LUPAA is the major legislation relating to the regulation and control of development in Tasmania. 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 (local council area). 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 that are 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, scenic areas and important views. 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.
Planning schemes also set out what information a Council will consider when assessing a development application and must be consistent with State Policies. For example, the State Policy on Water Quality Management 1997 (known as the Water Quality Policy) requires local councils to establish, in partnership with the community and the Board of Environmental Management and Pollution Control, protected environmental values for specific water bodies, coastal areas and groundwater. These values are then incorporated into the planning scheme.
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 EPA or a regional water corporation (such as Southern Water) for further assessment.
Appealing a decision: the Resource Management and Planning Appeal Tribunal
The Resource Management and Planning Appeal Tribunal (the Tribunal) was established under the Resource Management and Planning Appeal Tribunal Act 1993 to consolidate a number of Tribunals dealing with planning and resource management decisions. The Tribunal is now the most important forum for the resolution of environmental and planning issues in Tasmania and nearly all land use disputes are heard in the Tribunal in the first instance. However, the Tribunal cannot hear disputes relating to forestry or the granting of mining or marine farming leases.
The Tribunal is less formal than a court and is intended to make it easier for members of the public to appeal against administrative acts and decisions. For example, the Tribunal is not bound by the rules of evidence, conducts public hearings and has a simpler, less technical hearing process.
For planning appeals, the Tribunal will re-examine the council’s decision and make a fresh decision. That is, it will look at the development proposal and consider all the issues as if it was in the Council’s position. The Tribunal has the power to make any decision that the council could have made, including imposing conditions on the development proposal, rejecting or approving it.