Chapter 5

Development Controls

Photo: courtesy John Spooner, The Age

This chapter outlines how new developments are approved and how you can appeal against a proposed development.

In Tasmania, approval for new developments has been integrated, streamlined and simplified. Only one combined approval is required for both planning approval and environmental approval. In many other states two separate permits are required.

The approval process is governed largely by two key Acts:

  • The Land Use Planning & Approvals Act
    - regulates planning controls
  • The Environmental Management & Pollution Control Act
    - regulates environmental controls.

These two Acts are very widely used and you will usually hear them referred to as LUPAA and EMPCA.

The approval process integrates provisions within both of these two Acts (plus some others) to ensure that a proposed development addresses a variety of land use and environmental considerations before it can be approved.

When do I need planning approval?

You will generally need to seek planning approval if you want to do any of the following:
  • change the use of land
  • undertake a new development on land
  • expand an existing development

'Development of land' includes the carrying out of any building, engineering or other operations on land. It includes making any material change in the intended use of the land or buildings or works upon it. It also includes demolition, land clearing and subdivision.

Even if you already have a planning permit, you will probably require a new approval for any proposal that involves:
  • an intensification of the use of the land
  • changing the use of existing buildings (eg residence becomes an office)
  • new activities that are likely to adversely impact upon neighbours (e.g a new deck, or changing the operating hours of your business)
  • an increase in the output of pollutants, including noise

Note 1: Although some activities may not need planning approval, it is in your interests to check first with the local council.

Note 2: Permits to build dams or weirs, forestry activities and mining operations go through different approval processes (☛ Go to Chapters 8,9 10 and 11).

How do I apply for planning approval?

Local councils are central to Tasmania’s planning system (☛ Go to Chapter 3 for information). In most cases, you are unable to proceed with a development until you receive a planning permit from the local planning authority.

No matter whether you want to erect a garden shed, build a factory or subdivide your rural block, you should check with your local planning authority whether you require a permit and how to apply.

Your application may also need to comply with the requirements of various other government agencies (e.g traffic arrangements need to comply with DIER requirements, sewerage arrangements must meet the requirements of the Tasmanian Water and Sewerage Corporation and approval from Crown Lands may be required if any part of your development (including access) occurs on reserved land.

What must a development application contain?

In addition to the application form (get these from your local Planning authority), you should lodge plans showing enough detail to allow a person viewing them to understand all the implications of your proposed development. This includes parking provisions, proximity to neighbours, impacts on the environment, traffic and so on.

The Council's Planning Scheme may set out particular information that is required – if information required by the Planning Scheme is not provided, the Council may not be able to make a decision about your application. The Council can request further information and can ‘stop the clock’ on the time it has got to decide on the application until it has received an adequate response. If you think the request is unreasonable you can appeal to the Resource Management and Planning Appeal Tribunal (RMPAT) for a ruling on whether the information is really required.

If your application is for a development that is likely to have a significant impact on the environment then it may be referred to the Environment Protection Authority (EPA) for assessment. If this happens, you will need to submit comprehensive documentation in accordance with guidelines developed by the EPA.

The Approval Process

It is a mandatory requirement (under the Land Use Planning and Approvals Act) for councils to follow the procedures outlined below.

• Compliance with State Policies

Your proposal must not be approved if it contradicts a Tasmanian Sustainable Development Policy, such as the State Coastal Policy or State Policy on Water Quality Management (☛ Go to Chapter 4 for information about these).

It is an offence for a council to allow a breach of a State Policy. Moreover, State Policies override any conflicting provisions that may be in a Planning Scheme (see below).

State Policies are primarily directed how Planning Schemes are developed (that is, the planning scheme is intended to provide appropriate restrictions to deliver the objectives of the relevant State Policy). Even though the Policies are not primarily directed at individual developments, the Supreme Court has recently confirmed that Councils are obliged to apply provisions of the State Coastal Policy when determining applications for discretionary developments.

• Compliance with Planning Schemes

Your proposal must comply with the Planning Scheme that applies to the area (☛ Go to Chapter 4 for information about these).

Planning authorities have no power to grant you a Planning Permit unless the proposed use or development can be approved under the relevant Planning Scheme for that area. Up-to-date copies of Planning Schemes are available for inspection at each local council office and at the Tasmanian Planning Commission. Most Councils also make a copy of their planning scheme available on their website.

A planning authority is obliged to accept an application even if it appears to be contrary to the Planning Scheme provisions. However, after considering the application, the Council can immediately decide not to grant a permit for the proposed development if it is prohibited under the Planning Scheme. In that case, you will be informed of this decision and there is no requirement for the proposal to be advertised.

Planning Schemes usually divide the council area into different zones – eg General Residential, Light Industrial, Rural Resource or Environmental Management. The Planning Scheme determines:

  • what types of activities (uses and developments) are allowed within each zone
  • what standards a proposed development must comply with

• Determining the Type of Activity

Depending on its location, your proposed development will fall into one of three categories (within the planning scheme):

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Planning schemes may also set out a list of “exempt development”. These are generally minor works, such as boundary fences lower than 2.1m, small garden sheds, pruning vegetation or maintaining an easement around transmission lines, and do not require any permit from the planning authority.

What happens if your proposed development is for a ‘prohibited use’?

A planning authority must refuse an application for a prohibited use. If you believe that the use should not be prohibited on the land (for example, that the land should be included in a Local Business Zone, rather than an Inner Residential Zone, and therefore a shop should be allowed), you can apply to the Planning authority to amend the Planning Scheme to allow the development. If the planning authority supports your proposal to amend the planning scheme, your application will be referred to the Tasmanian Planning Commission for assessment. See Chapter 4 for more information about planning scheme amendments.

What happens if your proposed development is for a ‘permitted use’?

Some Planning Schemes further divide the 'permitted use' category into Permitted (No Permit Required) and Permitted (Permit Required). Where no permit is required, the use is often referred to as being 'as of right'. You do not need to apply to the Council in relation to an 'as of right' development, though you must ensure that it complies with all relevant planning scheme standards. Depending on the development, you may also still need building or plumbing approval (see below).

If the use is Permitted (Permit Required), you must apply to the council for a planning permit. The planning authority must approve your application. However, where appropriate, the council can add conditions to the permit, including environmental requirements such as landscaping and pollution control. The planning authority can also refer the application to various government and other authorities for comment before making the decision about what conditions to impose.

In these cases your application is not publicly advertised and only you, as the applicant, have the right of appeal against any conditions that are attached to the permit.

What happens if the proposed development is for a ‘discretionary use’?

A proposed use or development will be 'discretionary' if it is declared to be a 'discretionary' use under the Planning Scheme OR if it is a 'permitted use' but does not comply with one or more of the applicable standards (for example, if a proposed building will be higher than the permitted height, or will be located closer to the neighbouring property than the standard setback distance).

You will need to apply for a planning permit for any discretionary use. A planning authority has discretion to refuse or approve the application, after considering all of the potential issues associated with the proposal. Before it refuses or approves the development application, the planning authority must follow certain procedures to ensure the community has a chance to have a say.

1. Council must advertise the proposed development

The public must be notified of a proposed discretionary development by:

  • Advertising in the ‘business news’ or ‘public notices’ section of a local newspaper
  • Displaying the application at the local council offices
  • Mailing a notice of the application to all neighbouring properties and property owners
  • Placing a public notice on the site of the proposed development
2. Council must take representations

Any person or group who has concerns about a proposed development can make a representation to the council explaining these concerns. The public must be given at least 14 days to make a representation (excluding public holidays), but the Council may allow additional time in some circumstances.

The proposed development and all supporting documents are available at council offices for anyone to inspect. Many Councils provide this information on their websites, but they are not required to do this. Councils are also not required to provide copies or to allow people to make copies of a development application - you should always ask the Council if you can obtain a copy, but be aware that Council is entitled to refuse this request and require you to attend at the Council office to review the application material.
State government agencies are also able to make comments about a proposed development during this period. For example, the Tasmania Fire Service can comment on whether the proposal satisfies fire safety requirements, the Parks and Wildlife Service can express concern about potential impacts on threatened species or the Department of Infrastructure, Energy and Resources can comment on access requirements. However, the Council is not specifically required to consult with relevant agencies before making its decision.

The planning authority is obliged to take into account any representations it receives during the advertised period (including from government agencies). Any person, group or agency that made a representation then has the right to appeal against the planning authority’s decision in relation to the development (☛ see the discussion about appeals, later this chapter).

:!: Recent Tribunal decisions suggest that representations can only be accepted by email if the public notice provides an email address. Be careful to check the notice - even if Council accepts your email, it may not be a “valid” representation giving you a right of appeal unless the notice specifically allowed for email representations.

3. Council must refer application to the Water Corporation

If the application will have an impact on water or sewerage infrastructure, the Council must refer it to the regional water authority for assessment. The water authority must provide an assessment report to the Council before a Planning Permit can be granted (for more information about this process, see Changes to Water and Sewerage Control below).

4. Council may refer application to the EPA

If the application is a ‘Level 2’ activity (that is, any activity listed in Schedule 2 of EMPCA – see below) then the Council must refer it to the Environment Protection Authority for assessment.

The Council can also refer activities which are not 'Level 2' activities to the EPA, if Council believes that the proposal could have significant environmental impacts.

The EPA must provide an assessment report to the Council before a Planning Permit can be granted (☛ for more information about this process, see Environmental Controls below). building3.jpg

What about approvals for buildings?

Even if you obtain planning approval, separate building and plumbing plans will need to be approved by the Council. This is to ensure that safety, health and other requirements are taken into account before anyone occupies the building.

Regulations governing buildings apply throughout Tasmania and include prescribed standards for certain materials and building methods (see Building Code of Australia). No structural alterations can be carried out unless you have obtained a building permit for the work. Approval is also required to build car parks, retaining walls over 1 metre high and some fences and sheds.

If work is done without approval, penalties may be imposed and orders may be issued preventing any further work being carried out or requiring demolition of unauthorised works.

Changes to Water and Sewerage Controls

Traditionally, reticulated water and sewerage services have been provided by local government councils. However, from 1 July 2009, reticulated water and wastewater service delivery has been the responsibility of three regional water corporations, Southern Water, Ben Lomond Water and Cradle Mountain Water. From 1 March 2013, responsibilities and assets of the three regional water corporations have been transferred to one Statewide body, the Tasmanian Water and Sewerage Corporation. Each local council is a joint shareholder in the Corporation.

Fees for services are paid to the corporations and any complaints in relation to services should be directed to the corporations (see below).

The changes to the water and sewerage industry were designed to recover the full cost of these services, leading to improved investment in infrastructure, and acceptable and consistent standards of service delivery across the state. The new system is governed by the following legislation:

Development by Water Corporations

Under the Water and Sewerage Industry (General) Regulations 2009, many activities carried out by water corporations do not require a permit from Council. These include:

  • Installation, maintenance or removal of pump stations, fluoridation or chlorination stations;
  • Laying, removing and maintaining underground pipelines;
  • Clearing vegetation where the work is necessary to protect water or sewerage infrastructure or water quality; and
  • Subdivision for the purpose of creating lots for uses associated with water and sewerage infrastructure.

Water corporations also have wide powers to enter land to carry out works associated with water and sewerage infrastructure, or to acquire land for those purposes.

Other Developments

Subject to some exemptions, planning authorities are now required to refer all development applications to the water corporation for consideration if the use or development would:

  • increase demand for water;
  • increase the burden on sewerage or trade waste infrastructure;
  • damage or interfere with the corporation’s infrastructure; or
  • adversely affect the corporation’s operations (see s.56O of the Water and Sewerage Industry Act 2008).

For example, an application to subdivide a property for new residential lots requiring reticulated water or sewerage would be referred to the water corporation by the relevant planning authority.

For a list of developments which do not need to be referred to the water corporation, see r.12 of the Water and Sewerage Industry (General) Regulations 2009.

The water corporation may make a submission to the planning authority regarding the application within 14 days (or longer in some circumstances). The water corporation can:

  • Recommend approval of the application with or without conditions; or
  • Object to the proposal.

:!: The Tribunal recently held that an objection by the water corporation must consider the specific consequences of a particular development against the criteria in s.56O, not simply implement a strategic policy for the area (see STEPS Housing Solutions v Glamorgan Spring Bay Council [2010] TASRMPAT 68).

If the water corporation has recommended approval of a development application, it is still open for the planning authority to refuse the application on other planning grounds. However, if the planning authority grants a permit for the use or development, it must include any conditions specified by the water corporation.

If the water corporation has objected to the application, the planning authority cannot issue a permit for the application.

Planning authorities must also refer draft planning scheme amendments to water corporations for comment.

The water corporation must also grant a ‘water and sewerage compliance certificate’ before a certificate of completion is issued for any certifiable building work. A developer can appeal against a decision not to grant the compliance certificate.

Environmental controls

Aside from land-use considerations, the planning approval process must also take into account environmental safeguards and controls. For the most part, these are prescribed under the Environmental Management and Pollution Control Act (EMPCA).

Scale of the development

There are three ‘levels’ of activities (operations or developments) used in Tasmanian environmental legislation.

Level 1 Activities

Activities that have a relatively low impact are defined as 'Level 1' under EMPCA. Local councils are responsible for assessing, regulating and monitoring Level 1 activities.

Where the Director of Environment thinks it is necessary (because of the potential environmental impacts), a Level 1 activity may be ‘called in’ and assessed as a Level 2 activity (see below). If the activity is approved, the EPA will decide whether the EPA Division or the local council will be responsible for ongoing regulation of the activity.

Level 2 Activities

Schedule 2 of EMPCA lists a number of developments that are likely to have a significant environmental impact (such as wastewater treatment plants, wood processing facilities and large quarries). These developments are called ‘Level 2’ activities.

level2_2.jpg Level 2 activities (and Level 1 activities ‘called in’ by the Director of Environment) are assessed by the Environment Protection Authority. Both the EPA Division and the relevant local council are responsible for ongoing regulation of Level 2 activities.

level 2 activities are subject to different levels of assessment, depending on the likely impacts of the activity. Three subcategories have been developed for assessment purposes:

  • Class 2A - Level 2 activities that are minor in scale or consequence, only have the potential for local environmental impacts that may be easily avoided or mitigated and which are unlikely to generate significant public interest.
  • Class 2B - Level 2 activities that involve complex or multi-jurisdictional assessment or complex environmental issues, which require approval from another State of Federal government or are likely to generate a lot of public interest
  • Class 2C - Level 2 activities that involve any of the issues for Class 2B, but which require more stringent assessment or longer timeframes to make sure that all the issues are addressed.
Level 3 Activities

'Level 3' activities are those developments declared by parliament to be Projects of State Significance (see below). These activities are subject to a special assessment process.

Once approved, Level 3 activities are regulated like other level 1 and 2 activities.

Environmental concerns for developing business

If you or your business cause environmental harm you may receive stiff penalties and you may be required to finance the cost of cleaning up. (☛ Go to Chapters 6 and 10 for information).

developing_business.jpgIt is clearly not in your interests, nor the public interest, for this to happen. The planning process, therefore, establishes procedures that developers must follow in order to prevent environmental harm occurring in the first place.

:!: Developments that are proposed by government agencies must undergo the same procedures.

Plan in advance

Whether you are starting a new business or expanding an existing one, it is a good idea to plan your development well in advance.

You should discuss relevant issues with the local council beforehand. For example, if you operate an industrial facility, what other activities occur in the area? Are planning controls adequate to make sure that sensitive uses (such as residences or a school) will not be built nearby? Are there any threatened species in the vicinity that require special attention?

The EPA will help you identify potential environmental impacts relating to your proposal. They can also advise you about maximum permissible discharge levels and prescribe ways to minimise such impacts. This will help you to develop plans for your business to manage your impacts on the environment and on your neighbours.

Requirements

What EMPCA can require you to do

Provide adequate information

Your application for planning approval should provide enough information to allow the EPA to assess the likely impacts of the proposed development. In particular, you should identify potential impacts on the environment and neighbouring properties and provide information about annual rates of production, transport requirements and operating hours.

If you do not provide adequate information, the planning authority can issue a notice requiring you to provide additional information before it decides the application.

Specific production limits may be recorded on the permit and must be adhered to once a permit is granted.

Environmental Management Plan

For ‘Level 2’ activities, you will need to prepare environmental assessment documents, such as an Environmental Effects Report or an Environmental Management Plan (EMP). More information about what these documents must include is set out below.

Once an Environmental Management Plan is approved, you must comply with its conditions. EMPs will be available for public inspection, and members of the public can report any breaches to the EPA Division.

Note: Even if an Environmental Management Plan is not required, it is nevertheless a very useful tool to help your company satisfy its environmental obligations, manage its impacts and prevent prosecution for causing environmental harm.

Environmental Impact Assessments (EIA)

Environmental Impact Assessments involve a review of the development plans and environmental management documents prepared for level 2 and level 3 activities. (The EIA process is outlined below.)

Integrated Environmental Management System (IEMS)

If your company wants to show that it is committed to best practice environmental management, you can prepare a comprehensive Integrated Environmental Management System. This can be certified to show that it complies with international standards (ISO 14000 series). Compliance with your IEMS will help manage the risk of your activities causing environmental harm.

Environmental Agreements

The EPA can enter into Environmental Agreements with developers. These require you to perform at a higher level than required by the law in return for exemption from certain state taxes and charges.

An Environmental Agreement is a contract and, once signed, has legal status. The EPA Division can take action against you if you breach the terms of the agreement.

Public Hearings

A number of statutes also require that public hearings must be conducted for certain operations – for example, public hearings are required prior to approval of proposed changes to fish farming operations (☛ See Chapter 9).

Other permits and licences

Some business developments will need additional permits from other agencies, depending on their circumstances. Some examples of activities that require special permits include:

  • operating a business in a national park (☛ Go to Chapter 7)
  • taking water from a watercourse (☛ Go to Chapter 10)
  • commercially harvesting timber on private land (☛ Go to Chapter 8)
  • fish farming (☛ Go to Chapter 9)
  • activities on Crown land.

Environmental Impact Assessments

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An Environmental Impact Assessment (EIA) must do the following:

  • evaluate the likely environmental impacts of a proposal and assess whether or not the activity should proceed
  • identify conditions or restrictions and the management regime that is necessary to prevent environmental harm
  • provide opportunity for public consultation
  • include a health impact assessment, if required by the Director of Public Health (see section 74(5) of EMPCA)

When must an Environmental Impact Assessment be carried out?

For 'Level 1' developments

EIAs are not usually required for these developments. However, if the council is unsure about possible environmental impacts, it can refer the planning application to the Director of the EPA, who can decide that the development should be treated as if it is a 'Level 2' activity (see below).

This may occur if the proposed activity is a large or controversial one.

Some planning schemes also allow Councils to require a developer to prepare an environmental impact assessment in some circumstances. Where this is permitted, Council can require the developer to provide an EIA before Council decides whether to grant a planning permit.

For 'Level 2' developments

These developments must be referred to the Environment Protection Authority. The EPA decides what level of assessment is required and provides guidance about the issues to be addressed in the environmental impact assessment process (known as 'guidelines' or 'terms of reference'). If you are not happy with the EPA's decision about the level of assessment, you can apply for reasons for this decision.

For 'Level 3' developments

An Integrated Assessment must be undertaken for all Projects of State Significance. (☛ See 'Projects of State Significance' at end of this chapter).

Who conducts the Environmental Impact Assessment?

For Level' 2 activities (and 'called in' Level 1 activities)
  • For Class 2A activities, the developer will need to prepare an Environmental Effects Report (EER).
  • For Class 2B and 2C activities, the developer must submit a Development Proposal and Environmental Management Plan (DPEMP), which is generally prepared by a consultant on behalf of the developer. The DPEMP must be prepared in accordance with the general DPEMP guidelines. The EPA will also issue specific guidelines ('terms of reference') for each proposal.
  • The developer must submit a satisfactory EER or DPEMP within 12 months of receiving the terms of reference for the assessment. Once the EPA is satisfied that the documents address the relevant guidelines, the documents are released for public comment.
  • After the public comment period closes, the EPA conducts the Environmental Impact Assessment by reviewing all the development documents and all public representations.
  • If the EPA is satisfied that the development should go ahead, they will recommend to the Council (planning authority) that a planning permit be issued. It is still open for the planning authority to refuse the development. However, if the council approves the development, the permit must include any conditions that the EPA has specified must be included.
  • If the EPA believes that the development should not proceed, the EPA notifies the planning authority. A planning authority cannot issue a permit for a development that the EPA has refused to endorse.
For 'Level 3' activities

(☛ See 'Projects of State Significance' at the end of this chapter).

You can find more information about EIA requirements at the Department's Library at 134 Macquarie Street, Hobart, or on the EPA website.

Environmental Management Plans

An EMP must...
  • describe the existing environment (location, physical characteristics, and planning, social and economic contexts)
  • describe the development (design, construction and operational stages)
  • identify and evaluate potential environmental impacts
  • nominate the measures to be employed to avoid or mitigate the impacts

For all level 2 activities, you will need to prepare Environmental Assessment documents.

For lower risk activities (class 2A):

  • you must prepare an Environmental Effects Report (EER).

For Higher risk activities (class 2B and 2C):

  • you must prepare (or engage a consultant to prepare) a Development Proposal and Environmental Management Plan (DPEMP).

The EPA has prepared Guidelines about how to prepare these documents.

For DPEMPs, the EPA will also issue Project Specific Guidelines, which identify the key issues that you will need to address in relation to your project. These guidelines (often referred to as 'terms of reference') could include requirements to investigate the impacts on heritage sites (including Aboriginal heritage sites), threatened species habitat, alternatives to the proposed location and traffic impacts.

If it is a large scale project, the project specific guidelines may be released for public comment before they are finalised.

If a proposed development is likely to affect a heritage site or threatened species or habitat, then it is a legal requirement (under the Aboriginal Relics Act 1975, Historic Cultural Heritage Act 1995 or the Threatened Species Protection Act 1995) to investigate these aspects thoroughly before a development can be approved.

How do I find out if an EMP exists?

Contact the EPA to find out if an EMP has been completed for a particular development.

You can inspect approved EMPs at the EPA office – it is a good idea to make an appointment to see the EMP.

During the public consultation phase, copies of DPEMPs are available for inspection at Council chambers and the office of the EPA. Current and past DPEMPs are also available on the EPA website.

How can I comment on an EMP or contribute to an EIA?

Once the EPA is satisfied that an EER or DPEMP satisfies the requirements of the relevant guidelines, the documents are released for public comment for the following periods:

  • For 2A activities, 14 days
  • For 2B activities, 28 days
  • For 2C activities, 42 days

Any member of the public can make a written submission during this period.

For some large projects, the EPA will also invite public comments on the specific guidelines for the DPEMP.

In the case of Projects of State Significance, representations are invited from the public and the Tasmanian Planning Commission may also hold a public hearing which you could attend.

What happens after planning approval has been given?

How long does it take for planning approval to be issued?

  • For a 'Level 1' activity, the council must generally make a decision within 42 days of receiving the application.
  • For a 'Level 2' activity, the EPA must make a decision in relation to the proposed development within the following periods after the close of the public comment period:
  1. For 2A activities, 35 days
  2. For 2B activities, 56 days
  3. For 2C activities, 91 days

The EPA will then make its recommendations to the Council, who must make the final decision about whether to issue a permit or not.

These time limits can be extended if further information is required from the applicant or if the applicant agrees to an extension of time (see below, this chapter).

:!: For decisions under EMPCA, public holidays are excluded from these time limits.

Who must be notified?

Once a council makes its decision you will be notified if:

  • you are the applicant
  • you made a representation

How can I get a copy of a planning permit?

Planning permits are available for inspection at local council offices. Depending on the council, you may be required to make a Right to Information request to obtain a copy of the permit.

If the council has amended a permit by an Environment Protection Notice (see below), this is also available for public inspection at the Council office. Environment Protection Notices issued by the EPA Division can be viewed at their offices.

How you can appeal against Planning Approvals

Can I appeal against a council’s decision?

You have the right to appeal only if:
  • you are the developer; or
  • you are the regional water corporation;
  • you made a representation to the council within the specified period.

Appeals are made to the Resource Management and Planning Appeal Tribunal (other than for Level 3 activities, where no appeals can be made).

An appeal must be lodged in writing within 14 days of the date of the letter notifying you about the decision.
The time for making an appeal may be extended in some circumstances.

Notice of Appeal forms are available on the Tribunal’s website, or from their office. You will also need to pay a filing fee at the time you lodge your appeal – the fee is currently $68.00, but increases on 1 July each year so check with the Tribunal to see what the fee is at the time of your appeal.

You can appeal on grounds that the decision was wrong, or that the conditions imposed on the permit are too onerous, or that the conditions are not onerous enough. More detailed information about grounds of appeal is available in the Tribunal’s Practice Direction and in the EDO publication “Going It Alone: A Practical Guide for Unrepresented Litigants in the Resource Management and Planning Appeal Tribunal”.

:!: If the appeal relates to a refusal or conditions resulting from a water corporation’s submissions (see Water and Sewerage above), the corporation is taken to be a party to the appeal. The Tribunal has recently held that it is not constrained in the same way as planning authorities to comply with the submissions made by the water corporation (see Michell Hodgetts & Associates Pty Ltd v Central Coast Council [2010] TASRMPAT 10). Therefore, after considering the merits of an appeal against conditions imposed at the request of a water corporation, the Tribunal may remove or amend those permit conditions.

What if I am ineligible to make an appeal?

If someone else has appealed against a decision, you can apply to join their appeal. The Tribunal will only allow you to join if you can demonstrate that you have a proper interest in the decision and you have a reasonable excuse for not having made a representation (for example, you are a neighbouring property owner and were overseas at that time).

If you believe that the Council has contravened its Planning Scheme in granting a permit, you may be able to take Civil Enforcement action (see below) or make a complaint to the Director of Public Prosecutions.

How does the Tribunal conduct the appeal?

The Tribunal completely re-examines the development application, as if it was standing in the place of the planning authority (council) in the first instance. If the Planning Scheme has changed since the original decision, the Tribunal must conduct the appeal based on the Planning Scheme that was in force at the time of the original decision.

The Tribunal can make any decision that the planning authority could have made, including refusing the application, granting the application or imposing new or amended conditions on the development.

Once it makes its decision, the Tribunal must notify all parties to the appeal and will include reasons for its decision.

The Tribunal must generally hear and decide the appeal within 90 days (though this can be extended with the consent of all parties). The decision comes into effect 10 days after it is made.

What happens at the Tribunal hearings?

☛ Go to Chapter 14 for information about this.

If I make an appeal will I be up for other costs?

☛ Go to Chapter 14 for information.

Can I appeal against the Tribunal’s decision?

Yes, any party to the appeal may appeal to the Supreme Court.

However, you can only appeal on a question of law. This means that the Supreme Court will not re-assess the merits of the proposal and determine if the proposal complies with the planning scheme. The Supreme Court can only consider whether the Tribunal followed the appropriate process and interpreted the planning scheme correctly.

An appeal to the Supreme Court must be lodged within 28 days of the Tribunal decision.
We strongly recommend engaging a lawyer if you get to this stage (☛ See Chapter 14 for more information about this process).

Ongoing monitoring and regulation

Even after you have been granted a planning permit for your proposed development, the Council and the EPA Division have a role in making sure that you are not causing environmental harm. This section discusses some of the ways that planning authorities can monitor your activities.

Environment Protection Notices (EPNs)

Your planning permit may contain environmental conditions (as discussed above, the permit must include any conditions imposed by the EPA). These conditions define what you must do to protect the environment. If you don't comply with the permit, you can be prosecuted (see section 45 of EMPCA).

If you, or the EPA Division, want to change those conditions, an EPN will be issued detailing the changes to your planning permit. You must comply with the changed conditions described in the EPN.
☛ See Chapter 6 for information about Environment Protection Notices.

Ongoing inspections

Officers from the Council or the EPA Division can undertake ongoing inspections to satisfy themselves that your operation is complying with environmental controls. They have the powers to enter premises during normal business hours, and at other times in certain circumstances.

Environmental Audits

Your business can be required to undertake environmental audits to satisfy the EPA that you are meeting all your environmental obligations. If you receive a notice requiring you to carry out an audit, you can be prosecuted if you do not undertake an audit within a reasonable time.

Environmental Improvement Programs (EIPs)

The EPA may have concerns about the impact of your business, and believe that your standards need to be improved. One common example is where a permit was issued a long time ago and new technologies have since been introduced to manage emissions. Another example is where the law has changed since your permit was issued and maximum emission limits approved in your permit are no longer appropriate.

In these situations, your company can enter into an EIP with the EPA. The EIP sets out certain things that must be done within a certain time to reduce environmental harm. It is an offence not to comply with an EIP. However, provided you comply with the conditions of the EIP, you will not be prosecuted for environmental harm.

An EIP is publicly advertised and subject to public comment.

Offence Provisions

For the most part, the arrangements described above are applied cooperatively. However, if a person or business operator does not comply with environmental controls, they can be prosecuted under a wide range of offences listed in EMPCA.

How you can have a say about developments in your neighbourhood

1. Become familiar with the planning scheme for your neighbourhood

You can view this at the council's office, the Commission office or the council’s website.

If you disagree with a Planning Scheme you have the right to request the Council to review it (☛ Go to Chapter 4).

2. Get involved in the preparation or any reviews of the planning scheme

This is the best way of ensuring that your local area develops in a way acceptable to you. This is an opportunity to tell the Council (and the Commission, who must approve amendments to a planning scheme) the types of uses that you think are appropriate and what controls development should comply with.

3. Find out what developments are planned

  • Look in the newspaper under ‘Public Notices’ to see what development applications have been made.
  • Also, look for those A4 size notices attached to property boundaries near you (they usually have a red frame).
  • You can view the development application and its accompanying documents at local council offices.
  • If you have a problem, develop alliances with other ratepayers, community groups and citizens who may also be affected and seek planning advice from a professional planner. Initial planning advice is available free of charge through the Planning Aid service (see Contacts below).

4. Make a representation

You cannot appeal if you did not make a representation, so it is very important to make a representation to council during the public notice period. Do this in writing. It is important to write “we object” or “we agree” in your representation.

You generally have 14 days from the time the notice appears in the paper to make a written representation to the council about a proposed development.
You may also request mediation in relation to the application at this point.

Tips for writing representations

  • Look at the application and its documents at the council offices.
  • Find out which zone the proposal falls into under the local planning scheme (eg Low Density Residential, Business, Rural Living etc) and what matters the Council must consider (eg development standards, height restrictions, parking requirements, limits on vegetation clearance). Think about whether or not the proposal fits in with the requirements of the zone.
  • In your representation, say how the proposal affects you, your property and the neighbourhood (eg the amenity of the area affected, increased traffic, noise etc). The Council may be able to apply conditions to ameliorate matters such as overlooking or overshadowing. However, they may not have discretion to reduce height or increase setbacks if the use is Permitted and complies with all the development standards.

5. Lodge an appeal

If you are unhappy with the council decision and you have made a representation, you can appeal to the Tribunal (see above and Chapter 14).

Civil Enforcement

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Under Tasmanian law, affected persons have the legal power to initiate proceedings to safeguard the environment if the State’s planning or pollution laws are being breached, or likely to be breached.
These actions are called ‘Civil Enforcement’.

Click HERE to find out how you can go about this.

How are significant development projects approved?

When a significant development is being proposed, the state government can sometimes step in and require a different development approval process.

There are four different classes of significant developments:

1. ‘NPA Project’

This applies to a development that the state government has declared to further the State's commitments under the National Partnership Agreement, including social housing projects, school expansions and infrastructure stimulus projects.

2. ‘Project of Regional Significance’

This applies to a development the Planning Minister considers will have a significant economic or social impact for a region.

3. ‘Project of State Significance’

This applies to a development the state government has declared is critical to the state’s interests.

4. ‘Major Infrastructure Development’

This applies to ‘linear’ developments (such as transmission lines, railways, pipelines, highways that overlap multiple councils and would otherwise require multiple approvals.

NPA Projects

What is an NPA Project?

Under the Nation Building and Jobs Plan Facilitation (Tasmania) Act 2009, the Treasurer can declare a project to be an NPA Project. The Treasurer must be satisfied that the project furthers Tasmania's commitments under the National Partnerships Agreement signed by the Federal government and all State governments in February 2009. The NPA commitments include increased social and public housing projects, libraries, halls, science laboratories and general refurbishments at schools, black spot safety and other infrastructure projects.

The Treasurer must also be satisfied that a proposal for an NPA project is not substantially the same as a project that has previously been rejected for the site.

:!: A declaration of an NPA project can include construction work and related infrastructure, even if the work is to be undertaken by a third party.

How are NPA projects assessed?

The Nation Building and Jobs Plan Facilitation (Tasmania) Act 2009 sets out the assessment and approval process for NPA projects. NPA projects are assessed by the relevant Project Authority. Currently, the Director of Housing is the Project Authority for social housing projects and the Secretary of the Department of Education is the Project Authority for school infrastructure projects. Other Project Authorities may be nominated by the Regulations.

Following declaration of a proposed development as an NPA project, the proponent must notify the relevant council, the EPA and the general public of the proposal and invite representations.

The proponent can amend the proposed development to take into account issues raised in representations. Then, the proponent must apply to the Project Authority for certification of the project.

An NPA project is not assessed against the provisions of the relevant planning scheme. Instead, the Project Authority makes enquiries it considers necessary to address relevant matters in relation to the NPA project, such as:

  • planning issues
  • Aboriginal and historic cultural heritage issues
  • natural hazards
  • land contamination
  • access and parking
  • residential amenity
  • water management
  • energy efficiency
  • interests of nearby businesses.

How are NPA Projects approved?

The Project Authority will certify an NPA project if it is satisfied that:

  • the proponent has considered all representations received; and
  • any concerns raised by the EPA have been adequately addressed; and
  • any modifications to the proposal made by the proponent have not changed the location, increased the scale or changed the nature of the project.

The certification of an NPA project has effect as if it was a planning permit issued under LUPAA and can include any conditions in relation to the development. After certification, the project is subject to normal environmental and planning regulation (☛ Go to Chapter 6).

If an NPA Project is approved, the Planning Minister must amend any relevant planning scheme to remove any inconsistency with the project. The normal procedure for amending a planning scheme does not apply to this process.

:!: The Tribunal recently held that unless the planning scheme is formally amended pursuant to section 13(4) of the NPA Act, the planning scheme will continue to apply to the NPA project (see Gilpin v Mark Webb Building Services Pty Ltd v Door of Hope Christian Church Inc [2010] TASRMPAT 172)

Challenging the approval

Following the decision to certify the NPA project, the proponent must notify the Council and the EPA.

:!: Representors are not individually notified of a decision to certify an NPA project.

Unlike regular developments, there is no opportunity to appeal against a decision to certify an NPA project.

Projects of Regional Significance

What is a Project of Regional Significance?

Changes to LUPAA which took effect in January 2010 introduced this new option for development assessment. A project proponent or a planning authority can now apply to the Minister for Planning for a declaration that a project is a project of regional significance (PoRS). The application is to include a ‘statement of intent’ outlining key aspects of the project, including the anticipated timeline, likely environmental, social and economic impacts and details of studies to be carried out in relation to the impacts.

The Minister may also decide to declare a project to be a PoRS without an application from the proponent or planning authority.

A project will be eligible to be a project of regional significance if the project:

  • is of regional planning significance (e.g. would make a significant economic or social contribution to the region, or affect the provision of regional infrastructure); or
  • requires high-level assessment (where the planning authority does not have the capability or resources to adequately assess the proposal); or
  • would have a significant environmental impact.

The Tasmanian Planning Commission is to publish guidelines outlining the matters which the Minister must consider when deciding whether to declare a PoRS.

:!: An order declaring a project to be a PoRS can include in the description of the project any use or development which is necessary for the project, even if the use or development is undertaken by a third party.

How are PoRS assessed?

Where a project is declared to be a PoRS, it will be assessed by a Development Assessment Panel rather than a planning authority. The Panel will comprise 3-5 people, including:

  • a member of the Tasmanian Planning Commission;
  • a person nominated by the planning authorities within the region who has experience in land use planning, urban and regional development, commerce, industry or building and infrastructure; and
  • a person with qualifications or experience relevant to the assessment of the PoRS.

The Panel develops assessment guidelines for the PoRS in consultation with the Commission, affected planning authorities and relevant government agencies. The guidelines must have regard to planning schemes, regional land use strategies and planning orders in force for the development site.

The Minister will also refer a PoRS to the director of the EPA. The EPA must advise whether it will conduct an environmental assessment of the proposal (see Environmental Controls above) and, if so, provide guidance to the Panel regarding issues to be included in the assessment guidelines for the PoRS.

The proponent must submit a project impact statement addressing the assessment guidelines to the Panel and the EPA. The assessment guidelines and project impact statement are then made available for public comment for a period of at least 28 days. Any person may make a representation in relation to the PoRS, and will be invited to attend a hearing before the Panel.

How is a PoRS approved?

The Panel will generally make a determination in relation to the PoRS within 4 months of receiving the project impact statement. The Panel may refuse the proposal or grant a special permit for the proposal (with or without conditions). However, the Panel may not grant a special permit for the PoRS if the EPA has recommended that the PoRS be refused.

The Panel may approve a PoRS even if the use or development would not be permitted under the relevant planning scheme. If a special permit is issued the Commission must amend any applicable planning instruments to remove any inconsistencies with the PoRS.

If a special permit is to be issued subject to conditions, the Panel must give the proponent, relevant planning authority, EPA Board and the regional water corporation an opportunity to comment on the proposed conditions before a final determination is made.

Can I challenge a decision in relation to a PoRS?

Unlike normal planning applications, decisions in relation to PoRS are not subject to appeal.

:!: An independent review of the PoRS provisions must be undertaken as soon as possible after January 2013 to assess the effectiveness of the new process. To date, no projects of regional significance have been declared.

Projects of State Significance

What is a Project of State Significance?

Under the State Policies and Projects Act 1993, the Premier can declare a project to be a Project of State Significance, provided the development can be shown to be in the interest of Tasmania. The order making such a declaration must be approved by both Houses of Parliament.

Such projects are classified as 'Level 3' developments, and are subjected to the approval process outlined below. Examples of projects of state significance include:

  • Lauderdale Quay
  • Basslink
  • Oceanport Hobart
  • Taiwan Pulp and Paper Corporation

:!: An order declaring a project to be a Project of State Significance can include in the description of the project any “use or development which is necessary or convenient for the implementation of the project”, even if the use or development is undertaken by a third party.

How are these projects assessed?

The State Policies and Projects Act sets out the assessment and approval process that must be undertaken.

The fundamental difference between Projects of State Significance and other development applications is that the assessment process is conducted by the Tasmanian Planning Commission and the final decision is made by the Government, instead of the planning authority.

These projects are subject to Integrated Assessments and the public are given an opportunity to make submissions and appear at public hearings in relation to the proposed development.

Following the hearing, the Commission makes a recommendation to the Premier about the proposed development, including any conditions that should be imposed if the development is approved. The Premier will then make a recommendation to the Governor regarding approval or refusal of the Project. The Premier is not bound to follow the recommendations of the Commission, but any decision that is contrary to those recommendations must be approved by both Houses of Parliament.

Unlike normal planning applications, decisions in relation to Projects of State Significance are not subject to appeal. Therefore, it is important to get involved in the assessment process to make sure that your concerns are considered. You may also need to lobby parliamentary representatives as the decision-makers.

If a Project of State Significance is approved, the Tasmanian Planning Commission (TPC) must amend any relevant planning scheme to remove any inconsistency with the project. The normal procedure for amending a planning scheme does not apply to this process.

Guidelines for the Assessment

The Commission will develop Scope Guidelines ('terms of reference') for an Integrated Impact Statement, setting out the issues that must be addressed in the assessment documents. Draft Scope Guidelines are generally released for public comment (but this is not required by law). If you think that the Guidelines do not cover a particular issue that may be relevant to the development (e.g. greenhouse gas emissions), you should make a submission to the Commission requesting that the terms of reference be amended.

Who conducts the Integrated Assessment?
  • The developer (or its consultants) must prepare a comprehensive IIS document in accordance with the Scope Guidelines. The IIS generally includes an Environmental Impact Statement (EIS) and a Social, Economic and Cultural Impact Statement (SECIS).
  • These documents must be available for public comment.
  • The Commission then conducts the Integrated Assessment in accordance with any directions given to it by parliament. This generally involves a public hearing, at which the proponent and any person who made a representation are invited to present evidence.
How are Projects of State Significance approved?

The Tasmanian Planning Commission plays a leading role.

  • It seeks expert advice from the State's EPA Division and other agencies
  • It conducts the Integrated Assessment
  • It may hold a public hearing
  • After assessing all the material, it provides advice to the Premier in a publicly available report

The Premier then makes a decision regarding the proposed project and can recommend to the Governor that the project be refused or allowed. However, if the decision is not in accordance with the TPC recommendations report, the decision must be ratified by both Houses of Parliament before the project is allowed to proceed.

The final orders made in relation to the Project will specify the agencies responsible for enforcing the conditions. Thereafter, the activity is subject to normal environmental and planning regulation (☛ Go to Chapter 6).

Major Infrastructure Developments

When a ‘linear’ project, such as a major gas pipeline, would require development approval from several councils, the Minister may recommend (after consultation with affected councils) that the project be declared a Major Infrastructure Project.

These developments are declared under the Major Infrastructure Development Approvals Act 1999 (MIDA).

Once declared as a Major Infrastructure Project, the proposal will be assessed by a specially constituted body. In all other ways, the proposal will be subject to normal planning approvals, including appeals.

Who assesses major infrastructure developments?

The project is normally assessed by a Combined Planning Authority set up for the particular project. This Authority comprises people nominated by the local councils that are impacted by the project. For example, the “Waddamana to Risdon Vale Electricity Transmission Line Combined Planning Authority” comprised representatives from Central Highlands, Southern Midlands, Brighton and Clarence Councils.

Alternatively, the project can be assessed by the Tasmanian Planning Commission (☛ Go to Chapter 3).

Once the development is officially approved, the relevant local councils again become responsible and the project becomes subject to normal environmental control regulation (☛ Go to Chapter 6).

How are major infrastructure developments assessed?

Once declared as a Major Infrastructure Development, the project is deemed to be ‘discretionary’ (ie it can be permitted or refused). Section 12 of the MIDA Act requires that draft planning criteria for the project must go on public display for at least 14 days. Having regard to public comments, the combined planning authority will then finalise the planning criteria against which the project will be assessed.

Section 14 of the MIDA Act requires the developer to lodge a plan which defines the proposed corridor. The application for a development permit cannot be for an area wider than the notified corridor. The project can proceed anywhere within the approved corridor, including on private land (subject to compensation).

Can I appeal against a development of this type?

Yes, affected citizens have rights to appeal against these developments, or the conditions of the permit. Appeals are made to the Tribunal (☛ See this chapter and Chapter 14). Your appeal would be against the Combined Planning Authority (not the local council) in these cases.

Private land can be ‘acquired’

On occasion, the state government may wish to ‘acquire’ private land to facilitate essential service projects – ie water, energy, communications, transport, education, health, emergency services and sewerage infrastructure.

The Land Acquisition Act 1993 gives the state government powers to ‘purchase, acquire or take’ private land (by agreement or compulsorily). Part 1A of the Act enables the government to acquire private land even in situations where the project is being undertaken by a private corporation.

What if federal government approval is required?

In some instances, when an issue of national significance is involved, assessment of a project may also require federal government approval before the project can go ahead.

A bilateral agreement between the state and federal governments enables national impact assessments to be carried out under Tasmanian planning and pollution laws. Approval is still granted by the federal government, but is considered on the basis of an assessment carried out by the State government.

If you believe a proposed development has national implications, contact the Department of Sustainability, Environment, Water, Population and Communities and ask them to consider requesting referral of the development. ☛ Go to Chapter 15 for more information about federal laws

Further information & useful contacts

The EPA publishes a variety of helpful documents to assist businesses to understand the planning system and their legal requirements.

Council web sites provide information on how to submit planning applications.

The Tasmanian Planning Commission website provides information on planning scheme preparation and amendments. These are also available at Service Tasmania Centres.

GOVERNMENT

134 Macquarie Street, Hobart 7000
GPO Box 44A, Hobart 7001
Ph: 03 6233 6518 or 1300 135 513 (statewide) Fax: 03 6233 3800

  • Tasmanian Planning Commission
    144-148 Macquarie Street, (3rd Floor) Hobart 7000
    Ph: 03 6233 2795 Fax: 03 6224 0825
    Email: enquiry@planning.tas.gov.au
  • Land Titles Office
    134 Macquarie Street, Hobart 7000
    Ph: 03 6233 6467
NON-GOVERNMENT
  • Planning Aid
    c/- Hobart Community Legal Service
    166 Macquarie Street, Hobart 7000
    Ph: 03 6223 2500
  • The Planning Institute of Australia
    19A Hunter Street, Hobart
    GPO Box 977, Hobart 7001
    Ph: 03 6231 1842
    Email: tas@planning.org.au

Relevant laws


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