The major legislation relating to the regulation and control of development in Tasmania is the Land Use Planning and Approvals Act 1993 (LUPAA). LUPAA establishes a system of planning schemes that provide a framework for regulating the use and development of land, and some resources, within local government areas.
A planning scheme regulates the use, development, protection and conservation of land within a specific geographical area (generally the whole of the local council area, however some councils have more than one scheme. For example, Hobart City Council has separate planning schemes for Hobart, Battery Point and Sullivans Cove). A planning scheme must:
- further the objectives of the RMPS;
- be prepared in accordance with State Policies; and
- be prepared in accordance with the Statewide Planning Scheme Template;
- be consistent and coordinated with planning schemes in adjacent areas.
Generally, planning schemes regulate development by dividing land into specific zones and setting out objectives and development standards for land uses within each zone. For each zone, planning schemes identify land uses and developments that are exempt, permitted, discretionary or prohibited.
For example, a Landscape Protection Zone may have the overall objective of protecting and maintaining landscape values, including flora and fauna and scenery. To protect these values, industrial developments may be prohibited within the zone, agricultural activities may be permitted and commercial developments may be discretionary to allow Council to assess the likely impact of each proposed development. There may also be restrictions within the zone on building heights and a general policy to retain tree and vegetation cover.
Exempt Use and Development
If a use or development is exempt, no council approval is required.
Permitted Use and Development
If a use or development is permitted within a zone, the planning authority must approve the development application, provided it meets relevant development standards. A development application for a permitted use is not open for public comment, however conditions may be imposed under the planning permit.
Discretionary Use and Development
If a use or development is discretionary, the planning authority has the discretion to approve or reject the application, having regard to its potential impacts. The public are able to make representations in respect of applications for discretionary uses and the planning authority must consider all representations when assessing the development application and determining what (if any) conditions to apply.
Prohibited Use and Development
If a use or development is prohibited within a zone, a development application for the use will be refused. However, a developer can also seek an amendment of the planning scheme to rezone the land so that the use or development is no longer prohibited.
Planning schemes also set out what information an applicant must provide, and what a planning authority must consider when assessing a development application.
Obtaining development approval
Other than exempt development, any use or development (including new developments and the expansion of existing developments) needs to obtain planning approval from the local council.
To obtain planning approval, a developer must lodge a development application (including plans of the proposed development) with the planning authority, who assess the development against the planning scheme objectives and development standards, such as maximum building height or minimum lot size. After assessing the development application, the planning authority may issue a permit (with or without conditions) or reject the development proposal. It may also be required to refer the application on to the Board of the Environment Protection Authority (EPA) or a regional water corporation (such as Southern Water) for further assessment.
The basic process under the LUPAA
The basic process for the assessment of a discretionary development under LUPAA is as follows:
The planning authority may seek further information from the developer, to make sure that the planning authority properly understands the potential impacts of the proposal.
The planning authority gives notice of the proposed development by:
- placing an advertisement in the local newspaper;
- displaying the application in the local council offices;
- mailing a notice of the application to neighbouring properties;
- placing notice posters on the development site (s57(4)).
Any person can make a representation to the planning authority regarding the proposed development within the time limit set out in the notice (this must be at least 14 days from the date of the advertisement).
Council must consult with other agencies
Planning authorities may consult with relevant government agencies (such as the Department of State Growth or Tasmania Fire Service) to make sure that all potential impacts of the development are addressed. In addition, the planning officer will consult with all relevant council officers with an interest in the proposal, for example engineering, transport, environmental health and waste management.
If the proposal is for a Level 2 activity, it must be referred to the Board of the EPA. If the proposal will have an impact on water or sewerage infrastructure, the application must be referred to the regional water corporation.
Following consultation with relevant agencies and reviewing all representations received, the planning authority may grant a planning permit for the development (with or without conditions) or refuse to grant the permit. Conditions imposed on a planning permit should reflect any advice from relevant agencies and aim to ensure that all potential impacts of the development are appropriately managed. Any conditions recommended by the EPA or a regional water corporation must be included in the permit.
Appealing against the decision
The developer and any person who made a representation can appeal to the Resource Management and Planning Appeal Tribunal against the decision of a planning authority. An appeal must be lodged with the Tribunal within 14 days of being notified of the decision and accompanied by a filing fee (currently fees vary).
A person who did not make a representation regarding the development, may still be able to join an appeal if the Tribunal is satisfied that:
- they are a person whose interests are affected by the decision (such as a neighbouring landowner); and
- it was unreasonable for them to have made a representation (for example, if they were away when the development application was advertised).
The Tribunal will re-examine the decision that is the subject of the appeal. That is, it will look at the development proposal and associated considerations as if the first decision had not been made. The Tribunal has the power to make any decision that the planning authority could have made, including imposing conditions on the development proposal, rejecting or approving it (see s23 Resource Management and Planning Appeal Tribunal Act). The Tribunal also requires parties to participate in mediation, and often resolves planning disputes by consent agreement.
It is not always necessary to have legal representation in the Tribunal. However, planning and environmental law issues can be tricky, especially for people who have not had any experience with these matters. For complex matters, or where the other party has professional advice or representation, it may be advisable to get at least some initial advice from a professional experienced in environmental or planning law. Advice can come from a variety of sources, including lawyers, planners and engineers. You can contact the Tribunal to obtain a list of professionals willing to give you 15 minutes of free advice. Hobart Community Legal Service’s Planning Aid programme also provides free planning advice.
The only avenue of appeal against a decision of the Tribunal is to the Supreme Court of Tasmania based on a question of law.
Building permits are often required in addition to a development permit. The regulation of construction, alteration, or demolition of buildings is prescribed by the Local Government Act 1993, the Building Act 2000, the Local Government (Building and Miscellaneous Provisions) Act 1993 and related regulations and standards. Part 6 of the Building Act 2000 also sets out building practice standards relating to materials, building methods, fire safety designs, and energy efficiency requirements.
The definition of building work is extensive and covers the demolition or partial demolition of any building, structural alterations to houses, car parks and some fences and sheds. Only very minor work (such as gardens, low fences and retaining walls) is likely to fall outside the definition of building work, so it is desirable to check with the council to see whether you need building approval. Regulation 4 of the Building Regulations 2004 also provides a list of buildings and building work that are exempt from the need for planning approval.
Applications for building permits are lodged with the local council and must be accompanied by an application form and detailed plans and specifications. If work is done without approval, penalties may be imposed and orders may be issued preventing any further work being carried out or requiring unauthorized works to be removed.
In general, approval of the local council is required before any building work may be undertaken.
The regulation of standards of building practice is contained in the Building Regulations 2004, made under the Act. The regulations, which apply throughout Tasmania, include standards for certain materials, building methods and contain stringent design and management requirements for fire safety.
It should also be noted that councils are entitled to have regard to the design of the building and general aesthetics when assessing an application for building work.
Civil enforcement of planning laws
Civil enforcement proceedings may be brought under section 64 of LUPAA against a person who does not comply with a planning scheme or with the provisions of LUPAA. For example, civil enforcement proceedings may relate to:
- the failure of a local council to enforce its planning scheme;
- a use or development being carried on without a development permit; or
- a use or development being carried out in breach of the conditions of the permit.
Civil enforcement proceedings may be brought by:
- the planning authority;
- the Tasmanian Planning Commission; or
- any person who has a ‘proper interest in the subject matter’. The Tribunal will determine whether a person has a ‘proper interest’. This generally infers that the applicant will be personally, professionally or financially affected by a certain activity.
Civil enforcement proceedings involve making an application to the Tribunal for an enforcement order. The Tribunal has broad powers to make orders, including orders requiring the respondent to:
- temporarily or permanently refrain from the relevant activity (for example, to stop construction until a permit is obtained);
- stop carrying out any use or development on the land;
- make good any damage resulting from the breach (for example, replanting an area of vegetation cleared without a permit).
Civil enforcement proceedings must be brought within 2 years of the alleged offence.
Councils, individuals or other relevant authorities may also enforce planning or building controls by seeking an injunction in the Supreme Court preventing unlawful conduct.