agreement under section 78 –(a) the burden of any covenant in the agreement runs with the land to which the agreement relates as if it were a covenant to which section 102 (2) of the Land Titles Act 1980 applies; and(b) the agreement is enforceable between the parties to it, and any person deriving title under any such party, as if the agreement were entered into by a fee simple owner of land for the benefit of adjacent land held by the Crown in fee simple that was capable of being benefited by the agreement and as if that adjacent land continued to be so held by the Crown.
80. Application to Appeal Tribunal
(1) [Section 80 Subsection (1) amended by No. 104 of 1995, s. 31 ]An owner of land may apply to the Appeal Tribunal for an amendment to a proposed agreement if –(a) under a planning scheme or special planning order, use or development for specified purposes is conditional upon an agreement being entered into under this Part; and(b) the owner objects to any provision of the agreement.(2) The Appeal Tribunal may approve the proposed agreement with or without amendments.(3) For the purposes of the Resource Management and Planning Appeal Tribunal Act 1993 , an application under this section is deemed to be an appeal.
[Section 80A Inserted by No. 104 of 1995, s. 32 ]An agreement in existence immediately before the commencement of the Land Use Planning and Approvals Amendment Act (No. 2) 1995 is valid and effectual and is always taken to be valid and effectual.
PART 6 - Miscellaneous
81. Reasons for extending period to be given
[Section 81 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Where the Minister or the Commission extends the period for the doing of any act or thing under this Act, the Minister or the Commission, as the case may be, must, when required to do so by any person, give to that person, in writing, the reasons for extending the period.
81A. Planning schemes, &c., to be registered in Central Plan Register
[Section 81A Inserted by No. 84 of 1997, s. 25, Applied:01 Jan 1998] Within 14 days of approving or amending a planning scheme or making a special planning order, the Commission must cause a copy of the planning scheme, amendment or special planning order to be registered in the Central Plan Register.
[Section 82 Amended by No. 104 of 1995, s. 35 and Sched. 1 ][Section 82 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] Evidence of a planning scheme, a special planning order or a permit may be given in any court or tribunal or before any person acting judicially by the production of a document purporting to be a copy of the planning scheme, special planning order or permit and purporting to be certified as a true copy by a person authorized, in writing, by the Commission or planning authority, as the case may require.
83. Planning schemes, &c., to be judicially noticed
[Section 83 Amended by No. 104 of 1995, s. 35 and Sched. 1 ]A planning scheme, a special planning order or a permit is a public document of which a court or tribunal or person acting judicially must take judicial notice, without formal proof of its contents.
84. Service of notices or other documents
A notice or other document is effectively served under this Act if –(a) in the case of a natural person, it is –(i) given to the person; or(ii) left at, or sent by post to, the person's postal or residential address or place or address of business or employment last known to the server of the notice or other document; or(iii) sent by way of facsimile to the person's facsimile number; and(b) in the case of any other person, it is –(i) left at, or sent by post to, the person's principal or registered office or principal place of business; or(ii) sent by way of facsimile to the person's facsimile number.
85. Recovery of fees by municipalities
[Section 85 Amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 85 Amended by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] The power of a municipality to make by-laws under the Local Government Act 1993 includes the power to make by-laws for or with respect to the recovery of fees paid by the municipality in relation to requests for the amendment of a planning scheme made to it under this Act.
[Section 86 Amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] The Commission, the Appeal Tribunal or a planning authority is not required to take any action under this Act, and any appeal, submission, representation or document which is lodged under this Act is not valid, unless any requirements imposed by regulations made under section 87 , or by-laws referred to in section 85 , as to the payment of fees in respect of the taking of that action or the lodging of that appeal, submission, representation or document have been complied with.
(1) The Governor may make regulations for the purposes of this Act.(2) Without limiting the generality of subsection (1) , regulations under this section may –(a) [Section 87 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] make provision for or with respect to the procedures to be adopted by the Commission; and(b) make provision for or with respect to –(i) the payment and collection of fees by any person (including a planning authority) in relation to any act, matter or thing done or arising under this Act; and(ii) the remission of, or exemption from liability for, any such fees; and(c) be of general or specially limited application; and(d) [Section 87 Subsection (2) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] authorize any act, matter or thing in relation to which the regulations may be made to be from time to time determined, applied or regulated by such person as is specified in the regulations, being the Minister, the Commission or another person performing duties under this Act.(3) Without limiting the generality of subsection (1) , regulations under this section may make provision for or with respect to the institution, hearing and determination of civil enforcement proceedings under section 64 .(4) Regulations under this section may be made subject to such conditions, or be made so as to apply differently according to such factors as may be specified in the regulations or according to such limitations or restrictions, whether as to time or circumstance or otherwise, as may be so specified.(5) Regulations under this section may –(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and(b) in respect of such an offence, provide for the imposition of a fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding one penalty unit for each day during which the offence continues.(6) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act.(7) A provision referred to in subsection (6) may, if the regulations so provide, take effect from the commencement of this Act or a later date.
The savings and transitional provisions specified in Schedule 4 have effect.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Environment and Land Management; and(b) the Department responsible to the Minister for Environment and Land Management in relation to the administration of this Act is the Department of Environment and Land Management.
SCHEDULE 1 - Objectives
Sections 5 , 8 , 20 , 32 , 44 , 51 , and 72
PART 1 - Objectives of the Resource Management and Planning System of Tasmania
1. The objectives of the resource management and planning system of Tasmania are –(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and(b) to provide for the fair, orderly and sustainable use and development of air, land and water; and(c) to encourage public involvement in resource management and planning; and(d) to facilitate economic development in accordance with the objectives set out in paragraphs (a) , (b) and (c) ; and(e) to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State.
2. In clause 1 (a) , sustainable development means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well-being and for their health and safety while –(a) sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and(b) safeguarding the life-supporting capacity of air, water, soil and ecosystems; and(c) avoiding, remedying or mitigating any adverse effects of activities on the environment.
PART 2 - Objectives of the Planning Process Established by this ActThe objectives of the planning process established by this Act are, in support of the objectives set out in Part 1 of this Schedule –
(a) to require sound strategic planning and co-ordinated action by State and local government; and(b) to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land; and(c) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land; and(d) to require land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels; and(e) to provide for the consolidation of approvals for land use or development and related matters, and to co-ordinate planning approvals with related approvals; and(f) to secure a pleasant, efficient and safe working, living and recreational environment for all Tasmanians and visitors to Tasmania; and(g) to conserve those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value; and(h) to protect public infrastructure and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community; and(i) to provide a planning framework which fully considers land capability.
SCHEDULE 2[Schedule 2 Amended by No. 104 of 1995, s. 33 ][Schedule 2 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998]
SCHEDULE 3[Schedule 3 Amended by No. 104 of 1995, s. 34 ][Schedule 3 Repealed by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998]
SCHEDULE 4 - Savings and Transitional Provisions
1. Interpretation(1) In this Schedule –modification includes elaboration, enlargement, alteration or substitution;prior scheme means a planning scheme made or deemed to have been made under Part XVIII of the Local Government Act 1962 .(2) Unless the contrary intention appears, words and expressions used in this Act have the same respective meanings in this Schedule.
2. Operation date of certain draft planning schemes and amendments(1) A draft planning scheme which, before the commencement of the Land Use Planning and Approvals Amendment Act 1995 , was given final approval by the Panel under section 29 without a specified date of operation is taken to have come into operation on the date of that final approval.(2) A draft amendment which, before the commencement of the Land Use Planning and Approvals Amendment Act 1995 , was given final approval by the Panel under section 42 without a specified date of operation is taken to have come into operation on the date of that final approval.
3. Removal of doubts in relation to prior schemes, &c.(1) Any planning scheme or interim order finally approved under Part XVIII of the Local Government Act 1962 and in force at the commencement of the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993 is valid and effective, from the day on which it was finally approved, in relation to land that is, or has been, Crown land or vested in a State authority.(2) For the purposes of subsection (1) , State authority means a body or authority, whether incorporated or not, that is established or constituted under an Act or under the royal prerogative, being a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another State authority.
4. Transitional provisions(1) On and after the commencement of the Land Use Planning and Approvals Amendment Act (No.2) 1995 , a reference to an interim order in any law is, unless the context or subject matter otherwise indicates or requires, taken to be a reference to a special planning order within the meaning of this Act.(2) On and after the commencement of the Land Use Planning and Approvals Amendment Act (No.2) 1995 , the title of an interim order, which is taken to be a planning scheme under section 46 , is to be read as if the words "Section 46 Planning Scheme" were substituted for the words "Interim Order".(3) On and after the commencement of the Land Use Planning and Approvals Amendment Act (No.2) 1995 , a dispensation –is taken to be a provision of the relevant interim order which, at that commencement, is taken to be a planning scheme under section 46 .(a) made under Part XVIII of the Local Government Act 1962 and continued in force as if it had been made under this Act; or(b) granted under section 47 before the commencement of the Land Use Planning and Approvals Amendment Act (No.2) 1995 ; or(c) granted after that commencement under subclause (4) of this clause –(4) If before the commencement of the Land Use Planning and Approvals Amendment Act (No.2) 1995 a planning authority applied to the Panel for approval under section 47 (2) to grant a dispensation and the planning authority did not grant or refuse to grant the dispensation before that commencement, the dispensation is to continue to be dealt with in accordance with the provisions of section 47 as in force immediately before that commencement.(5) On and after the commencement of the Land Use Planning and Approvals Amendment Act (No.2) 1995 , any condition on the granting of a dispensation granted before that commencement which restricts the period for which a dispensation is in force is of no effect.(6) On and after the commencement of the Land Use Planning and Approvals Amendment Act (No.2) 1995 , if any doubt is raised as to the validity of a dispensation granted before that commencement, the person granted the dispensation or the planning authority may refer the matter to the Tribunal.(7) The Tribunal is to determine the validity of the dispensation or its terms or conditions as if it were the subject of an appeal under section 64 .
5. Provisions in relation to schemesOn and from the commencement of the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993 –(a) a prior scheme continues in force as if it were a planning scheme made under this Act; and(b) a scheme provisionally approved under section 727 (1) of the Local Government Act 1962 is taken to be a draft planning scheme certified under section 24 of this Act; and(c) a scheme publicly notified under section 727 (3) of the Local Government Act 1962 is taken to be a draft planning scheme publicly exhibited under section 25 of this Act; and(d) an objection to a scheme, notice of which has been given under section 727 (4) of the Local Government Act 1962 , is taken to be a representation submitted under section 26 (1) of this Act; and(e) the objections to a scheme and the statement of a municipality as to the merit of the several objections forwarded to the Commissioner under section 728 (1) of the Local Government Act 1962 are taken to be a report forwarded to the Panel under section 26 (2) of this Act; and(f) a report forwarded to the Commissioner under section 728(2) of the Local Government Act 1962 in relation to a scheme is taken to be a report forwarded to the Panel under section 26 (2) of this Act; and(g) a hearing which has been held and determined by the Commissioner under section 729 of the Local Government Act 1962 in relation to an objection to a scheme is taken to be a hearing which has been held and determined by the Panel under section 27 (2) of this Act in relation to a representation; and(h) a decision in relation to a scheme made by the Commissioner under section 729A of the Local Government Act 1962 is taken to be a decision of the Panel under section 28 (1) (b) (ii) of this Act; and(i) a scheme finally approved by the Commissioner under section 730 of the Local Government Act 1962 is taken to be a planning scheme finally approved by the Panel under section 29 of this Act.
6. Provisions relating to prior modifications to prior schemesOn and from the commencement of the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993 –(a) a modification made under Part XVIII of the Local Government Act 1962 of a scheme made or deemed to have been made under that Part continues in force as if it were an amendment made under this Act to a planning scheme; and(b) a modification provisionally approved under section 727(1) of the Local Government Act 1962 of a prior scheme is taken to be a draft amendment certified under section 36 of this Act; and(c) a modification publicly notified under section 727(3) of the Local Government Act 1962 of a prior scheme is taken to be a draft amendment publicly exhibited under section 38 of this Act; and(d) an objection to a modification, notice of which is given under section 727 (4) of the Local Government Act 1962 , of a prior scheme is taken to be a representation submitted under section 39 (1) of this Act; and(e) the objections to a modification of a prior scheme and the statement of a municipality as to the merit of the several objections forwarded to the Commissioner under section 728(1) of the Local Government Act 1962 are taken to be a report forwarded to the Panel under section 39 (2) of this Act; and(f) a report forwarded to the Commissioner under section 728(2) of the Local Government Act 1962 in respect of a modification of a prior scheme is taken to be a report forwarded to the Panel under section 39 (2) of this Act; and(g) a hearing which has been held and determined by the Commissioner under section 729 of the Local Government Act 1962 in relation to an objection to a modification of a prior scheme is taken to be a hearing which has been held and determined by the Panel under section 40 (2) of this Act in relation to a representation; and(h) a modification finally approved by the Commissioner under section 732 of the Local Government Act 1962 of a prior scheme is taken to be an amendment finally approved by the Panel under section 42 of this Act to a planning scheme.
7. Provisions relating to interim ordersOn and from the commencement of the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993 –(a) an order made or deemed to have been made under Part XVIII of the Local Government Act 1962 continues in force as if it had been made under this Act for a period of 2 years or such longer period as the Panel may allow from the day on which it came into operation under the Local Government Act 1962 ; and(b) an order made by a municipality under section 734(2)(a) of the Local Government Act 1962 is taken to be a draft interim order prepared by the municipality under section 45 (1) of this Act; and(c) an order approved by the Commissioner under section 734(2A)(a) of the Local Government Act 1962 is taken to be an interim order approved under section 45(8)(a) of this Act; and(d) an order publicly notified under section 734(2A)(b) of the Local Government Act 1962 is taken to be an interim order notified under section 45(9) of this Act.
8. Provisions relating to dispensationsOn and from the commencement of the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993 –(a) a dispensation made under Part XVIII of the Local Government Act 1962 continues in force as if it had been made under this Act; and(b) an application to the Commissioner for approval under section 734 (2) (b) of the Local Government Act 1962 is taken to be an application under section 47 (2) of this Act; and(c) the approval of the Commissioner under section 734(2)(b) of the Local Government Act 1962 is taken to be the approval of the Panel under section 47 (3) of this Act and is subject to the terms and conditions approved by the Commissioner; and(d) a dispensation granted by a municipality under section 734(2)(b) of the Local Government Act 1962 is taken to be a dispensation granted by the municipality under section 47(8) of this Act.
9. Provisions relating to applications for discretionary planning approvalsOn and from the commencement of the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993 –(a) an application for a planning approval under section 733B(1) of the Local Government Act 1962 lodged before a specification under this section takes effect is to be dealt with as if this Act had not been enacted; and(b) a planning authority must, not later than 3 months after the commencement of section 49 of this Act, specify in respect of each scheme or order made under Part XVIII of the Local Government Act 1962 those applications for planning approvals which are to be treated as applications for permits for the purposes of section 57 (1) of this Act; and(c) a planning authority must give notice of the specification to the Panel which may approve or reject it; and(d) if it approves the specification, the Panel must publish the specification in the Gazette and in such other manner as it considers necessary; and(e) on publication the specification takes effect as if it were an amendment of the scheme or order; and(f) a specification is to be laid before each House of Parliament within the first 10 sitting days of the House after it has been published; and(g) if either House of Parliament passes a resolution, of which notice has been given within the first 15 sitting days of such House after a specification is laid before it, that the specification be disallowed –(i) the specification is of no effect except in relation to any right of appeal accrued by virtue of the operation of the specification; and(ii) an application for a planning approval under section 733B(1) of the Local Government Act 1962 is to be dealt with as if this Act had not been enacted.
10. Provisions relating to applications for planning approvalsOn and from the commencement of the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993 –(a) an application for a planning approval under a scheme or order made under Part XVIII of the Local Government Act 1962 is to be treated as an application for a permit under this Act; and(b) where a scheme or an order under Part XVIII of the Local Government Act 1962 requires a planning approval in respect of use or development, that requirement is to be treated as a requirement for a permit in respect of that use or development.
11. Provisions relating to planning approvalsOn and from the commencement of the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993 , where an appeal has been lodged under Part XVIII of the Local Government Act 1962 before the commencement of the Resource Management and Planning Appeal Tribunal Act 1993 , the provisions of that Part continue to apply to the appeal as if the relevant provisions of that Part had not been repealed.
12. Provisions relating to environment protection appealsWhere an appeal has been lodged under the Environment Protection Act 1973 before the commencement of the Resource Management and Planning Appeal Tribunal Act 1993 , the provisions of the Environment Protection Act 1973 continue to apply to the appeal as if the relevant provisions of that Act had not been repealed.