Major Infrastructure Development Approvals Regulations 2021

The regulations introduce no new statutory concepts. They are entirely parasitic on the Major Infrastructure Development Approvals Act 1999. The central concepts are the ones defined or used in that Act: “major infrastructure project”, “proponent”, “project”, “corridor”, “permit”, “use or development”, “assessment criteria”, and “Minister”. The regulations merely give operational content to the concept of “prescribed information” that appears in sections 8(1)(b), 11(3), 12(3)(b), 12(7) and 14(6)(b) of the Act.

The concept of a “report to the Minister” from the proponent is the mechanism by which a project is formally submitted. The regulations require this report to include a level of detail that effectively forces the proponent to pre-commit to significant expenditure on environmental, social and economic studies, constraints analysis and alternative route investigations, even before the Minister has indicated any interest in declaring the project a major infrastructure project. This is a deliberate gatekeeping device: only proponents with substantial resources will be able to assemble the required information. The concept of “public benefits” is required to be assessed in the report, including matters the proponent considers relevant to the public interest and the social, economic and environmental impacts. This framing puts the onus on the proponent to make the case for the project, rather than on the Minister to find reasons to accept it.

The concept of “draft criteria” under section 12 of the Act is the Minister’s proposed standards against which the project will be assessed. The regulations require these criteria to be publicly advertised and made available for representation. The 14 day minimum representation period is short by planning standards, arguably limiting the opportunity for meaningful public input. The concept of “finalised criteria” is simply the final version after consideration of representations, which must also be advertised. The regulations do not require any explanation of changes made between draft and final, nor any response to representations.

The concept of a “proposed corridor” under section 14 is a defined area through which the project will pass. The notice to landowners is the formal step that puts them on notice of potential acquisition. The regulations require a statement that the Crown may seek to purchase or acquire an easement. This is a significant property rights concept: the notice itself may affect the land’s marketability and the owner’s ability to deal with the land pending the outcome of the approvals process. The regulations do not address compensation for that interim diminution in value, only directing the owner to the compensation provisions of the Act.

The concept of “prescribed information” in these regulations is a classic example of delegated legislation filling in the gaps left by the parent Act. The effect is that the substantive requirements of the Act (such as the declaration of a major infrastructure project, the grant of a permit, the approval of a corridor) cannot be validly carried out unless the procedural steps meet the precise content requirements of these regulations. Failure to include any one of the prescribed items in a notice or report could render that step legally invalid, potentially requiring the entire process to recommence.

The regulations primarily affect project proponents, defined as the person or entity proposing the major infrastructure project. For a proponent, the regulations impose a detailed, costly and time-consuming information compilation obligation at the very outset. The proponent must gather not only technical and design information but also background on its own experience and financial capacity (regulation 4(2)(a)), which may not be commercially sensitive but is intrusive. The requirement to provide details of relevant Commonwealth and State legislation and State policy (regulation 4(2)(e)) forces the proponent to identify potential regulatory hurdles early, but also creates an indefinite obligation: the proponent must be aware of all potentially relevant legal instruments, with no safe harbour for omissions. The proponent also must specify whether it wishes the Crown to acquire and sell land to it (regulation 4(2)(h)), which is a significant concession that the proponent may rely on compulsory acquisition powers rather than negotiating purchases on the open market. This provision favours proponents who are willing to use State coercion to assemble land, reducing their transaction costs but imposing costs on landowners.

Landowners within proposed corridors are directly affected. Regulation 8 requires them to receive a detailed notice that includes the plan of the proposed corridor, contact details of the proponent, and an outline of their rights. This notice is not merely informational; it is the trigger for the owner’s rights of representation, appeal and compensation. The notice also includes a statement that the Crown may seek to purchase or acquire an easement, which may alarm landowners and affect their willingness to invest in improvements or negotiate with other buyers. The regulations do not require the notice to include any estimate of compensation or any timeframes for when acquisition might occur, leaving landowners in a state of uncertainty.

Applicants for permits are affected by regulation 5. Any person (including a proponent or third party) who applies for a permit in connection with a major infrastructure project must serve a prescribed notice on affected landowners before lodging the application. This gives landowners advance warning but also exposes the applicant to the risk that landowners will lodge representations or appeals under the Land Use Planning and Approvals Act 1993 or the Environmental Management and Pollution Control Act 1994. The regulations require the notice to outline the approvals process and its proposed timing, which may create legitimate expectations on the part of landowners about how quickly the project will proceed.

The public and stakeholders are affected by the advertising requirements. The regulations ensure that draft criteria are made available for public inspection and that there is a minimum 14 day representation period. This is a limited form of public participation. It does not require that the advertisement be placed in a newspaper that landowners are likely to read, only that it circulates generally in the region. The Minister is affected as the recipient of reports and notices; the regulations impose obligations on the Minister to ensure advertising complies with the prescribed form, but the regulations do not tell the Minister what to do with the information once received.

The Department of Justice is cited as the administering agency. The regulations do not impose duties on the Department directly, but the Department is responsible for the Gazette notification and presumably for maintaining the prescribed forms and processes.

The regulations impose specific duties on project proponents and permit applicants, and they activate certain rights for landowners and the public. The duties are almost entirely informational: what must be included in documents, not what substantive decisions must be made.

The principal duty is on the proponent under regulation 4 to include seventeen categories of information in the report to the Minister. This duty is triggered when the proponent chooses to submit a report under section 8(1)(b) of the Act. It is a strict duty: if any of the prescribed information is missing, the report is not a valid report for the purposes of the Act. The proponent also has a duty under regulation 4(3) to support the outline with maps, diagrams and other visual aids where appropriate. This is a relatively soft duty (“where appropriate and relevant”), giving the proponent some discretion, but it also creates litigation risk if a reviewing body later decides that visual aids were appropriate.

The permit applicant has a duty under regulation 5 to include specific information in the notice of making an application for a permit. This duty is triggered when the applicant decides to serve notice under section 11(2)(b). The notice must include a statement of the rights of representation and appeal under the Land Use Planning and Approvals Act and the Environmental Management and Pollution Control Act. This duty is important because it informs landowners of their procedural rights, which may not otherwise be known. The applicant also has a duty to outline the approvals process and its proposed timing - a potentially burdensome duty if the process is complex or uncertain.

The Minister has a duty under regulations 6 and 7 to ensure that draft and finalised criteria are advertised as prescribed. The Minister must place advertisements in a daily newspaper circulating generally in the region. The advertisement for draft criteria must contain six specific elements, including the minimum 14 day representation period. The Minister does not have to take any action on representations, only to advertise the finalised criteria. The duty is purely procedural: advertise, then wait, then advertise again.

Landowners receive rights under these regulations, but the rights themselves are created by the parent Act and other legislation, not by the regulations. The regulations merely require that those rights be outlined in the notice. Regulation 5(e) requires the permit application notice to state the rights of representation and appeal under the Land Use Planning and Approvals Act and the Environmental Management and Pollution Control Act. Regulation 8(j) requires the corridor notice to outline the right to compensation, including injurious affection. Regulation 8(k) requires a statement of the owner’s rights of representation and appeal. These disclosure duties are important because they give landowners actual notice of their legal entitlements, which they might not otherwise know. However, the regulations do not require the notice to explain how to exercise those rights, what time limits apply, or how to obtain legal assistance. The duty is to “outline” or “state” the rights, not to explain them.

The public has a right to make representations on draft criteria within the specified period (minimum 14 days). This right is created by the Act, but the regulations ensure that the public is informed of the opportunity via newspaper advertisement. There is no requirement for direct notice to neighbours or other potentially affected persons. The public also has the right to inspect finalised criteria once advertised, but no further opportunity to be heard.

The regulations do not create any duties on the Minister to consider representations or to give reasons for the final criteria. The Minister’s duty is exhausted once the final criteria are advertised. This is a minimalist procedural framework that gives the appearance of public participation without substantive engagement.

The regulations do not themselves create any penalties, fines, or criminal offences. They are legislative instruments that prescribe information; the penalties for non-compliance would arise from the parent Act or from the general law. If a proponent fails to include the prescribed information in a report, the report is likely not a valid report under section 8 of the Act. The consequence is that the Minister cannot validly receive and act on the report. This could delay the project indefinitely, or could be cured by amending the report and resubmitting it. Similarly, if a permit application notice under regulation 5 is defective, the notice may be invalid and the subsequent permit application may be procedurally flawed, potentially giving rise to a challenge in the Resource Management and Planning Appeal Tribunal.

The regulations do not specify any enforcement mechanism for the advertising requirements. If the Minister fails to advertise draft criteria in accordance with regulation 6, the draft criteria process may be void, and any subsequent decision based on those criteria may be ultra vires. An aggrieved person could seek judicial review. But there is no automatic penalty; the remedy is invalidity.

There are no provisions for enforcement by the Department of Justice or any regulator. The regulations are essentially self-executing: if the prescribed steps are taken, the process moves forward; if not, the process stalls. The only check is through litigation or appeal by affected parties.

The absence of penalties is characteristic of procedural regulations. The real sanction is the risk of legal challenge and delay. For a major infrastructure project, delay is often more costly than any fine. The regulations therefore create strong incentives for proponents and the Minister to comply meticulously, not because of a penalty provision, but because any defect could be exploited by opponents to derail the project. This is a form of private enforcement through litigation.

The regulations also do not create any offence of providing false or misleading information in a report or notice. That offence would be found in the parent Act or in the Criminal Code (Tasmania). The regulations simply require the information to be “contained” in the document; they do not impose a duty of accuracy. A proponent could theoretically include incorrect information with impunity, provided it is included. However, general law and other legislation would likely catch deliberate falsification.

The regulations do not exist in a legislative vacuum. They explicitly reference three other Acts: the Land Use Planning and Approvals Act 1993 (LUPAA), the Environmental Management and Pollution Control Act 1994 (EMPCA), and the State Policies and Projects Act 1993. They also implicitly interact with the parent Act, the Major Infrastructure Development Approvals Act 1999.

The interaction with LUPAA and EMPCA is primarily through the notice requirements. Regulation 5 requires the permit application notice to outline the approvals process and the rights of representation and appeal under LUPAA and EMPCA. This means the proponent must understand how those Acts apply to the project and must convey that to affected landowners. The regulations do not, however, require the notice to identify which provisions of LUPAA or EMPCA are relevant, or to explain the time limits for appeals. The interaction is informational only.

The corridor notice under regulation 8 similarly requires an outline of the approvals process under LUPAA and EMPCA. This is a broader obligation because the corridor notice is given earlier in the process, before a permit application has been made. It forces the proponent to anticipate the entire approval pathway and communicate it to landowners, who may then have a better understanding of how long the process will take. This may reduce uncertainty but also may create expectations about timing that are not fulfilled.

The reference to State policy under the State Policies and Projects Act 1993 appears in regulation 4(2)(e)(ii), which requires the proponent to include details of State policy relevant to the project. This is a potentially onerous obligation because State policies under that Act can be numerous and subject to change. The proponent must at an early stage identify which policies apply and how they affect the project. Failure to do so could lead to a challenge that the report is incomplete.

The regulations also interact with the common law of natural justice and procedural fairness. While the regulations prescribe minimum content, the courts may imply additional requirements, such as the need to give sufficient notice to allow a reasonable opportunity to be heard. The 14 day minimum representation period in regulation 6 may be challenged as inadequate for a complex project, but the regulation explicitly sets a floor, not a ceiling. A Minister who gives only 14 days runs the risk of a procedural fairness challenge.

Importantly, the regulations do not coordinate with other approval regimes such as the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) or the Tasmanian Threatened Species Protection Act 1995. Those are left to the general law and the proponent’s own diligence. The regulation 4(2)(e)(i) requirement to include details of Commonwealth legislation relevant to the project forces the proponent to identify any Commonwealth triggers, but the regulations do not require the report to address how those triggers will be resolved. The interaction is again informational.

In practice, compliance with these regulations is only one part of a larger web of approvals. A proponent who meticulously follows these regulations may still face years of separate assessment under LUPAA, EMPCA, and Commonwealth law. The regulations do not streamline the process; they only standardise the information that must be presented at each stage.

These regulations are the Major Infrastructure Development Approvals Regulations 2021, notified in the Gazette on 21 July 2021. They are a standalone set of regulations, not an amendment to earlier regulations. There is no indication in the text that they replace or revoke any previous regulations. Given that the parent Act dates from 1999, it is possible that these 2021 regulations replaced earlier regulations, but the source does not state that. The regulations appear to have been made under the enabling power in the Act, which permits regulations to prescribe matters required or permitted to be prescribed. No amendment history is provided in the text.

The regulations have not been amended since commencement, as far as the source indicates. The version provided is current as at 12 April 2026, according to the html links. There is no evidence of amending regulations between 2021 and 2026. This suggests that the information requirements have remained stable and that no policy changes have prompted amendment. Alternatively, it may indicate that the regulations were considered satisfactory as originally drafted.

The regulations are administered in the Department of Justice. The fact that they are administered by Justice rather than by an infrastructure or planning department is noteworthy: it suggests that the regulations are viewed as procedural and legal rather than as policy implementation. This may affect how compliance is monitored and enforced.

Because there is no amendment history, the regulations represent a fixed point in time. Anyone relying on them must check subsequent gazettes for any amendments that may have been made after the version provided. The absence of amendment history in the source does not guarantee that no amendments exist; it only means the source does not disclose them.

The source text does not mention any litigation or court cases involving these regulations. This is not surprising: the regulations are procedural and prescriptive, so most challenges are likely to be about the substantive decisions under the parent Act, not about the content of the regulations themselves. However, one can reasonably infer that these regulations have been the subject of appeals or judicial review in the Resource Management and Planning Appeal Tribunal or the Supreme Court of Tasmania, given that the parent Act has been in force since 1999 and that many major infrastructure projects are inherently contentious.

Typical litigation involving these regulations would include: (a) challenges to the validity of a notice to a landowner on the ground that it did not contain all prescribed information under regulation 8; (b) challenges to the adequacy of the advertisement of draft criteria or finalised criteria under regulations 6 or 7; (c) disputes about whether a proponent’s report satisfied the requirements of regulation 4, potentially invalidating the Minister’s declaration; (d) claims by landowners that they were not properly informed of their rights of representation and appeal under regulation 5 or 8, leading to a denial of procedural fairness.

The regulations themselves are unlikely to be struck down as ultra vires because they are closely tied to the enabling provisions of the Act. They do not expand the scope of the Act or create new duties that go beyond what the Act contemplates. The only conceivable ultra vires challenge would be if a court found that the regulations required information that is not reasonably related to the purpose of the Act, but the information required (such as the proponent’s financial capacity, details of alternative routes, etc.) is clearly relevant to the decision about whether to declare a major infrastructure project.

In the absence of specific case citations, a practitioner would need to conduct a search of the Tasmanian planning tribunal and court decisions for references to these regulations. Given that the regulations are from 2021, there may be limited case law, but earlier regulations under the same Act may have been litigated. The source does not provide that history.

The fact that no litigation is mentioned may mean that the regulations are uncontroversial or that disputes have been resolved without reported decisions. Alternatively, it may mean that the regulations are so prescriptive that compliance is straightforward, reducing scope for challenge.

Several features of these regulations can trap unwary proponents, government officers, and landowners.

First, the information requirements in regulation 4 are not optional. A proponent who submits a report that omits any one of the listed items may find that the Minister refuses to accept it or that a court later declares the report invalid. This is particularly dangerous for items that seem peripheral, such as “details of the consultation that has been undertaken with stakeholders and the outcome of that consultation” (regulation 4(1)(e)). If the proponent has not done any consultation, the report cannot truthfully include that detail. The regulation does not provide for a “no consultation” response; it requires “details of the consultation”. The proponent may need to do consultation before submitting the report, or risk a false statement.

Second, the requirement to include “details of potential social, economic and environmental impacts” under regulation 4(1)(d)(ii) is framed as what the proponent “considers relevant to the determination”. This gives the proponent some discretion but also creates litigation risk. If the Minister or a court later finds that the proponent failed to consider impacts that were obviously relevant, the report may be found incomplete. The proponent must exercise that discretion carefully.

Third, the timetable requirement under regulation 4(4) must include “land acquisition required for the project”. This is a sensitive item. If the timetable shows that land acquisition will occur early, it may alarm landowners and trigger opposition. If it shows acquisition late, it may be unrealistic. The proponent must trade off accuracy against strategic disclosure.

Fourth, the notice to landowners under regulation 8 must include “the provisions of section 14 of the Act”. This means attaching or reproducing the entire section, not just a summary. A landowner who receives the section may be alarmed by the power given to the Minister. More importantly, if the notice fails to include the full text of section 14, it is defective.

Fifth, the advertising requirements for draft criteria under regulation 6 require that the advertisement include “a statement that the advertisement means that the draft criteria have been advertised in accordance with section 12(3)(b) of the Act”. This is a curious self-referential requirement. If the advertisement omits this statement, it does not comply, even if every other element is present.

Sixth, the minimum 14 day representation period under regulation 6(2)(e) runs from the date the advertisement is published, not from any other notice. If the advertisement is published on a Friday, the 14 day period ends on a subsequent Friday. But if the advertisement is published just before a long weekend or Christmas, the practical window for making representations may be much shorter. The regulation does not address public holidays or business days.

Seventh, the regulations do not specify the consequences of non-compliance. There is no “substantial compliance” or “reasonable endeavours” defence. If the letter of the regulation is not followed, the step is likely void. This creates a trap for government officers who may think that a minor omission is harmless.

Eighth, the requirement in regulation 4(2)(h) for the proponent to state whether it wishes the Crown to acquire and sell land to it is a significant disclosure. If the proponent answers “yes”, it reveals that the proponent is relying on compulsory acquisition rather than market transactions. This may affect the Minister’s decision or public perception. If the proponent answers “no”, it may later need to change its position, requiring an amended report.

Ninth, the regulations do not interact with the Freedom of Information Act or privacy laws. Information provided in reports and notices, such as the proponent’s financial details and contact information, may become publicly available if the Minister releases the report or if it is tabled in Parliament. Proponents should be aware that information submitted under regulation 4 is not confidential.

Tenth, the requirement in regulation 5(d) to state “details of where and how the applicant for the permit may be contacted” is open ended. It does not say “telephone number and address” or “email”. An applicant could list a post office box and a general enquiries email, which may not be sufficient for meaningful contact. A landowner who cannot reach the applicant may argue that the notice is defective.

Compliance with these regulations requires meticulous attention to each prescribed element. There is no room for inference or implied meaning; the regulations use prescriptive language (“is to include”, “is to contain”). The recommended approach for each step is as follows.

For the report to the Minister under regulation 4, the proponent should create a check list from the subregulations. The report must begin with an executive summary. Then a full outline of the project under subregulation (2) must address each of the eleven lettered paragraphs (a) through (k). For each paragraph, the proponent should write a dedicated section. Paragraph (c) requires description of uses or developments, major buildings, structures, equipment, infrastructure, ancillary facilities and ongoing operations - each should be a separate subsection. Paragraph (e) requires details of Commonwealth and State legislation and State policy; the proponent should consider engaging legal advisers to identify all relevant instruments. Paragraph (f) requires geographical details including municipal areas, boundaries, constraints analysis and alternative route investigations. If no alternative route investigations were undertaken, the report should state that explicitly. Paragraph (h) is a critical strategic decision: the proponent must decide whether to expressly request Crown acquisition of land. The proponent should obtain legal advice on the implications of each option before answering. The outline must be supported by maps, schematic diagrams, aerial photographs and computer-aided representations under subregulation (3); the proponent should engage technical specialists to prepare these.

The timetable under subregulation (4) must cover seven timing items: planning and data collection, community consultation, surveys for corridor definition, land acquisition, stages of development, construction and post-construction rehabilitation, and completion. These should be presented in a Gantt chart or similar format, with estimated dates or durations. The timetable should be realistic but not overly detailed, bearing in mind that it will be used to assess the project’s viability.

The public benefits assessment under subregulation (1)(d) must include both public interest considerations and social, economic and environmental impacts that the proponent considers relevant. The proponent should err on the side of inclusion: listing potential negative impacts honestly is better than omitting them and being accused of bias.

Consultation details under subregulation (1)(e) and (f) must describe actual consultation and any planned future consultation. If no consultation has occurred, the proponent should either delay the report until consultation is done or explain why not (although the regulation does not expressly allow a “no consultation” response). It is safer to conduct at least some consultation before filing.

For the permit application notice under regulation 5, the applicant should prepare a standard form that includes all eight elements (a) through (g). The statement in (a) confirming the notice is under section 11(2)(b) is required. The statement in (b) that the permit will be lodged and specifying the place and day must be precise. The description of the use or development in (c) should be clear enough for a landowner to understand what is proposed. The contact details in (d) should include a phone number and email address. The statement of rights in (e) must reference both LUPAA and EMPCA if appropriate; if only one Act applies, state that. The outline of the approvals process in (f) should include the proposed timing. The outline of compensation rights in (g) should briefly explain the process.

For the advertisement of draft criteria under regulation 6, the Minister (or the delegated officer) must publish in a daily newspaper circulating generally in the region. The advertisement must include all six elements in subregulation (2). The representation period must be at least 14 days after publication; the advertisement should specify the exact end date. The advertisement should also state where and how copies of the draft criteria can be viewed or obtained. The Minister should also consider publishing on a website, though this is not required.

For the advertisement of finalised criteria under regulation 7, the same newspaper must be used. The advertisement must state that the criteria have been finalised and say where copies can be viewed or obtained.

For the corridor notice under regulation 8, the proponent must prepare a notice that includes all twelve elements (a) through (k). Element (f) requires the full text of section 14 of the Act to be included or attached. Element (g) requires the part of the plan of the proposed corridor that relates to the owner’s land; this should be a clear extract, not the entire plan. Element (j) and (k) require outlines of compensation and appeal rights; the proponent should use plain language but ensure legal accuracy. The notice should be served on each owner, presumably by registered post or personal service, though the regulations do not specify method.

A compliance audit after each step is recommended. The proponent or Minister should have a lawyer or compliance officer check each document against the regulations before serving or publishing. Any identified deficiency should be corrected immediately. If a document has already been served and is defective, the safest course is to re-serve or republish with the correct information and start the applicable time periods again. The risk of proceeding with a defective document is invalidity of the entire process.

Proponents should also keep records of all versions, corrections, and correspondence, as these may be relevant in any subsequent challenge. The regulations do not impose record-keeping obligations, but prudent litigation management suggests them.

Finally, proponents and the Minister should stay alert to any subsequent amendments to these regulations. The version provided is current as at 2026, but amendments may occur. Regular checks of the Tasmanian Legislation website are essential.