The Major Projects Bill (MPB) gives developers a special process and cuts the community out by removing appeal rights and limiting our input to development assessments. The MPB removes fairness and balance from the planning system and seriously weakens our democracy. The MPB sets up a special pathway similar to those gifted to mining, forestry and industrial fish farms.
The TCT has been working intensely with Planning Matters Alliance Tasmania and other community and conservation groups over the last five months to stop or significantly amend the MPB. Despite a massive campaign and concerted efforts in the parliament to improve the bill – by the Greens and Labor Party in the House of Assembly and in particular by Meg Webb in the Legislative Council — the bill passed the parliament on 24 September 2020 with only minor amendments.
The big story of the campaign was around the Labor Party’s position. Without Labor’s support, amendments had no chance in either upper or lower houses of the parliament. As soon as the public comment period closed, Labor announced their in-principle support for the legislation and refused to articulate any particular concerns. This was before they knew what concerns were contained in the public submissions and before the government had finalised the bill.
This forced all opposing groups to focus on pressuring Labor to get them to propose amendments. Our impact must have been significant as Labor committed to amendments in the Lower House addressing some of our key concerns regarding appeal rights and the membership of the Development Assessment Panel. Predictably, none of the amendments proposed by Labor or the Greens succeeded in the Lower House. What was most disappointing was Labor abandoning its appeal rights amendment when debate shifted to the Legislative Council. Although Labor didn’t explain clearly the reasons for this about
turn, it followed the government’s threat to abandon its own legislation if such significant amendments were passed.
Rather cynically, Labor did not support any amendments in the Legislative Council that were similar or the same as those tabled by the Greens in the House of Assembly.
Although our campaign ultimately did not succeed, we certainly made sure the community, media and political parties noticed our concerns. This is a big improvement on the passage of legislation that facilitated the Statewide Planning Scheme in 2015 where we struggled to get the attention of the general public, media and even many politicians to the many faults in that legislation.
Now the big question is will the legislation be used or sit unused like the Projects of Regional Significance process that it replaced. The major projects legislation certainly didn’t go under the radar and this means that private companies and possibly the state government will be nervous about having a major project declared knowing they will have a massive public uproar.
If it is used, what will be the first major projects declared? My guess is that it will mainly be used by the state government to have its own projects assessed and these will include the long delayed Bridgewater Bridge and Marinus project which includes a second Bass Straight cable and pumped hydro. It may also be used to approve wind farm developments.
But it is unlikely to be used for controversial projects like the Mt Wellington cable car or Cataract Gorge gondolas project, because each will require that the respective council provide landowner consent and currently that seems unlikely.
I expect that the Fragrance company is unlikely to seek a major projects assessment for its skyscrapers because the company is becoming less ambitious and is proposing more reasonably scaled projects. Their projects may struggle to meet the eligibility criteria.
Then there are projects like the Westbury Prison and Cambria Green. I think that if they were declared major projects the public uproar would come close to bringing the state government down. In the case of the prison, the state government is the proponent and will probably not seek it to be declared a major project.
With Cambria Green we do not know what the proponent thinks about making it a major project. My guess is they will wait for the outcome of the Supreme Court case and if that is won they may take it through the normal Tasmanian Planning Commission process. But if they failed in the court case they may ask the minister to declare it a major project. It would undoubtedly be eligible and create an enormous headache for the state government leading into the state election.
WHAT IS WRONG WITH THE MAJOR PROJECTS BILL?
Virtually any project could be a major project
The MPB allows virtually any large development (including a large subdivision) that would normally go to a local council to be declared a major project. The most significant change made by the government in response to the consultation process was a slight improvement to the declaration criteria, but this only excludes smaller normal developments and not the larger and more controversial developments.
The minister has too much power
The MPB gives the minister unchecked power to declare a major project, which removes it from the normal local council planning process. The minister’s ‘opinion’ (the word used in the legislation) as to whether a project meets the fairly wide eligibility criteria is paramount. The Tasmanian Planning Commission is to produce guidelines, but the minister only has to ‘have regard’ to them and doesn’t have to follow them.
All large controversial projects around Tasmania could be declared major projects, including – Cambria Green on the east coast; the Fragrance skyscrapers in Hobart and Launceston; Westbury Prison, large developments in the World Heritage Area; and cable cars proposed for kunanyi/Mt Wellington, Mt Roland and Cradle Mountain.
The minister, Roger Jaensch, has gone to great pains to convince community groups that the legislation will not be used for most controversial projects. In media statements, he has said projects like Cambria, skyscrapers and Lake Malbena would be 'unable or highly unlikely to be considered major projects’. 'Highly unlikely' is not convincing, especially as the minister’s 'opinion' is critical and ministers will come and go whilst the MPB remains. The minister says he has ‘no plans’ to declare the kunanyi/Mt Wellington cable car or Westbury prison major projects; clearly, however, he could change his mind or the proponent could request they be declared. The minister could have promised to amend the legislation to make these projects ineligible but has failed to do so.
High-rise buildings clause removed
The previous draft of the MPB partially addressed community concerns by excluding high-rise hotels as eligible projects, but the clause has been removed from the latest draft.
Relevance of the Planning Appeal Tribunal diminished
Any project which has been refused by a council or the Planning Appeal Tribunal could, immediately following the refusal, be declared a major project and potentially approved by the Development Assessment Panel (DAP). There is no two-year time limit to reapply as there is in the normal council process.
No right of appeal
In addition, the community will have no right to appeal against the approval of a major project and will have limited rights to have input prior to the decision. Appeal rights – currently to the Planning Appeal Tribunal – provide
the community with an avenue to have bad decisions reviewed; removing appeal rights for major developments greatly weakens our democracy. The major projects are likely to be large controversial projects that most concern local communities, which makes appeal rights even more important.
The only oversight of the DAP’s decisions rests with the Supreme Court. That oversight is limited as the Supreme Court can only review the DAP’s decisions on the complex and technical ground of legal error. The merits of the decision (e.g. building heights and/or unacceptable environmental impacts) are not relevant to judicial review and cannot be considered by the court. Importantly, even if the Supreme Court revokes a major project permit it can be remade as long as the process is legally followed.
Limited public input to the assessment process
The community has a right to make representations when the DAP has released its preliminary decision on a major project (draft assessment report). This is contrary to the normal local council process and very unfair. The public are at a disadvantage as they must convince the panel to change its mind. In the normal local council process, public representations are called for before the council considers the permit application. That is appropriate because public representations are more likely to be given weight in the decision. The proposed process for major projects provides no such assurance.
Elected councillors will be side-lined
The MPB allows the minister to take developments away from local councils and approved by a Development Assessment Plan (DAP). Elected councillors will not have a say over approval
of major projects, which seriously weakens our democracy. The DAP members are unelected and the community will not be able to lobby them or vote them out. Also, local councils are not relevant regulators and therefore will not have a say over the final approval or the same level of input as other regulators.
Planning scheme changes can be forced on councils and communities
Under the proposed legislation, planning scheme amendments can be forced on councils and communities. A major project can be approved that is inconsistent with a planning scheme and, after the permit is issued, the Tasmanian Planning Commission (TPC) must amend the planning scheme to remove any inconsistency. The DAP is only required to ‘consider’ the contents of the relevant planning scheme/s, which renders them virtually irrelevant.
Cambria rescue?
It is unclear whether proponents (especially ones based offshore) can obtain a planning scheme change as part of a major project proposal without being required to provide evidence of who owns the land. The Cambria Green proponents were refused a planning scheme amendment by the TPC for this reason, but the bill may provide the developer a way around this requirement.
The Minister for Planning Roger Jaensch has refused to rule out declaring the Cambria Green project a major project despite numerous requests by the TCT and others for him to do so.
Independent TPC sidelined in favour of DAPs
Despite comments by the state government, the independent Tasmanian Planning Commission will not be assessing and approving major projects. Under the bill, all the power to assess and approve developments is given to the Development Assessment Panel that may include no Tasmanian Planning Commission person. The TPC is a ready-made, independent institution whose staff are experienced in making complex assessments, holding public hearings and affording procedural fairness. The government hasn’t said why there is a need for a new body.
The DAP is appointed on a case-by-case basis, which raises serious concerns about the performance of the panel members. It is not subject to the governance measures which contribute to the TPC’s trust and independence, e.g. TPC members must comply with the public service code of practice but the DAP members do not.
The only safeguard that exists is that the DAP members must be approved by the Tasmanian Planning Commission. However, the minister may direct the TPC to appoint one person to the DAP who has particular qualifications and experience, which arguably limits the DAP’s independence. The roles and responsibilities of the TPC are currently under review. We fear that the government may legislate to diminish the TPC’s independence further, including when appointing members of the DAP.
No justification for more major projects or fast-tracking powers
The TCT believes that Tasmania does not need more fast-tracking powers. The government has not made the case for why new major projects powers are needed. The Major Projects Bill is intended to replace the Projects of Regional Significance (PoRS) process, but no details have been provided about what is wrong with PoRS. Clearly, the MPB goes well beyond any refinement to the PoRS process. Tasmania also has Projects of State Significance (PoSS) legislation, which provides a credible process for large and complex projects – and was successfully used to approve the Basslink cable.
Consultation process flawed
The consultation process for the MPB was rushed through during the peak of the Coronavirus lockdown when many people’s lives were seriously disrupted. The public consultation process came with inadequate information and the ‘fact sheet’ produced by the Planning Policy Unit responding to community concerns was misleading and highly political. Many councils are unhappy about the bill and the Local Government Association of Tasmania raised serious concerns in its written submission, some of which have not been addressed. Tasmania’s capital city council, the Hobart City Council, has said the legislation is unnecessary.
Minister Roger Jaensch has repeatedly misrepresented the impact of the MPB. He has said on many occasions that the 'Major Projects process provides no fast-tracks, short cuts or easy routes, and it cannot be applied to (just) any project' (Mercury 30 April 2020). This is wrong. The major projects process provides three enormous short-cuts. One, the community has no right to appeal the approval of a major project. Two, your elected local councillors have no role in the approval of a major project. Three, planning scheme amendments can be forced on councils and communities and the Tasmanian Planning Commission 'must' amend the scheme to fit the approved project.
No election mandate
Curiously, the state government has recently been claiming that the MPB is a response to a commitment made at the 2014 state election to revamp the Projects of Regional Significance process. Election mandates cannot be held-over past the next election: in the 2018 state election the Liberal party did not mention the major projects legislation. The 2014 policy promised nothing like the MPB.