This is the text of an article submitted to the Mercury newspaper on 13 April 2021 but sadly they could not find room before the election.
Peter McGlone
CEO
Tasmanian Conservation Trust
The Gutwein Liberal Government is mounting twin assaults on the Tasmanian Planning System that will make it less democratic and more slanted in favour of big developers. Not content with ramming through undemocratic major projects legislation last year, the Government intends to weaken the planning appeals process and fast track its state wide planning scheme, shutting the community out of having a say.
Peter Gutwein is silent on these plans, but they will weaken Tasmania’s planning system at its foundations and further undermine community and small business operator’s faith in the system at the expense of quick bucks for large corporations.
It appears that the government has done everything it can to hide the proposed changes to the planning appeals tribunal. The only document released in the consultation process was a 121 page Draft Bill. No explanatory document to make it clear what the legislation was aiming to achieve. Most people who were aware of the Draft Bill would not have read it and few who did would have understood it. The government did not previously flag these changes with the community. Cynically the government released this draft bill on the 21 December 2021 when most people were on leave or distracted by Christmas.
This level of deceit, with a piece of legislation, with such a high level of public interest, is just about unprecedented in modern Tasmanian political history.
The Draft Tasmanian Civil and Administrative Tribunal Amendments Bill proposes costs orders at the outset of planning appeals. This would require an appellant to pay (or demonstrate ability to pay) the cost of their opponents defense.
For an appeal such as the recently concluded Rosny Hill appeal this might have required the community group to pay more than $50,000 up front on top of their own costs.
The planning appeals tribunal has existed for decades without security for cost orders. This change will be a fundamental change to the fairness of the system. Costs have nearly always been ordered to be paid by each party, so it seems unnecessary and very unfair to require one party to pay a security deposit before undertaking the appeal.
Appeals aren’t just taken by community groups and conservation groups like TCT. Small businesses and individuals rely on this relatively easy to access tribunal to challenge bad decisions by councils, which, as we know, do happen.
By introducing cost orders, the only ones advantaged are mega-corporations such as the Shandong Dongming Petrochemical Group, the multi-billion dollar parent company that was sold the prime waterfront land at Kangaroo Bay without a tender process.
Another proposed change would greatly widen the tribunal’s power to dismiss appeals for subjective and poorly defined reasons e.g. ‘involves a trivial matter or amount’. The government has provided no reason for this change and not having defined criteria will just engender mistrust in the tribunal’s decisions.
The government’s proposed amendments to the Land Use Planning and Approvals Act (LUPA), which were tabled in the parliament three days before the election was called, will, among other things, fast track Local Provisions Schedules in order to bring the Statewide Planning Scheme into effect more quickly. The cost of fast tracking the Local Provisions Schedules is a loss of democracy in the planning system, with less community input on local character and greater ministerial power. These changes are a massive power grab for the government and a broken promise made by Peter Gutwein that the community would have meaningful input to planning rules in their local area.
The proposed changes to the “substantial modifications” provisions of the LPSs could provide an unfair shortcut for controversial developments that don’t meet the current planning scheme requirements. The Cambria development, Robbins Island wind farm or Westbury prison could take this path. The proponents could make a proposal to the Local Council for a zoning change covering their development, that could be deemed by the Tasmanian Planning Commission to be a “substantial modification”. This could then be approved and come into effect along with the rest of the LPS. The proponent could then lodge a development application and gain approval under the new zoning provisions before there has been public comment or scrutiny by the TPC on the new zoning.
The proposed amendments to Land Use Planning and Approvals Act 1993 add even greater complexity, confusion and uncertainty to already complex legislative processes.
With the proposed new substantial modifications provision, the new planning rule comes into effect before there is community consultation. Some early developments can be assessed and approved against these new rules. Following consultation the rule may be changed to prohibit very similar developments.
With other proposed amendments, some elements of the Statewide Planning Scheme can be approved solely by the minister to be incorporated into existing planning schemes, prior to the Statewide Planning Scheme coming into effect. Some elements of existing planning schemes can be approved as part of the Local Provisions Schedule without additional consultation. There is also a proposal to have interim amendments to the Statewide Planning Scheme (lasting up to 12 months) where it is deemed to be urgent but there is little limit on what may be considered urgent.
I doubt more than a few bureaucrats, planners and consultants will fully understand the new procesess. These changes will make life harder for the community, the building industry and small businesses. It will undoubtedly deter many in the community from participating in the processes of reviewing draft Local Provisions Schedule.
Just as with the major projects legislation, the government has not explained the need for most of its changes. The reason given for many of the proposed changes to LUPA is merely that they may speed up the process of finalising the Statewide Planning Scheme. There is no evidence that there is currently a problem or that some stakeholders are calling for these changes.
The Gutwein Government has been stony silent on these issues during the election. We expect opposition parties to voice their concerns for the potential loss of community rights and democracy.