Tourism is a growth area for Tasmania. Last year, in an effort to realise “the tourism potential in natural areas”, the State Government invited Expressions of Interest (EOI) for ecotourism developments in Tasmania’s reserve areas. A total of 37 projects were submitted as part of this non-statutory process of which 13 projects have been accepted and will now proceed to the statutory approval stage.
The Minister for Parks and Environment, Matthew Groom has confirmed that proposals selected for further consideration will be subject to the required Commonwealth and State planning and approval processes. However, there is uncertainty regarding what the ‘statutory approval’ stage entails.
Do you need a planning permit in reserve areas?
Generally speaking, if you’re undertaking ‘development’, you’ll need a planning permit.
Recently there has been some confusion about whether this requirement applies to development in reserve areas. Reserve areas include; National Parks, the World Heritage Area and a number of other protected areas throughout Tasmania. These areas are managed under National Parks and Reserves Management Act 2002 (NPRMA) and any applicable management plan (e.g. Tasmanian Wilderness World Heritage Area Management Plan 1999).
However, there is tension between the application of the Land Use Planning and Approvals Act1993 (LUPAA) and the NPRMA. LUPAA applies to all parts of the State except where the area is excluded by regulation (there are currently no areas excluded). The NPRMA provides a limitation on the exercise of other statutory powers (including the regulation of ‘land use and development’) in reserve areas, essentially precluding the application of LUPAA, unless it is specifically allowed for in the management plan. Furthermore, the Courts and the Resource Management and Planning Appeal Tribunal have narrowly interpreted any effort to exclude the application of LUPAA.
This uncertainty is amplified in that many of the interim planning scheme maps cover areas classified as reserve areas. The regulation of these activities in the planning scheme indicates an assumption on the part of local planning authorities that LUPAA does apply and that they have jurisdiction to regulate activities within those areas. (All planning schemes undergo a rigorous approval process including assessment by the Tasmanian Planning Commission and approval by the Minister, which arguably indicates a State level policy that schemes apply to reserve areas.)
Warning for proponents
Any development in a reserve area that proceeds on the basis that no planning permit is required, is open to legal challenge. Furthermore, given the sensitive nature of reserve areas, any decision by the State Government to exclude the application of LUPAA through legislative amendments would require explicit wording and may not preclude projects from being subject to legal proceedings.
What should I do as a proponent?
Project proponents should consider the application of the legislative framework to their respective project. It is normal practice for developments to be subject to concurrent assessment processes at a local, State and Federal level. Proponents would be wise to consider whether the exclusion of LUPAA would be more hassle than it’s worth.
If you have any queries about this article, please contact:
Anthony Spence
Principal
M: 0400 545 503
E: aspence@pageseager.com.au
Sarah Wilson
Special Counsel
M: 0428 102 712
E: swilson@pageseager.com.au
