Part SCHEDULE 6 - Savings and Trans - Land Use Planning and Approvals Act 1993 - SCHEDULE 6 - Savings and Transitional Provisions – Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015 | Zoe

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3. Saving of various instruments

(1) Despite the substitution of Parts 2A and 3 of the former provisions, if there was, immediately before the commencement day, a planning instrument in operation in relation to a municipal area, then, on and from the commencement day until an LPS comes into effect in relation to the municipal area –

(a) [Schedule 6 Amended by No. 36 of 2018, s. 26, Applied:17 Dec 2018] any planning directive that was in force immediately before the commencement day continues to apply in relation to the municipal area and may be modified or revoked under Part 2A of the former provisions as if that Part had not been substituted under the amending Act; and

(b) any planning purposes notice that was in force, in relation to the municipal area, under section 30EA of the former provisions continues to apply in relation to the municipal area; and

(c) [Schedule 6 Amended by No. 36 of 2018, s. 26, Applied:17 Dec 2018] . . . . . . . .

(2) Despite the substitution of Parts 2A and 3 of the former provisions, if there was, immediately before the commencement day, a planning instrument in operation in relation to a municipal area, then, on and from the commencement day until an LPS comes into effect in relation to the municipal area –

(a) [Schedule 6 Amended by No. 36 of 2018, s. 26, Applied:17 Dec 2018] the planning instrument remains in operation in relation to the municipal area; and

(b) [Schedule 6 Amended by No. 36 of 2018, s. 26, Applied:17 Dec 2018] Parts 2A and 3 of the former provisions remain in force in relation to the municipal area and accordingly a planning directive, and an interim planning directive, each within the meaning of the former provisions, may be made under Part 2A of the former provisions in relation to the municipal area; and

(ba) [Schedule 6 Amended by No. 36 of 2018, s. 26, Applied:17 Dec 2018] a planning directive, and an interim planning directive, each within the meaning of the former provisions, that is in force under, and is, after the commencement day, made under, Part 2A of the former provisions as they apply in accordance with paragraph (b) , applies in relation to the planning instrument; and

(c) a request, for an amendment to the planning instrument, that is made under section 33 of the former provisions may, by notice to the planning authority in relation to the planning instrument, be withdrawn by the applicant at any time before the draft amendment is approved under section 42 of the former provisions; and

(d) a draft amendment, to the planning instrument, that, before the day on which the LPS comes into effect in relation to a municipal area, has been initiated by a planning authority under section 34 of the former provisions, otherwise than pursuant to a request under section 33 of the former provisions, may, with the approval of the Commission, be withdrawn at any time by the planning authority before the draft amendment is approved under section 42 of the former provisions.

(2A) [Schedule 6 Amended by No. 7 of 2021, s. 23, Applied:14 Jul 2021] If a draft planning directive prepared under section 10 of the former provisions consists of provisions that meet the relevant conditions, the Minister may issue under section 13(1) of the former provisions a planning directive in the form of the draft planning directive, even though a report and recommendations have not been made, under section 12(5) of the former provisions, in relation to the draft planning directive.

(2B) [Schedule 6 Amended by No. 7 of 2021, s. 23, Applied:14 Jul 2021] For the purposes of subclause (2A) , provisions of a draft planning directive (the relevant directive) meet the relevant conditions if –

(a) the Minister has issued an interim planning directive under section 12A of the former provisions in the terms of the relevant directive; and

(b) the relevant directive consists only of any one or more of the following provisions of the SPPs, modified, if at all, for the relevant purposes:

(i) planning terms and definitions contained in clause 3.0 of the SPPs;

(ii) exemptions contained in clause 4.0 of the SPPs;

(iii) application requirements contained in clause 6.1 of the SPPs;

(iv) general provisions contained in clause 7.0 of the SPPs;

(v) development standards, relating to dwellings, that relate to the General Residential Zone or the Inner Residential Zone, as referred to in the SPPs;

(vi) other provisions that are necessary or convenient to include for the relevant purposes.

(2C) [Schedule 6 Amended by No. 7 of 2021, s. 23, Applied:14 Jul 2021] For the purposes of subclause (2B)(b) , the relevant purposes are –

(a) to enable the provisions of the SPPs included in the directive –

(i) to operate effectively when included, in accordance with the directive, in a planning scheme to which the directive is to relate; or

(ii) to operate effectively in conjunction with the provisions included in the planning scheme in accordance with any other planning directive that applies to the planning scheme; or

(b) to enable the provisions of the directive to operate effectively.

(2D) [Schedule 6 Amended by No. 7 of 2021, s. 23, Applied:14 Jul 2021] The Minister may, by a planning directive issued, in accordance with subclause (2A) , under section 13(1) of the former provisions, modify the provisions of a directive (the original directive) that was issued, in accordance with subclause (2A) , under section 13(1) of the former provisions, but only if it is necessary to modify the provisions of the original directive so as to ensure that the provisions, contained in a planning scheme in accordance with the original directive, will be consistent with the provisions of the SPPs as amended by an amendment of the SPPs made after the original directive was issued.

(3) [Schedule 6 Amended by No. 36 of 2018, s. 26, Applied:17 Dec 2018] A planning authority, before exhibiting a draft amendment of a planning instrument under section 38 of the former provisions, is to notify –

(a) the relevant agencies; and

(b) those State Service Agencies, or State authorities, that the planning authority considers may have an interest in the draft amendment of the planning instrument –

of the date on which the amendment of the planning instrument is to be exhibited in accordance with the former provisions.

(4) [Schedule 6 Amended by No. 36 of 2018, s. 26, Applied:17 Dec 2018] Subclause (3) does not apply in relation to a draft amendment of a planning instrument that is not required, under the former provisions, to be exhibited.

(5) [Schedule 6 Amended by No. 36 of 2018, s. 26, Applied:17 Dec 2018] A planning authority must not –

(a) under section 35 of the former provisions as applied by this clause, certify a draft amendment of a planning instrument; or

(b) under section 41A of the former provisions as applied by this clause, undertake a modification, or an alteration to a substantial degree, of a draft amendment of a planning instrument –

unless the planning authority is satisfied that the draft amendment is consistent with the TPPs, as in force before the relevant planning instrument is certified, modified or altered, respectively.

(6) [Schedule 6 Amended by No. 36 of 2018, s. 26, Applied:17 Dec 2018] The Commission must not –

(a) under section 42 of the former provisions as applied by this clause, approve a draft amendment of a planning instrument; or

(b) under section 41 or 41B of the former provisions as applied by this clause –

(i) modify, or alter to a substantial degree, a draft amendment of a planning instrument; or

(ii) require a draft amendment of a planning instrument to be modified or altered to a substantial degree; or

(iii) certify an altered draft amendment –

unless the Commission is satisfied that the draft amendment as so approved, modified, altered or certified, is or would be consistent with the TPPs, as in force before the draft amendment of the planning instrument is approved, the modification or alteration is made, or the certification occurs, respectively.

(7) [Schedule 6 Amended by No. 36 of 2018, s. 26, Applied:17 Dec 2018] For the purposes of the application of the TPPs in relation to a draft amendment of a planning instrument referred to in subclauses (5) and (6) –

(a) the aims and principles of the TPPs in relation to the Tasmanian Planning Scheme, as referred to in section 12B , are to be taken to be the aims and principles of the TPPs in relation to the planning instrument; and

(b) the TPPs may specify the manner in which the TPPs are to be implemented into a planning instrument referred to in subclauses (5) and (6) .

5. Saving of certain requests or draft amendments to alter certain requirements of planning instruments

(1) Subclause (2) applies in relation to a draft amendment of a planning instrument if –

(a) the draft amendment is a draft amendment, of a planning instrument, for the purposes of –

(i) altering the requirements of a particular purpose zone, or of a specific area plan, that was designated in the planning instrument to an area of land in a municipal area; or

(ii) establishing in the planning instrument a specific area plan in relation to an area of land in a municipal area; and

(b) the draft amendment has been initiated by a planning authority under section 34 of the former provisions before an LPS comes into effect in relation to the municipal area; and

(c) the draft amendment has not been approved under section 42 of the former provisions before an LPS comes into effect in relation to the municipal area.

(2) If this subclause applies in relation to a draft amendment of a planning instrument –

(a) Part 3B of this Act applies in relation to the draft amendment as if the draft amendment were a draft amendment of an LPS for the purposes of –

(i) altering the requirements of a particular purpose zone, or of a specific area plan, that is designated under the LPS to an area of land; or

(ii) establishing in the LPS a specific area plan in relation to an area of land in a municipal area –

as the case may be; and

(b) the planning authority may alter the draft amendment for the purposes of ensuring that it relates to the LPS; and

(c) if the draft amendment was initiated by the planning authority pursuant to a request under section 33 of the former provisions – the person who made the request may, by notice to the planning authority, withdraw the request at any time before an amendment of the LPS, that relates to the request, is approved under section 40Q; and

(d) if the draft amendment was initiated by the planning authority otherwise than pursuant to a request under section 33 of the former provisions – the planning authority may, with the approval of the Commission, withdraw the draft amendment at any time before the draft amendment is approved under section 40Q.

8B. Alteration of draft amendments to which clauses 4(2)(b) or 5(2)(b) apply

[Schedule 6 Amended by No. 28 of 2017, s. 4, Applied:05 Sep 2017]

(1) In this clause –

permitted alterations means alterations, referred to in subclause (3) , to the provisions of a relevant amendment;

relevant amendment means a draft amendment to which clause 4(2)(b) or 5(2)(b) applies.

(2) Despite clauses 4(2)(b) and 5(2)(b), but without limiting the generality of those clauses, the alterations that may be made by a planning authority to a relevant amendment include the permitted alterations.

(3) For the purposes of this clause, permitted alterations are alterations to a relevant amendment so that, in the opinion of the Commission, the relevant amendment –

(a) will conform to the requirements of the SPPs in relation to the LPS to which the relevant amendment relates; or

(b) will reflect the terminology used in the SPPs or the LPS, including, but not limited to including, where the relevant amendment relates to the designation of a zone in a planning instrument, by changing the designation of the zone to the zone in the LPS that most closely corresponds to the zone in the relevant amendment before the relevant amendment contains the permitted alterations; or

(c) will contain provisions that –

(i) are appropriately numbered; or

(ii) make correct references to provisions in the relevant amendment, in the LPS to which the relevant amendment relates, or in other instruments, including but not limited to the SPPs; or

(d) will achieve the effect intended, by the relevant amendment, before the permitted alterations are contained in the relevant amendment.

(4) The Commission may, in relation to a relevant amendment, take any one or more of the following actions:

(a) by notice to the planning authority, direct the planning authority –

(i) to modify the relevant amendment in the manner specified in the notice, so that the relevant amendment contains permitted alterations; and

(ii) to submit the relevant amendment, as so modified, to the Commission for approval under paragraph (b) ;

(b) approve, or refuse to approve, a relevant amendment as modified by a planning authority in accordance with a direction under paragraph (a) ;

(c) direct the planning authority to take action, under a provision of Part 3B of this Act, in relation to a relevant amendment that has been approved under paragraph (b) .

8C. Alteration of instruments to which clause 8(1) or 8A(1) applies

[Schedule 6 Amended by No. 28 of 2017, s. 4, Applied:05 Sep 2017]

(1) In this clause –

included document means –

(a) a specific area plan; or

(b) a particular purpose zone; or

(c) site-specific qualifications –

that is or are required, under clause 8(1) , to be contained in a draft LPS and an LPS or to which a declaration under clause 8A(1) relates;

permitted alterations means alterations, referred to in subclause (3) , to the relevant provisions;

relevant provisions means the provisions, of an included document, that are contained in a draft LPS.

(2) Despite clause 8(1) and clause 8A(2) , the relevant provisions may contain permitted alterations.

(3) For the purposes of this clause, permitted alterations are alterations to the relevant provisions so that, in the opinion of the Commission, the relevant provisions –

(a) will conform to the requirements of the SPPs in relation to the draft LPS in which the relevant provisions are included; or

(b) will reflect the terminology used in the SPPs or the draft LPS, including, but not limited to including, where the relevant provisions relate to the designation of a zone in a planning instrument, by changing the designation of the zone to the zone in the draft LPS that most closely corresponds to the zone in the relevant provisions before the relevant provisions contain the permitted alterations; or

(c) will contain provisions that –

(i) are appropriately numbered; or

(ii) make correct references to relevant provisions, other provisions in the draft LPS, or in other instruments referred to in the draft LPS, including but not limited to the SPPs; or

(d) will achieve the effect intended by the relevant provisions before they contain the permitted alterations.

(4) Alterations to the relevant provisions under subclause (3)(d) may consist of, but are not limited to consisting of, an alteration of an instrument referred to in a paragraph of the definition of included document in subclause (1) so that the instrument becomes, when included in a draft LPS, an instrument referred to in another paragraph of that definition.

(5) The Commission may, in relation to a draft LPS to which clause 8(1) or clause 8A(2) applies, take any one or more of the following actions:

(a) by notice to the planning authority, direct the planning authority –

(i) to modify the draft LPS in the manner specified in the notice, so that the relevant provisions contain permitted alterations; and

(ii) to submit the draft LPS, as so modified, to the Commission for approval under paragraph (b) ;

(b) approve a draft LPS as modified and submitted by a planning authority in accordance with a direction under paragraph (a) ;

(c) itself modify the draft LPS so that the relevant provisions contain the permitted alterations and –

(i) approve, for the purposes of paragraph (d) , the draft LPS as so modified; and

(ii) provide to the planning authority a copy of the draft LPS as so approved;

(d) direct the planning authority to take action, under a provision of Part 3A of this Act, in relation to a draft LPS that has been approved under this subclause.

8D. Inclusion in LPSs of certain code-applying provisions

[Schedule 6 Amended by No. 28 of 2017, s. 4, Applied:05 Sep 2017]

(1) In this clause –

code-applying provision means a map, overlay, list, or provision, that, immediately before the commencement day –

(a) was included in a planning instrument; and

(b) applied, to a provision of the planning instrument, a provision of a code that formed part of, or was referred to in, the planning instrument.

(2) If –

(a) a planning instrument that applied in relation to a municipal area immediately before the commencement day included, or referred to, a code immediately before that day (the planning instrument code); and

(b) the SPPs contain a code (the SPPs code) that is substantially similar to the planning instrument code; and

(c) the planning instrument, immediately before the commencement day, contained one or more code-applying provisions in relation to the planning instrument code –

a draft LPS prepared, and an LPS made, in relation to the municipal area under Part 3A of this Act must contain each of the code-applying provisions as modified, if at all, in accordance with a determination under subclause (7) .

(3) The Minister, after having consulted with the Commission, may declare that subclause (2) does not apply in relation to a code-applying provision, specified in the declaration, in relation to a municipal area specified in the declaration.

(4) Subclause (2) does not apply in relation to a code-applying provision specified in a declaration under subclause (3) , in relation to a municipal area specified in the declaration.

(5) The Minister may declare that –

(a) a requirement, of the SPPs, that relates to the formatting of a code-applying provision when the provision is included in a draft LPS and an LPS in accordance with subclause (2) ; or

(b) any other requirement, of the SPPs, that relates to a code-applying provision when the provision is included in a draft LPS and an LPS in accordance with subclause (2) –

does not apply in relation to a particular draft LPS and LPS or to all draft LPSs and all LPSs.

(6) If the Minister declares under subclause (5) that a requirement, of the SPPs, does not apply in relation to a particular draft LPS and LPS or to all draft LPSs and all LPSs, the requirement of the SPPs does not, despite any other provision of this Act, apply in relation to the particular draft LPS and LPS, or to all draft LPSs and all LPSs, as the case may be.

(7) The Commission may determine that a code-applying provision that is to be included in a draft LPS in relation to a municipal area is to be included in the draft LPS as modified in accordance with the determination.

(8) The Commission may only determine under subclause (7) that a code-applying provision is to be modified if the modification is necessary in order to ensure –

(a) that a correct cross-reference is used in the code-applying provision when it is included in the draft LPS; or

(b) the correction of a minor error in the code-applying provision; or

(c) the effective operation of the provision when it is included in a draft LPS.

(9) The Commission may, in relation to a draft LPS in relation to a municipal area, take any one or more of the following actions:

(a) by notice to the planning authority, direct the planning authority –

(i) to modify the draft LPS in the manner specified in the notice, so that the draft LPS contains a code-applying provision as so modified in accordance with the determination under subclause (7) ; and

(ii) to submit the draft LPS, as so modified, to the Commission for approval under paragraph (b) ;

(b) approve a draft LPS as modified by a planning authority in accordance with a direction under paragraph (a) ;

(c) itself modify the draft LPS so that the draft LPS contains the code-applying provision as so modified in accordance with the determination under subclause (7) ;

(d) approve, for the purposes of paragraph (e) , the draft LPS as modified under paragraph (c) ;

(e) provide to the planning authority a copy of the draft LPS as approved under paragraph (d) ;

(f) direct the planning authority to take action, under a provision of Part 3A of this Act, in relation to a draft LPS that has been approved under this subclause.

Part SCHEDULE 6 - Savings and Trans - Land Use Planning and Approvals Act 1993 - SCHEDULE 6 - Savings and Transitional Provisions – Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015 | Zoe