Making and Amending Planning Schemes

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 Schemes and the State's planning legislation. It particularly examines the impact of the proposed development or use on the surrounding area.

 

 FREQUENTLY ASKED QUESTIONS

 

1. What legislation regulates planning and development?
2. What is a planning scheme and what does it do?
3. How is a planning scheme prepared?
4. Can I have a say in the preparation of a planning scheme?
5. Can changes be made to a planning scheme?
6. How do I request a Scheme Amendment?
7. What does the scheme amendment process involve?
8. How much does it cost to request a Scheme amendment?

 

 

1. What legislation regulates planning and development?

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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:

 

 

• The Land Use Planning and Approvals Act 1993 (LUPAA), regulates land use and development through council planning schemes and planning permits.
• The Environmental Management and Pollution Control Act 1994 (EMPCA), manages and regulates environmental issues and pollution and defines what level of activity council's regulate (Level 1 activities) and what level the state regulates (Level 2 and 3 activities). Any activities that have the potential to cause environmental harm must be considered under EMPCA.
• The State Policies and Projects Act 1993:

 

 

Once a State Policy is enacted under this legislation, all existing and new planning schemes must become consistent with that Policy (Section 13).

 

• The Historic Cultural Heritage Act 1995, aims to promote the protection and conservation of places having historic cultural heritage significance. It established the Tasmanian Heritage Council and the Tasmanian Heritage Register
• The Major Infrastructure Development Approvals Act 1999, makes special provision for the approval of major linear infrastructure such as roads, railways, pipelines, powerlines and communication cables.
• The Resource Planning and Development Commission Act 1997 (RPDC), established the RPDC, which oversees the approval process for planning schemes and scheme amendments, and for projects deemed to be Projects of State Significance.
• The Resource Management and Planning Appeal Tribunal Act 1993 (RMPAT),established the Tribunal, which hears appeals against decisions made under LUPAA or EMPCA and various other acts.

 

All of these acts share the following common objectives, namely:

 

• to promote sustainable development and maintain genetic diversity
• to provide for the fair, orderly and ustainable use and development of air, land and water
• to encourage public involvement in resource management and planning
• to facilitate economic development in accordance with these objectives
• to promote the sharing of responsibility for resource management and planning between the different spheres of government, the community and industry in the state.

 

Additional pieces of state legislation that may need to be considered when deciding on planning issues are:

 

• The Threatened Species Act 1995,
• The Aboriginal Lands Act 1995,
• The Aboriginal Relics Act 1975,
• The Crown Lands Act 1976,
• The Local Government (Building and Miscellaneous Provisions) Act 1993,
• The Strata Titles Act 1998,
• The Water Management Act 1999,
• The Marine Farm Planning Act 1995,
• The Forest Practices Act 1985,
• The Private Forests Act 1994,
• The Regional Forest Agreement and Land Classification Act 1998,
• The National Parks and Reserves Management Act 2002,
• The Nature Conservation Act 2002.

 

'A Guide to the Resource Management and Planning System' can be found on the Resource Planning and Development Commission (RPDC) website. This document gives a comprehensive description of the Resource Management and Planning System (RMPS) and the main acts that inform it.

 

Commonwealth Legislation

 

The following Commonwealth legislation may also apply, depending on the nature and location of any proposed development or use:

 

• The Disability Discrimination Act 1992,
• The Environment Protection and Biodiversity Conservation Act 1999 (EPBC),
• The Environment and Heritage Legislation Amendment Act (No. 1) 2003,
• The Australian Heritage Council Act 2003.

 

(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:

 

• World Heritage properties
• Ramsar wetlands of international significance
• Nationally listed threatened species and ecological communities
• Nationally listed migratory species
• The Commonwealth marine environment
• Nuclear Actions.

 

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 a planning scheme and what does it do?

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A planning scheme performs a number of functions within a council's municipal area:

 

• It regulates use and development,
• It establishes the objectives and rules under which use and development will be considered.
• It may seek to achieve protection and conservation of land.
• The rules and objectives aim to ensure that future development will occur in a sustainable way - that is, that the economic, social and environmental needs of the municipal area will be equally considered.

 

A planning scheme consists of a written document, usually known as the Ordinance and a series of coloured maps with specific land use zones.

 

Land use zones determine the type of use and development that will be considered. Each zone usually has a set of objectives describing what the purpose of the zone is, what the desired character of it is e.g. residential, industrial or mixed use and a list of permitted and discretionary uses. Each zone also usually has specific requirements listed in terms of:

 

• Minimum lot sizes,
• Set backs from boundaries
• Height limits
• Density requirements.

 

Various other environmental, engineering and design criteria are also usually listed for each zone. These may be in the form of map overlays, which overlay the zones and/or written controls which add additional controls to those already existing for the zones.

 

For example, an overlay showing flood prone areas may cover a number of zones and require development within the area covered by the overlay to have a finished floor level higher than the normal, in order to protect against flood damage.

 

Many councils have more than one planning scheme for their municipal area - a legacy from when there were more than 29 Tasmanian councils.

 

The Dorset Planning Scheme 1996 is the only planning scheme to operate in Dorset.

 

Under Section 20 (1) of The Land Use Planning and Approvals Act 1993 (LUPAA) council planning schemes must:

 

• seek to further the objectives of the Resource Management and Planning System
• be prepared in accordance with State Policies, and
• have regard to the strategic plan of council.

 

Dorset Council's Strategic Plan can be downloaded here.

 

Section 20 (1) states that planning schemes may make any provision which relates to the use, development, protection or conservation of any land in the area.

 

 

3. How is a planning scheme prepared?

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Making a modern planning scheme is a complex process. It involves consideration of many economic, social and environmental issues in an attempt to ensure sustainable development for the relevant municipal area.

 

In developing a planning scheme the council must ensure it complies with the relevant sections of The Land Use Planning and Approvals Act 1993 (LUPAA) and State Policies.

 

A planning scheme must be consistent with the following three State Policies:

 

• The State Coastal Policy 2003 and The State Coastal Policy Validation Act 2003. (the Validation Act reinstated the State Coastal Policy and amended the definition of the coastal zone to include land one kilometre in from high water mark)
• The Protection of Agricultural Land Policy 2000
• The Water Quality Management Policy 1997

 

The following National Environment Protection Measures (NEPM's) have also been adopted as State Policies. These are the:

 

• Ambient Air Quality Policy
• Movement of Controlled Waste between States and Territories
• The National Pollutant Inventory
• Assessment of Site contamination
• Used Packaging Materials
• Diesel Vehicle Emissions

 

As a starting point in developing a new planning scheme a council usually:

 

• assesses the environmental condition of its municipal area in order to determine what environmental constraints might exist and what areas are special or sensitive and in need of particular controls or protection.
• researches the population of the area to determine what sort of population growth and age structure changes are likely to occur, in order to estimate what amounts of land might be needed for future residential, commercial, industrial and agricultural needs
• conducts economic and social analysis to assess the existing conditions and estimate likely future trends
• looks at its strategic plan to ensure that the planning scheme rules are consistent with the desired future for the council area.

 

A council may conduct this research itself or engage consultants. This stage also usually involves informal consultation with many residents groups, various interest groups and various government agencies.

 

The Land Use Planning and Approvals Act 1993 (LUPAA) requirements for developing a Planning Scheme

 

Sections 22 to 30 of LUPAA set out formal requirements in relation to the steps a council must follow once it decides to prepare a draft planning scheme:

 

• Section 23 requires the council to notify the Resource Planning and Development Commission (RPDC, otherwise known as the Commission) within 14 days that it intends to prepare a draft planning scheme.
• Section 24 (1) gives the council 12 months to prepare the draft scheme and submit it to the Commission, although the Commission can extend that time.
• Section 24 (2) gives the Commission 6 weeks to certify the draft scheme as suitable for public exhibition, although the Minister can allow an extension to this time.
• Once certified by the Commission, section 25 requires the council to publicly exhibit the draft scheme for 2 months.

At the end of the public exhibition period, council must respond to any submissions and provide its response to the Commission. The Commission then holds public hearings in relation to the submissions made, decides on the submissions and may:

 

• reject the draft planning scheme
• modify the draft planning scheme
• require council to modify the draft planning scheme
• direct that a specified part of the draft planning scheme be redone.

 

Once any required modifications are made and the Commission is satisfied that the draft Scheme is in order, section 29 (2) of LUPAA requires the Commission to give approval to the draft Scheme (subject to the approval of the Minister) not later than 6 months after receiving the final report from council in relation to the modifications required.

 

Council is required to give notice of the Commission's approval and unless otherwise stated, the new Planning Scheme comes into effect 7 days after the date on which the Commission gave its approval.

 

Simplifying Planning Schemes

 

Developing a new Planning Scheme takes at least two years and often a lot longer.

 

To simplify the process, the State Government in association with the Local Government Association of Tasmania have been working on a project known as 'Simplifying Planning Schemes'.

 

This project has involved developing a 'Common Key Elements Template', setting out the structure and format that a new planning scheme should follow and the number and types of zones it should include.

 

The Template may become a planning directive under Part 2A, Section 9 of the Land Use Planning and Approvals Act 1993 (LUPAA). If the Template becomes a planning directive, a council is bound under Section 14 of LUPAA, to take all necessary steps to comply with it, when preparing a new planning scheme.

 

 

4. Can I have a say in the preparation of a planning scheme?

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When developing or revising a planning scheme, many councils run informal workshops and community consultations to explain the process and to get feedback on what the local community expectations are for the area. These are usually advertised in the local papers and open to the public.

 

Dorset Council's Planning Scheme was prepared after significant public consultation for the development of the Dorset Sustainable Development Strategy which provided the basis of the new planning scheme.

 

A formal consulation process is required under the Land Use Planning and Approvals Act 1993 (LUPAA). Sections 25 to 28 of LUPAA detail that process:

 

Section 25 of LUPAA requires the planning authority (usually the local council) to put the draft planning scheme on public exhibition for a period of two months and advertise this fact. During that two month period, any person can make a representation to the council on the draft scheme.

 

At the end of that period, all representations must be sent to the Resource Planning and Development Commission (RPDC, otherwise known as the Commission) along with a report from the council detailing:

 

• the merits of each representation
• its view as to whether modifications to the draft Scheme are needed as a result of the particular representations
• the impact of any such representations on the draft Planning Scheme as a whole
• any other recommendations the authority considers necessary.

 

Under Section 27 of LUPAA, once the Commission has received the planning authority's report, it must consider the report and organise a public hearing to allow each person who had made a representation to speak at the hearing, if they so desire.

 

Following the hearings and after consideration of the submissions, the Commission may, under Section 28 of LUPAA modify or reject the draft planning scheme or require the council to modify, or redraft part of it.

 

If part of the draft scheme needs to be redrafted, the council is required to resubmit that section to the Commission, within a set period. It then has to go through the same certification, notification, hearing and decision process.

 

 

5. Can changes be made to a planning scheme?

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Yes. Under Section 33 of The Land Use Planning and Approvals Act 1993 (LUPAA) any person can ask the planning authority (local council) to amend its planning scheme.

 

Usually the request involves either a 'rezoning' or change of zoning to a piece of land, or a change to some of the rules in part of the written document.

 

The council can also start the amendment process itself.

 

Amendments to the scheme help keep it up to date and also allow flexibility in terms of adapting to any new council strategies or directions.

 

If you are seeking a scheme amendment in order to facilitate an application for a planning permit that currently is prohibited under the planning scheme, under Section 43A of LUPAA, you can apply for both at the same time.

 

 

6. How do I request a Scheme Amendment?

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You need to make a written request to council. There is a set form to fill in, but you will need to provide information on:

 

• what the problem is with the current scheme
• what your development proposal is about
• what merit it has.

 

You will also need to show that the objectives of the planning scheme, The Land Use Planning and Approvals Act 1993 (LUPAA) and any relevant State Policies are being met.

 

Before you submit your request to Council it is wise to speak to Council's planning officers to discuss your proposed amendment and get information on what details you should put with it.

 

Contact Dorset Council's Planning Officer on (03) 6252 6500. How long does a Scheme Amendment take?

 

Generally about 6 months, depending on whether a hearing of representations is required.

 

 

7. What does the scheme amendment process involve?

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The process for initiating and assessing a scheme amendment is detailed in Division 2, Sections 31 to 43 of The Land Use Planning and Approvals Act 1993 (LUPAA).

 

Once council receives a request it has 42 days to decide if it will initiate the requested amendment. This decision is usually made by council or its planning sub-committee, following receipt of a report and recommendation from council's planning officers.

 

Once council makes its decision it has 7 days to inform the applicant. If it decides not to go ahead with the requested amendment, the applicant, can ask the Resource Planning and Development Commission (RPDC, otherwise known as 'the Commission') to review the process by which the council reached its decision. This must be done within 14 days of being informed of council's decision.

 

Under Section 33(3D) of LUPAA, the Commission has the power to direct the council to reconsider the amendment or confirm council's decision.

 

If council decides to go ahead with the proposed amendment it has seven days within which it must send to the Commission, a copy of its decision, indicating how it intends to amend the scheme.

 

A council can also initiate a scheme amendment itself, or, under Section 34(2) of LUPAA, the Commission, with the approval of the Minister can direct it to initiate an amendment. If this happens, it has 10 weeks to prepare and submit the draft amendment to the Commission (unless the Commission allows a longer period).

 

Minor scheme amendments

 

Where the Commission is satisfied that the draft amendment relates to minor corrections and issues defined under Section 37 of LUPAA, it can write to the council approving the amendments.

 

Major scheme amendments

 

With major scheme amendments, under Section 38 of LUPAA, the council must:

 

• send a copy of the proposed amendment to the Commission
• put the draft amendment on public exhibition, for a period of not less than 3 weeks and not more than 2 months, as determined by council. This involves putting an advertisement in the local paper (and sending letters to adjoining properties where a specific site is involved), informing them that the draft amendment is on display at the council offices or the Commission offices and inviting representations.
• Within 35 days from the end of the public exhibition period, the council must consider the representations received and submit them, along with a report and recommendations, to the Commission.
• the Commission must hold a hearing in relation to the representations received, unless they have all been in support of the proposed amendment or if those who made a representation do not want to attend a hearing.

 

Having considered the proposed amendment and any representations made, the Commission may:

 

• request the council to make substantial changes to the proposed amendment
• may make changes to the amendment itself,
• may reject the proposed amendment
• may approve the amendment.

 

If council is directed to change the proposed amendment, it must do so and resubmit the altered amendment to the Commission within 28 days of receiving the Commission's direction, unless a longer time is granted.

 

If the changes to the proposed amendment are substantial, under Section 41B(1) of LUPAA, the Commission must direct the council to readvertise the amendment and the modifications to it, giving people the opportunity, as before, to make representations.

 

Having received all information and representations, the Commission has 3 months to make a decision (unless the Minister approves a longer time) and notify council.

 

Council then advertises the Commission's approval of the Scheme amendment and the date on which it takes effect.

 

 

8. How much does it cost to request a Scheme amendment?

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Planning Scheme Amendment Application Form (70 kb)

Planning Scheme Amendments
Application fee for:
Text Alterations	$3,150.00
Map Alterations	$3,150.00
Processing fee after Council Approval to proceed	Fees as charged by the Resource Planning and Development Commission Plus advertising fees
Disbursements
Advertising Fee (if required)	$260.00
Fees charged by the Resource Planning and Developemnt Commission	At Cost per Regulations

 

In addition to councils charge, the Resource Planning and Development Commission charges $222 per amendment.