Land Use Planning Approvals Amendment (Tasmanian Planning Scheme) Bill 2015 No. 45 – in Committee

Read into Hansard on Thursday 29th October 2015

LAND USE PLANNING APPROVALS AMENDMENT (TASMANIAN PLANNING SCHEME) BILL 2015 (No. 45)

In Committee

Clause 5 agreed to.

Clauses 6 and 7 agreed to.

Clause 8 – Section 8 amended

Functions of Commission

Mr VALENTINE – Mr Chairman, I do not see regional land use strategies under clause 8.  I know the answer that might come is, that is because the councils have carriage of them.  If they are statutory documents, would the commission have some role to play?  Shouldn’t they be in this list under clause 8?

Dr GOODWIN – Mr Chairman, the functions of the commission are as they are in the current act, but they are amended by OPC here to reflect the new language of the Tasmanian Planning Scheme.  Not all of the functions or activities of the commission are covered in the list in clause 8.  It is a drafting matter for OPC.  We are not changing anything here.  It is making sure that the language is consistent with the new Tasmanian Planning Scheme.

Mr VALENTINE – It is not beyond the minister to say to the commission, ‘I want you to instigate a review of the strategies’?  That is what I am interested in.

Dr GOODWIN – There is no intention in this bill, or with the Government, to change the way regional land use strategies are developed at the moment, which is at the regional level.

Mr Valentine – It is just review.  I am not talking about development, sorry.

Dr GOODWIN – Same thing.

Clause 8 agreed to.

Proposed section 9 agreed to.

Proposed section 10 agreed to.

Proposed section 11 – Contents of planning schemes and Tasmanian Planning Scheme

Mr DEAN – Mr Chairman, I move –

That clause 10, page 22, proposed section 11, proposed subsection (2), after paragraph (d), be amended by inserting the following paragraph:

(x)     contain policies, objectives, and provisions, intended to promote health and wellbeing;

I understand the (x) is there so that when this amendment is supported, it will receive its appropriate numbering in the bill.  The honourable Leader may want to explain that in a better way.

[11.00 a.m.]

Mr VALENTINE – To my mind, Schedule 1, Part 2 is the place for this.  I had some discussions with the Heart Foundation about putting it here, and I said that in my opinion it was not the right place.  If you put this in here, then it opens the floodgates, it is health and wellbeing today, then people are going to come in and say we want to maximise tourism opportunities, we want to design out crime, we want to facilitate equity –

Mr Dean – Of course we should always design out crime.

Mr VALENTINE – Yes, but the point is that it does not belong here, those things belong in Schedule 1, Part 2.  I understand how important health and wellbeing is, and I understand the foundation’s desire to have it put into the planning process.  I think that is laudable, but there is a place for it and I do not know that this is the place.

Amendment negatived.

Mr VALENTINE – Madam Deputy Chair, a question on page 23:

(3)     Nothing in a planning scheme or the Tasmanian Planning Scheme affects –

(a)   forestry operations conducted on land declared as a private timber reserve …

and mining.  Are there access roads that might impact on local planning, not on the land itself, on the specific plot that might be a private forest?  I am interested to know whether the activities it generates are covered, that they can be taken into account somewhere else.

Dr GOODWIN – Madam Deputy Chair, this provision is plucked from the existing act.  There has been no policy change in relation to it.  That is the existing provision.

Mr VALENTINE – My question is in relation to activities associated with things like this.  If I can get some guidance as to how those things are dealt with.  Are they dealt with at the LPS level?  If a local council decides they have a problem with lots of heavy vehicles and road maintenance, that they have the capacity to be able to control where heavy vehicles might travel, or things to that effect.  I imagine that is in the LPS rather than the SPP?

Dr GOODWIN – In the example you talked about with heavy vehicles, ordinarily you would think that would be covered in the local provisions schedule, as long as it did not conflict with the Forest Practices Act.

Mr VALENTINE – That is fine.

I have another question on proposed subsection (5), where it says, ‘It is not a defence to a charge of an offence of using or developing land …’ – this does not affect any matter that is currently on foot, does it?

Dr GOODWIN – Again, this is an existing provision that has been there for some time so it is basically plucking it out of the old act.

Ms RATTRAY – In relation to clause 10, proposed section 12(7), which is on page 30 of the bill, I would like clarification of ‘substantially intensified’.  Could I have some sort of explanation?

Mr CHAIRMAN – I am sorry, member for Apsley, we are actually on proposed section 11.  You are looking at proposed section 12.

Ms RATTRAY – Apologies.

Proposed section 11 agreed to.

Proposed section 12 – Existing uses and developments

Ms RATTRAY – Apologies, Madam Deputy Chair, I am trying to make sure I cover all the issues that I have before me.  In proposed section 12(7) there is a reference on page 30 to: ‘Subsections (1), (2), (3) and (4) do not apply to, or in relation to, a use, of any land, building or work, that is substantially intensified.’  Could I have a definition of ‘substantially intensified’?

Dr GOODWIN – There is case law on the meaning of ‘substantially intensified’.  It is a term used in the act as it currently stands; again, it has been picked up and used.

Ms Rattray – I will need to google that.

Dr GOODWIN – We probably do not have any information.  It is on a case‑by‑case basis and there has been interpretation by the courts of the phrase.  We could get you some information on it but we do not have it to hand.

Ms Rattray – I would appreciate that.

Mr VALENTINE – In proposed subsection (4) on the top of page 29, where it talks about ‘a building, or restoration of works, that is or are destroyed or damaged’, has that been lifted out of the current act or is there a change?

Dr GOODWIN – Yes.

Proposed section 12 agreed to.

Proposed section 13 agreed to.

Proposed section 14 – Contents of State Planning Provisions

Mr MULDER – A brief clarification, I am looking at the contents of the State Planning Provisions.  Are those provisions the same as the standards that now appear?  Are we talking about things like setbacks, heights, area coverage – those sorts of objective, firm criteria about measurable quantities rather than subjective things like health and wellbeing?  We are talking about specific criteria here now.

Dr GOODWIN – It is use and development standards.

Mr MULDER – Which is what the current scheme has called use and development standards.

Dr GOODWIN – Yes.

Mr MULDER – The point I am trying to get across is they are not general statements of intent.  They are specific objective standards – criteria, if you like.

Dr GOODWIN – Generally speaking, yes.  Any planning schemes could have some provisions at the start talking in general terms about what the scheme does and is meant to achieve.

Mr VALENTINE – Subsection (1)(d) on page 33 –

may contain a provision permitting an LPS to provide for the detail of the SPPs in respect of, or the application of the SPPs to, a particular place or matter;

The main descriptor may exist in a subpart of a state provision.  Then for the state provision to be subservient to it?  Is this one of the situations where an SPP is subservient to an LPS provision?

Dr GOODWIN – It is not an overriding thing.  It is the detail of what it means for the local level.  The SPP is the code, for example, and the local provision provides the overlays or a list of properties.

Mr Valentine – Greater detail?

Dr GOODWIN – Yes, that is it.

Mr VALENTINE – Going down to (f) –

may contain a provision permitting the modification, in relation to a part of a municipal area, of the application of a provision of the SPPs;

Please explain this, with an example, perhaps.

Dr GOODWIN – This is enabling where a local provision may modify the content.  There might be a site‑specific modification and we come to the detail around that later on in the bill.

Proposed section 14 agreed to.

Proposed section 15 – SPPs criteria

Ms RATTRAY – We had a discussion yesterday through the second reading speech and at other times about state policies.  I am interested in relation to, for instance, the State Coastal Policy.  What takes precedence?  Can we have some understanding of how the current state policies, for instance the coastal policy, will work once the bill is enacted?

Dr GOODWIN – The state policies take precedence.  The definition of state policy is the same as it is currently.  Nothing is changing there.

Mr VALENTINE – Proposed section 15(3) – I need to understand this, especially the last stanza –

An amendment of the SPPs, or a draft amendment of the SPPs, is taken to meet the SPPs criteria if the amendment of the SPPs, or an amendment of the SPPs made in the terms of the draft amendment of the SPPs, will not have the effect that the State Planning Provisions, as amended, will cease to meet the SPPs criteria.

The ‘will cease’ is getting me.  I cannot quite get my mind around exactly what that means.

[11.30 a.m.]

Dr GOODWIN – What it is saying is that you can amend the SPPs as long as they are still consistent with the SPP criteria.

Mr Dean – Why doesn’t it say that?

Dr GOODWIN – It is drafting.

Proposed section 15 agreed to.

Proposed section 16 agreed to.

Proposed section 17 – Terms of reference in relation to draft of the SPPs

Ms RATTRAY – Madam Deputy Chair, I move –

That clause 10, page 38, proposed section 17, be amended after proposed subsection (3) by inserting the following subsection –

(4)     The Minister must consult with –

              (a)   the Commission; and

              (b)   the planning authorities, and

              (c)   the State Service Agencies, and the State authorities, as he or she  thinks fit-

         in respect of the preparation of any proposed terms of reference in relation to the preparation of a draft of the SPPs.

The explanation around that is that in clause 18, in the preparation of draft of the SPPs by the minister, this is a compliance factor.  When speaking with some representation that I had on the bill, I thoroughly considered this and felt that the terms of reference in drafting should also have the same consultation and the same process around that.  I do not think there is much more I can add to that, just to ask members to support the amendment in the interests of the terms of reference having the same compliance and consultation process as the preparation of the draft of the SPPs.

Dr GOODWIN – The Government does not support this amendment as it considers it is not required.  It is reasonable for the minister to set the terms of reference.  While the minister may consult with planning authorities, the commission and relevant State Service agencies and authorities in preparing the terms of reference, it is not considered this needs to be legislated for.

The minister is then required under the bill to consult with the planning authorities, the commission and relevant State Service agencies and authorities in preparing draft state planning provisions themselves.  As the act currently stands there are no terms of reference necessary or provided for.  The Government is certainly going much further here in these new provisions in terms of transparency.

Mr VALENTINE – I can understand where the member for Apsley is coming from.  We were talking about consistency yesterday and how there have been seven ministers in eight years.  In a way this politicises things.  I know the terms of reference have to start somewhere.  Does such a provision exist in the current legislation?  We have never had planning policy before on a statewide basis.  Is that the fact, or the reason?

Dr GOODWIN – There is no requirement in the current act to consult on the draft state planning provisions at all before they go out, certainly not in relation to terms of reference, which are not mentioned.

Mr VALENTINE – I am inclined to support the amendment.  When a minister puts forward the terms of reference, yes, the minister may want to put the government’s perspective in that, but they need to be achievable.  Without the consultation there is no real guidance.  You might say the minister is naturally going to ask the commission, or is going to ask the planning authorities.  I do not think that is the best way forward.  I believe this adds an important part.

Dr GOODWIN – To add a further point, the compliance checks in relation to the SPP criteria occur right throughout the whole process here.  So this is just adding an extra layer and potentially adding more time on the top of it, when really there is a huge amount of additional transparency in this whole process that is being added to what we currently have.  We do not really need to be adding more transparency because there is so much here already that has been added.

[11.45 a.m.]

Mr VALENTINE – This is a one-off process basically, because this is setting the terms of reference for the planning scheme.  This is not something that will be continually occurring.  It is not slowing the process down.  This is getting the ball rolling.  This will not add any extra burden to people using the system later in the day.

Mr Dean – It does, because you can consult with these people.

Mr VALENTINE – No.  I am sorry.  This is the terms of reference for putting the SPP, the preparation of drafts.  It is not something people will use on a daily basis.  It is not part of that.  It certainly may slow down slightly, I would suggest.  It does not necessarily have to take a long time.

Ms Forrest – It is going to happen anyway, it will not take any longer.

Mr VALENTINE – That is exactly right.  I would have to say of all the submissions received – and I have seen the stuff that has come, everyone has received it – this would have to be of most concern with regard to the terms of reference.  It is so simple to fix.  It is not a big issue.

Mr Dean – If the amendment said the minister may consult those people, I may have supported it, but the minister would consult with the people when he was doing this anyway.  It is not as though he can –

Madam DEPUTY CHAIR – No debate across the Chamber

The Committee divided –

AYES 4                                  NOES 9

Mrs Armitage                      Mr Armstrong
Ms Forrest (Teller)              Mr Dean
Ms Rattray                           Mr Farrell
Mr Valentine                       Mr Finch (Teller)
Mr Gaffney
Dr Goodwin
Mr Hall
Mrs Hiscutt
Mr Mulder 

Amendment negatived.

Proposed section 17 agreed to.

Proposed section 18 agreed to.

Proposed section 19 – Minister may direct Commission to prepare draft of the SPPs

Mr VALENTINE – Madam Deputy Chair, I move –

That clause 10, proposed section 19, proposed subsection (1), proposed paragraph (c), be amended after ‘determine’ by inserting ‘, with the agreement of the Commission,’.

There are a number of amendments which will address this particular issue throughout my amendments.  They will be taken in turn.  The purpose here is that the commission is a commission.  It is not simply a public service unit where you say, ‘You will do that, bang, get a result’.  In these instances the commission is being directed to do something and it is to do something within certain time frames which the minister thinks fit.

It may well be the commission has a greater understanding of exactly how long these things are going to take.  It seems unreasonable for a minister to be directing a commission to bring back something within a certain time frame if it is not achievable within that time frame within reason.

While it may be the minister consults, we need this legislation to make sure the minister does consult.  It is doing nothing more than making sure the commission is consulted when it comes to dealing with matters it has to deliver within certain time frames.  I do not think that is unreasonable.

[11.59 a.m.]

Dr GOODWIN – The Government does not believe this amendment is necessary.  Proposed section 19, subsection (3) already enables the minister to permit a longer period if the commission needs it.  We do not see the need for this amendment at all.

Amendment negatived.

Proposed section 19 agreed to.

Proposed section 20 – Minister may direct Commission to modify draft of the SPPs

Mr VALENTINE – Madam Deputy Chair, I move –

That clause 10, proposed section 20, proposed subsection (1), proposed paragraph (b), be amended after ‘period’ by inserting ‘, determined with the agreement of the Commission, that is’.

So you read this –

The Minister, by notice to the Commission, may direct the Commission –

(a)     to modify, in accordance with the notice, a draft of the SPPs submitted to the Minister …

We are talking about a significant document here, it could be a very significant document –

submitted to the Minister under section 19(3) or subsection (2); and

(b)     to submit to the Minister under subsection (2), within a period specified in the notice …

So, the minister is saying this is how long it is going to take you to do it.  I reiterate there are third parties to communicate with.  They may be providing the commission with extra information and they are not coming back in the time frame they would like.  There needs to be that consultation first.

I know in subsection (2) it says –

The Commission, within the period specified in a notice under subsection (1) or a longer period allowed by the Minister, must prepare and submit to the Minister a draft of the SPPs …

I guess the commission has the opportunity to go back.  To my mind, it would be better if they had consultation in the first instance rather than having to resort to that.

Dr GOODWIN – From the Government’s perspective this is exactly the same issue we dealt with in proposed section 19.  There is that capacity, as the member for Hobart has mentioned within subsection (2) for the minister to allow a longer period.  We do not believe this amendment is necessary.

Amendment negatived.

Proposed section 20 agreed to.

Proposed section 21 agreed to.

Proposed section 22 – Exhibition of relevant exhibition documents in relation to draft of the SPPs.

Mr VALENTINE – Madam Deputy Chair, I move –

That clause 10, proposed section 22, proposed subsection (2) be amended by leaving out ‘in a newspaper that is published, and circulates’ and inserting instead ‘in 3 newspapers that are published, and circulate’.

It is quite clear what this amendment is intended to achieve.  To put it in a newspaper is not equitable – I know it might be cheaper.  I would hope at the end of the day we are in a situation where the Government uses the Gazette and everyone has the Gazette online and can go to the Gazette for any public notices.  They do not have to have the expense of putting it in newspapers.  That would be a much better idea as the Government would save money.  It would not help the newspapers, but it would be a process that everybody knows.  If they want anything to do with the government notices, they go straight to the Gazette.  It is there.  It is online.  Not everybody has access online, even though they can go through the LINC services.  It is important it does say three newspapers.  You cannot imagine someone in Smithton having to buy theMercury every Wednesday or Saturday –

Ms FORREST – Everyone in Circular Head reads the Circular Head Chronicle.  So it needs to be four.

Mr VALENTINE – That is right.  One newspaper for the whole state I do not think is equitable.  That is why I have moved this amendment.

Dr GOODWIN – Madam Deputy Chair, the Government will support your amendments around the three newspaper requirement for the state planning provisions.  We do not support the three newspaper requirement for the local division schedules, because we think it is more than adequate for that to be published in one local newspaper.

Mr Valentine – Thank you.

[12.15 p.m.]

Mr MULDER – I am quite happy with the word ‘a’ newspaper.  Like with discretionary applications, they are to be published in a newspaper, and usually it is a daily newspaper that is circulated in the area, which I think is the only reason advertisements appear in Saturday’s Mercury – in fact we are keeping the Murdoch and the Fairfax presses alive with these requirements.  These are state provisions and I am happy with that.  But if you had the word ‘a’, it does not limit you to one, you can put it in many of the daily circulars.  It gets away from that whole issue of the numbers.

If we have an assurance from the Leader that they are state provisions and that they will be circulated in each of the regions in the daily newspaper –

Dr Goodwin – They are now, and they would continue to be.

Mr MULDER – That gets over this whole issue of publishing it in Hobart when you publish it in TheAdvocate anyway.

Mr Valentine – It is equity I want.

Mr MULDER – No, you like to support the Murdoch press.  I support the wording as it is because it allows the current practice to continue.  It does what happens with planning applications every day now when you get down to the local provisions.  It allows you to pick and choose whatever it was.  Also, newspapers are all talking about their declining circulation and their lack of advertising revenue.  You pick up The Examiner on Monday and you could be mistaking it for toilet paper because it is thinner.  Even talking about newspapers is getting a little bit problematic into the future.  I am happy with the ‘a’ newspaper circulating in the area.

Mr VALENTINE – I hear the arguments and I hear all the complications.  It talks about ‘published’ and ‘circulates generally’ in Tasmania.  I, too, would like to see a more equitable system online where most people can go and save heaps of money.  But it is not the situation we are in at the moment.  It is still the case that we have newspapers that are in three different areas, mainly, and we are talking about state planning provisions here.  It is important that everyone has the opportunity to see them, and this is probably the best way to go on this.

The Committee divided –

AYES 5                                  NOES 8

Mr Finch                               Mrs Armitage
Dr Goodwin                         Mr Armstrong
Mrs Hiscutt (Teller)             Mr Dean
Ms Rattray                            Mr Farrell
Mr Valentine                        Ms Forrest
Mr Gaffney
Mr Hall
Mr Mulder (Teller)

Amendment negatived.

Proposed section 22 agreed to. 

Proposed section 23 – Representations

Mr VALENTINE – Madam Deputy Chair, I move –

That clause 10, proposed section 23, after proposed subsection (2) be amended by inserting the following subsection:

(2A)  A representation in relation to a draft of the SPPs is made within the exhibition period in relation to the draft of the SPPs if the representation –

(a)       is submitted, before 6 p.m. on the last day of the exhibition period, to the exhibition premises; or 

(b)       is submitted, before midnight on the last day of the exhibition period, to the electronic address specified in the exhibition notice.

I explained this yesterday and it is quite simple.  It is an online situation where people are able to put their representations in electronically.  The period is 14 days and if you can get it there before midnight then basically it is a valid representation.  I know that there are situations where they may receive late applications but that is at their discretion and I do think that this is a situation that will overcome a problem that existed in the past.  I am aware of one occasion and there have probably been others where planning authorities have refused it.  It puts it quite plainly that 12 midnight is the cut-off.

Dr GOODWIN – The Government does not support this amendment.  While the Government acknowledges the intent of the amendment, the Government considers the amendment is not required and considers that it would lead to unnecessary inconsistencies both within this act and within other acts operating in Tasmania.  While the Acts Interpretation Act 1993 does not include a specific provision for the definition of ‘a day’, there is a general understanding both at common law and more broadly of what ‘a day’ is that would apply to statutory interpretation.

As the intention is to rely on the usual understanding of a day ending at midnight, there is no requirement for the amendment.  There would only be a need to legislate the length of the day if there was a policy decision to deviate from the common understanding.

There is also case law to support this decision, for example, RMPAT decision 107 of 7 November 2013, which is Sorell Council and Southern Cross Marine, established that under the plain meaning of the words ‘a day finishes at midnight’.  The word ‘day’ is used in relation to a range of provisions in the bill and the principal act, and to define it in relation to only a limited number of circumstances would create inconsistency and is considered unnecessary.

Mr Valentine – Basically you are saying that it is valid to submit something electronically prior to midnight.

Dr GOODWIN – Yes.

Mr Valentine – That will suffice, thank you very much.

Amendment negatived.

Proposed section 23 agreed to.

Proposed sections 24 and 25 agreed to.

Proposed Subdivision 5 – Making of special planning provisions

Mr VALENTINE – Madam Deputy Chair, I move –

That clause 10, heading to Subdivision 5, be amended by leaving out ‘Special’ and inserting instead ‘State’.

Dr GOODWIN – The Government thanks the member for Hobart for his diligence and we are very happy to accept this amendment.

Amendment to heading agreed to.

Proposed sections 26 to 30B agreed to.

Proposed section 30J –

Report to be given in relation to draft amendment of the SPPs that is not exhibited

Mr VALENTINE – Madam Deputy Chair, I move –

That clause 10, proposed section 30J, proposed subsection (5), be amended by leaving outall the words after ‘opinion of the Commission,’ and inserting instead –

‘a draft amendment –

       (c)   that is urgently required or is for a purpose specified in section 30H(3)(b); and

       (d)   in relation to which the Minister could reasonably be satisfied that the public interest will not be prejudiced by the draft amendment of the SPPs not being publicly exhibited.’

The reason for this, if you turn to proposed section 30H(3)(b), you will notice that it deals with quite a few reasons –

the draft amendment of the SPPs is an amendment for one or more of the following 

purposes:

It goes right through and there are nine of them.  Then it says –

and the Minister is satisfied that the public interest will not be prejudiced by the draft amendment of the SPPs not being publicly exhibited.

If you move to the area that I am attempting to amend, page 69, proposed section 30J, proposed subsection (5), it says –

A draft amendment of the SPPs, as modified by the Commission, may only be contained in the report in accordance with subsection (4) if the draft amendment as so modified is, in the opinion of the Commission, a draft amendment that is urgently required or is for a purpose specified in section 30H(3)(b). 

It does not actually incorporate the public interest bit, which is in that same section, if you can understand where I am coming from there.  It means that this proposed subsection (5) needs to take into account that public interest statement that is in the earlier clause.

Ms Forrest – That is in subclause (b), it is the end of subclause (b).

Mr VALENTINE – Which subclause are you talking about – proposed section 30H(3)(b), yes, it is.  But the statement that is in this is, ‘if the draft amendment as so modified is, in the opinion of the Commission, a draft amendment that is urgently required or is for a purpose specified’.  It is only for the purposes in that section, do you understand?  It is not just the purpose; it is the purpose and it is also being reasonably satisfied that the public interest will not be prejudiced.  I know it is convoluted.

Dr GOODWIN – The Government is happy with this amendment, on reflection, so we will support it.

Amendment agreed to.

Proposed section 32 – Contents of LPSs

Mr VALENTINE – Proposed section 32(7), page 92, the last subsection in that clause, says:

A provision of an LPS in relation to a municipal area is not to be taken to have failed to comply with this section, or to be inconsistent with a provision of the SPPs, by reason only that it is inconsistent with a provision of the SPPs that has not come into effect in relation to the municipal area.

Where you have a situation where an application has been received that seeks to change a zone or something like that, is it saying that if a developer has successfully applied for a change to an LPS to facilitate a development which consequently usurps a provision in the State Planning Provisions, that the development may proceed?

Dr GOODWIN – The SPPs do not come into effect in the local area until the LPSs are finalised, the local provision schedules.  If the SPPs have changed before the local provision schedule is finalised, that does not invalidate the LPS because there is still time for the LPS to be amended to be consistent with the changes to the SPPs.

Mr VALENTINE – So it is the other way around.  I am thinking of this from the other end.  I am satisfied.

Proposed section 32 agreed to.

Proposed section 33 – Interpretation of inconsistency in LPS

[2.48 p.m.]

Dr GOODWIN – Mr Chairman, I was in the middle of answering a question from the member for Rumney around PPZs and SAPs, et cetera.  PPZs – particular purpose zones – are new unique zones, major hospitals, university campuses, et cetera.  There are 33 in 30 current planning schemes, which is just over one per council.

Specific area plans, or SAPs, are additional controls but not replacing the underlying zones, for example, the former Kingston High School site, Wilkinson’s Point and Elwick Bay, Port Sorell and environs specific area plans.  There are 77 in the current 30 planning schemes, which is an average of 2.5 per council.

Mr VALENTINE – I refer to proposed subsection (5).  Now, I do not want to glaze the eyes over of anyone, but this is what it says,

Despite subsection (2), if a provision of the SPPs permits a provision of an LPS to modify, in relation to a part of the municipal area, the application of a provision of the SPPs (the modified provision), a provision of an LPS that modifies, in accordance with the provision of the SPPs, the modified provision prevails to the extent of any inconsistency with the modified provision.

That is like looking through a Launceston fog.

Mr Mulder – That is an example of the simplified process.

Mr VALENTINE – My question is about the words ‘modified provision’ and how you actually interpret those in proposed section 33(5).  Should it not be to the extent of any inconsistency with that modified provision or with itself or with the LPS’s modified provision?

Dr GOODWIN – It means that the modified provision prevails if it has been approved.  That is the way it has been drafted, but that is what it means.

Mr VALENTINE – I am still none the wiser because it is ambiguous as to what the ‘modified’ means.  I know it says in bold ‘the modified provision’ and that is ‘in relation to a part of the municipal area, the application of a provision of the SPPs (the modified provision)’.  If you read it carefully, it is ambiguous; ‘… the modified provision prevails to the extent of any inconsistency with the modified provision’ – the inconsistency with itself.  It does not read correctly.

It probably should say ‘with that modified provision’ or it should say ‘with the LPS’s modified provision’, I would have thought.

Proposed section 33 agreed to.

Proposed sections 34 and 35 agreed to.

Proposed section 35A – Commission may be required to provide draft LPS

Mr VALENTINE – I had a quick conversation with the head of the planning department in my own council.  I know this has been lifted straight out of the present act.  It is a fact.  I will read my amendment.  Mr Chairman, I move –

That clause 10, proposed section 35A, proposed subsection (5), be amended by leaving out ’14 days’ and inserting instead ’28 days’.

If you look at the work that has to be done here:

(4)     If the Commission has prepared a draft LPS in relation to a municipal area in accordance with a direction under subsection (1), the Commission must provide to the planning authority in respect of the municipal area –

          (a)    a copy of the draft LPS; and

          (b)    a notice stating that the planning authority may, within 14 days, provide to the Commission its comments in relation to the draft.

Then it goes on at (5):

(5)     A planning authority to which a draft LPS and a notice are provided under subsection (4) may, within 14 days, provide to the Commission the planning authority’s comments in relation to the draft LPS.

Fourteen days just does not give an opportunity for the elected members of that council to even get across what these comments must be.  Let us face it, they represent the community and it takes a month.  It takes a month through the process.  Comments are made.  It goes out to the elected members.  They have their committee meetings.  The comments come back.  It goes to a council meeting.  Comments are approved, and then they go back.

I will listen to the Leader of course, but I would be very interested to know what the habit is there in terms of the number of days it takes at the moment, if that can be equated to the present schemes and alterations, if I can put it that way.  I need to hear what the Leader will say about that.

Dr GOODWIN – Mr Chairman, the Government does not support this amendment.  This time frame is consistent with the current act, and is included in the bill because the entire parts of the current act dealing with planning schemes and planning directives will be replaced with new parts for the Tasmanian Planning Scheme, that is, the State Planning Provisions and Local Provision schedules.  The time frame has been in operation for some time, and no issues with the time frame have been raised by local government or other stakeholders.  At the briefing provided by LGAT yesterday, LGAT responded that no issues had been raised by planning authorities and they were not aware of any concerns with this time frame.

Mr VALENTINE – Do we know whether there have been occasions where it has taken a lot longer than 14 days?

Mr DEAN – Mr Chairman, I cannot support the amendment either.  I sat down with the President of the Local Government Association and went through a number of parts of the bill to ask if they had any issues or concerns.  They did not raise that as an issue or concern.  I am not aware of that ever having arisen, and am unaware of any complaints.

Mr Valentine – That is what I asked.

Mr DEAN – The members who have put the bill together have heard of that – or the taskforce in putting this together.  I would have thought it would have been included if it had and an amendment would have been included.  We are talking about local provisions as well.  There would be some background knowledge with the planning authorities.  I cannot support the amendment, unless you are able to bring forward further evidence of complaints and where it has not been met previously.

Mr Valentine – With respect, that is what I asked the Government.

Mr DEAN – If that is so, then I would rethink my position.

Dr GOODWIN – The TPC has never used this section.  They have never had to.

Mr Valentine – That is all I need to know.  Thank you.

Amendment negatived.

Clause 17 – Section 54 amended (Additional information)

Mr MULDER – As I said, I was unaware whether you have.  If you have placed those facts on the record that is fine.  I was distracted by seeking advice from your adviser’s advisers at the time.

Mr Chairman, I move –

That clause 17, page 196, proposed subsection (2AA), be amended by leaving out ‘5 years’ .

Insert instead ‘2 years, or a longer period agreed to by the applicant and the planning authority,’.

Dr GOODWIN – To clarify, it is not a discretionary permit but it is also where it is a discretionary permit.  It applies to not only permitted use but where it is not a discretionary permit as well.

Mr Dean – Is the Government supporting this?

Dr GOODWIN – Our preference was the original wording but we will listen to what other members have to say on this.

Mr VALENTINE – The analogy drawn around the CH Smith site in Launceston is not the same.  This is about if additional information is not provided if they have asked for additional information.  It has nothing to do with the lapse of a permit in general terms.  In any event, I think the two-year thing under the Hobart City Council’s planning scheme is ‘substantially commenced within two years’.

Mr DEAN – The member for Hobart is right.  That is what it says.  Once a development application goes through, it must be substantially commenced within that two‑year period.  If it is not completed within the two-year period you can then seek an extension of another one or two years.  Then, that is it.

In relation to this matter, the CH Smith site is a great example.  The whole thing has gone on for an inordinate period.  Now, development has commenced, and the member for Launceston probably knows better than I the decisions made in relation to that development recently, in her time when she was there.  The development started, now they have pulled back from it and it sits idle again, partly demolished.

Amendment agreed to.

Clause 19 – Section 58 amended (Application for other permits)

Mr GAFFNEY – Mr Chairman, I move the following amendments to clause 19 –

First amendment:

Page 197, paragraph (b), leave out the paragraph.

Second amendment:

Same page, paragraph (c), leave out the paragraph.

Third amendment:

Same page, paragraph (d), leave out the paragraph.

There has been plenty of conversation around the table, in the briefing notes and many members mentioned it, so I am not going to speak to it, I am just going to put it.  If I need to get up for the second and third time I will, but I suggest the Government see sense in this and hopefully it will accept.

Mr VALENTINE – I feel for those councils out there that have to make these things happen in a certain time frame.  I was talking about one between 14 and 28 days a minute ago.  With 646 development applications in a large council like the Hobart City Council, whether they are permitted or not, they still have to be assessed.  It cannot be assessed, I do not think, in a sustainable way in 21 days.  It needs to be 28 days.  I support the motion.

Mr VALENTINE – Mr Chairman, we have to understand we are the second highest performer of the states when it comes to returning things on time.  It is not as if we are slack.  We have to understand this is a matter of us saying there is an unintended consequence of dropping it from 28 to 21 days.  It is not trying to be obstructionist to the Government’s wishes and desires and what they stated at an election.  It is saying it is not practical nor sustainable.

Amendment agreed to.

Clause 19 as amended agreed to.

Clauses 20 to 32 agreed to.

Clause 33 – Section 66 amended (Right to compensation)

Mr VALENTINE – I draw members’ attention to page 204, clause 33(c), where it says –

by omitting from paragraph (b) ‘under section 38’ and substituting ‘section 40H’; 

The ‘under’ should not have come out.  It has been picked up.  It is agreed by the Office of Parliamentary Counsel that it is an error and it will be fixed at the vellum stage.  That is just to inform the House.

Dr GOODWIN – We thank the member for Hobart, because he has been incredibly thorough in going through this bill.  We know that he was up into the wee hours of the morning doing that, so we thank you for your effort.

Clause 33 agreed to.

Clauses 34 to 64 agreed to.

Clause 65 – Repeal of Act

Mr VALENTINE – I want some clarification with respect to the length of time that this amendment remains in force.  If the new planning schemes are not coming in until 2017 is there an issue here?  It is probably something for our Clerk.  It just becomes part of the act, that goes away and away we go.

A member interjecting.

Mr VALENTINE – I understand that it is there but I was not quite sure whether it did come into play at the end of that period.

Clause 65 agreed to.

New clause A – Section 86A inserted

Review of Act

New clause A presented by Mrs Taylor and read the first time.

Mrs TAYLOR – Mr Chairman, I move –

That new clause A be now read the second time.

Mr VALENTINE – Mr Chairman, it is important to get this review out of the way before the planning scheme’s review, which the honourable member for Rumney pointed out, is after five years.  I stand to be corrected if I am wrong.  You would not want them both happening at the same time.  You look at the process in general terms.  I think three years.  It says ‘as soon as practicable after the third anniversary’.  If there are some LPSs, for instance, that are not in place, they can wait a little, and do it once they are in place.

New clause A withdrawn.

New clause A – A. Schedule 1 amended

Objectives

New clause A presented by Mr Mulder and read the first time.

Mr MULDER – Mr Chairman, in the cause of order, we are amending the same schedule and the same part.  I think the member for Windermere had his amendment on foot before mine.

Mr Chairman, I move –

That the new clause A be read the second time.

This clause, in relation to crime prevention through environmental design, has been put into it because I do not think these high‑level principles belong in the bill.  If we are going to have one for health and wellbeing, then we should have one for other areas which are of great concern and interest.

Mr VALENTINE – I hear what the member for Rumney is saying, but this amendment that will come forward under the name of Mr Dean says ‘to promote the health and wellbeing of all Tasmanians and visitors to Tasmania by ensuring a pleasant, efficient and safe environment for working, living and recreation’.  That includes the CPTED principles.

New clause A negatived.

Bill taken through the remainder of the Committee stage.

Read the full debate here