Sullivans Cove Waterfront Authority (Repeal) Act 2011

The central concept is abolition coupled with statutory succession. The Authority ceases to exist as a legal entity, but its regulatory acts are preserved and attributed to the Hobart City Council. The Act does not create a new decision-maker; it substitutes the Council for the Authority in all existing permissions, applications, appeals, proceedings and reports. The concept of “records” is defined broadly and includes any records pertaining to specific properties within the planning area that are relevant to the “associated matters”, which are the roles and functions under the four listed Acts (Land Use Planning and Approvals Act 1993, Building Act 2000, Local Government (Building and Miscellaneous Provisions) Act 1993, and Strata Titles Act 1998) (Schedule 1, clause 1). This is a relatively wide definition that goes beyond simple administrative continuity; it captures property-specific information that could be relevant to future planning or building decisions by the Council.

The planning scheme itself, the Sullivans Cove Planning Scheme 1997, is not repealed or amended by this Act. The scheme continues to apply within the same geographic area, but the responsible authority changes. The concept of the “planning area” as it existed under the repealed Act is preserved only through the definition of “records” (which references properties within the planning area) and through the continued operation of the scheme. The Authority’s role in planning scheme amendments under section 39 of the Land Use Planning and Approvals Act 1993 is also transferred: if the Tasmanian Planning Commission had received a report from the Authority before commencement, the Commission continues to consider it as if it had come from the Council (Schedule 1, clause 9).

The concept of a “decision” of the Authority is broad enough to include not only formal planning permits but also building approvals, consents, certificates, notices and orders. The Act ensures continuity of these decisions without requiring re-application or re-approval. However, the Act does not address what happens if a decision of the Authority was conditional on the Authority’s own future involvement; that condition would presumably become unenforceable or fall to the Council to perform. The Act also does not provide for any transitional period during which the Council could familiarise itself with pending matters; the transfer is instantaneous on commencement.

The concept of appointment revocation without compensation is notable. Members of the Authority lose their positions automatically and receive no benefit for that loss (Schedule 1, clause 2(2)). This is a blunt provision that avoids any payout or severance, but it also means the Council loses access to the institutional knowledge those members held, unless they are re-hired on different terms.

The final annual report concept requires the Department (the Department of Justice) to produce a report on the Authority’s operations for any unreported period ending on the day before commencement, including the five specific matters listed in section 42(2)(a) to (e) of the repealed Act (Schedule 1, clause 11). This imposes a compliance obligation on the Department to reconstruct the Authority’s activities for that period, which may be costly if the Authority’s record-keeping was incomplete.

The primary direct effect is on the Hobart City Council, which inherits the Authority’s entire regulatory workload without additional funding being mandated by this Act. The Council must absorb all pending permit applications, building approvals, appeals and enforcement proceedings. It must also take custody of all records (Schedule 1, clause 10). The Council must designate an officer to replace references to the Authority’s Chief Executive Officer in any existing permit or other authority (Schedule 1, clause 4). This creates an internal administrative burden: the General Manager must determine which officer is appropriate for each reference, and the Council must update its own systems to handle these inherited matters.

Developers, property owners and applicants within the Sullivans Cove planning area are directly affected. Anyone with a pending permit application before the Authority must now deal with the Council instead, and the statutory time limit for the Council to determine that application starts only when the Council receives the application from the Authority (Schedule 1, clause 5(2)). This means that if the Authority had already held the application for months before commencement, that waiting period does not count towards the Council’s decision deadline. The clock resets to zero. This is a clear disadvantage for applicants who had already submitted their materials but were awaiting a decision.

Anyone who had already obtained a permit, consent, certificate, approval or authorisation from the Authority before commencement is not materially affected; their permission continues in force as if granted by the Council (Schedule 1, clauses 3 and 14). Similarly, anyone subject to a notice or order issued by the Authority is now subject to that notice or order as if issued by the Council (Schedule 1, clause 15). However, the practical enforcement of those orders now falls to the Council, which may have different enforcement priorities or resources.

Appellants who had lodged an appeal against a decision of the Authority before commencement continue their appeal as if the decision were made by the Council (Schedule 1, clause 7). This is a straightforward substitution; the appellant’s rights are preserved. Similarly, any person who would have a right of appeal against a decision of the Authority after commencement continues to have that right, exercised against the Council as if it had made the decision (Schedule 1, clause 8). This affects potential appellants who were still within the appeal period when the Act commenced.

Persons involved in enforcement proceedings under sections 63 or 64 of the Land Use Planning and Approvals Act 1993, or under the Building Act 2000, that were commenced by the Authority are now defendants in proceedings taken over by the Council (Schedule 1, clauses 12, 13, 16). Their legal position does not change in substance, but the plaintiff changes from a specialised authority to a general-purpose local council.

The Tasmanian Planning Commission is affected insofar as it must treat reports from the Authority as if they came from the Council (Schedule 1, clause 9). The Commission does not need to re-start any process. The Department of Justice must prepare the final annual report on the Authority (Schedule 1, clause 11), which imposes a reporting cost on the Department.

Former members of the Authority are affected by the revocation of their appointments without compensation (Schedule 1, clause 2(2)). They lose their positions and any associated remuneration or benefits immediately.

The Act does not create new duties or rights for private persons. It transfers existing duties and rights from one public body to another. The key duty imposed is on the Hobart City Council: it must exercise all the powers and perform all the functions that the Authority previously held in relation to planning, building and related matters within the Sullivans Cove area. The Council has no right to reject inherited applications or to treat them as new matters, except that the statutory clock for permit determinations restarts upon receipt (Schedule 1, clause 5(2)). This reset is a right held by the Council, not by applicants; applicants lose any accrued time.

The duty to transfer records is imposed on the Authority (or whoever holds them) and on the Council to accept them (Schedule 1, clause 10). The duty to prepare the final annual report falls on the Department (Schedule 1, clause 11). The duty to determine which officer replaces references to the Authority’s Chief Executive Officer falls on the General Manager of the Council (Schedule 1, clause 4).

Rights are preserved for applicants and appellants. Any right of appeal against a decision of the Authority that existed before commencement continues as if the decision were made by the Council (Schedule 1, clause 8). This preserves the right to challenge decisions. Any proceedings commenced by a person against the Authority (e.g. under section 63 or 64 of the Land Use Planning and Approvals Act 1993) continue against the Council (Schedule 1, clauses 12 and 13). The Act does not expressly address whether the Council can be sued for decisions made by the Authority before commencement, but the substitution of the Council as the decision-maker for all purposes (clause 3) suggests it is the proper respondent for any challenge.

Notably, the Act does not give any private person a right to re-open a decision of the Authority simply because the decision-maker has changed. If a person was unhappy with a decision of the Authority that was not appealed within the relevant period before commencement, that decision is now final as a decision of the Council. The Act also does not create any right to compensation for delays caused by the transfer. Applicants whose clock resets have no recourse unless they can show unreasonable delay by the Council after receipt.

The Act does not create any new rights for the Council to vary or revoke permits or approvals inherited from the Authority. The Council steps into the Authority’s shoes with the same powers and limitations.

The Act does not introduce any new penalties. It transfers enforcement capacity from the Authority to the Council. Existing enforcement proceedings under sections 63 (enforcement orders) and 64 (injunctions) of the Land Use Planning and Approvals Act 1993 that were commenced by the Authority continue as if commenced by the Council (Schedule 1, clauses 12 and 13). This means that any person already subject to such proceedings continues to face them, but with the Council as the prosecuting party. The standard of proof and potential penalties remain unchanged under the underlying Acts.

Similarly, proceedings under the Building Act 2000 that were instituted by the Authority and not yet determined continue as if instituted by the Council (Schedule 1, clause 16). This could include prosecutions for building work without a permit, non-compliance with orders, or other building offences. Penalties under the Building Act 2000 (which may include fines and orders to rectify) remain applicable.

The Act does not create any offence for failing to transfer records or cooperate with the transition. There is no penalty for a person who fails to deliver records to the Council, though the Authority itself is abolished and cannot be penalised. The Act relies on the fact that the Authority’s staff are presumably transferred or managed by the Department.

The Act does not impose any penalty on the Council for failing to determine applications within statutory timeframes; the normal provisions of the Land Use Planning and Approvals Act 1993 apply. However, the reset of the clock (Schedule 1, clause 5(2)) gives the Council fresh time to consider inherited applications, which could be seen as a de facto extension of the determination period.

Enforcement of notices and orders issued by the Authority is now the responsibility of the Council (Schedule 1, clause 15). If a person fails to comply with an order that was originally issued by the Authority, the Council can take enforcement action as if it had issued the order itself.

The Act does not provide for any appeals against the transfer of proceedings. A defendant in an enforcement proceeding cannot argue that the Council lacks standing because the proceeding was originally commenced by the Authority; the Act expressly deems the Council to have commenced the proceeding.

The Act directly interacts with the Land Use Planning and Approvals Act 1993, the Building Act 2000, the Local Government (Building and Miscellaneous Provisions) Act 1993, the Strata Titles Act 1998, the State Service Act 2000, the Financial Management and Audit Act 1990, and the four Acts listed in Schedule 2 for consequential amendments (Building Act 2000, Marine and Safety Authority Act 1997, Sullivans Cove Waterfront Authority Act 2004, and Tasmanian Planning Commission Act 1997).

Under the Land Use Planning and Approvals Act 1993, the Authority previously acted as the planning authority for the Sullivans Cove area. This Act replaces the Authority with the Hobart City Council as the relevant planning authority for all purposes under that Act, including permit applications (sections 57, 58), planning scheme amendments (section 39), enforcement (sections 63, 64), and appeals (Division 3 of Part 4). The Act expressly provides that decisions, applications, appeals and proceedings under that Act continue with the Council substituted.

Under the Building Act 2000, the Authority was the permit authority for building work in the Sullivans Cove area. The Act transfers all applications, permits, consents, certificates, approvals, authorisations, notices, orders, proceedings and appeals under that Act to the Council (Schedule 1, clauses 14 to 17). The consequential amendments in Schedule 2 would presumably remove references to the Authority from the Building Act 2000, though the text of those amendments is not provided.

The Act also interacts with the Building Act 2016, which is referenced in Schedule 1, clause 8 (rights of appeal). The 2016 Act post-dates this 2011 Act, meaning the clause was amended later (by No. 12 of 2016) to include references to the Building Act 2016. This demonstrates that the transitional provisions are intended to operate dynamically with subsequent legislation.

The Local Government (Building and Miscellaneous Provisions) Act 1993 and the Strata Titles Act 1998 are listed in the definition of “associated matters” in Schedule 1, clause 1, but no specific transitional provisions relate to them. The records definition includes records relevant to those Acts, but the Act does not transfer any functions under those Acts to the Council. The Authority’s functions under those Acts presumably fell away upon repeal, unless those Acts independently conferred functions on the Authority that now revert to the Council by default. The source does not clarify this, creating a potential gap.

The State Service Act 2000 (section 36(3)) and the Financial Management and Audit Act 1990 (section 27(2)) are overridden by Schedule 1, clause 11(4) to allow the final annual report to be appended to the Department’s annual report. This shows that the Act deliberately departs from normal reporting requirements to ensure that a final account of the Authority’s operations is published.

The Tasmanian Planning Commission Act 1997 is amended by Schedule 2 to remove or update references to the Authority, ensuring that the Commission’s processes under the Land Use Planning and Approvals Act 1993 refer to the Council instead.

The Marine and Safety Authority Act 1997 is amended by Schedule 2, but the source does not reveal the content of those amendments. One can infer that the Authority may have had a role in marine safety within the Sullivans Cove area that now transfers elsewhere.

The Sullivans Cove Waterfront Authority Act 2004 itself is both repealed by Schedule 3 and amended by Schedule 2. The amendments must be read before the repeal takes effect, which is a standard legislative drafting approach.

The source provided does not contain an amendment history of the Act itself. However, the text of Schedule 1, clause 8 includes a note: “Amended by No. 12 of 2016, Sched. 1, Applied:01 Jan 2017”. This indicates that clause 8 was amended in 2016 to add references to the Building Act 2016. The original clause 8 as enacted in 2011 would have referred only to the Building Act 2000; the amendment added the Building Act 2016 to ensure that appeal rights under the newer Act are also preserved. The amendment was applied from 1 January 2017, which is presumably the commencement date of the Building Act 2016.

No other amendments are noted in the source. The Act as originally passed in 2011 has likely been amended only by that 2016 Act, though without access to the Tasmanian legislation register it is impossible to confirm. The absence of amendment history is a practical concern for a reader: the Act may have been amended further after 2016, but the source does not reveal that. A compliance professional would need to check the current version on the Tasmanian legislation website.

The consequential amendments in Schedule 2 are described only by reference to the Acts they amend, not by their content. Those amendments may themselves have been amended or repealed subsequently. For example, the Building Act 2000 was replaced by the Building Act 2016, so the consequential amendments to the 2000 Act may now be spent or require cross-referencing.

The repealed Act (Sullivans Cove Waterfront Authority Act 2004) is not reproduced, so its amendment history is irrelevant for this deep dive. The rescinded regulations (2005 and 2007) are also not reproduced.

The source does not reference any litigation history. No cases are mentioned in the text. It is possible that the commencement of this Act was delayed by litigation, or that the transfer of proceedings gave rise to appeals about the validity of the substitution, but the Act itself records none of that. The Act does include provisions that anticipate pending appeals and proceedings (Schedule 1, clauses 7, 8, 12, 13, 16, 17), which suggests the drafters expected active litigation at the time of repeal.

The transfer of appeals and proceedings to the Council could potentially give rise to litigation about whether the Council is properly constituted to handle matters that had been before a specialist authority. However, the Act expressly deems the Council to have made the decisions, so any challenge on that ground would likely fail. The absence of case law in the source means a compliance professional would need to search the Tasmanian Resource Management and Planning Appeal Tribunal decisions and the Supreme Court of Tasmania for cases applying these transitional provisions.

The Act’s provision denying compensation to former Authority members (Schedule 1, clause 2(2)) could have been challenged under employment law or unjust enrichment principles, but the source does not indicate that any such challenge occurred. The note in clause 8 referencing an amendment by No. 12 of 2016 suggests the Act was at least reviewed and updated, but not necessarily litigated.

Several provisions contain traps for the unwary. The most significant is the reset of the statutory determination period for pending permit applications. Under Schedule 1, clause 5(2), the period specified in section 57(6)(b) or 58(2) of the Land Use Planning and Approvals Act 1993 commences on the day the Hobart City Council receives the application from the Authority, not on the day it was originally lodged with the Authority. An applicant who had waited eight months for a decision from the Authority finds that those eight months do not count toward the Council’s decision deadline. The Council effectively gets a fresh period, potentially doubling or tripling the total waiting time. This is not merely an administrative inconvenience; it is a statutory extension that may affect development financing, construction timelines and contractual obligations.

The abolition of the Authority with no compensation to members (Schedule 1, clause 2(2)) is a trap for anyone who assumed that termination of a statutory appointment would carry some form of severance or notice period. The Act expressly denies any benefit in respect of the revocation. This clause might be overlooked by someone reading only the main sections and not Schedule 1.

The definition of “records” in Schedule 1, clause 1 is broad and includes records “pertaining to specific properties within the planning area” that are relevant to the associated matters. This means that even records that are not directly about the Authority’s own decisions but are about properties within the area (e.g. historical correspondence, survey reports, third-party studies) must be transferred to the Council. The Council must accept and manage this potentially large and diverse set of documents. A person holding such records who is not part of the Authority might be uncertain whether they must be transferred; the Act only says the Authority’s records are transferred, but the definition is broad enough to capture records held by the Authority, not by third parties.

The interplay between clause 8 (rights of appeal) and the Building Act 2016 is a trap. Clause 8 was amended to include the Building Act 2016, which post-dates the 2011 Act. A reader relying on a pre-2017 version of the Act would miss that amendment and might incorrectly assume that appeal rights under the 2016 Act are not preserved. The note in the source shows the amendment was applied from 1 January 2017. Anyone researching the Act must ensure they have the current version.

Schedule 2 lists consequential amendments but does not reproduce them. A practitioner amending a document that references the Authority must locate the amending Act (which is not provided) to see exactly what changed. The absence of this text from the source means the analysis here is incomplete; the amendments could contain substantive changes to other Acts, such as removing the Authority from definitions or conferring new functions on the Council.

The final annual report requirement (Schedule 1, clause 11) overrides sections of the State Service Act 2000 and the Financial Management and Audit Act 1990. This is an unusual override that could cause internal confusion within the Department of Justice about reporting lines and approval processes. The report is to be appended to the Department’s annual report, which may not satisfy the normal tabling requirements if those were designed for the Authority’s standalone report.

The Act does not allocate public funding to the Council for the inherited workload. The Council must pay for the transfer of records, the determination of pending applications, the conduct of ongoing proceedings, and the update of its own systems. This is a cost shift from the state government (which funded the Authority) to the Council (which is funded by Hobart ratepayers). Ratepayers ultimately bear the cost of the transition without any statutory cap or review mechanism.

Clause 2(2) revokes appointments and denies benefits, but it does not address what happens to employees of the Authority who were not members. If the Authority employed staff under contracts, those contracts are not automatically transferred. The Act is silent on staff transfer, which is a significant omission. Staff may have been absorbed into the Department or the Council, but the Act provides no guarantee of continued employment or terms.

Compliance under this Act is largely a matter for the Hobart City Council, the Department of Justice, and the Tasmanian Planning Commission. Private persons do not have new compliance obligations; they must deal with the Council instead of the Authority.

For the Hobart City Council, compliance requires the following steps. The Council must accept custody of all records transferred from the Authority and ensure they are properly integrated (Schedule 1, clause 10). The General Manager must promptly determine which officer of the Council replaces references to the Authority’s Chief Executive Officer in existing permits and other authorities (Schedule 1, clause 4). The Council must formally record that all decisions, permits, consents, certificates, approvals, authorisations, notices and orders of the Authority are now treated as its own (clauses 3, 14, 15). The Council must assume conduct of all pending enforcement proceedings and appeals (clauses 7, 8, 12, 13, 16, 17). For each pending permit application received from the Authority, the Council must note the new start date for the statutory determination period under section 57(6)(b) or 58(2) of the Land Use Planning and Approvals Act 1993 (clause 5(2)). The Council should communicate with all affected applicants to inform them of the change and the reset timeline, as failure to do so may lead to disputes about reasonableness. The Council should also update its website, application forms, and standard correspondence to remove references to the Authority and substitute its own name.

For the Department of Justice, compliance requires preparing a final annual report on the Authority’s operations for the period ending immediately before commencement, covering the five matters specified in section 42(2)(a) to (e) of the repealed Act (Schedule 1, clause 11). The Department must append that report to its own annual report, which may require internal approvals and coordination with the Department of Treasury and Finance given the override of the Financial Management and Audit Act 1990. The Department should also ensure that any outstanding administrative matters of the Authority are finalised before the abolition takes effect.

For the Tasmanian Planning Commission, compliance involves noting that any report received from the Authority under section 39 of the Land Use Planning and Approvals Act 1993 and not yet dealt with is to be considered as if received from the Council (Schedule 1, clause 9). No new process is required.

For private persons who were applicants or parties to proceedings, compliance involves monitoring the transition and addressing any correspondence to the Council rather than the Authority. Anyone with a pending application should reconfirm with the Council that the application has been received and note the new start date for the determination period. If the Council delays unreasonably beyond the statutory period, the applicant may have grounds for a deemed refusal or an appeal to the Resource Management and Planning Appeal Tribunal, as the normal appeal rights apply (clause 8). Anyone subject to a notice or order from the Authority must continue to comply, now under the Council’s enforcement authority (clause 15). Anyone involved in ongoing enforcement proceedings should verify that the Council has formally taken over the proceedings and update their legal representatives accordingly.

For developers and property owners within the Sullivans Cove area who have not yet applied for permits, compliance is unchanged: they must apply to the Council as the planning authority, not to the Authority, which no longer exists. The planning scheme remains the same, but the administrative body has changed.

The most prudent compliance step for any party relying on a permit or approval from the Authority is to obtain written confirmation from the Council that it accepts that document as its own. While the Act deems that to be the case (clause 3), practical disputes may arise if the Council’s records are incomplete or if a permit condition required ongoing interaction with the Authority. A confirmatory letter reduces future risk.