The basis 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.