Amendments to the new Tasmanian planning system

Last month, the Land Use Planning and Approvals Amendment (Tasmanian Planning Policies) Bill 2017 was released by the Tasmanian Government for consultation and, if introduced to Parliament and passed, it will provide for a new legislative mechanism for Tasmanian Planning Policies to be made under the Land Use Planning and Approvals Act 1993 (LUPA Act).

Why a mechanism for TPPs is proposed?

It is understood that the Draft Bill was prepared in response to feedback from local government and other stakeholders which identified the need for TPPs to address the widely recognised gaps in the current planning system. The Draft Bill proposes to amend the LUPA Act to:

• establish the mechanism to create Tasmanian Planning Policies (TPPs) that will provide strategic direction on matters of state interest, guiding councils when they make decisions regarding development and land use planning;
• ensure that the TPPs are consistent with state policies;
• ensure regional land use strategies are in line with the TPPs; and
• ensure planning controls, which include both the State Planning Provisions and the Local Provisions Schedules, are consistent with the TPPs.

How will TPPs apply?

It is proposed that the TPPs will be different to State Policies that are made under SPPA as the TPPs will relate directly to the planning system established under the LUPA Act whereas State Policies can apply more broadly to a range of State legislation and regulation, including the planning system.

The current provisions relating to State Policies in LUPA Act will continue to apply, including the requirement for planning schemes and other planning instruments (which will include TPPs once the Draft Bill has been passed and commences) to be consistent with relevant State Policies.

Currently State Policies may override other planning instruments, whereas the TPPs are proposed to only inform the development of other planning instruments such as regional land use strategies and the Tasmanian Planning Scheme rather than overriding other planning instruments. Therefore, in the hierarchy of statutory instruments relating to the Resource Management and Planning System, TPPs will sit below State Policies. A useful diagram to explain the position of TPPs within Tasmania’s planning system is provided in the Tasmanian Planning Policies - Explanatory Document:

The TPPs may relate to:

• the sustainable use, development, management, protection or conservation of land; or
• environmental protection and management; or
• any other matter that may be included in a planning scheme or a regional land use strategy.

The Minister may prepare a draft of the TPPs and must consult with the Tasmanian Planning Commission, the planning authorities and the State Service Agencies, and the State authorities, that the Minister thinks fit in relation to the preparation of a draft of the TPPs.

Draft TPPs will be exhibited for a period of 42 days during which representations can be made. Within 60 days, or a longer period allowed by the Minister, after the end of the exhibition period, the Commission must provide to the Minister a report in relation to the draft of the TPPs which must contain:

• a summary of the issues raised in the representations in relation to the draft of the TPPs; and
• a statement as to whether the Commission is satisfied that the draft of the TPPs meets the TPP criteria; and
• a statement as to whether there are any matters of a technical nature, or that may be relevant, in relation to the application of the TPPs to the Tasmanian Planning Scheme or each regional land use strategy.

The Minister must then consider the Commission's report and make a decision on whether to make, or refuse to make, the TPPs in the terms of the draft of the TPPs or modified terms. The Minister may not make the Tasmanian Planning Policies unless the Minister is satisfied that they meet the TPP criteria.

The Draft Bill also contains provisions in relation to the process for amending TPPs and a requirement for the Minister to keep the TPPs under regular and periodic review.

It is proposed that once the TPPs are in effect, the Minister will be required to be satisfied that a regional land use strategy is consistent with the TPPs before the strategy, which will continue to be prepared by local councils, is declared.

The Tasmanian Government also released the Draft Tasmanian Planning Policies and Tasmanian Planning Policies - explanatory document as examples to assist with the consultation of the Draft Bill, however it is understood that these documents are not intended for consultation at this stage.

The five TPP examples provide are:

• Economic Development Tasmanian Planning Policy - Industry, Commercial and Business; Agriculture; Tourism; Extractive Industries;
• Settlement and Liveable Communities Tasmanian Planning Policy - Urban Development; Community Open Spaces; Housing; Community and Social Infrastructure;
• Cultural and Natural Heritage Tasmanian Planning Policy - Aboriginal Heritage; Historic Cultural Heritage; Natural Heritage;
• Hazards and Risks Tasmanian Planning Policy - Natural Hazards; Risks to Water and Soil Quality; Emissions, Hazardous Uses and Contaminated Land;
• Transport and Infrastructure Tasmanian Planning Policy - Integrated transport and land use planning; Road and Rail Networks; Ports and Intermodal Hubs; Passenger Transport; Energy; Waste and Resource Recovery; Water Supply, Waste Water Treatment and Urban Drainage;  Telecommunications.

What next?

Consultation on the Draft Bill closed on 15 May 2017. The Tasmanian Department of Justice website does not currently contain any details about next steps at this stage.

If you would like any further information on the Draft Bill, please contact us.

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