Chapter 4

The Resource Management & Planning System (RMPS)

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The Resource Management and Planning System (the RMPS) is the all-important, integrated, planning and environmental management system for Tasmania.

This chapter outlines the RMPS, whilst Chapter 5 and Chapter 6 show how major elements of it – planning and pollution laws – are put into practice.

1 What is the RMPS?

The RMPS is an integrated system of laws, policies and procedures. Its aim is to ensure that all decisions about the use and development of land and natural resources in Tasmania are directed towards achieving sustainable use and development of natural and physical resources.

What does the RMPS do?

  • It establishes a 'whole of government, industry and community' approach – by involving all these groups in many development issues.
  • It requires state and local government bodies to further sustainable development in their planning and in their assessments of proposed developments, and guarantees citizens participation in these matters.
  • It gives citizens appeal rights to an independent appeal tribunal to seek orders about a range of development applications and environmental impacts, and to enforce a range of planning and environmental laws. These appeal rights are given by different pieces of legislation (see below).

Important objectives of the RMPS

All the legislation which makes up the RMPS share a common set of Objectives, listed below.

These Objectives are aimed at promoting the sustainable development of the resources of air, water and land to ensure the future welfare of all Tasmanians.

All local and state government agencies that administer the RMPS Acts are required by law to further these Objectives when making decisions under those Acts.

  • To promote sustainable development and to maintain ecological processes and genetic diversity
  • To provide for the fair, orderly and sustainable use and development of air, land and water
  • To encourage public involvement in resource management and planning
  • To facilitate economic development in accordance with these objectives
  • To promote the sharing of responsibility for resource management and planning between the different spheres of government, the community and industry in the state.

Note that ‘sustainable development’ is defined in the legislation as:

“…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.”

How does the RMPS attempt to achieve these objectives?

1. Through ‘Planning Schemes’

Planning Schemes provide the basic rules for proposed new uses and developments in Tasmania. All of Tasmania is covered by one or more Planning Scheme.

Planning schemes must be prepared in accordance with the RMPS objectives, State Policies, and having regarding to the environmental, social and economic consequences of planning decisions. Planning authorities (local councils) have a legal obligation to observe and to enforce observance of the Planning Scheme/s for their council area. (☛ See more about Planning Schemes below)

2. Through 'Tasmanian Sustainable Development Policies' (State Policies)

State Policies (as they are known) are approved by the parliament and have force of law. State Policies provide high level statements to guide resource management decisions.

State government agencies, public authorities and planning authorities are all obliged to comply with State Policies and to have regard to those policies in their planning and decision-making. (☛ See more about State Policies below)

3. Factoring sustainability into decision making

All Acts and regulations in the suite of RMPS legislation (the five key Acts are discussed below) require any person making decisions under the legislation to have regard to, and in some cases to act in a way that “furthers”, the RMPS objectives.

4. Through an enforcement and appeals system

The RMPS gives ordinary citizens the power to enforce a range of planning, pollution and resource management laws. It does this through a special tribunal – the Resource Management and Planning Appeal Tribunal. (☛ Go to Chapters 5, 6 and 14 to see how these rights can be exercised)

:!: Tasmania's planning system has been under review for a number of years, in an attempt to establish more consistent planning schemes across the State and improve the integration between the various pieces of legislation within the RMPS. This Handbook examines the RMPS as it currently operates, but also highlights some impending changes.

⇔ For more information about the current review, go to the Planning Reforms page on the Planning Commission’s Website

The core of the Resource Management and Planning System (RMPS)

1. Land Use Planning and Approvals Act 1993 (LUPAA)
  • Regulates land use and development in Tasmania through Planning Schemes, planning assessment processes and a permit system.
  • Any person who has a ‘proper interest’ may apply to the Resource Management and Planning Appeal Tribunal for an enforcement order where a permit has been breached or where no permit was issued.
2. Environmental Management and Pollution Control Act 1994 (EMPCA)
  • Manages and regulates pollution and other environmental problems through various management tools and prescribed offences.
  • Any person with a ‘proper interest’ may apply to the Tribunal for an order to ensure compliance with the Act.
3. State Policies and Projects Act 1993
  • Deals with the creation, enforcement and review of Tasmanian State Policies.
  • Requires a Tasmanian State of Environment Report to be prepared every 5 years.
  • Defines how major projects (Projects of State Significance) are assessed, approved and regulated. ☛ See Chapter 5 for information
4. Tasmanian Planning Commission Act 1997
  • Sets up the Tasmanian Planning Commission (TPC) – responsible for assessing planning schemes, State Policies and Projects of State Significance.
5. Resource Management and Planning Appeal Tribunal Act 1993
  • Establishes the Resource Management and Planning Appeal Tribunal (RMPAT) – the principal tribunal to hear appeals against planning decisions and to ensure that planning and environmental controls are enforced.

☛ LUPAA and EMPCA are particularly important to environmental management and are described further in Chapters 5 and 6.

Laws that are linked to the RMPS

A number of other laws (listed below) are linked to the RMPS.

These laws share the same sustainable development Objectives. However, in some cases they give limited participation and appeal rights to citizens than other RMPS legislation.

Major Infrastructure Development Approvals Act 1999 (MIDA)
  • Regulates the approval process for certain major developments – such as power transmission lines.
    ☛ Go to Chapter 5 for information
Historic Cultural Heritage Act 1995
  • Sets up a register of places of historical cultural heritage significance.
  • Any person can nominate a place to be entered on or removed from the register.
  • It also provides a system for approvals of work on these places.
    ☛ Go to Chapter 12 for information
Living Marine Resources Management Act 1995
  • Concerns normal fisheries operations and fisheries research.
  • Establishes some marine reserves.
  • Manages aquaculture licensing (in combination with the Marine Farming Planning Act 1995)
    ☛ Go to Chapter 9 for information
Marine Farming Planning Act 1995
  • Regulates marine farming, through a system of marine farming leases.
    ☛ Go to Chapter 9 for information

:!: The Marine Farming Planning Act 1995 has limited opportunities for public participation, and no third party appeal rights.

Threatened Species Protection Act 1995
  • Aims to protect, manage and promote conservation of threatened plants and animals in Tasmania.
    ☛ Go to Chapter 7 for information
Water Management Act 1999
  • Regulates the use of Tasmania’s fresh water resources through development of water management plans and issuing water licences.
  • Also regulates construction and use of dams.
    ☛ Go to Chapter 10 for more information
Wellington Park Act 1993
  • Establishes the Wellington Park Management Trust and regulates the management of activities in the Mount Wellington Range.
Natural Resource Management Act 2002
  • Sets up the Tasmanian Natural Resource Management Council to set priorities for NRM
  • Establishes regional strategies and means for coordinated statewide natural resource management
Nature Conservation Act 2002
  • Provides for declaration of national parks and reserves
  • Sets up regulations for taking and trading in native wildlife
  • Lists threatened native vegetation communities that are to be protected under the forest practices system
National Parks and Reserves Management Act 2002
  • Establishes management plans for reserved areas
  • Restricts use and development in reserved areas

Other laws

Some other laws that affect the operation of the RMPS include:
• Approvals (Deadlines) Act 1993
• Crown Lands Act 1976
• Crown Lands (Shack Sites) Act 1997
• Gas Act 2000
• Gas Pipelines Act 2002
• Local Government Act 1993
• Mineral Resources Development Act 1995
• Public Land (Administration & Forests) Act 1991
• Regional Forest Agreement (Land Classification) Act 1998
• Strata Titles Act 1998
• Weed Management Act 1999

:!: Hint: When attempting to enforce any of these laws, you should refer to the RMPS objectives shown above.
The objectives are supposed to be upheld!

Problems with the RMPS

The RMPS has not been fully incorporated into Tasmania’s bank of environmental laws.

  • Although the important sustainable development Objectives (see above) have been added to some older Acts, (like the Crown Lands Act 1976), these older Acts have not been built around the RMPS system and therefore do not include some important democratic features of the RMPS (such as rights of appeal).
  • More importantly, some major resource management activities (in particular, forestry, mineral exploration and aquaculture) have been granted specific exemptions – so that provisions of planning laws which apply to other business sectors do not apply to those activities. These sectors are mostly regulated under their own specific legislation.
Environmental laws that lie largely outside the state’s uniform planning system (RMPS) include:

• Inland Fisheries Act 1995
• Forestry Act 1920
• Forest Practices Act 1985
• Private Forests Act 1994
• Mineral Resources Development Act 1995
• Local Government Act 1993
• Crown Lands Act 1976
• Pulp Mill Assessment Act 2007
• Waterworks Clauses Act 1952
• Meander Dam Project Act 2003
• Water and Sewerage Industry Act 2008

nrm.jpg The net effect of this is that, although Tasmania has a modern planning system, with a purported objective of sustainable development, it has not yet achieved its full potential to the extent that has been achieved in some other states.

In addition, regional infrastructure issues (such as sewerage, water supply, roads, rail and hospitals) are not subjected to an integrated statewide planning regime.

The Natural Resource Management Framework
and how it relates to the planning system

A Natural Resource Management (NRM) system was adopted in Tasmania in 2002. Note that this Framework is simply an overlay, it does not replace existing policies and processes - the RMPS continues as the overarching legislative system for resource management and for planning and development controls.

However, the NRM Framework is a useful administrative tool. It works within the RMPS to coordinate and integrate the activities of a variety of bodies and processes involved in the management of natural resources in the State. Natural Resource Management is broadly defined as ‘the management of all activities that use, develop and/or conserve our air, water, land, plants, animals and microorganisms, and the systems they form’. Click HERE for information about the NRM Framework.

2. State Policies

Why State Policies are important

State Policies are approved by the parliament and have force of law. Each State Policy applies to a particular issue (such as water quality or the protection of agricultural land). State Policies apply to the entire state, and must be considered in a range of resource management and planning decisions.

State government agencies, public authorities and planning authorities are all obliged to comply with State Policies, and Planning schemes must be prepared in accordance with State Policies.

Contravention of a state policy by any person (including a planning authority) is an offence, and the offender may be prosecuted.

Where can I find State Policies?

⇔ You can obtain copies of State Policies from Service Tasmania Centres or download them from the Tasmanian Planning Commission's Website.

The state government has, to date, prepared the following State Policies:
  • Coastal Policy
    :!: An attempt to update this Policy was rejected in 2011 after review by the Tasmanian Planning Commission, so the 1996 policy remains current.
    ☛ go to Chapter 7 for more details
  • Policy on Water Quality Management
    :!: The government plans to convert this State Policy into an Environment Protection Policy (see below). However, no action has been taken and the State Policy remains in force.
  • Policy on Protection of Agricultural Land

In addition to these State Policies, National Environmental Protection Measures (NEPMs) are taken to be State Policies for the purposes of the State Policies and Projects Act.

In addition to these, National Environmental Protection Measures (NEPMs) are taken to be State Policies for the purposes of the State Policies and Projects Act.

The following NEPMs have the same force as State Policies:
  • National Environment Protection (Used Packaging Materials) Measure;
  • National Environment Protection (Ambient Air Quality) Measure;
  • National Environment Protection (Movement of Controlled Waste Between States and Territories) Measure;
  • National Environment Protection (National Pollutant Inventory) Measure;
  • National Environment Protection (Assessment of Site Contamination) Measure;
  • National Environment Protection (Diesel Vehicle Emissions) measure; and
  • National Environment Protection (Air Toxics) measure.

⇔ You can download these national policies HERE.

State Environment Protection Policies

Environment Protection Policies (EPPs) are made under s.96 of the Environmental Management & Pollution Control Act. They are designed to provide guidance in relation to specific environmental issues. Unlike State Policies (discussed above), EPPs are not enforceable in their own right. Instead, the provisions of these policies are a guide to decision makers and may be included, for example, in permit conditions.

Currently, there are two Environment Protection Policies in force in Tasmania:

Draft Policies have been prepared in Waste and Contaminated Sites but have yet to be finalised.

⇔ For more information, go to the EPA Division website.

3 Planning Schemes

Why Planning Schemes are important

A Planning Scheme is a publicly available document prepared and managed by local councils. Planning schemes regulate the use, development, protection or conservation of land throughout Tasmania. Every council has a duty to observe and enforce its planning scheme (see sections 48, 63 and 63A of LUPAA). The planning scheme is binding on all members of the community, State Government agencies and public authorities (unless specifically excepted).

A Planning Scheme for a local council or planning authority area is made up of:

  • A written document that details the types of land use and development that are permitted, discretionary or prohibited; and
  • Various codes / schedules that apply to specific areas (such as coastal areas, areas subject to flooding, heritage precincts); and
  • A set of maps that show different land use areas or zones – referred to in the written document.

The map and written document must be read together. Each zone specifies the allowable uses, and standards such as height and dimensions of buildings, minimum lot sizes and dimensions and density of development.

The planning scheme essentially controls new development, re-development or expansion or existing development. It does not affect some existing use rights for activities that are already lawfully established.

:!: Many council areas are covered by more than one planning scheme. Check carefully to make sure that you have seen everything, and know which planning scheme regulates the land you are concerned with!

Anyone can view a planning scheme at the relevant council office or at the Commission office. Many planning schemes are available on council websites (but check with local council to make sure that these documents include recent amendments).

What a planning scheme must do

New planning schemes:

  • must seek to further the RMPS objectives and also the specific objectives of LUPAA
  • must be prepared in accordance with State Policies
  • may make any provision which relates to the use, development, protection or conservation of any land in the area, and
  • must have regard to the strategic plan of a council adopted by the council at the time the planning scheme is prepared.

Planning schemes must, as far as practicable, be consistent and coordinated 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.

More consistent planning schemes

Tasmania currently has 34 planning schemes which apply to different areas of the state, and there is no consistent or coherent approach adopted across all the schemes. Many older schemes also fail to adequately reflect the sustainable development objectives of the RMPS. The following measures have been adopted to try to address this problem:

  • The Tasmanian Planning Commission has adopted a standard scheme template to improve consistency in the structure and content of planning schemes
  • Regional Land Use Strategies have been declared to promote more consistent approaches to resource use and development within Tasmania’s three regional areas
  • Introduction of Interim Planning Scheme provisions, intended to facilitate quicker implementation of new planning schemes

Planning Scheme Template

Planning Directive No 1: The Format and Structure of Planning Schemes (known as “PD1”) was formally adopted in September 2012 and includes a Planning Scheme Template that must be applied when any new scheme is being prepared. While the Template does not set out particular standards (that is for each council or region to determine), it includes common definitions, standard zone headings and objectives and a list of uses and developments that will be exempt from requiring a permit under all new schemes.

The structure of the Template is:

  • Part A - Purpose and Objectives.
  • Part B - Administration
  • Part C - Special provisions
  • Part D - Zones (the Template provides 32 different zones – councils can choose to use any or all of the zones).
  • Part E – Codes (provides uniform standards for common issues, such as bushfire management, development on flood prone land and development of residential dwellings in a Residential Zone).
  • Part F - Special Area Plans.

Planning Codes

The Commission has finalised Planning Directives (to be adopted as “Codes” under the template planning schemes for Single Dwellings in Residential Areas and development in Bushfire Prone Areas. The Commission has also released Draft Planning Directives for Flood Prone Areas, Landslide areas, Potentially Contaminated Land and Road and Railway Assets.

Issues likely to be addressed through Planning Directives in future include coastal hazards (including erosion and inundation) and management of biodiversity.

⇔ You can download PD1 and other Planning Directives from the Commission's Website.

Regional Strategies

In 2010, amendments to LUPAA took effect which aimed to ensure more strategic and consistent planning between councils within a region through the development of regional land use strategies (Part 3, Division 1A).

Municipalities in Tasmania have been grouped into three regions: Cradle Coast, Southern and Northern Tasmania. Regional land use strategies for each region have been gazetted. The Strategies identify key resource issues and management objectives in the region, identify appropriate urban growth boundaries and key constraints and opportunities for regional development.

⇔ For information about the progress of the Regional Planning project Initiative, visit the Commission Website or the sites for the three regions:

Interim Planning Schemes

In 2010, LUPAA was amended to allowed changes to planning schemes to be fast-tracked by the adoption of interim planning schemes. Interim planning schemes will then apply immediately upon declaration and until a final planning scheme is approved.

A planning authority can prepare a draft interim planning scheme on its own initiative. Alternatively, the Minister for Planning can direct a planning authority to prepare a draft interim planning scheme. If the planning authority does not prepare a draft in accordance with the direction within 21 days, the Minister can order the Planning Commission to prepare an interim planning scheme for the municipality.

Each of the three regions is developing common provisions to be included in each draft interim scheme in the region. Currently, the only interim schemes to have been declared are:

  • Launceston Interim Planning Scheme 2012
  • Break O'Day Interim Planning Scheme 2013
  • Northern Midlands Interim Planning Scheme 2013

Draft interim planning schemes are being prepared for all other municipalities. Draft schemes for each of the southern Tasmanian councils are available at the Southern Tasmanian Councils Authority website.

⇔ For information regarding the Launceston Interim Planning Scheme, and its assessment by the Tasmanian Planning Commission, go to the Council website.

Interim planning schemes:

  • MUST further the objectives of any regional land use strategy applying in the area;
  • MUST include any 'mandatory common provision';
  • MAY include any 'optional common provision';
  • MAY include ‘local provisions’ specific to the particular area (e.g. zoning), provided that the local provisions are not inconsistent with the mandatory or optional common provisions.

If the Minister is satisfied that a draft interim planning scheme is appropriate, he or she may declare that the scheme has effect as an interim planning scheme. Currently, once an interim scheme has been declared, any existing planning scheme ceases to operate and any outstanding permit applications are taken to have been made under the interim scheme.

:!: Recent amendments to LUPAA change this – permit applications that were made, but not decided, before the interim scheme took effect, will continue to be assessed under the old planning scheme.

Any person may apply for dispensation from the operation of a local provision of an interim planning scheme. The Commission will review the application and determine whether a dispensation should be granted (ss.30P, 30Q).

Notification

The Minister must give written notice of an interim planning scheme to:

  • the planning authority;
  • each other planning authority in the regional area;
  • the Planning Commission;
  • any state agencies with an interest in the Scheme.

The interim scheme must also be available for public inspection at the Council office and the Commission for at least two months. Any person can make a representation about the interim scheme to the planning authority in that period.

Reviewing Interim Planning Schemes

After the close of the public notice period, the planning authority must:

  • provide a copy of all representations to other planning authorities in the regional area;
  • prepare a report to the Commission outlining all representations received, and commenting on whether any changes to the interim scheme should be made to address the issues raised in representations (s.30J).

Similar to regular planning scheme amendments, the Tasmanian Planning Commission will then hold hearings regarding the interim planning scheme. Any person who made a representation will be invited to attend the hearing.

Following the hearing, the Commission must:

  • report to the Minister about whether the relevant planning directive should be amended (e.g. to change the mandatory common provision, or to specifically exempt the particular planning authority from having to adopt those provisions);
  • if it believes that an interim planning scheme should be amended, direct the planning authority to make specific modifications to the local provisions or to delete / substitute an optional common provision (the Commission may also elect to prepare modifications itself).

The Commission may require the planning authority to re-advertise an amended interim planning scheme and invite fresh representations.

⇔ Click HERE to download a useful flowchart showing the assessment process for Interim Planning Schemes on the Tasmanian Planning Commission’s website.

Adopting interim planning schemes

If it is satisfied that an interim planning scheme is appropriate (with or without modifications), the Commission must adopt the interim scheme as a planning scheme (s.30N). The Commission is required to get approval from the Minister prior to adopting the interim scheme. The Commission will publish a notice in the Gazette confirming the date on which the new planning scheme will take effect.

Can I have a say in how a planning scheme is framed?

Yes, any person has the right to have a say in the preparation (or amendment) of planning schemes. A good planning scheme can avoid a lot of problems later on. For example, you may wish your local planning scheme to require permits for such things as:

  • land clearance in local reserves
  • building developments which may interfere with direct access to sunlight

or to include specific local provisions relevant to your area, such as height restrictions in skyline areas, or wider setbacks in semi-rural areas. Please note: local provisions must not be inconsistent with the Planning scheme Template (s.14))

Importance of acting early

Before preparing (or revising) a planning scheme, local councils are required to notify the Commission and should invite public input at the early stages. It is important to have input at this informal stage, when it is easier to make major changes.

Councils should seek public input to help them scope out the issues that the planning scheme should address (see Planning Advisory Note: Notification of a Decision to Prepare a Planning Scheme). A council adopting best practice would normally hold a number of public meetings to gain input to a planning strategy. This is not a statutory requirement but is recommended by the Commission (see Planning Advisory Note: Supporting Information for Planning Schemes).

⇔ Planning advisory notes are available on the Tasmanian Planning Commission's website.

Formal hearings

Before a planning scheme or amendment can be adopted, the council must submit a copy of the draft planning scheme or amendment to the Commission. The Commission must then direct the council to publicly exhibit the draft (with or without amendment), or inform the council that it is not suitable for public exhibition and allow a specific period in which to submit a revised draft to the Commission.

Any person may make a representation during the exhibition period.

Following the end of the exhibition period, public hearings are generally held to discuss the proposed amendment. If any person who made a representation has requested a hearing, the Commission must hold a hearing.

Notice of public hearings will be published in the newspaper. You can request the opportunity to make a presentation at the hearing if you made a representation during the notice period. You have the same rights to participate whether the hearing relates to a new planning scheme or amendments to an existing planning scheme (see Part 3 of LUPAA).

Hearings are conducted by the Tasmanian Planning Commission.

The Commission will decide on the appropriate format and procedure for the hearing. The Commission is not bound by the rules of evidence that restrict a court, so hearings are generally less formal than court or Tribunal proceedings. Hearings must be held in public and written submissions are made public so that people can comment on them (unless the information is confidential and it is not in the public interest for it to be disclosed). If any major changes are proposed following the public hearings, the draft planning scheme may need to be advertised again.

⇔ Click HERE to download a useful flowchart showing the assessment process for planning schemes (and amendments to planning schemes).

A few tips when having your say

  • Be clear about what changes you are seeking. If the changes would affect other landowners, natural justice requires that they have their say too – the council has to balance the rights of landowners to develop their land with public rights to amenity and environmental quality.
  • It is most important to examine ‘permitted uses’ along with development standards (eg height limits, setbacks) in the zones you are interested in. This is because the Council is obliged to allow a development to go ahead if the use is designated as ‘permitted’ in the planning scheme and the standards and requirements of the planning scheme are all complied with. You generally cannot appeal against a permitted development.
  • Also examine the ‘discretionary uses’ – where a council has a discretion to ‘permit or refuse’ a development or to relax a requirement of the planning scheme. Check where there is a discretion and all the discretions involved. Council staff should be able to assist with this. It is important to address these because the council (and the Tribunal on appeal) must have regard to these factors when deciding whether to permit or refuse the development application.
  • It is also important to be familiar with the Codes (see above), and to consider whether any other specific provisions should apply locally (remembering that local provisions must also be consistent with the Template and other Codes).

(☛ Go to Chapter 5 to see how development permits are granted).

Can I request that a Planning Scheme be amended?

Any person may request a planning authority (council) to amend its Planning Scheme. If the amendment relates to land that you do not own, you must have written permission of the owner before seeking the amendment.

Often, these amendments seek to change the zone of a particular area, to allow a development that would otherwise be prohibited. These kinds of applications are often called 'rezoning applications'.

After it receives your application, the planning authority has 42 days to decide whether or not to initiate an amendment.

:!: If the authority decides not to initiate an amendment, you cannot request a substantially similar amendment for 2 years unless the Council agrees to consider it.

What are Special Planning Orders?

In some circumstances there may be a need to introduce a Special Planning Order where there are no controls over an area of land, or where there are contradictions and inconsistencies between sections of a planning scheme.

In these unusual circumstances, a Special Planning Order may be made to enable a development to proceed (see Section 47 of LUPAA).

This procedure bypasses the standard procedure, which means there is some risk that safeguards such as public participation in decision-making could be also be bypassed. However, the Commission can only make a Special Planning Order if it is in the 'public interest' to do so, so there is some protection against abuse of the system.

5 How is the planning system enforced?

What is illegal?

The State Policies & Projects Act and the Land Use Planning and Approvals Act require that a person must not use land in a way, or undertake development or undertake any other activity, that:

  • is contrary to a State Policy, a Planning Scheme, or Special Planning Order, or
  • impedes or obstructs the execution of any planning scheme or order, or
  • constitutes a breach of a condition or restriction of a planning permit, or
  • breaches an order or a determination of the Tribunal.

:!: If a planning scheme requires you to have a permit, it is an offence to commence any use or development without the appropriate planning permit.

What is 'civil enforcement'?

If you are carrying out development contrary to the planning scheme (for example, if you do not have a planning permit in a zone where a permit is required for your activities), the Commission, the planning authority or anyone who has 'a proper interest in the subject matter' (such as a neighbour) may apply to the Tribunal for an enforcement order.

Similarly, if you are breaching a condition of your planning permit, the planning authority or any person with a 'proper interest' may take action against you in the Tribunal.

The Tribunal can order a person to cease an unlawful activity and order that the contravention be 'made good' (for example, if damage has been caused by the unlawful activity, to fix the damage).

These actions, called 'civil enforcement actions', are taken under section 64 of LUPAA.

⇔ Click HERE to find out about Civil Enforcement.

:!: You may also be prosecuted under section 63 for these offences (instead of, or in addition to, civil enforcement).

What if a council breaches its planning scheme?

Under LUPAA, Councils are required to uphold their planning schemes or face prosecution (see sections 48, 48AA and 63A of LUPAA).

If it has been brought to a council’s attention that an activity is in breach of its planning scheme, then the council must take all reasonable steps to stop the breach (please note, what is “reasonable” will depend on the circumstances). If you are concerned that a council is failing to abide by its planning scheme, then contact the council first up. If the council fails to address the issue, then it may be useful to report the case to the Commission or the Director of Public Prosecutions, who have the power to prosecute the council.

More directly, you may take action against the offender in the Tribunal, requesting an immediate stop to the offending activity, or against the Council, requesting that they take some action. You can request that the Tribunal make an urgent decision.

☛ Go to Chapter 14 for information about how to do this, and any costs that may apply to you.

You have only two years from the date of a breach of the planning scheme or of the Act to take action in the Tribunal.

If all else fails, you could apply to the Supreme Court for an order that the council abide by its planning scheme.

For advice about these options, contact the Environmental Defenders Office.

Can I claim compensation?

You can claim compensation from a planning authority (council):

  • for financial loss suffered as the natural, direct and reasonable consequence of your land being set aside for a public purpose under a planning scheme; or
  • if access to land is restricted by a road closure under a planning scheme or interim order; or
  • if you suffer financial loss because a permit is not granted due to land being set aside for public use.

'Agreements' under LUPAA

In addition to the above procedures, councils may also enter into formal agreements with an owner of land (or someone who is expected to become the owner) (see Part V of LUPAA).

These “Part V agreements” may include:

  • conditions which prohibit, restrict or regulate use or development on the land
  • conditions under which a use or development may be undertaken (for example, what colours future buildings must be painted, requirements to install rain water tanks)
  • conditions requiring the owner to prepare a management plan for the land
  • any other matter intended to achieve or advance the RMPS and other objectives.

Part V agreements are legal contracts and may require the landowner to deposit with the planning authority a sum of money or a form of guarantee to pay that money.

This money, or any part of it, may be forfeited if the agreement is not satisfied. Otherwise the money or guarantee must be returned on a date specified in the agreement. This is a way of ensuring that there is money available for rehabilitation in the event of environmental damage resulting from a breach of the agreement.

Further information & useful contacts

⇔ For more information on appealing to the Resource Management and Planning Appeal Tribunal, Practice Directions are available from the Tribunal.

Going it Alone is a useful guide for people involved in (or considering) an appeal in the Resource Management and Planning Appeal Tribunal. The book is available from EDO Tasmania.

⇔ You can download an excellent Guide to the Resource Management and Planning System from the Planning Commission website.

Government

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

Non-Government

  • Planning Aid Service
    c/- Hobart Community Legal Service
    166 Macquarie Street, Hobart 7000
    Ph: 03 6223 2500

Relevant laws

  • State Policies & Projects Act 1993
  • Land Use Planning & Approvals Act 1993
  • Environmental Management & Pollution Control Act 1994
  • Major Infrastructure Development Approvals Act 1999
  • Resource Management & Planning Appeal Tribunal Act 1993
  • Tasmanian Sustainable Development Policies (State Policies)
  • Tasmanian Planning Commission Act 1997
  • Land Acquisition Act 1993

⇔ You can download all Tasmanian Acts of Parliament HERE.


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