Chapter 4

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.

• 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).

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.

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.

They are managed by planning authorities (mostly local councils) which have a legal obligation to observe and to enforce observance of their Planning Schemes. (☞ See more about Planning Schemes below)

State Policies (as they are known) are approved by the parliament and have force of law.

State government agencies, public authorities and planning authorities are all obliged to comply with them. (☞ See more about State Policies below)

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)

Five key statutes provide the foundation of the RMPS (See below).

• 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.

• 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.

• 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 approved and regulated (☞ See Chapter 5 for information).

• Sets up the Tasmanian Planning Commission (TPC) – responsible for assessing planning schemes, State Policies and Projects of State Significance.

• 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.

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.

• Regulates the approval process for certain major developments – such as power transmission lines.
  (☞ Go to Chapter 5 for information)

• 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)

• Concerns normal fisheries operations and fisheries research.
  (☞ Go to Chapter 9 for information)

• Regulates marine farming, through a system of marine farming leases.
• But it gives very limited public participation rights and no third party appeal rights.
  (☞ Go to Chapter 9 for information)

• Aims to protect, manage and promote conservation of threatened plants and animals in Tasmania.
  (☞ Go to Chapter 7 for information)|

• 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.
  (☞ Click HERE for information)

• Regulates management of Mount Wellington Range.

• Sets up the Planning Authority responsible for the Sullivans Cove Planning Scheme

• Sets up the Tasmanian Natural Resource Management Council to set priorities for NRM
• Establishes regional strategies and means for coordinated statewide natural resource management

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!

Although this system of laws has significantly improved and streamlined planning and environmental regulation in Tasmania, the integration of the RMPS is still incomplete.

Tasmania's planning system is currently under review (see the Planning System Review webpage for more details

When the RMPS system was initiated in 1994, planning schemes varied widely throughout the state and lacked a consistent, coherent approach.

Since 2003 a more consistent approach to development control has been required. Councils preparing a draft planning scheme must now must use a common format and uniform definitions of uses, zones and administrative provisions.

These are set out in “The Format and Structure of Planning Schemes” - a Common Key Elements Template (attached to Planning Directive No 1). This template must be used, unless the Tasmanian Planning Commission approves a variation.

You can download the Planning Directive No 1 and Common Key Elements Template from the Commission website.

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.

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.

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.

State Policies are approved by the parliament and have force of law. Each State Policy applies to a particular issues (such as coastal development or water quality.) They apply to the entire state of Tasmania.

State government agencies, public authorities and planning authorities are all obliged to comply with them. 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.

☞ You can obtain copies of State Policies from Service Tasmania Centres or download them.

• Coastal Policy (currently under review)

• Policy on Water Quality Management

• Policy on Protection of Agricultural Land

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.

• Air Toxics

• Ambient Air Quality

• Assessment of Site Contamination

• Diesel Vehicle Emissions

• Movement of Controlled Waste

• National Pollutant Inventory

• Used Packaging Materials

☞ You can download these national policies here.

This is another category of policy. Unlike ‘state policies’ (described above), these environment protection policies (made under the Environmental Management & Pollution Control Act) are not enforceable in their own right. Instead, the provisions of these policies may be included, for example, in permit conditions.

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

• the Environment Protection Policy (Air Quality) 2004; and
• the Environment Protection Policy (Noise) 2009.

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

For more information, go to the Environment Division website.

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

• 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 councils administer more than one planning scheme. Check carefully to make sure that you have seen everything!

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).

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.

A number of existing planning schemes were approved prior to the RMPS laws in 1993 and therefore do not reflect the ‘sustainable development’ objectives.

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 and local reserves

• building developments which may interfere with direct access to sunlight or property values.

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 Commission website.

Before a planning scheme or amendment comes into force, 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.

• 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.

☞ Go to Chapter 5 to see how development permits are granted.

• 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.

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.

In 2009, amendments to LUPAA were introduced which aimed to ensure greater consistency between planning schemes within regional areas and across the State (Part 3, Division 1A). These amendments provide for:

• The development of regional land use strategies; and
• Approval of interim planning schemes.

Regional land use strategies are currently being prepared for three regions in Tasmania. For information about the progress of the regional planning project, visit the sites for the Southern area, Northern region and North-East Tasmania.

The new provisions allow for the fast-tracked adoption of interim planning schemes, which will then apply while a planning scheme is developed. To facilitate greater consistency, the Planning Commission may issue a planning directive which specifies ‘mandatory common provisions’ and ‘optional common provisions’ for planning schemes throughout Tasmania. 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.

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. Once an interim scheme has effect, any existing planning scheme ceases to operate and any outstanding permit applications are taken to have been made under the interim 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 (s.30P, 30Q).

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.

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.

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.

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.

No use or development may commence without the developer having a planning permit, where one is required.

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

In 2001 Tasmania’s planning laws were further strengthened by requiring councils to uphold their planning schemes or face prosecution (see sections 48 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 is compelled by law to take all reasonable steps to stop the breach. Furthermore, any citizen is able to enforce this remedy. (☞ Go to Chapter 14 for information on how to do this).

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. You can request that the Tribunal make an urgent decision (☞ see Chapter 14 for information about costs that may apply to you).

Note: 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.

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.

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.

These 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.

For more information on appealing to the Resource Management and Planning Appeals Tribunal, the Tribunal’s Practice Direction is available from the Tribunal or from its website (click HERE).

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 the EDO and Fullers Bookshop.

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

• State Planning Adviser
  Level 5, 1 Franklin Wharf, Hobart. GPO Box 825, Hobart 7001 Ph: 03 6233 2410

• Service Tasmania Centres website
  Located in most major towns. Ph: 1300 366773 for locations.
  

• Resource Management and Planning Appeal Tribunal website
  144-148 Macquarie Street, Hobart 7000 Ph: 6233 6464.
  

• Tasmanian Planning Commission website
  144-148 Macquarie Street, Hobart 7000 Ph: 6233 2795
  

• Environment Division, DPIPWE website
  134 Macquarie Street, Hobart GPO Box 44A Hobart 7001 Ph: 6233 6518
  Ph: 1300 135 513 (statewide)

• Primary Industries & Water Divisions website
  1 Franklin Wharf, Hobart, GPO Box 44, Hobart 7001, Ph: 1300 368 550 (statewide)

• State Government - access to Planning and Development: website

• Environmental Defenders Office website
  131 Macquarie Street, Hobart 7000 Ph: 6223 2770 Fax: 6223 2074
  Email: edotas@edo.org.au

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

• The Royal Australian Planning Institute of Australia website
  Secretary, 19A Hunter Street, Hobart GPO Box 977 Hobart 7001 Ph: 6231 1842
  Email: tas@planning.net.au
  

• 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 from this website: <www.thelaw.tas.gov.au>