The Tasmanian environment and planning legislative framework has undergone significant reforms over the past 18 months and this is expected to continue. This month, the Tasmanian Government released the Draft Land Use Planning and Approvals Amendment (Major Projects) Bill 2017 (Bill) which seeks to amend the Land Use Planning and Approvals Act 1993 and Environmental Management and Pollution Control Act 1994 to introduce a new ‘major projects’ assessment pathway. This will elevate declared major projects above the normal planning assessment process.
The proposed amendments would bring Tasmania in line with other States and Territories by establishing a dedicated major project assessment and approval pathway. Arguably however, it does not go as far as similar assessment processes in other jurisdictions. Given the limited scope of the proposed amendments, it is unclear whether they will be useful in the long run. The ‘take-up’ by proponents of this new process will hinge on whether the benefits outweigh what seems to be a more complex process.
What is proposed? What will change?
Currently, there are three dedicated assessment pathways available for a major project in Tasmania:
- Projects of State Significance.
- Projects of Regional Significance.
- Major Infrastructure Development Approval process under the Major Infrastructure Development Approvals Act 1999.
The amendments are aimed at reforming the Projects of Regional Significance process, with the other two processes remaining unchanged.
Specifically, the changes to be introduced by the Bill include:
- expanding the suite of approvals included in a permit, through a single coordinated process;
- establishment of a Development Assessment Panel, appointed by the Tasmanian Planning Commission and approved by the Minister, to assess applications;
- providing for ‘in-principle’ approval of a major project;
- expanding Ministerial call-in powers;
- introducing a ‘no reasonable prospect’ test; and
- staging the recovery of assessment fees and providing more certain timeframes.
The new process allows for declaration of major projects to be assessed by a Development Assessment Panel (Panel) which may take advice and issue coordinated approvals under planning, environmental, heritage, threatened species and nature conservation legislation. Public comments will be invited on the assessment documentation, the Panel will then hold public hearings before making its decision. The process will not provide for merits appeals of the Panel’s decision, however judicial review may be available in the Supreme Court of Tasmania.
Given the potential implications for a parallel Environment Protection and Biodiversity Conversation Act 1999 (Cth) process, the government has foreshadowed having this new process accredited under the Tasmanian Bilateral Assessment Agreement.
How will major projects be chosen?
There are two ways in which a project can be declared a major project: a proponent can request a declaration, or the Minister may, by notice in the Gazette, make a declaration in certain circumstances.
Major projects can be initiated by private or public-sector proponents, across a range of industries and sectors, including for example; tourism, infrastructure, urban development and mining.
Major projects include projects that will make a significant financial or social contribution to a region or the State, significantly impact public infrastructure, have significant economic, environmental or social impacts or require assessment by more than one planning authority. The definition provides for a wide range of projects / developments to be declared ‘major projects’.
What do these changes mean for developers?
The changes that are likely to be particularly appealing to developers include:
- the single coordinated process and single permit, which will avoid the need for developers to coordinate separate permits from different government departments (including planning permits);
- the certainty introduced by in-principle approvals; and
- the determination of the application by the Panel rather than the local Council Alderman as the planning authority.
Will these amendments overhaul the development assessment process in Tasmania?
In short – no. The amendments are aimed at overhauling the Projects of Regional Significance process which has, to-date, never been used in Tasmania. Given the obvious benefits to developers of the single assessment / permit process and in-principle approvals, it may be that the take-up of this new process will be greater than anticipated. Alternatively, it may be that the benefits are not substantial enough to warrant a departure from the usual assessment process.
Comparing the amendments to those in other jurisdictions demonstrates that they do not go as far as might have been expected. For example, in Queensland the Coordinator-General oversees the environmental impact assessment process, decides to approve or refuse a project and is not subject to statutory judicial review.
How do I make a submission?
Comments on the draft Bill are due by Monday, 2 October 2017 and developers and project proponents should give careful consideration to the proposed changes.
To read the Bill and Consultation Paper – click here.
If you are interested in making a submission or if you have any other 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
Marc Edwards
Senior Associate
M: 0407 205 719
E: medwards@pageseager.com.au
Published: 13 September 2017
