Northern Territory Second Reading Speeches

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PLANNING AMENDMENT BILL 2004

Bill presented and read a first time.

Dr BURNS (Lands and Planning): Mr Acting Deputy Speaker, I move that this bill be now read a second time.

The bill amends the Planning Act to address deficiencies in the current planning processes. Some of these deficiencies were identified by the member for Fannie Bay, as the shadow minister for planning, during the debate on the Planning Bill 1999. In October 2001, my predecessor, the member for Casuarina, announced that the review of the Planning Act would be undertaken in line with the government's election commitment.

A discussion paper on the review of the Planning Act was released on 30 March 2003, and public submissions were invited. Submissions were to be received by 31 May 2003. Concurrently, a revised draft for the consolidated Northern Territory Planning Scheme - this time with zoning maps in the new format - was also released for public comment. During the public comment period, departmental officers conducted a series of consultative sessions with local government and community and industry groups regarding the draft Planning Scheme and the Planning Act review. Subsequently, at the request of residents' action groups, workshops were facilitated by a consultant on the review of the act and the scheme. These were held in Darwin on 6 and 17 September 2003, with action groups and departmental staff participating. In addition, I held a further workshop with the groups on 17 July 2004.

Twenty-seven submissions on the review of the Planning Act were received from individuals, community groups, businesses and professional organisations, local government and Northern Territory government agencies. The submissions, generally, addressed issues that have been canvassed in the discussion paper. Some matters outside the scope of the discussion paper were also raised. The public response to the discussion paper has been positive overall, although it is inevitable that, as with a matter of such high public interest such as planning, there will be differing views on specific issues.

The government is committed to the making of the new Planning Scheme to provide the community, industry and government with user-friendly integrated and consistent planning framework, within which projects can be proposed and determined with confidence. After 30 years of an evolving, fragmented planning regime, we owe this significant overhaul to the next generation to enable it to better manage the coming era of development in the Territory.

Much work has been done on the proposed scheme over many years, and it is now at the statutory exhibition stage. Legal advice is that the proposed Northern Territory Planning Scheme would be better facilitated if amendments to the relevant provisions of the act were made first. For that reason, the statutory exhibition of the new planning scheme will be held over until the act is amended.

I now wish to outline the more significant matters that are contained in this bill. In order to give a more complete picture of the government's intentions, I will refer to details that will be contained in the consequential regulations where appropriate. In order to set the scene, the bill proposes a new proposed section 2A of the Planning Act, on the objects of the act and I quote:
· strategic planning of land use and development and for the sustainable use of resources;
· strategic planning of transport corridors and other public infrastructure;

· effective controls and guidelines for the appropriate use of land, having regard to its capabilities and limitations;

· control of development to provide protection of the natural environment, including by sustainable use of water and land resources;

· minimising adverse impacts of development on existing amenity and, wherever possible, ensuring that amenity is enhanced as a result of development;

· ensuring, as far as possible, that planning reflects the wishes and needs of the community through appropriate public consultation and input in both the formulation and implementation of planning schemes; and

· fair and open decision-making and appeals processes.

'Amenity' is a word in common usage within the discipline of land use planning and development. Whilst to date its meaning has been the common meaning found in dictionaries and court decisions, some submissions support defining it within the act. A definition of an amenity is included in the bill. In relation to a locality or building, amenity means any quality, condition or factor that makes or contributes to making the locality or building harmonious, pleasant or enjoyable.

The minister's current power to direct the Development Consent Authority in relation to the determination of a particular development is to be removed. The power to give a general direction or specific direction other than as to the determination of an application will remain. For example, the minister will be able to direct on process such as readvertising an application or calling a special meeting to consider a particular matter.

In place of the power to direct the Development Consent Authority on the determination of a particular application, the minister will be empowered to 'call out' an application before the authority and determine it as a consent authority. A determination by the minister under 'call out' provisions will not be subject to appeal. This is seen to be more transparent in that the Development Consent Authority, the applicant, and those who make submissions will be advised that the minister will be the consent authority with minister's signature on the development permit as a permanent record.

The bill removes the current statutory distinction between land use objectives, development provisions and incorporated documents as separate elements of the Planning Scheme. This amendment, in particular, will facilitate the making of a new Planning Scheme. Individual clauses of the Planning Scheme will be worded to make clear whether they are statements of planning policy, development controls or design criteria. They will also make it clear whether they are binding, matters that can be waived, or matters to which the consent authority must have regard.

The Planning Scheme will speak for itself. At present, the Planning Act and any of the many documents in the Planning Scheme must be read together to ensure the correct interpretation. The Planning Scheme will include general and local statements of land use, planning policy, provisions for the use or development of land, or assessment criteria to assist the consent authority in assessing development applications. The scheme will be able to 'call up' external documents - for example, guidelines for land clearing, excavation and fill - and refer to other documents as background material. I emphasise that it will be able to address issues at the Territory, regional and local levels.

The bill amends the act to permit the making of a separate Planning Scheme for a part of the Territory where unique circumstances would make it inappropriate for the broader scheme to apply. The Northern Territory Planning Scheme will be default scheme. The bill introduces a simplified mechanism for dealing with minor additions or alternations to a building or development with existing non-conforming use rights. A more expedient alternative to the only current means of using an exceptional development permit is necessary to avoid the anomalous situation that presently exists and was not foreseen in the development of the current act.

Matters to be taken into account by the Development Consent Authority when assessing a development application described in section 51 are to be expanded to include crime prevention, design principles, water safety, and access for people with disabilities.

The bill provides for electronic lodgement of development applications. Electronic technology will, obviously, expand more and more into the world of business and government. I note that the National Development Assessment Forum, established by the Commonwealth, state and territory planning ministers, of which the Northern Territory is a member, is developing protocols to facilitate just such initiatives. The proposed amendment to the act anticipates these emerging uses of technology.

The bill provides that, where a land use subject to consent is discontinued for more than 12 months, the consent will automatically lapse. However, the Development Consent Authority will be empowered to extend the period beyond 12 months in a particular case if a request is justified. This provision mirrors the existing provision for non-conforming uses and is designed to allow the consent authority to review the appropriateness and conditions of a previous use, given any change in circumstances.

The bill allows a local authority to initiate the process of nominating a person to fill a vacancy on the Development Consent Authority rather than having to wait for a request by the minister to do so. It also removes the need for an alternate to be reappointed where a principle member ceases to hold office in mid-term. The alternate will be an alternate for a position rather than for a particular person. These provisions are designed to simplify administration.

Determinations by the minister, acting as consent authority for administrative convenience for the remote areas of the Territory, will now be subject to the same appeal rights as for the determinations by the Development Consent Authority. This is a matter of equity for people in remote areas who should not be discriminated against on the grounds of who is the consent authority. However, there will be a separate provision under which the minister could make a determination in a particular case that will not be appealable. This provision is the equivalent of the 'call out' provisions described earlier.

The bill specifies that prosecution for a breach of the act or the Planning Scheme may be initiated within two years from the time the breach first came to notice. At present, it is only six months, and such a tight time frame has proven to be difficult to administer, particularly in relation to offences such as land clearing and other matters that can be time-consuming when bringing an action. The present time frames provide little opportunity for a negotiated outcome as an alternative to prosecution. It should be a consideration of government that a proper planning outcome is achieved rather than just taking punitive action.

The clearing of native vegetation, whether contrary to the Northern Territory Planning Scheme or the conditions of a development permit, is to be regarded as a more serious offence. Unlike many other land use offences, once the clearing has taken place it is difficult to make good, and revegetation will take years to achieve the original amenity. Clearing offences will be specific offences and will not be prosecuted under the general offence provisions of section 75. The act will provide that the owner of the land, the occupier of the land, and the person apparently in charge of the clearing activity, can each be held accountable.

Statutory provision is proposed for the minister to appoint advisory committees and set their terms of reference. At present, there is power for the Development Consent Authority to establish an advisory committee, but not for a committee to advise the minister. Obviously, the minister can administratively seek advice from any source, but there is merit in having a committee established by statute with its purpose, membership and terms of reference being clearly stated under the act. The first committee to be established under this power will be the Darwin Harbour Advisory Committee. The committee exists at present as an administrative entity but, after the amendments have been made, I will re-establish it under the appropriate section of the Planning Act.

The act is to be amended to specify that the Lands and Mining Tribunal may override the decision of the consent authority on appeal only where the tribunal is satisfied that the consent authority's decision would produce a planning outcome that would be manifestly wrong. The emphasis must be on the planning merit of a case and not legal technicalities. The amendment to the act will also allow the tribunal to receive independent land use planning advice to ensure good planning outcomes.

A key commitment by government was to introduce limited rights of third party appeal. These are appeals by parties other than the applicant, such as neighbours. The bill provides for such rights. During the consultation period, there was support for the introduction of limited rights of third party appeal. However, some community groups are seeking very few limitations on these rights and will be disappointed by the limitations proposed by government. Others said that, if third party appeals are to be introduced, they should be severely restricted. Concern has been expressed by industry regarding uncertainty, delays and additional costs that can be associated with third party appeals. The government is mindful of the need to strike a balance between the legitimate expectation of developers and landowners on one hand and, on the other hand, the expectations of people for preserving and enhancing their living environment.

Having regard to the need for this balancing of interests, it was evidenced that unrestricted rights of appeal would be just as inequitable as a complete absence of such a right. Having regard to the decade's long extensive experience of other jurisdictions, the government has decided that the right of third party appeals should be focussed on the residential zones. People decide to live in a particular location in a residential zone and make investments accordingly. These people will now have a right to appeal a decision to allow development that would unduly impact on their residential amenity of choice.

The proposed restrictions on third party appeals are as follows. There will be no third party right of appeal in circumstances where the applicant cannot appeal. Generally, this is where a minister has called out a matter from the Development Consent Authority and determined it as consent authority and for exceptional development permits. Third party appeals may not be for reasons of commercial competition. Only a person who has made a written submission to the consent authority may appeal. This is to encourage participation in the process earlier rather than later. Only a person, as defined in the Interpretation Act - namely a real person, a body corporate or a body politic - may appeal. In other words, the appellants must be legal entities and be able to carry the legal consequences of their actions. Costs may be awarded against a person whose appeal is determined by the Lands and Mining Tribunal to be frivolous or vexatious, or for reasons of commercial competition.

The regulations will prescribe classes of development, in respect of which there will be no right of third party appeal. Generally, appeals will not be allowed for subdivisions or consolidations. They will not be allowed for development in a non-residential zone unless it is on land that interfaces with residential zoned land. Thus, development in the Darwin CBD and Winnellie will not be subject to third party appeals, but development in a local shopping centre could be. Third party appeals will be allowed for residential developments over two storeys in height, such as the controversial unit development in Ostermann Street. Non-residential uses in a residential zone, such as child-care facilities and home occupations where the use does not comply with the relevant provisions of the Planning Scheme, will be appealable.

I now wish to make some comments on strategic planning. At least one public submission observed that the Planning Act does not refer in any material way to the activity or process of strategic planning. While this is true, it is also true that there is no need for it to do so as the strategic planning function, as an activity of government, is a foundation of the Planning Scheme. Outcomes of strategic planning will form the basis of amendments to the Planning Scheme. The act ensures that amendments are open to public scrutiny and comment. In order to reinforce the importance and nature of strategic planning, clause 2A of the bill does refer to the activity of strategic planning as one of the means by which the objects of the Planning Act can be achieved.

There were other matters that came out of the review that I intend to implement, but which do not require amendment to the act. For example, notification of some applications in the newspaper will include a map where this is appropriate. The assessment reports from the action officers to the Development Consent Authority will be available to the public at the hearing. A higher standard of development application will be enforced.

I wish to thank all those who participated in review of the Planning Act since April last year. In particular, I thank local government, community groups, industry, and individuals who have taken the time to read the material, attend public meetings and workshops, and make submissions. I must acknowledge the work of officers in my department in bringing this review to fruition.

Whilst the review has taken longer than originally anticipated, it spanned a change of ministers, and I have given it the time necessary to ensure that I am well aware of the concerns being expressed by all parties. Many of these concerns are conflicting and competing, which reflects the very nature of land use planning and development. It is the role of government to find the balance, and I believe we have in the proposed changes I have outlined. The Planning Act is central in ensuring the Territory is managed in a sustainable manner and that development is orderly and appropriate for the social and economic wellbeing of all, including future generations.

Mr Acting Deputy Speaker, I commend the bill to honourable members.

Debate adjourned.

 

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