Indigenous Heritage law reform
The Department of Environment, Water, Heritage and the Arts (DEWHA) has released a paper proposing possible reforms to the indigenous heritage legislative framework (Paper), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act). The catalyst for reform is the acknowledgement that rather than effectively supplement state and territory laws, the ATSIHP Act has generated uncertainty as to the status of decisions made under other legislation, provoked disputes, led to duplication in decision making and contains a number of other weaknesses.
The Paper suggests 15 proposals which can be categorised into three broad areas: clarifying responsibilities, improving procedures and ensuring heritage protection. Some of the key proposals are discussed below.
Objects and purposes
The objects and purposes of the ATSIHP Act should be clarified to emphasise the underlying need for the legislative framework, rather than simply identifying what the ATSIHP Act intended to protect.
Indigenous Heritage protection standards
Best-practice Indigenous Heritage protection standards should be developed and applied across Australia. State and territory legislative processes for protecting Indigenous Heritage that meet those standards should then be accredited in order to facilitate a consistent national approach to Indigenous Heritage protection and remove unnecessary duplication of state and territory protection.
In practice, it is envisaged that a proponent would notify the Federal Government of their proposal, who in turn, would refer the matter for resolution to the relevant state or territory. Where the proposal concerned Commonwealth land, the Federal Government would retain responsibility for the determining the proposal.
Where state and territory processes are not accredited, amendments should be made to the ATSIHP Act to ensure that applications are not made to prevent an act which is already authorised under a registered Indigenous land use agreement (ILUA). This would result in a greater level of certainty and guarantee the effectiveness of ILUAs.
DEWHA is calling for submissions on the Paper until 6 November 2009.
Developer guilty of misleading and deceptive conduct over property advertisements and promised investment returns: Ackers v Austcorp International Ltd [2009] FCA 432
The Federal Court (court) recently considered the liability of developers for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) (TP Act) when advertising property to potential purchasers. In Ackers v Austcorp International Ltd [2009] FCA 432, the court ruled that:
- claims of a ‘guaranteed return’ made in advertising material can be misleading and deceptive when purchasers fail to realise those returns
- it is insufficient to rely on subsequent disclosure in a contract of sale or expect that prospective purchasers will be advised as to the true state of affairs by a professional adviser, and
- a parent company may not shield behind a corporate veil where the development is undertaken by a separate subsidiary company solely established to undertake the relevant project.
Facts
The case involved 24 applicants who had each purchased an off the plan apartment in a 4-star New South Wales Central Coast waterfront development (Resort). Advertisements for the properties stated that purchasers would have the ‘security of a 10-year lease…and a guaranteed seven per cent net return’ on their investment because rent was to be guaranteed by the lessee’s parent company, Pacific International Hotels (PIH). The lessee, Mustara Holdings Pty Ltd later went into administration and the subsequent Resort operators paid the applicants a return below seven per cent pa.
Applicant’s claim
Each applicant alleged that the advertisements, consisting of a brochure and leaflet, and the conduct of a real estate agent (agent) in reinforcing the advertisements’ claims amounted to misleading and deceptive conduct. It was argued that both the developer, Austcorp, and the agent had contravened section 52 of the TP Act because:
- there was a real risk that the applicants would not receive the promised seven per cent return if the operator failed to make a sufficient net profit
- the seven per cent return would depend on occupancy levels, and
- the guarantee by PIH was in fact only limited to 12 months rent.
The applicants argued that the misleading and deceptive conduct caused them to enter into the purchase contracts.
Austcorp’s failed defence
The respondent, Austcorp, unsuccessfully relied on the following in arguing that it did not mislead or deceive the purchasers.
Purchasers had legal representation
As some of the purchasers had engaged solicitors to represent them in the transaction, Austcorp argued that the solicitors should have explained the true nature of the proposed investment as contained in the contract of sale. The court dismissed this argument on the basis that it would entitle corporations to make misleading and deceptive statements by shifting the onus to professional advisers to correct any overstated representations.
Reliance on financial projections
In making the claims about ‘guaranteed return’, AustCorp argued that it had honestly relied upon the financial projections of other parties. The court again dismissed this argument, as Austcorp failed to undertake its own due diligence or analysis to determine whether the guaranteed return could be met and failed to undertake studies into future demand for accommodation. Therefore, it had no reasonable grounds for the representations.
Disclosure statement
Austcorp was aware that PIH had only committed to guaranteeing the lease for 12 months and consequently, it admitted in evidence that it was ‘not a sure thing’ that investors would receive seven per cent net on their investment each year for 10 years. In summarising the terms of the contract for purchasers, Austcorp noted that the lease was guaranteed by PIH but failed to mention that the guarantee was limited to 12 months.
Later, Austcorp relied on a disclosure statement to dispel its earlier misleading representations in relation to the guarantee. The disclosure statement, issued to prospective purchasers, stated in a convoluted fashion that the guarantee was limited to 12 months rent. The court held that the disclosure statement was insufficient to ‘disabuse anyone who had the patience to read’ past the first line which stated that the ‘guarantor unconditionally and irrevocably guarantees...the obligations [of the lessee] under the lease.’
Conditions of contract of sale
The contract included acknowledgements by the purchaser that he or she did not rely upon any warranty, representation or conduct of the vendor and has relied entirely upon his own enquiries and inspection, and the purchaser has satisfied him or herself of the financial and tax aspects of the transaction. Austcorp alleged that the contract of sale specifically provided that the entire agreement between the parties was contained in the contract notwithstanding any brochures produced or statements made by the Vendor.
If there was misleading and deceptive conduct, liability should be borne by Austcorp’s subsidiary
As it was Austcorp’s practice was to form a separate subsidiary company for each new project undertaken, it argued that the relevant subsidiary (Austcorp Development Management Pty Ltd) would be liable for any misleading and deceptive conduct as there was no direct contractual relationship between Austcorp and the purchasers. The court dismissed this argument and held that Austcorp was merely attempting to construct a corporate veil to shield itself from responsibility, as:
- communications for the project were made on Austcorp’s, as holding company, letterhead
- Austcorp was in a position of control over the marketing of the apartments in the resort
- Austcorp’s logo appeared in the brochure, leaflet and on signs around the building site, and
- senior executives of Austcorp, including its managing director, were responsible for the wording of the advertisements.
The advertisements were ‘mere puffery’
The court rejected this argument and held that the advertisements were not ‘mere puffery’ as in Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256. Here, the words of the advertisement were calculated to convey assurance, projected confidence and indicated to readers that the promised return was a ‘sure thing.’ The court agreed with the judgment of Keane JA in Downey [2005] QCA 199 at 92, who held that phrases such as ‘guaranteeing a result’ or ‘guaranteed success’ do not amount to puff, but are associated with a firm commitment for which responsibility will be taken.
Federal Court decision
The court rejected each of Austcorp’s arguments and ruled that Austcorp was guilty of contravening section 52 of the TP Act. Although recognising that the TP Act should not be used to protect those who fail to take reasonable care of their own interests, the court held that in these circumstances Austcorp should be held to the assertions and valuations it made in the brochures. To avoid this liability, Austcorp should have included a disclaimer on the brochure or advise prospective purchasers that they could not rely on it. In this case, the brochure contained no words of caution or qualification.
Land-swap deal with Minister invalidates Part 3A approvals: Gwandalan Summerland Point Action Group Inc v Minister for Planning
In a decision of the greatest importance for all developers who have entered, or propose to enter, into an agreement, other than a statutory agreement, with a Minister to provide public benefits (such as land) with the expectation of receiving a rezoning or planning approval ‘in return’, the Land and Environment Court has declared invalid a concept plan approval for residential development at Catherine Hill Bay, and a project approval for residential subdivision at Gwandalan, on the basis that there was a reasonable apprehension of bias in the Minister’s decision to grant those approvals because the Minister had entered into contractual arrangements with the developers for the transfer to the State of a quantity of land in exchange for the Minister using reasonable endeavours to effect a necessary rezoning and to give relevant approvals.
In Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140, decided on 31 August 2009, Justice Lloyd held that:
- the appropriate test for apprehended bias in a judicial officer is ‘whether a fair-minded and informed observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue’ (emphasis in original) – the ‘two mights’ test
- the ‘two mights’ test applies also to an administrative decision maker
- the Minister for Planning in making decisions on the relevant development proposals under Part 3A of the Environmental Planning and Assessment Act 1979 (EP&A Act) ‘was not performing a political function’ but was ‘exercising his powers as public office-holder in the capacity of an administrative decision-maker’ and was ‘thus subject to the ‘two mights’ test in the same way as every other public office-holder’
- in all the circumstances surrounding a Memorandum of Understanding (MOU) and a deed into which the Minister had previously entered with the proponents of the relevant developments, including public statements made in relation to them, ‘the fair-minded lay observer might … have apprehended that the Minister might not bring an impartial and unprejudiced mind’ (emphasis in original) to his decision on the proponents’ concept plan and project applications, and
- (in obiter) the Minister, in taking into account the MOU, the deed, or both, had taken into account an irrelevant consideration.
Accordingly, both the relevant concept plan approval and project approval were declared to be void and of no effect and were quashed.
The relevant MOU was made on 16 October 2006 between the Minister for Planning, the Minister for the Environment, and two development companies. While expressly declaring that nothing in it ‘shall be taken to fetter the discretion’ of either Minister in exercising functions under relevant legislation, the MOU declared the parties’ ‘objectives and firm intentions’ with respect to its subject matter. That subject matter included the foreshadowed transfer to the State of certain lands held by the developers, but only after the rezoning by the Minister for Planning of certain land with the effect that certain development on that land (which would otherwise be prohibited) would become permissible under Part 3A of the EP&A Act. The Minister for Planning also agreed to ‘use reasonable endeavours to allow [the developers] to achieve the development potential’ of the land by, amongst other things, the ‘approval of any concept plan submitted under Part 3A of [the EP&A Act]’.
A subsequent deed entered into on 1 September 2008 was in relevantly similar terms, but was made after a concept plan application and a project application for the development had been submitted.
In the meantime, a press release from the Department of Planning had announced that ‘Another 12,000 hectares of privately owned land will be transferred to public ownership for permanent conservation’ (emphasis added) and an internal departmental memorandum had described the deed as being ‘for the provision of environmental land on the Wallarah Peninsula in exchange for development at Catherine Hill Bay and Gwandalan’ (emphasis added).
On 2 September 2008, the day after the execution of the deed, the Minister for Planning:
- effected the necessary rezonings through gazettal of an amendment to the State Environmental Planning Policy (Major Projects) 2005
- granted concept plan approval for the Catherine Hill Bay residential development, and
- granted project approval for the Gwandalan residential subdivision.
In his decision, Justice Lloyd expressly distinguished the MOU and the deed in the case from statutory planning agreements (also known as ‘voluntary planning agreements’ or VPAs) made under the express authority of the EP&A Act, noting that the latter are subject to a requirement for public notification and a 28-day public inspection period, in Parliamentary recognition of the ‘danger’ that agreements between developers and the Minister for Planning ‘can subvert the proper operation of the planning and assessment process’.
Nonetheless, development agreements outside the statutory framework have been not uncommon in recent times, and accordingly the validity of any consent or approval granted to development which is the subject of such an agreement, and which is not protected by the EP&A Act’s 3-month limitation period for challenges to validity, must now be in doubt.
Cross vesting provisions introduced for Land and Environment and Supreme Courts
The Civil Procedure Amendment (Transfer of Proceedings) Act 2009 commenced on 9 June 2009 and introduces cross-vesting provisions into Division 2A of the Civil Procedure Act 2005 (NSW) (CP Act). The result is that proceedings may now be transferred between the New South Wales Land and Environment Court and the Supreme Court where:
- related proceedings are pending in the other court, or
- where the transferor court is satisfied that it is more appropriate for the proceeding to be heard in the other court.
Parties to the proceeding may apply for the transfer, or the court may order it of its motion.
‘Regional development’
A number of related legislative developments which commenced on 1 July 2009 establish a new concept of ‘regional development’. The changes are:
- the commencement of relevant provisions of the Environmental Planning and Assessment Amendment Act 2008
- the Environmental Planning and Assessment Amendment (Regional Panels) Regulation 2009
- the State Environmental Planning Policy (Major Projects) Amendment (Joint Regional Planning Panels) 2009 (Regional Panels SEPP), and
- the Joint Regional Panels Planning Order 2009 (Regional Panels Order).
Pursuant to the Regional Panels Order, Joint Regional Planning Panels (Regional Panels) have been constituted for all areas of the state other than the City of Sydney (for which a Regional Panel is not planned), the Western Region of the State, and the Wagga Wagga local government area.
Pursuant to the Regional Panels SEPP, the State Environmental Planning Policy (Major Development) 2005 (which the Regional Panels SEPP renamed from the State Environmental Planning Policy (Major Projects) 2005) now provides for classes of ‘regional development’ which will be determined by Regional Panels. Those classes of development include:
- designated development
- development with a capital investment value (CIV) of more than $10 million
- development which has a CIV of more than $5 million and in relation to which the relevant local council is the proponent or has a conflict of interests or which is for the purpose of ecotourism or is Crown development (among other circumstances)
- subdivision of land into more than 250 lots, and
- certain coastal development.
Regional development, however, does not include:
- development within the City of Sydney local government area
- development assessed under Part 3A of the Environmental Planning and Assessment Act 1979 (Part 3A Development)
- development which does not require consent, or where the consent authority is the Minister or a person or body other than a local council, and
- complying development.
Regional Panels will not entirely oust the role of councils as consent authority. Councils will still have the function, in relation to regional development, of receiving development applications and preparing an assessment report and recommendations to be provided to the relevant Regional Panel.
In conjunction with the introduction of the concept of regional development, the Regional Panels SEPP also amended certain provisions concerning the declaration of Part 3A Development. In particular:
- the Part 3A CIV threshold for residential, commercial and retail projects has been increased from $50 million to $100 million
- development of tourist-related facilities, major convention exhibition centres and multi-use entertainment facilities with a CIV over $5 million will be Part 3A Development if proposed for ‘sensitive coastal locations’, and
- certain classes of development in the ‘coastal zone’ have ceased to be Part 3A Development and are now regional development.
None of the changes referred to above apply to development applications of Part 3A applications which had been made but were not determined prior to 1 July 2009.
Planning Assessment Commission in operation
The Planning Assessment Commission constituted under the Environmental Planning and Assessment Act 1979, to which functions were first delegated by the Minister for Planning on 18 November 2008, has begun to make determinations.
The first such determination was made on 23 February 2009 in relation to the establishment of a laboratory, warehouse and office building for the Australian Red Cross in the Sydney suburb of Alexandria (within the Planning Minister’s electorate). Approval for the project was granted subject to conditions.
Another early determination was made on 27 April 2009, in relation to a concept plan for an IKEA bulky goods retailing showroom and warehouse with associated parking and office facilities in the Sydney suburb of Tempe (also within the Planning Minister’s electorate).
Approval for the concept plan was granted subject to conditions. Freehills represented IKEA in relation to this matter.
Planning Legislation Amendment Bill 2009 defeated, reintroduced with amendments
In the last Environment Quarterly, we reported that the Planning Legislation Amendment Bill 2009 (Original Bill), which proposed to introduce Development Assessment Committees, had been introduced into Parliament. The Original Bill was defeated in the Legislative Council on 11 June 2009 and was subsequently referred to the Parliamentary Dispute Resolution Committee (Committee).
On 10 September 2009 the Committee recommended that a new Bill, the Planning Legislation Amendment Bill 2009 (No. 2) (No. 2 Bill), should be introduced with amendments to the Original Bill. Although the No.2 Bill still proposes to establish Development Assessment Committees (DACs), limitations are imposed in respect of the operations of DACs. Amendments made by the No. 2 Bill include:
- Limiting the number of DACs by listing the suburbs in which Relevant Activity Centres are located. As we indicated in the last Environment Quarterly, the Victorian Government has stated that DACs will initially be established for the Principal Activity Centres located in Camberwell, Coburg, Doncaster Hill, central Geelong and Preston (High Street). After consultation with local governments, DACs will eventually be established for each identified Principal Activities Centres across metropolitan Melbourne
- before establishing, varying or revoking a DAC, the Minister must refer the matter to the Advisory Committee under section 151 of the Planning and Environment Act 1987 (Vic) (PE Act) for advice on the classes of permit applications which the DAC may decide. The Advisory Committee will, in turn, consult with the relevant municipal council and owners/occupiers of land and public authorities who are materially affected by the proposal
- requiring DAC meetings to be open to the public, unless specified exceptions relating to confidential information or legal advice are available, and
- requiring notice to be given under section 19 of the PE Act when the planning scheme amendment proposed to create an Activity Centre Zone or amend the boundaries of such a zone.
Environment Quarterly will keep you updated on the progress of the No. 2 Bill.
Government issues Response Papers in review of Planning and Environment Act 1987 review
The Victorian Government has released five response papers (Response Papers)1 in relation to its proposed reform of the Planning and Environment Act 1987 (Vic) (Act). The Response Papers propose reforms to address issues raised by public submissions to the discussion paper released earlier this year entitled Modernising Victoria’s Planning Act.
It is anticipated that a draft Bill incorporating these proposals will be completed by November. Comments will be then be sought before the Bill is presented to Parliament.
Major Transport Projects Facilitation Bill 2009 passed by Parliament
The Major Transport Projects Facilitation Bill 2009 (Vic) (MTPF Bill) was passed by Parliament on 17 September 2009, has received assent and is awaiting commencement. The MTPF Bill purports to facilitate major transport projects in Victoria pursuant to the Victorian Transport Plan (VTP), by establishing a single assessment process for certain ‘declared’ projects. The key features of the Bill are discussed below.
Declaration of major transport projects
The Bill applies to proposed transport projects which are considered to be of economic, social or environmental significance to either Victoria as a whole, or a particular region. The Governor, upon the advice of the Premier and Minister for Planning (Minister), will then declare the proposed project to be a ‘declared project’ to which the Bill’s assessment processes will apply.
Assessment method
Once the project has been declared, the Minister will then determine which assessment will apply to the project:
- the impact management plan (IMP) assessment process, or
- the comprehensive impact statement (CIS) assessment process.
Although both assessment processes act as a ‘one-stop shop’ for the granting of approvals, the Minister is still required to take into account criteria under the relevant existing approval legislation.
IMP assessment process
An IMP will be the appropriate assessment method where the land in question is either owned by a public authority, vested in the crown or reserved for a public purpose under the relevant planning scheme and where no works approval, heritage permit/consent, planning permit or planning scheme amendment is required (or has already been obtained).
Therefore the IMP assessment process will be used for simpler projects that require fewer approvals. Under this process, the proponent must prepare an IMP that:
- assesses the impacts of the project outlined in the Minister’s scoping directions
- identifies methods to avoid, minimise, manage or offset those impacts, and
- describes the reasons for selecting the preferred development option.
No public consultation is required, meaning the Minister will consider the impacts outlined in the IMP and can quickly determine whether the necessary approvals should be granted. The major advantage of this assessment method is that the Minister will approve or reject the proposal within 40 business days of receiving the IMP.
CIS assessment process
The CIS assessment process will be used in all other circumstances, ie. for larger projects that require approvals which necessitate public consultation, such as a planning scheme amendment.
This process requires the proponent to prepare a CIS for public exhibition. An Assessment Committee (AC) (similar to a planning panel) will then be formed to hold public hearings and receive submissions on the proposal and ultimately, make a recommendation that the Minister grant some or all of the approvals sought.
Timeframes
To promote an efficient assessment process, the MTPF Bill introduces timeframes for Ministerial decision making, such as:
- 10 business days to determine the impact assessment method to be used
- 25 business days to determine the impacts which must be considered by an IMP or CIS
- 20 business days to determine whether the CIS can be released for public exhibition, and
- 40 business days from receipt of IMP or AC recommendation to grant or deny approval.
Non compliance with these timeframes requires the Minister to provide the Premier with a written report outlining the reasons for the non-compliance.
Review options
To further ‘fast track’ the assessment and approval process, the MTPF Bill precludes appeals or review (including judicial review) of decisions under the Act, with the exception of the final approval decision.
Environment Quarterly will notify you when the MTPF Bill commences.
Crown Land Acts Amendment (Lease and Licence Terms) Act 2009
In the last edition of Environment Quarterly, we reported on the introduction of the Crown Land Acts Amendment (Lease and Licence Terms) Bill 2009 into Parliament. The Bill (Act) received assent on 5 August 2009 but will not commence until 1 July 2011 unless it is proclaimed earlier.
The Act amends a range of Acts to ensure that Crown land can continue to be used to support economic development in Victoria and attract private investment for significant public infrastructure works. The key amendment is the extension of the maximum available lease term for Crown land. Specifically:
- under the Crown Land (Reserves) Act 1978 and Forests Act 1958, an increase in maximum lease term from 21 years to 65 years
- under the Crown Land (Reserves) Act 1978, an increase in maximum lease term from three years to 10 years, and
- under the Crown Land (Reserves) Act 1978 and Land Act 1958, licence terms may exceed 10 years where the licensee leases adjacent land.
In addition, the Act creates a licence scheme for tour operators and activity providers on Crown land which is administered under the Crown Land (Reserves) Act 1978, Forests Act 1958, Land Act 1958, National Parks Act 1975 and Wildlife Act 1975.
Review of property laws announced
The Victorian Government has announced that the Victorian Law Reform Commission will undertake a review of the State’s property laws. The review will seeks to simplify and modernise existing legislation, the Property Law Act 1958 and Transfer of Land Act 1958, and will initially focus upon updating the law relating to easements and covenants.
Environment Quarterly will keep you updated on the progress of the review.
SEQ Regional Plan and Infrastructure Plan released
On 28 July 2009, Minister for Planning, Stirling Hinchliffe, released the South East Queensland Regional Plan 2009–2031 (Regional Plan) and the South East Queensland Infrastructure Plan and Program 2009–2026 (Infrastructure Plan).
Regional Plan
The Regional Plan replaces the South East Queensland Regional Plan 2005–2026 (Repealed Plan) and provides the new framework for managing growth, land use and development in the South East Queensland (SEQ) region. The Regional Plan was developed to respond to emerging growth management issues such as continued high population growth, housing affordability, traffic congestion, koala protection, climate change and employment generation. It makes a number of key changes to the Repealed Plan which include:
- expanding the coverage of the Regional Plan to include additional areas in and around Toowoomba
- extending the Regional Plan by five years from 2026–2031
- addressing climate change through:
- developing a SEQ Regional Climate Change Management
- establishing a greenhouse gas emissions trend for the region, annually monitoring trends, and developing a consistent methodology for assessing urban development
- ensuring councils take into account greenhouse gas emissions in local planning decisions for the first time
- setting a minimum yield of 15 dwellings per hectare for new development in urban growth areas
- establishing a Metropolitan Development Program to monitor land supply and facilitate delivery of land for residential and employment, and
- developing a new transport plan entitled Connecting SEQ 2031: An Integrated Regional Transport Plan to support the Draft SEQRP.
The Regional Plan is the pre-eminent plan for the SEQ region and takes precedence over all other planning instruments. Any plans, policies, codes or local government planning schemes that relate to the SEQ region must reflect and align with the Regional Plan.
Infrastructure Plan
The updated Infrastructure Plan outlines the government's infrastructure priorities for the SEQ region which will be implemented to support the Regional Plan. The Infrastructure Plan includes 32 new projects which are to be implemented over three phases: 2009-2013, 2013-2019 and 2019-2026. In addition to the new projects the Infrastructure Plan reports on the implementation, and updates the costing, of previously announced projects to reflect 2009 costs.
Sustainable Planning Act 2009 (Qld)
The
Sustainable Planning Act 2009 (Qld) (SP Act) has been passed by Parliament and received assent, but has not yet commenced. The reform is the result of the Queensland Government’s 2007 review of the
Integrated Planning Act 1997 (Qld) (IPA), entitled
Planning for a Prosperous Queensland: A reform agenda for planning and development in the Smart State.
The SP Act reforms Queensland’s planning and development system by repealing the IPA. Its stated aim is to achieve ecological sustainability by managing the effects of development on the environment, and coordinating and integrating planning at the local, regional and state levels.
The SP Act makes a variety of changes to the scheme created by IPA, but the basic structure of the assessment framework remains unchanged. Below is a summary of the key changes made to the Integrated Development Assessment System (IDAS), State and local planning instruments procedures, and appeals, offences and enforcement.
Integrated Development Assessment System
Chapter 6 of the SP Act amends the IDAS by:
- Creating two new categories of development
The Prohibited development category will be used where Queensland Planning Provisions declare development to be prohibited. This consolidates prohibited development provisions that were previously contained in other legislation.
Development that is declared to require compliance assessment will not need to obtain a development permit. Instead, it will be sufficient to obtain a compliance permit. A compliance permit will be appropriate for technical developments, where it is desirable to establish a quick and efficient development assessment regime.
- Reducing statutory timeframes
The SP Act reduces the timeframes for decision making and other actions, including:
- reducing the time a proponent has to respond to an information request from 12 to six months, to reduce application backlog, and
- reducing the time a proponent has to notify the assessment manager that it has complied with the notification requirements from 3 months to 20 business days. This will ensure the application is finalised within a reasonable time of giving public notice.
- Ministerial directions – Creating an fast-track approval process
Where a proposed development involves a state interest, the SP Act will now allow the Minister to issue a direction to assessment managers or concurrence agencies requiring them to decide an application within a specified (but still reasonable) period. The Department of Infrastructure and Planning notes that this amendment reflects the Bligh Government’s promise to fast track approvals for development involving a state interest.
- Deemed approvals for code assessable development
Chapter 6, Part 5 of the SP Act provides that applications for code assessable development will be deemed to be approved where the assessment manager fails to decide the application with the required period. Notably, the SP Act excludes a number of applications from the deeming provisions including applications for development in wet tropics areas, heritage places or protected areas.
State planning instruments
Chapter 2 of the SP Act amends provisions relating to state planning instruments, including state planning regulatory provisions, regional plans, state planning policies and standard planning scheme provisions. The key changes include:
- state planning policies and state planning regulatory provisions will be able to be jointly made by the Planning Minister and another eligible Minister where the subject matter is one administered by the eligible Minister. Currently, the Planning Minister alone is responsible for policies and provisions
- state planning policies will now be reviewed every 10 years
- standard planning scheme provisions can now be made, to overcome the complexity, uncertainty and inconsistency associated with many local planning schemes, and
- a streamlined process for making, amending and repealing all state planning instruments has been introduced.
Local planning instruments
Chapter 3 of the SP Act amends provisions relating to local planning instruments. Key changes include:
- local planning schemes will be reviewed every 10 years, rather than every eight years
- the process for asking a local government to apply a superseded planning scheme to a development has been simplified; however the timeframe for making an application under a superseded planning scheme has been reduced from two years to one year
- the process for making or amending a local planning instrument has been removed from the Act to become a statutory guideline, and
- the Minister’s powers to direct local governments to make or amend a local planning instrument have been expanded;
Appeals, offences and enforcement
The changes made by Chapter 7 are aimed at improving access to dispute resolution, and removing inefficiencies in dispute handling and offences. These changes include:
- expanding the discretionary powers of the court to award costs against commercial competitors and to determine whether a matter of procedural non-compliance can be excused
- changing the title of the Building and Development Tribunal to the ‘Building and Development Dispute Resolution Committee’ and expanding its jurisdiction to enable it to deal with matters such as whether a development application was correctly made and changes to development approvals, and
- giving assessing authorities greater discretion to proceed directly to issuing an enforcement notice, without having to first issue a show cause notice (which takes 20 days). Under section 588, the assessing authority could proceed directly to an enforcement notice where it is considers that it is ‘not appropriate’ to give a show cause notice in the circumstances.
Environment Quarterly will advise you when the SP Act commences.
Review of Town Planning Regulations
The Department of Planning (formerly Department for Planning and Infrastructure) has released a Discussion Paper reviewing the Town Planning Regulations 1967 (WA) (Regulations) and Model Scheme Text (MST) which govern and guide the preparation and amendment of Local Planning Schemes.
The need for review arises from the fact that the Regulations and MST were last updated in 1999, prior to the introduction of the Planning and Development Act 2005 (WA). Aside from updating references in the Regulations, some major structural changes are proposed.
These include:
- splitting the Regulations into two separate Regulations; to the Local Planning Scheme Regulations and the General Scheme Provisions Regulations, and
- the Local Planning Scheme Regulations would then regulate the making and amendment of local planning schemes. These Regulations would improve upon the status quo by providing increased detail as the creation and amendment process.
- the General Scheme Provisions Regulations would contain a list of general provisions that would apply to all planning schemes. This would allow local planning schemes to focus primarily upon local issues, thereby reducing the length and complexity of those documents.
- miscellaneous amendments including reducing consultation timeframes and clarifying that the Minister can direct a council to undertake a planning scheme amendment.
Real Property Regulations 2009 (SA) commence
The Real Property Regulations 2009 (SA) (RP Regulations) have been made under the
Real Property Act 1886 (SA) and commenced on 1 July 2009.
The RP Regulations repeal the:
- Real Property (Certification of Instruments) Regulations 1995 (SA)
- Real Property (Fees) Regulations 2002 (SA), and
- Real Property (Land Division) Regulations 1995 (SA).
The key provisions of the RP Regulations relate to the making of exemptions for certain types of transactions or instrument from the:
- prohibition against unlawful land division in section 223LB of the Act, and
- certification requirement in section 273 of the Act.
No developments for this quarter.
No developments for this quarter.
New State Policy on the Protection of Agricultural Land 2009
The Tasmanian Government has finalised the State Policy on the Protection of Agricultural Land 2009 (Policy) and it has subsequently been declared a Sustainable Development Policy.
The Policy was developed from the recommendations of the Resource Planning and Development Commission’s report on the Draft Policy and aims to provides greater certainty for farmers, local councils, developers, the forestry industry and the broader rural community about what ‘prime agricultural land’ means and the types of activities allowed on this land.
The Policy establishes 11 principles to govern future development on agricultural land and will be implemented through planning schemes and other relevant planning instruments. Key aspects of the Policy include:
- clarifying under what conditions residential development is appropriate in rural areas, and
- allowing the limited development of new ‘controlled environment’ agricultural enterprises, such as greenhouse-based agriculture, extractive industries including mining and quarrying and utilities on prime agricultural land.
Further controls on plantations may be imposed where councils can demonstrate the economy within their regions is dependent on reserving agriculture land for specific purposes.
A comprehensive set of practical supporting documents will be developed, in consultation with stakeholders, to assist councils in revising their planning schemes to reflect the new Policy.
Draft Land Use Planning and Approvals Amendment (State and Regional Strategies) Bill released
The Department of Justice (DOJ) has released the Land Use Planning and Approvals Amendment (State and Regional Strategies) Bill 2009 in draft form (Draft Bill). The Draft Bill proposes to amend the Land Use Planning and Approvals Act 1993 (Tas) (the Act) by introducing two major changes which are discussed below.
Projects of Regional Significance
The Bill proposes to insert a new Division 2A into Part 4 of the Act to allow for the issue of special permits for projects of regional significance. Eligible projects include those projects of regional planning significance, those requiring a high level of assessment or those that would have significant environmental impact.
The effect of a project being declared one of ‘regional significance’ is that it will no longer be subject to the usual permit process in section 51 of the Act or the combined amendment/permit process in section 43. Instead, the proponent must apply for a special permit under section 60T which will be determined by a Development Assessment Panel. Notably, the Minister for Planning (Minister) plays no role in the assessment or approval process.
Amendment to the Regional Planning Initiative
The second major change is the insertion of a new Division 1A into Part 3 of the Act in order to enable the interim planning schemes to become operational, pursuant to the Tasmanian Government’s Regional Planning Initiative. This amendment facilitates the implementation of new, consistent planning schemes in each Council, by ensuring that each new planning scheme can commence simultaneously without delay.
Without the amendment to the Act, the planning scheme would need to be assessed by the Tasmanian Planning Commission (TPC) (formerly the Resource Planning and Development Commission). The amendment allows interim planning schemes to be declared by the Minister and become operative on the date on which it is published in the Government Gazette. To become a permanent planning scheme, the interim planning scheme would require approval by the TPC.
Environment Quarterly will advise you when the Bill is passed by Parliament.
Endnotes
- Freehills summary of the Response Papers
More information
For information regarding possible implications for your business, contact a member of the Environment & Planning team.