Land Use Planning and Approvals Act 1993

LUPAA affects virtually everyone in Tasmania who owns land, develops property, or operates a business involving land use:

• Landowners and developers: Required to obtain permits for most forms of development or change of use, unless exempt. Subject to the SPP and LPS requirements for their land.
• Planning authorities (councils): Responsible for preparing and amending LPSs, receiving and determining permit applications, and enforcing the planning scheme. Must observe and enforce the planning scheme (s 48).
• The Tasmanian Planning Commission: Responsible for assessing draft SPPs, draft LPSs, and certain amendments; conducting hearings; making recommendations to the Minister.
• The Minister administering the Act: Makes the SPPs, LPSs, and TPPs; issues planning directives; declares major projects.
• Major project proponents: Subject to the Division 2A major project declaration, impact statement and assessment panel process.
• Objectors and representors: Members of the public who make representations during exhibition periods for planning instruments or permit applications.
• State government agencies and referral bodies: Must advise on permit applications and major project proposals within their areas of expertise.
• Landowners adjacent to planning agreement land: Binding on successors once registered.

Planning authority obligations:

• Must observe and enforce the planning scheme in its area (s 48).
• Must enforce major project permit conditions (s 48AA).
• Must prepare an LPS consistent with the SPPs.
• Must assess permit applications against the applicable planning scheme provisions.
• Must give notice and hear representations during planning instrument amendment processes.

Landowner and developer obligations:

• Must not use or develop land in a manner inconsistent with the planning scheme unless exempt.
• Must obtain a permit before commencing use or development requiring a permit.
• Must comply with permit conditions.
• Must comply with enforcement notices issued by the planning authority.

Major project proponents:

• Must make a sensitive matters request to each relevant regulator before applying for a major project declaration (s 60BA).
• Must prepare a major project impact statement addressing the assessment criteria set by the Assessment Panel.
• Must comply with the public exhibition and hearing process.
• Must comply with any major project permit conditions.

Persons giving evidence at hearings:

• Must comply with notices issued by the Commission or Assessment Panel requiring information.

Minister's powers:

• Issue planning directives requiring amendments to the SPPs or an LPS (s 30BA and equivalent LPS provisions).
• Make the SPPs, LPSs and TPPs.
• Declare a project to be a major project.
• Amend a major project declaration to extend to additional areas of land (s 60TG).

Tasmanian Planning Commission:

• Prepare draft SPPs and LPSs for Minister decision.
• Assess draft LPSs prepared by planning authorities.
• Conduct public hearings on amendments.
• Issue guidelines for planning authorities (s 8A).

Planning authority:

• Determine permit applications including imposing conditions (Part 4, Division 3).
• Issue enforcement notices requiring works to cease or be remediated.
• Take compliance action including injunctions and removal notices (ss 48, 48A).
• Enter planning agreements with landowners (s 71).

Assessment Panel (major projects):

• Set assessment criteria for each major project.
• Prepare the initial assessment report.
• Conduct public exhibition and hearings.
• Grant, condition or refuse major project permits (s 60ZZM).

Resource Management and Planning Appeal Tribunal (RMPAT/Board of Appeal):

• Merits review of permit decisions.
• Review of enforcement decisions.

LUPAA contains a comprehensive enforcement regime in Part 4:

Compliance notices: Planning authorities may issue notices requiring persons to cease unlawful use or development, remove unauthorised structures or works, and restore land to its prior condition.

Enforcement orders: Courts may make orders requiring compliance, removal, or restoration. Breach of an enforcement order is itself an offence.

Fines: Unlawful use or development is an offence attracting fines. Continuing offences attract daily penalties for each day the breach continues.

Injunctions: Planning authorities may seek injunctions to prevent or require cessation of unlawful use or development.

Major project permits: Conditions of major project permits are enforceable. Planning authorities must enforce observance of major project permit conditions (s 48AA).

Planning agreement breach: Breach of a registered planning agreement may be enforced by court order in the same way as a permit condition breach.

Sign removal (s 48A): Unauthorised signs may be removed by the planning authority, with costs recoverable from the sign owner.

SPP making process:

1. Minister or Commission prepares terms of reference.
2. Draft SPPs prepared by Minister or Commission.
3. Approval for public exhibition.
4. Exhibition with representations (exhibition period specified in exhibition notice).
5. Commission considers representations and reports to Minister.
6. Minister makes the SPPs or returns draft with modifications.
7. SPPs come into effect in relation to each municipal area progressively (ss 29-30).

LPS making process:

1. Planning authority prepares draft LPS consistent with SPPs.
2. Public exhibition with representations.
3. Commission assesses draft against SPPs criteria.
4. Minister makes LPS on Commission recommendation.

Permit application process:

1. Application lodged with planning authority.
2. Notification to affected parties (where required by planning scheme).
3. Representations received.
4. Assessment against planning scheme.
5. Decision (grant, condition, or refuse).
6. Appeal to RMPAT/Board of Appeal within time limit.

Major project assessment process:

1. Sensitive matters request to each relevant regulator (s 60BA).
2. Proposal to Minister for major project declaration.
3. Minister declares project a major project.
4. Assessment Panel set up; assessment criteria determined.
5. Proponent prepares and lodges major project impact statement.
6. Panel prepares initial assessment report within 28 days of final regulator advice.
7. Public exhibition (notification within 14 days of initial assessment report: s 60ZZB).
8. Representations and hearings.
9. Panel decision on major project permit (grant, condition or refuse).
10. Appeal on question of law only.

State Policies and Projects Act 1993 (Tas): State Policies made under that Act may be incorporated in or inform the SPPs and LPS content. The planning system must be consistent with applicable State Policies.

Environmental Management and Pollution Control Act 1994 (Tas): Environmental protection legislation that interacts with planning controls. Some developments require separate environmental licensing regardless of planning permit status.

Land Titles Act 1980 (Tas): Planning agreements under Part 5 may be registered against title under the Land Titles Act, making them binding on successors in title (s 78).

Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas): Section 73A(3) of LUPAA explicitly provides that matters dealt with under s 86 of that Act may be dealt with in whole or in part under a LUPAA planning agreement.

Crown Lands Act 1976 (Tas): Amendments to major project declarations extending to Crown land require consent of the relevant Minister (s 60TG(7)(a)).

Environment Protection and Biodiversity Conservation Act 1999 (Cth): Proposals involving matters of national environmental significance (including projects in the Tarkine area) require Commonwealth EPBC Act approval in addition to, and independently of, any LUPAA permit or major project permit.

Fire Service Act 1979 (Tas): The definition of accredited person in s 3 refers to this Act. Accredited persons under the Fire Service Act may be accredited for certain planning purposes, and decisions consistent with approved bushfire hazard management plans attract liability protection (s 69A).

Existing use rights do not cover expansion or intensification: Section 12 protects existing lawful uses established before a planning scheme restriction. However, expansion, intensification or change of use beyond the existing use may not be protected and may require a permit under the new scheme.

LPSs must be consistent with the SPPs: If a planning authority wishes to include a provision in its LPS that is inconsistent with the SPPs, it will need to go through the SPP amendment process first. LPS-only amendments cannot override the SPPs.

Major project declaration changes the assessment pathway completely: Once a project is declared a major project, it no longer goes through the ordinary permit system. It is assessed by the Assessment Panel under the MPIS process. Failure to obtain a sensitive matters clearance from relevant regulators before applying for the declaration (s 60BA) can delay the process significantly.

Planning agreements bind successors in title: Under s 78, once registered, a planning agreement is binding on successors in title. Purchasers must conduct due diligence to identify any registered planning agreements on land they are acquiring.

Compensation on planning scheme restrictions is limited: While compensation may be available for restrictions reducing the value of existing lawful uses, the provisions are specifically limited. Planning authorities should consider compensation liability before including scheme restrictions applying to existing uses.

Protection from liability requires accredited person approval: The s 69A protection from liability for actions taken in accordance with bushfire or environmental hazard management plans only applies if the plan has been approved by an accredited person. Ad hoc hazard management decisions not covered by an accredited plan do not attract the protection.

Appeals from major projects are on questions of law only: Unlike ordinary permit decisions (where merits review is available before RMPAT), appeals from major project permit decisions are on questions of law only. This is a significant limitation on the rights of affected persons.

Residential development application: A landowner in a residential zone wishes to build a two-storey house on a heritage-listed parcel in a Hobart municipality. The LPS for that municipality (applying the SPPs heritage code) requires a permit. The application is lodged with the council, nearby owners and heritage bodies notified, representations considered, and the council assesses the application against the SPPs heritage code provisions. If granted with conditions, an aggrieved representor may appeal to the RMPAT on the merits within the prescribed time.

Planning agreement for infrastructure contribution: A developer proposes a large subdivision. As a condition of permit, the council requires the developer to enter a planning agreement under Part 5 providing for a cash contribution toward local road upgrades in stages as lots are sold. The agreement is registered on title under the Land Titles Act. If the developer sells the land before completing all stages, the registered agreement binds the purchaser to the outstanding contributions.

Major project: renewable energy installation: A company proposes a large wind farm in a rural area of north-west Tasmania meeting the eligibility criteria for major project declaration. It must first make a sensitive matters request to each relevant regulator (s 60BA). It then applies to the Minister for a major project declaration. If declared, the Assessment Panel sets assessment criteria. The proponent prepares a major project impact statement addressing habitat impacts, visual amenity, noise, shadow flicker, traffic and grid connection. After exhibition, hearings and Panel assessment, the Panel decides whether to grant a major project permit and what conditions to impose. Appeal rights are limited to questions of law.

Urgent SPP amendment: The Minister receives advice that a critical piece of strategic infrastructure cannot proceed under the current SPPs without causing significant planning scheme inconsistency. The Minister may invoke the urgent amendment process to modify the relevant SPP provision without the full exhibition and representation process, subject to conditions in the Act ensuring that affected parties are subsequently notified and able to seek review.