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Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme Modification) Bill 2021

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Thursday, 24 June 2021

Tags: Planning, Legislation

Dr WOODRUFF (Franklin) - Mr Speaker, I will start by thanking the staff for the lengthy briefing we had yesterday and their expansiveness in answering the questions I put to them about this very important bill.

I make the point in passing, which I mentioned to Planning staff, that the process of consultation that was undertaken for this draft bill is called targeted consultation. I do not have a view about whether that is necessarily a bad thing to select the kind of key stakeholders, especially if the key community and local government voices are all included in that, but I am concerned that as an elected member who is speaking on this bill, I do not have an ability to look at the submissions that were made to that targeted consultation process. Where bodies made submissions, because it was a targeted consultation process, the argument that was put to me was that they would not be put up on the website because the submitters were not told that was going to happen.

I put to the minister that the targeted consultation process on a bill, not on a piece of planning policy, particularly needs to have submissions that are made to that put and made publicly available. It is very important that utter transparency is operating in the area of planning legislation reform. If people do not want to have their submissions made publicly available, it is their right to ask for them to remain anonymous, as is the case anyway. I ask the minister to look at changing that process in future so that everybody can read the comments other people have made about planning reform.

Planning evokes very strong emotions in a number of people in the community and a complete absence of interest in many others. It is fair to say that most people really are happier to leave it to the task of planning officers in councils and people such as those in the Chamber today to make these decisions, but for people who know and are attentive, people who think about the future and people who have confronted the experience of putting a development application in and coming up against some hard realities and difficult bureaucratic processes, some tortuous practices and administrative rules, these all of a sudden can become really enormous and emotional matters.

Some people make it their lifetime interest to continue to be attentive to planning law changes, and good on them. That is because many of us want the environment that we live in to be as beautiful, diverse and lovely to grow up in and have families and life interests in not just in our lives but for the future lives, and we value the character of the cities and towns in Tasmania. We love our rural areas because they are rural and there is not ribbon development. We love our wild places because they have not been spoiled by private developments and in a world that is shrinking evermore because of the numbers of people on the planet and the level of development, we have a real treasure in Tasmania that is rare and valuable. People appreciate that and they rely on their governments, local and state, to make decisions for the future that are well integrated and consider the natural, Aboriginal and colonial values and of course the living environment planning laws for towns and cities.

All of that comes down to the fundamental principle that communities should have the ability to decide the character of their own place and to protect their public open space and heritage. I want to commend the community groups and the stakeholders who have put submissions in. I want to thank them for their passion, concern and attention to these matters of character and integrity. Planning Matters Alliance Tasmania has almost 70 groups in their alliance and thousands of members who are committed to transparency in planning, to visionary and strategic planning and to making sure that the public can be involved in how land is used.

They had a number of concerns about the bill and felt it was a rushed process, despite the fact it was considered by some to be a fulsome consultation process. PMAT argue, and I am with them, that we should not be holding consultation processes like this over Christmas. It is just not good enough in Tasmania when things get dumped over the holiday season for people in the community to mount a response to an amazingly complex piece of legislation.

Everyone in this room would agree planning legislation in Tasmania is a bit of a dog. It is okay for those of us who are paid to look at it, but people who were planning to go on holidays are really devastated when these consultation processes happen over that time. I think there is no reason for that to happen. There is absolutely no reason why we should not have a two-week ban in Tasmania - other jurisdictions have it - for councils and state governments introducing planning applications over that period of time.

Planning Matters Alliance had some general concerns about the increase in ministerial powers that this LUPAA amendment bill seeks to enshrine. Their view was that streamlining parts of the act are possibly justified and I certainly heard some good arguments from the planning staff about some minor amendments that have to do with typographical changes and the enormity of synchronising bills that are about the Tasmanian Planning Scheme of around 500 pages with other parts of the planning system. There is no doubt that those sorts of things ought not waste time in public consultation and so on, but the overall impact of the changes being proposed will be to increase the say of the minister and the government of the day. Let us be honest, it will increase the say of the development lobby who have, from the beginning in the Tasmanian Planning Scheme -

Members interjecting.

Dr WOODRUFF - Well, minister, let us get back to the way things work in Tasmania when you have two parties, the Liberal and the Labor Party, that receive donations from development bodies. It is concerning when additional powers go to the minister without them having to go for public consultation, without them having to go to the Planning Commission, and without the opportunity for appeal. That is a fact.

It is a fact that the conversations that the Government has had, the push for the way the Tasmanian Planning Scheme has been developed from the beginning in 2014 15, from the very first day that Mary Massina, who was the head of the development lobby, was put into the position of working to rewrite the single planning scheme - you people are rightly sceptical about the level of influence of development interests on the creation of our planning laws in Tasmania. As a matter of principle, it is always important to be concerned and scrutinise closely anything that gives the minister more powers.

It is to the detriment of strategic planning, and ultimately of liveability in neighbourhoods and communities, if we have specific interests being pushed, rather than the overall strategic future planning for Tasmania being put first. We always hear a lot from the Government about the importance of efficiency and simplification, but we also have, on the record, an under-resourced local government sector who have never been given the resources that have really been needed to roll out the Tasmanian Planning Scheme in the quickest way possible.

From the very beginning, we heard from planning staff in councils that there was an enormous task of working on the SPPs and LPSs, and it was all on top of the load they already had. It has been from this Government a pretty uncooperative relationship with local government, and as we have seen a number of times, a secretive approach to the planning reform process.

That is the backdrop for this bill, and the basis for people asking reasonable questions of a planning bill from this Government. With the Tasmanian Planning Scheme, people were concerned from the beginning that incredibly important parts which ought to be integrated into planning have been split off - fire safety, stormwater, affordable housing and parking. That is extremely short-sighted.

It is also extremely short-sighted that, despite all the talk, here we are, seven years after the Liberals came to government, and we have not had a single new statewide planning policy delivered, at a time where we are having an enormous wave of people who are moving to Tasmania, and huge pressures on parts of the state from changing weather patterns, drying areas, and areas of dramatic and escalating coastal erosion in parts of my electorate, Franklin.

No essential planning on the really important matters about settlement, population and climate change planning policy for the whole state. In that space, people have the right to ask those questions.

I want to make some specific comments about the bill, and reflect on a number of comments made by the Environmental Defenders Office in their submission. Thanks to the Environmental Defenders Office, who do so much good work in this space on behalf of people in the community. They make a general comment that they are supportive of a number of proposed amendments in the act, but are also concerned that some will deliver greater discretion to the minister and make changes to the statewide planning provisions and interim schemes without public consultation, and also would limit public consultation to the draft local provision schedules.

The minor and urgent amendment processes provide the minister with too much discretion to make changes to the statewide planning provisions, and fail to adopt the appropriate checks and balances that are needed on these increasing and significant powers - specifically in relation to the proposed new process for minor amendments.

The minor amendment criteria that are being proposed are so broad that many potential significant amendments to the statewide planning provisions could fall within the category of a minor amendment.

For example, it is arguable that simplifying the SPPs - which is 30NA(1)(a)(iii) - could include anything from the deletion of a single word or a clause in a zone, to the deletion of an entire code. In either case, those changes could possibly have substantial - even, they say, drastic - land use planning consequences, and as they have seen in many planning appeals, sometimes entire developments hang on the interpretation of a single word or a clause. They are proposing that in these matters an abundance of caution is warranted.

When they are introduced to bring the statewide planning provisions into conformity with the state policy, the amendments to the statewide planning provisions in Part 6 should be -

that are being considered minor

However, because we do not know the content of the state policies, and although they have been discussed in general terms, we do not have the detail of what state policies are, and that clause can provide a potentially broad basis for sweeping changes to the SPPs that could be treated as minor. I would value the views of the planning staff on whether that is a prospect.

They make the point that the form of provisions, which is how it is discussed in Part 8, 30NA(1)(a)(viii):

changing provisions of the SPPs that indicate or specify the structure to which an LPS is to conform or the form that a provision of an LPS is to take

That the form be classified as a minor amendment. The form of a provision under LPSs may include, for example, specific area plans, particular purpose zones, or site-specific qualifications. Changes to the SPPs that regulate the form of these provisions can significantly impact on planning outcomes for areas that the local community has indicated a great deal of interest in achieving.

While that is considered to be a minor amendment, it seems that the form of an LPS can include what appears to be some rather major issues.

Part 9, under the definition of a minor amendment to the SPPs, provides for a prescribed purpose that could also be considered minor, but there have not been any purposes prescribed under the regulations in relation to this, so it seems that this provision could provide an almost boundless opportunity for the government to prescribe circumstances where amendments to the statewide planning provisions do not need to undergo any public exhibition, or scrutiny of the Tasmanian Planning Commission. It is a bit of a wide catch all since it gives an opportunity for the minister to create regulations that apparently would not then need to have public scrutiny.

There are also proposed separate processes for urgent amendments and there has not been a reason provided for why minor amendments would be rushed through without proper scrutiny and consideration by planning experts, in this case the Tasmanian Planning Commission. In regards to the new processes for urgent interim amendments, subdivision 3B of Division 2 in the bill sets out a new process for making interim amendments to the SPPs. It states that there is currently no process to make urgent amendments to the SPPs. In the bill an interim amendment to SPPs can be made at the minister's instigation, even in the case that the Tasmanian Planning Commission advice has been that a draft amendment should not be made on an interim basis.

I would like the minister's advice to the House on whether that is true - that the minister can make an interim amendment to the SPPs even when the Tasmanian Planning Commission advice has been that the draft amendment should not be made on an interim basis.

Unlike with interim planning directives, before the minister can make an interim amendment to the SPPs, the minister has to be satisfied if it is necessary or desirable to address a situation that is urgent, critical, significant, and whether it is in the public interest to do so. It is a very good point that these tests are meant to impose a check on the minister's power to make an interim amendment but there is no definition in the bill around what is a critical or significant planning issue and there is no guidance on how the minister would assess the public interest in the making of an interim amendment. Because an interim amendment could be in place for up to 12 months, it is possible to see that there could be very long-lasting and real impacts on the natural environment or built environment, depending on what the interim amendment has been seeking to enable.

The example the EDO provides is if there were interim changes made to allow broad scale land clearing without a permit for the purposes of bushfire mitigation, there would be possibly 12 months of large-scale vegetation clearing around the state before the Tasmanian Planning Commissioner has the opportunity to consider and report on the substantive draft amendment to the SPPs. That seems an extreme example but if you remember, the government's Bushfire Mitigation Measures Bill was widely decried as an appalling approach to bushfire mitigation management by the Local Government Association, conservation groups and the bushfire service. This was the government's approach to try and manage bushfire mitigation measures. It was a heavy hand. It was probably cooked up in DPAC. I am pretty confident that it did not have anyone in the Tasmania Fire Service driving the process. That is what we have come to understand. It definitely did not have any good consultation with the local councils, who will be the meat in the sandwich between landowners and the heavy hand of regulatory laws requiring clearing to occur, so what we ended up with is a bill which we do not know where that has gone, an exposure bill that has gone. I hope it has gone very far away, possibly never to reappear, and hopefully the Government would have understood that you cannot just shoot from the hip on these things, you have to have a very considered, cooperative, collaborative approach to solve complex issues.

I wanted to draw the House's attention to that matter, which was essentially an attempt to deal with the serious hazard of bushfires. We all want to have an appropriate mitigation of bushfire risk. It is a very high risk but it has to be done carefully. LGAT made the point that it is essential that regulations and guidelines meet the objectives of the bushfire bill and complement and build on the existing bushfire mitigation framework and to do that, any bill must support strategic fire planning and not shift the focus to a more ad hoc landowner-driven property approach. It must link with the state vegetation fire management plan and the strategic fire management risk undertaken by fire area management committees. It must clearly articulate how a bushfire mitigation bill will meet its stated objective in relation to natural and cultural heritage and it must ensure the legislation is not misused by landowners to further aims other than fire mitigation.

I will not go any further into that bill except to say it is a really good case in point. This is what happens when you have something that is centrally developed without proper consultation ostensibly to deal with a serious public safety threat, bushfires. Everyone in Tasmania wants that to be dealt with well, but this is a poor approach to planning and managing risk.

The concern I have with the bill before us is that is also provides an opportunity for the minister to make an interim amendment on a matter of urgent, critical or significant planning issues and if it is in the public interest to do so. We want to have some really good checks and balances on things like that because it can have very poor unintended consequences that we might regret. You can always beat up the populist 'Rah, rah, we've got action, we've got to act now', but there has to be an opportunity to make sure that as many voices as possible are involved in making an action which does not go through the normal processes.

If there is to be this interim amendment process, there has to be proper checks and balances on a minister's power, for example by restricting the use of the circumstances where the Tasmanian Planning Commission has recommended a draft amendment be implemented on an interim basis. There has to be some guidelines developed to clarify what we mean by critical, what we mean by significant planning issues, and those things need to happen before such a power is created.

Looking at the time, I can see that I will have to hold some of these other comments over to the committee stage of the bill.

There have been a few things already said about the Local Provisions Schedule process and where the TPC is considering a draft Local Provisions Schedule and it directs a council to make a substantial modification to the draft, the modification will be made as an amendment to the LPS and the remainder of the LPS would be finalised and given effect. A substantial modification to an LPS could include changes to the zoning of a particular area of land or a change to the application of particular codes to land. As the name suggests, substantial modifications to LPSs can have significant impacts not just on the rights of the landowners themselves but also on the rights of interests of neighbouring properties and in some cases the community more generally.

The current process we have gives the public an opportunity to comment on substantial modifications that are proposed in the draft LPS. The current amendments provide an opportunity for public comment on a substantial modification but the opportunity to comment will be after the substantial modification and the underlying LPS have been given effect.

Mr Jaensch - No.

Dr WOODRUFF - It would great if you could correct that because the concern is that the proposed changes assume that once the Planning Commission has directed a council to make a substantial modification to an LPS it is unlikely that the substantial modification will change after public comment and the TPC hearings on the modification. There is an assumption that it will not change. We had this conservation in part in the briefing, but I think these are valid concerns that need to be aired.

I am going to complete my contribution by saying there is an incredibly strong interest in bring the planning scheme into effect soon and some additional resources to councils and to assist the community in the draft LPS process would be very helpful to make that happen.