One of Dorset Council's core activities is to regulate the use and development of the land in its municipal area.
The Planning Approval process regulates 'use' and 'development' of land by assessing proposals against Council's Planning Scheme and the State's planning legislation. It particularly examines the impact of the proposed development or use on the surrounding area.
|1. What legislation regulates the planning permit process?|
Planning and development in Tasmania is regulated by a series of acts that collectively are known as the Resource Management and Planning System (the RMPS). These acts are:
Once a State Policy is enacted under this legislation, all existing and new planning schemes must become consistent with that Policy (Section 13).
All of these acts share the following common objectives, namely:
Of these acts, the ones most relevant to the planning permit process are:
Additional pieces of state legislation that may need to be considered when deciding if a planning permit can be issued are:
The following Commonwealth legislation may also apply, depending on the nature and location of any proposed development or use:
(The latter two bills received Royal Assent in September 2003.)
The EPBC Act is triggered only when a proposal might impact on issues of national environmental significance. The act defines these as:
The new heritage legislation includes an amendment to the EPBC Act to allow places listed on the National Heritage List also to be assessed under it. The Commonwealth intends to compile this list in 2004. The EPBC website includes information specially targeted at local government and is very informative.
|2. What is the difference between the Building Permit and the Planning Permit process?|
The Building Permit process regulates the construction and alteration of buildings by assessing proposed buildings and structures and alteration work against the requirements of the Building Code of Australia (BCA).
Plumbing permits are usually part of the building permit process.
You should always check with council before you commence any building, plumbing or repair works.
Please contact the Dorset Council's Manager of Development and Environment on (03) 6352 6500.
The Planning Permit process regulates the use and development of land by assessing proposals against Council's planning schemes and the State's planning legislation. The planning approval process focuses particularly on the impact of a proposal on the site and neighbouring land. It addresses the following sorts of issues:
In order to minimise time delays, some councils will accept applications for both building and development permits at the same time, but others are reluctant to do so because:
Dorset Council accepts applications for Building and Planning at the same time, usually after prior consultation in respect to the proposal submitted.
A Building Permit is required for the vast majority of structures and buildings with the exception of some minor structures such as small fences, some repair works and minor alterations.
|3. When do I need to get a Planning Permit?|
You usually need to get a Planning Permit (also commonly called Planning Approval or a Development Permit) from your local council whenever you want to:
The council planning scheme details the types of use and development that require planning approval and what are exempt.
Dorset Councils Planning Scheme may be downloaded or viewed here.
You should always contact the council to find out whether you need planning approval for any use or development you might be considering. Council will also give you advice on the information you will need to provide.
For further information contact Dorset Council's Manager of Development and Environment on (03) 6352 6500.
'Use', 'Development' and 'Works
When talking to council planning officers you will hear them use the terms 'use', 'development' and 'works'. These terms have specific legal meaning under The Land Use Planning and Approvals Act 1993 (LUPAA).
'Use' in relation to land means 'the manner of utilising land, but does not include the undertaking of development'.
Section 3(1) LUPPA.
Section 3(1) LUPPA.
The term 'works' is referred to in the definition of development. In this context it means 'any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil, but does not include forest practices as defined in the Forest Practices Act 1985, carried out in State forests.
Section 3(1) LUPPA.
|4. What if my property is heritage listed?|
Having a heritage listed property does not mean that it cannot be changed or improved, but that any modifications will be thoroughly assessed to ensure that the heritage characteristics of the property are not lost.
Council Planning Scheme listing
If your property is heritage listed in the local council planning scheme, you will usually need to obtain planning approval for any use or development of the site. In most cases this will be a discretionary application.
This means that the application can either be approved or rejected by council and will be publicly advertised for 14 days, to allow anyone to make a representation on the proposal to council.
Tasmanian Heritage Register
If your property is on the Tasmanian Heritage Register it is considered to be of state heritage significance and is protected under the Historic Cultural Heritage Act 1995. To develop such a site, in addition to the council approval, you will also need to obtain approval through a works application to the Tasmanian Heritage Council.
Works applications are usually lodged with the local council at the same time as the planning permit is lodged. The local council sends all the information to the Tasmanian Heritage Council for assessment. This saves 'doubling up' by the applicant. Please click on the link to download a Works Application Form.
There are no fees for works applications to the Tasmanian Heritage Council. You can appeal a Heritage Council decision to the Resource Management and Planning Appeals Tribunal (RMPAT). The appeal must be lodged within 40 days of the notice of the decision being given.
Commonwealth Heritage Register
The Register of the National Estate currently lists over 12,000 places of national, indigenous and historic value. Such listing does not legally affect the management of a place, unless it is owned by the Commonwealth.
A suite of new Commonwealth heritage legislation received Royal Assent on the 23 September 2003 and should be operational in the first half of 2004.
The new legislation will establish a National Heritage List, which will provide protection for the heritage values of the places listed on it through the Environment Protection and Biodiversity Conservation Act 1999 (EPBC).
A place on this list will require approval under the EPBC Act before any action takes place, in order to assess if the proposed action is likely to have a significant impact on the national heritage values for which the place is listed.
The new list will be established in 2004. Each place on the list will be managed by the Australian Heritage Council, which will replace the existing Australian Heritage Commission.
|5. How do I apply for a Planning Permit?|
To apply for a Planning Permit (also commonly referred to as a Development Application (DA) or as an application for a Development Permit, Planning Approval or Development Approval) you must lodge an application with your local council. An application form needs to be filled in and submitted with plans indicating what the proposal is about and a copy of the title. Most councils (but not all) require payment of planning fees at the time of lodgement.
Dorset Council requires planning fees to be paid at the time of lodging the application.
"What do I need to include in the planning application?" gives more information about the type of information needed.
Before you submit the application you should talk to council planning officers about your proposal. The officer will give advice on the parts of the planning scheme relevant to your application and the information you need to provide, to help them assess it.
Contact Dorset Council's Manager of Development and Environment on (03) 6352 6500.
It is also very wise to talk to your neighbours and inform them of what you are proposing, especially if the proposal will need to be advertised. Most neighbours appreciate the courtesy of being informed and it provides an opportunity to become aware of potential problems and perhaps sort them out before you are committed to a particular design.
If your application is straightforward and, for example, involves a change of use with little structural alterations to the building, you may not need professional assistance. In many cases though, it is wise to get professional assistance with the application, especially where detailed drawings and/or site analysis is needed.
|6. What does it cost to apply for a planning permit?|
Dorset Council requires planning fees to be paid at the time of lodging the application. Council's fees vary depending on:
The above fees are to be reviewed annually, however, generally amended in-line with the Construction Industry index as determined by the Australian Bureau of Statistics.
|7. What do I need to include in the planning application?|
When lodging an application you usually need to submit:
The submitted plans usually need to include the following details;
Other details may be required depending on the Planning Scheme For commercial and industrial uses, additional information is likely to be required such as:
If you need assistance with completing your application, contact council's Planning Department on (03) 63526 500.
|8. How is the planning application processed?|
Once a planning application is received it must be assessed against the council planning scheme requirements and for compliance with the provisions of relevant State Policies.
The council planning officer usually examines the plans and also conducts a site assessment checking the plan details and the likely impact of the proposal on the streetscape and adjoining properties.
The council development engineer will check details relating to vehicular access, parking and traffic impacts.
Depending on the type of development proposed, the council environmental health officer will check issues such as site drainage, waste disposal and any licensing requirements and ensure that any requirements of The Environmental Management and Pollution Control Act 1994 (EMPCA) are met.
EMPCA - Level 1 Activities
Under EMPCA, if the development is a Level 1 activity, it requires assessment and approval from the local council. If it is a Level 2 activity, council must refer it the EMPCA Board for assessment.
Typical Level 1 activities are:
Level 2 activities include more major industrial developments.
EMPCA - Level 2 Activities
Level 2 activities are listed in Schedule 2 of EMPCA. With a Level 2 activity, the EMPCA Board decides if it needs to do an assessment. If it does need to do an assessment, under Section 25 (2)(b) it must do this assessment in accordance with the Environmental Impact Assessment Principles, described in Part 5, Section 74(1) of EMPCA.
Sometimes a Level 1 activity may be considered to have the potential to cause environmental harm, and in such circumstances, the Director of Environmental Management may 'call-in' the application for the EMPCA Board to assess.
Once the EMPCA Board has assessed a development proposal, under Section 8 of EMPCA it may direct the local council to either reject the proposal or require conditions to be contained in the permit.
Further information about EMPCA is available on the Department of Primary Industry, Water and Environment website.
As well as having to consider EMPCA and depending on the nature of the proposal , council may also need to seek advice from other agencies on issues such as heritage or compliance with fire regulations.
If the proposed development had to be advertised, council must consider any representations received.
Once all of the assessments are completed the council planning officer writes a report. A decision is then made either by a senior officer or council committee, (if they have the delegated authority to do so) or by the council.
Dorset Council's Manager of Development and Environment has limited delegation for both permitted and discretionary planning applications.
|9. How long does it take for the Council to process the application?|
Legislation requires councils to process a planning application within a maximum of 42 days but many applications take less time to process.
Processing times vary depending on:
Two types of application exist. A 'permitted' application or a 'discretionary' application.
Section 58(2) of The Land Use Planning and Approvals Act (LUPAA), requires a council to grant a permit, with or without conditions, on any permitted application within 42 days of the application being received by the council.
This time frame can be extended by a written agreement between the applicant and the council. This agreement must occur before the 42 days is up.
'Permitted application' means any proposed development or use that complies with the provisions of the planning scheme and thus under Section 51 of LUPAA must be granted a permit, with or without conditions.
A permitted aplication does not need to be advertised, thus no third party appeal rights exist. The applicant must be informed of council's decision within 7 days of the permit being granted. The applicant may appeal any condition of the permit.
Section 57(1) of LUPAA requires the council to make a decision on a discretionary application within 42 days of receiving it. In that time, council must advertise the application and allow 14 days for representations to be received.
Council must consider those representations and decide to either refuse the application, approve it or approve it subject to conditions. The council may extend the 42 day time period with the approval of the applicant.
Statutory rule number 262 of the Land Use Planning and Approvals Regulations 1993 requires a discretionary application to be advertised by:
The applicant may appeal the decision and anybody who has made representations may also appeal the decision to the Resource Management and Planning Appeal Tribunal (RMPAT).
Many applications are decided in less than 42 days, especially if they are straightforward applications and all of the necessary information has been provided at the beginning.
The Local Government Division of the State Government produces an annual report entitled 'Measuring Council Performance in Tasmania'. The report details many issues relating to council performance, including providing data on the number of days on average that it takes to obtain a planning permit from each council.
The following table gives the average time it took to obtain a permit from various size councils during 2001-2002: It is taken from the 'Measuring Council Performance in Tasmania, July 2003' report.
Medium Size Councils
Under Section 54(1) of The Land Use Planning and Approvals Act (LUPAA), the council can request further information from the applicant. This must be a written request and must be served on the applicant within 21 days of the council receiving the application. The 42 day time period does not begin again until the additional information is received and is to council's satisfaction.
Where all the necessary information has been provided and the council has failed to determine the application within the 42 day period, then, under Section 59(1) of LUPAA a deemed approval is considered to have been issued. The applicant must appeal to the Resource Management and Planning Appeals Tribunal (RMPAT) (commonly referred to as the Tribunal) for an order determining the conditions (if any) on which the permit is granted.
Even though the application has not been considered within the 42 day period, the council may still make a decision on the application at any time before the applicant applies to the Tribunal for an order determining conditions.
The Tribunal may grant the permit unconditionally or with conditions. In the case of a discretionary use application the Tribunal also has the power to refuse the permit.
|10. How do I find out about the planning application?|
Council is required under Section 57(1) of The Land Use Planning and Approvals Act 1993 (LUPAA) to advertise any discretionary applications it receives, for a period of 14 days. Under statutory rule number 262 of the Land Use Planning and Approvals Regulations 1993, a discretionary application is required to be advertised by:
These applications must put in a place which is open to inspection by the public. They are usually placed in a public area near the Development and Planning section of the council offices. Persons have 14 days to make representations to council on the application.
Permitted applications do not need to be advertised as there are no appeal rights in relation to them.
|11. How can I object to a planning application?|
You can only object to a planning application if it is a 'discretionary application'.
This means it must be advertised and persons have 14 days from the day of the advertisement to lodge an objection with Council. This must be done in writing and should state the reasons why you object to the application.
|12. Will I be notified if there is a development next door?|
If the application is a 'discretionary application' you will be notified. Under Section 8(1) of the Land Use Planning and Approvals Regulations 2004, a discretionary application is required to be advertised by notice in the newspaper, notices put up at each public frontage of the land and notices to each adjoining owner and occupier of the land.
|13. What issues must the Council consider when deciding on a planning application?|
Under Section 51(2) of The Land Use Planning and Approvals Act (LUPAA), council must consider the following issues when deciding on a planning application. It must:
|14. If I don't agree with the Council's decision, what can I do?|
If you as the applicant are unhappy with the council's decision, either because it has refused your application or has put conditions on that you disagree with, you can lodge an appeal with the Resource Management and Planning Appeal Tribunal (RMPAT), (commonly referred to as the Tribunal).
If you have as an objector lodged a representation to an application within the 14 day appeal period and are unhappy with Council's decision, you can also lodge an appeal with the Tribunal.
|15. How do I lodge an appeal with the Resource Management and Planning Appeal Tribunal?|
Planning appeals are lodged with the Resource Management and Planning Appeals Tribunal (RMPAT). The RMPAT is an independent tribunal established under The Resource Management and Planning Appeal Tribunal Act 1993 (RMPAT). (Commonly referred to as 'the Tribunal').
Under Section 61 of The Land Use Planning and Approvals Act (LUPAA), you must lodge an appeal with the Tribunal within 14 days of receiving notice of the council decision. To do this you must fill in a form which can be obtained from the Tribunal web site or from the Tribunal offices at, 144 -148 Macquarie St. Hobart, Ph; 6233 6464.
The fee to lodge an appeal is currently $55.50. Please note that the fee for lodging an appeal with the Tribunal changes each year as a result of the Fees Unit Act. You should check with the Tribunal regarding the lodgement fee at the time you lodge an appeal.
Each person who is a party to an appeal will be notified of the time and date by letter from the Tribunal. A notice will also be published in the Public Notices Section of the local newspaper, informing people of the notice of appeal and the date set for the directions hearing.
Joining as Party to an Appeal
If you miss the timeframes for objecting to council regarding a planning application, but somebody else has done so and has lodged an appeal with the Tribunal, you may be able to join that appeal. This is called being joined as a party to the appeal.
Section 14 of The Resource Management and Planning Appeal Tribunal Act 1993 (RMPAT) describes the parties to an appeal and allows for a person to apply in writing to join an appeal, provided that they can prove to the satisfaction of the Tribunal that they have a proper interest in the subject matter of the appeal and that it is not reasonable to expect them to have made a representation in respect of the activity.
If you did make a representation during the timeframes for lodging objections to the Council, you can also apply to join an appeal. In any application to join an appeal, you must be able to demonstrate in your application, that your interests are affected by the decision.
|16. How does the Resource Management and Appeal Tribunal run an appeal?|
The Resource Management and Planning Appeal website contains more detailed information on all of the issues discussed here and should also be examined if you are looking for further information on how the appeal process operates. It also provides links to all of the acts mentioned.
The Tribunal is established and guided in how it runs an appeal by the Resource Management and Planning Appeal Tribunal Act 1993 (RMPAT). Under Schedule 1 of this act, it is required to promote the objectives of the Resource Management and Planning System of Tasmania (RMPS).
The Tribunal hears appeals under nine Tasmanian Acts. They are the:
The appeal process generally involve five stages;
Usually within two weeks of receiving a notice of appeal the RMPAT tries to convene a Directions Hearing. This is a preliminary hearing aimed at scoping the main issues of the appeal, who will be involved and if mediation should occur. You must bring 5 copies of the list of issues you wish to raise to this hearing.
At this hearing, directions will be issued on:
The Mediation Conference
The Tribunal provides mediators to assist parties negotiate an agreed outcome to an appeal rather than going to a full appeal hearing. The mediation conference is confidential between the parties involved and the mediator. The Tribunal is not informed of what is said at the mediation conference.
The majority of appeals to the Tribunal are mediated and don't go to a full hearing.
The Full Hearing
If mediation fails then the appeal will be heard at a full hearing of the Tribunal. At a full hearing, you are entitled to legal representation or representation by a consultant planner. You can take advise as to whether the case is one which would require such assistance. You are also at liberty to represent yourself in an appeal before the Tribunal.
The Tribunal usually consists of three members - the chairperson and two members with relevant expertise. The chairperson is usually a legal practitioner and runs the hearing.
The normal routine for a hearing is for the parties who applied for the development or use, that is the subject of the appeal to go first and present all their evidence, including any witnesses.
The decision making authority, eg the local council goes second.
Any other parties to the appeal go third.
As each witness speaks the opposing party is given the opportunity to ask them questions. The Tribunal may also ask them questions. The evidence presented by witnesses must be in written form and copies given previously to the opposing parties and to the Tribunal. (This would have been agreed to at the Directions Hearing).
After questions by the opposing party, the party that called the witness may ask some more questions if they believe it is necessary, to clarify issues. Each side then gives a final submission summarising their case. Sometimes, if time is running out, the chairperson directs that these submissions be in writing and if so, the hearing finishes.
Following the hearing, the Tribunal members conduct a site visit, usually without the parties being present and then prepare a decision in written form with the reasons for the decision stated. This usually takes a few weeks and the parties are notified in writing. The Tribunal may decide to uphold the appeal, amend the original decision with additional or changed conditions or reject the appeal.
The Tribunal must make an order as to the costs of the appeal. Costs means the professional fees and expenses directly incurred in conducting the appeal. Section 28 of the Resource Management and Planning Appeal Tribunal Act 1993 (RMPAT) describes the factors to be considered in allocating costs.
In most cases the decision is made that each party covers its own costs. In the situations where a local council has not made a decision within the required time and the Tribunal hears an appeal lodged under Section 59(3) of the Land Use Planning and Approvals Act (LUPAA), then under Section 59 (5), costs must be allocated against the council.
|17. Can I appeal the Resource Management and Planning Appeal Tribunal's decision?|
Under Section 25 of the Resource Management and Planning Appeal Tribunal Act 1993 (RMPAT) you may appeal the Tribunals decision to the Supreme Court but only on a point of law. You must do so within 28 days of the Tribunal making the decision.