Submission to the Draft Tasmanian Planning Policies Bill 2017

Policy Planning Unit
Department of Justice
GPO Box 825
Hobart Tas 7001

15 May 2017


State Policies created under the State Policies and Projects Act

For many years the TCT has identified the need for additional State Policies (as created under the State Policies and Projects Act). The Resource Management and Planning System was designed to provide for the development of a comprehensive suite of State Policies on matters of state significance. State Policies were envisaged to provide integration, guidance and consistency across all planning schemes as well as effecting decisions made outside of schemes. The proposed TPPs will not achieve this. It will only serve to give retrospective endorsement to the State Government’s SPPs, while further alienating the Tasmanian public from the Government’s reforms.

State Policies have a number of benefits, including, that they are developed through a rigorous and consultative process, they may have effect beyond planning schemes, they may have legal force in relation to developments and they are tabled in the state parliament giving important oversight prior to their adoption. Community confidence in the Tasmanian Planning System would be enhanced if this approach was taken.

With the proposed TPPs, there is no guarantee of public consultation, it has affect only in relation to the Tasmanian Planning Scheme, it cannot be used in relation to particular development approvals and there is no potential for parliamentary oversight. Community confidence in the Tasmanian Planning System would not be enhanced if this approach was taken.

The TCT recommends that the State Government abandons its Draft Tasmanian Planning Polices Bill 2017 and instead works with the Tasmanian community to develop a comprehensive suite of State Policies.

The State Government has failed to justify the need for a new approach to planning policies. The 'Explanatory Document', released with the Draft Bill, merely describes what a State Policy and TPP are and explains the difference – there is no justification for why TPPs are needed or any criticism of State Policies.

If the government persists with its Draft Bill, it should restart the public consultation process on the Draft Bill (as recommended below). The accompanying documents should include an explanation of why new planning policies are need and what is wrong with State Policies.

Public consultation contradictory

The State Government has given contradictory statements about whether the public is invited to comment on the Draft 'Tasmanian Planning Policies' as well as the Draft Bill.

On or about the 24 April 2017 (following the minister's media release of that date) a statement was put on the Department of Justice web site saying the Draft Policies are "examples only to aid in your review of the draft bill. They are not intended for consultation at this time".

The 'Tasmanian Planning Polices' document does not to my knowledge refer to the policies as "examples". The 'Explanatory Document', released with the draft bill and draft policies, explains that "The Government is seeking views on the proposed content of the new Tasmanian Planning Policies" (page 3). These documents are still on the Department of Justice web site (in their original form) on the day submissions are due.

The TCT and a number of other stakeholders received a letter from the Secretary of Department of Justice on 7 April inviting ‘comments on the Bill and the draft Tasmanian Planning Policies by Monday, 15 May 2017'.

Which are we to believe? 

I would have thought the Department of Justice would have some difficulty allowing a consultation process to proceed where it was uncertain what the public was asked to comment on.

Some people may have made submissions before the statement was issued on the Department of Justice web site or did not look at that web site at all. Presumably these comments will be ignored and these people have wasted a great deal of time and effort.

The TCT was emailed the documents by the Secretary of the Department and only heard about the contradictory statement on the web site after we were notified by an interested member of the public.

The TCT recommends that the public consultation process is restarted and that the public is told clearly what documents they are invited to comment on.

Comments on the Draft Tasmanian Planning Polices Bill 2017

General comments

The TCT and many other organisations have objected to the State Government developing and approving the State Planning Provisions in the absence of policy guidance. Now the government is attempting to develop TPPs after the SPPs are finalised. There is a natural inclination for stakeholders to conclude that the draft TPPs will not be changed from their current form as the state government has developed them to reflect the SPPs (which also will not be subject to review for five years). If the Draft Bill is passed into law, then we can assume that public consultation, if undertaken, will rubber stamp the Government’s original Draft Policies.

The Draft Bill does not require that any particular planning related matters are addressed by the TPPs, or that the TPPs be comprehensive. The Draft Bill should include a section – perhaps as part of Section 12B – that outlines key planning matters that the TPPs must address.

The Draft Bill provides the minister for planning with almost total power over the drafting, making and amending of TPPs and the TCT sees this as unwarranted and unjustifiable over-reach. There are many changes that we recommend, to address this over-reach, in particular that there must be a requirement for the TPC to review draft TPPs.

Section 12B. Contents and purposes of the TPPs

Section 12B provides a very elementary outline of the contents and purposes of the TPPs.

Section 12B(2) states what TPPs ‘may relate to’. Section 12 B(2)(a) and (b) relate to very similar matters regarding environmental protection and could be combined into one point.

Section 12 B(2)(c) appears to be a catch all for anything the government would want to have in a planning scheme or regional strategy. This is confusing as we thought the intention of the government was for the TPPs to give direction for the content of the Tasmanian Planning Scheme.

The matters referred to in section 12B(3) are the TPP criteria. Given the importance of the criteria – in relation to the TPC’s preparation of a report on Draft TPPs (Section 12F) and the Ministers making of the TPPs (Section 12G) – it might be preferable to have criteria that are broader in scope and are prescribed in more detail.

Section 12C. Draft of the TPPs

Section 12C(1) states that the Minister ‘may prepare a draft of the TPPs’. This means that there is no requirement for the minister to make a Draft of the TPPs.

Section 12C(2) requires the minister to consult the TPC, planning authorities and state service agencies and state authorities, that the minister thinks fit, but fails to provide any process or requirements for this consultation. The consultation may be as perfunctory as notifying these agencies that a Draft TPPs is to be prepared and providing no information about it and not requesting any information or advice.

Section 12C(3) states that the minister may provide a draft of the TPPs to the TPC and if he/she does so, the TPC must undertake consultation on the draft TPPs. With no requirement to provide a Draft of the TPPs to the TPC, the Bill provides no guarantee that a draft TPPs will be provided to the Tasmanian public, planning authorities or relevant state service agencies and state authorities.

Section 12D. Public exhibition of draft of the TPPs

We note that the TPC is not empowered under the Draft Bill to provide public hearings as a part of the public consultation process.

Section 12E. Representations

It is unclear what is meant in 12E(3) by a matter contained in a representation ‘that does not relate to the contents or merits of the draft’.

Section 12F. Report by the Commission

The TPP criteria are inadequate in that they are open to interpretation.

The TPC may have very different interpretations than the public and the minister as to what furthers the ‘objectives as set out in Schedule 1’ and what is ‘consistent’ with any relevant State Policy’. There may also be different interpretations of what is a ‘relevant State Policy’.

Section 12 G. Making the TPPs

Section 12G(1) allows the Minister to inform himself/herself ‘in the manner he or she thinks fit’. The minister could seek advice from particular corporations or vested interests, foreign governments or their own relatives.

Section 12G(2) states that the minister may make, refuse to make or modify the TPPs ‘as the Minister thinks fit’. This means that, subject only to a requirement in 12G(7)c, that reasons are made public, the Minister could potentially rewrite the TPPs so they do not resemble the Draft shown to the public and TPC.

Similarly, Section 12G(3) only requires the minister to consider the report prepared by the TPCs. The TCT recommends that the Minister must be bound by the advice of the TPC unless obtaining parliamentary approval for any divergence.

There is a contradiction between Section 12G(3) and Section 12C. Section 12G(3) clearly implies that the minister is required to have the TPC review the Draft TPPs and prepare a report. However, as explained in our response to Section 12C, the minister is not required to provide a Draft TPP to the TPC. This contradiction can be resolved by amending the Draft Bill to require that the Minister provides a Draft of the TPPs to the TPC and that they are required to undertaken public consultation and hold hearings.

Section 12G(4) requires that the minister is satisfied that the TPPs ‘meet the TPP criteria’, but it seems that the minister is not required to provide any written public justification for a decision that the TPPs ‘meet the TPP criteria’.

Section 12H. Amendments to the TPPs

Then TCT is concerned that the Minister may make amendments that are minor without any public consultation or consideration by the TPCs. While Section 12H(4) appears to limit the scope of what can be considered a minor amendment, 12H(4)(b)vi allows for an amendment to be treated as minor if it is for ‘a prescribed purpose’. It seems that this provision could be used to refer to any purpose as minor.

Section 8: Section 30T amended (Review of the SPPs)

Section 8 provides that the SPPs can be reviewed to determine if they are consistent with the TPP, but this is not required. The TCT recommends that the Draft Bill be amended to require a review of the SPPs immediately following the making of TPPs.

Yours sincerely

Peter McGlone
0406 380 545