Australia: New assessment process for major projects in Tasmania - have your say

Last Updated: 22 December 2017
Article by Nicole Besgrove and Claire Smith

After consideration of the first phase consultation submissions on the draft bill proposing a new major projects assessment process, the Tasmanian Government has now released a revised draft exposure bill for further consultation.

On 4 December 2017, the Tasmanian Government released for consultation the revised draft Land Use Planning and Approvals Amendment (Major Projects) Bill 2018 which proposes to amend both the Environmental Management and Pollution Control Act 1994 (Tas) and the Land Use Planning and Approvals Act 1993 (Tas) to provide for a staged approval process for major development proposals. Consultation on the revised draft Bill ends at the close of business on 29 January 2018.

Current major projects assessment process

Major projects are those which are large in scale and are more complex than other development proposals as they involve broader economic, environmental and social impacts issues which often extend beyond a single municipal area. Such proposals often require multiple approvals including land use planning, environmental and other associated approvals.

Currently in Tasmania there are three assessment pathways which are used in relation to major projects:

  • Projects of State Significance (POSS): assessment under the State Policies and Projects Act 1993 for projects involving significant capital investment, state-wide impacts or complex technical design.
  • Projects of Regional Significance (PORS): assessment under the Land Use Planning and Approvals Act 1993 (LUPAA) for larger and more complex projects that do not qualify as a POSS but have impacts across council boundaries and wider regional areas.
  • Major Infrastructure Development Approval (MIDA): assessment under the Major Infrastructure Development Approvals Act 1999 for major linear infrastructure proposals comprising a road, railway, pipeline, power-line, telecommunications cable or other prescribed linear infrastructure.

The Government determined that there was a need to make changes to the PORS pathway under the LUPAA to allow for a staged approval process for major projects in Tasmania because the PORS pathway has not been used since its introduction for reasons including:

  • the time and expense associated with the preparation of detailed reports and studies required to satisfy technical requirements for land use planning and environmental issues before it is known whether or not the proposal meets the basic criteria for approval;
  • the lack of certainty associated with aspects of the PORS pathway such as timing and calculation of assessment fees and timeframes for assessment; and
  • the fact that the PORS pathway is limited to only assessing land use planning and environmental issues and subsequent separate approvals (if triggered) are required before the project can begin.

The Government also identified a shortcoming with respect to the ministerial declaration powers under the PORS pathway which can only currently be used where warranted by the scale or complexity of the project and not in those circumstances where unreasonable delays by the local planning authority have occurred during the land use planning assessment.

First phase consultation and revisions

The draft Bill was initially released for consultation on 28 August 2017 for a five-week period which ended on 2 October 2017. The Government received 198 submissions from a range of stakeholders which included State Service Agencies, the Planning Reform Taskforce, the Local Government Association of Tasmania, local councils, infrastructure providers (TasWater, TasNetworks, Hydro Tasmania), industry groups and organisations, environmental groups and individuals.

The submissions raised a number of concerns in relation to the draft Bill which are discussed in detail in the Second Consultation Paper, along with the Government's response and associated revisions to the draft Bill. Those concerns which formed the basis for the revisions made to the draft Bill generally related to:

  • the timeframes proposed throughout the assessment process being too short and potentially not allowing enough time for regulators to undertake the assessment;
  • loss of current legislative powers for infrastructure providers to ensure that any necessary infrastructure can be provided and/or that the risks of adverse impacts on existing infrastructure can be avoided or mitigated;
  • the threshold of only needing to meet one of the eligibility criteria provides scope for too many projects to be declared;
  • the scope of the Minister's declaration powers are too wide which may result in unreasonable delay;
  • excluding high buildings from the major projects assessment process may unnecessarily exclude certain projects;
  • the Minister's ability to approve guidelines was considered a significant expansion of the Minister's powers than is currently afforded under the PORS assessment process;
  • the Tasmanian Planning Policies are a consideration in the declaration process, but these policies have not been finalised or enacted through legislation;
  • a range of issues associated with the establishment, composition and procedures of the Development Assessment Panel (Panel);
  • the requirement for participating regulators to provide final advice after hearings and the implications the limited timeframes within which this is to occur will have in terms of including additional information raised during the hearing in that advice;
  • the limitations in relation to when a minor amendment of a Major Project Permit can be made; and
  • the two-year restriction on making a new application if the major project is refused.

Proposed major projects assessment process

The draft Bill introduces a four-stage assessment process to implement the reforms. Each stage is briefly outlined below. Further details about the assessment stages are contained in the Second Consultation Paper and in the seven Fact Sheets which accompanied the revised draft Bill.

Stage 1: Eligibility determination

The Minister may declare a project to be a major project in response to a request from a proponent, or of his or her own accord where he or she considers the project to be eligible in accordance with the eligibility criteria and after consideration of any advice received from a notified planning authority. For a project to be eligible for declaration as a major project, it must meet two or more of the following attributes:

  • the project will make a significant financial or social contribution to a region or the State;
  • the project is of strategic planning significance to a region or the State;
  • the project will significantly affect the provision of public infrastructure, including, but not limited to, by requiring significant augmentation or alteration of public infrastructure;
  • the project has, or is likely to have, significant, or potentially significant, environmental, economic or social effects;
  • the approval or implementation of the project will require assessments of the project, or of a use, development or activity that is to be carried out under the project, to be made under 2 or more project-associated Acts (for example relevant planning, utility, heritage and environmental legislation) or by more than one planning authority.

The Minister will also have the ability to declare a project to be a major project where a project is beyond the capacity of the relevant planning authority to assess or it has been unreasonably delayed in the planning assessment process by the planning authority.

The draft Bill also allows the Tasmanian Planning Commission (the Commission) to issue guidelines (called 'determination guidelines') which include those matters which the Minister is to have regard to when determining whether to declare projects to be major projects.

Stage 2: Preliminary assessment including the no reasonable prospect test

On the day a major project declaration is made, any applications for the project the subject of the Major Project Proposal which have been made under a project-associated Act or for a project-related permit in relation to land to which the project relates, but have not yet been decided, are taken to have been withdrawn. This would include applications under land use planning, water and gas, environmental, Aboriginal cultural heritage, historic cultural heritage, threatened species and nature conservation legislation. Each relevant regulator under the project-associated Act will then have the ability to undertake an assessment of the project as part of the major projects assessment process.

The Commission will establish a Panel to assess the proponent's Major Project Proposal and a 'no reasonable prospects' test will then be applied at this early stage of assessment where:

  • relevant regulators that have advised that they will be involved in the major projects assessment process will have 60 days to request the Panel to recommend that the Minister for Planning and Local Government revoke the major project declaration where the regulator considers that there is 'no reasonable prospect' that the project can be approved; and
  • the Panel may also make the 'no reasonable prospect' recommendation of its own initiative.

A proponent will have a right to reply in relation to the 'no reasonable prospect' recommendation made by the Panel to the Minister. Where a 'no reasonable prospect' decision is not made by the Minister, the project will proceed to the assessment and determination stage.

Stage 3: Assessment and determination on whether to grant a Major Project Permit

Participating regulators and the Panel will be required to identity those matters that are required to be included in the proponent's Major Project Impact Statement and any conditions or restrictions that each regulator and the Panel requires to be included in the Assessment Guidelines for that project.

The Panel may only grant a Major Project Permit in relation to a major project if it is satisfied that:

  • the permit will further the objectives specified in Schedule 1 under the LUPPA;
  • the permit will not be inconsistent with any State Policy;
  • the Assessment Guidelines in respect of the major project have been satisfied;
  • all relevant fees have been paid; and
  • the Panel has received a participating regulator's final advice.

Stage 4: Satisfaction of in-principle commencement conditions and the commencement of the Major Project Permit

When granting a Major Project Permit, the Panel may impose in-principle permit commencement conditions (IPPCCs) which require the proponent to provide further information to a participating regulator or the Panel for approval before the project can begin. The purpose of IPPCCs is to give proponents greater confidence that their project has met the key issues necessary to be addressed to obtain approval before investing time and money in preparing detailed documentation such as management or technical works plans to address established guidelines, practices and/or standards which apply to the project.

When all IPPCCs have been met, the Panel issues a Permit Commencement Notice that allows the major project to proceed.

Second phase consultation - have your say

The revised draft Bill is open for comment until Monday 29 January 2018. To have your say, written submissions can be made to the Department of Justice in accordance with the Tasmanian Planning Reform website.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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