Image for PLANNING: An Open Letter to MLCs

26th October 2015
Members of the Legislative Council
Parliament House
Hobart
Tasmania 7000
By email to each Member.

An Open Letter to Legislative Councillors

Seeking a Select Committee Hearing

Concerning the Land Use Planning And Approvals Amendment (Tasmanian Planning Scheme) Bill 2015 (Bill No 45 of 2015) and related matters.

Dear Honourable Members,

We are aware the Legislative Council is intending to commence debate on this Bill on Wednesday 28th October 2015. We ask that you make time to read this letter and genuinely consider our position, suggestions, and proposals and also take note of our reasonable and serious concerns before considering this critically important legislation please.

We are asking that this Bill 45 of 2015 not ever be passed in its current form and are seeking you establish a Select Committee Hearing opportunity.

We have long worked in this area, which affects all land in Tasmania, and are aware of the overall intent of this legislation and many of the ill-considered provisions of the Land Use Planning And Approvals Amendment (Tasmanian Planning Scheme) Bill 2015 (Bill No 45 of 2015).

This letter seeks to be focused on the key issues so we have attempted to not elaborate on all the minutia and clauses of The Bill. We concentrate on the faults and the reasons that the Land Use Planning And Approvals Amendment (Tasmanian Planning Scheme) Bill 2015 (Bill No 45 of 2015) would become another Tasmanian planning system failure, should you decide to pass it.

By the way: It is our view that the Bill’s Clause Notes which were distributed, firstly around the draft Bill, were incomplete and thus misleading. It is vital that the changes being proposed are properly documented from the outset. The lack of adequate description of the proposed changes is an unacceptable malfeasance. We consider the same can be said for the current documentation of Bill 45. This is an unacceptable situation, which should be rectified before you go any further.

We can and are willing to evidence and expand on our statements below. Please Note: TEA has not provided a clause by clause rebuttal or comment on the Bill 45 legislation but would provide such an approach were you to enlist a Committee consultation opportunity, which we consider, would be in the public interest. Otherwise you will have no adequate opportunity to consider in depth what is a large amount of material. As it is, our letter is a long one, highlighting the complexity of the situation.

Part of the thinking for not elaborating at this juncture is that this is now very long and complex legislation, more complex than the LUPAA prior to the 2014 streamlining reforms and far more complex than LUPAA was in its original form. If the Legislative Council are not convinced by our letter of request and its attendant reasons then outlining our views about each clause would simply be a waste of our time.

There are several significant reasons this legislation should be subject to a Select Committee process where greater scrutiny is inevitable and where the public can have a reasonable say about both the legislation, which has changed significantly since it went out for public comment and which in any case is not well understood and a consideration of the multiplicity of impacts and consequences of the Governments approach, which the legislation embodies and enables in the circumstance where the Liberals have not had a formal consultation with the broader community on this proposal. This letter provides the Legislative Council with those reasons and focuses on our genuine request for a Select Committee hearing.

It would have been reasonable, wise and in the public interest for the Tasmanian government to have written a background report on Bill 45 of 2015’s proposed changes to the long standing LUPAA legislation and the report should have included the reasons for those changes, which in any case were not adequately described in the Bill’s or even in the draft Bill’s accompanying brief documentation, as well as options which may be being considered. Such a background paper would have been in keeping with the RMPS objectives. Please note we have reproduced the RMPS objectives (Schedule 1) at the end of this letter for your convenience. TEA asks that when you are considering this amending legislation you ask – Does it meet all the objectives of the RMPS and LUPAA?

So although there was a consultation over the draft Bill (now known as Bill 45 of 2015) the lack of a comprehensive background paper was such a shortcoming as to be tantamount to incompetence at least in terms of adequate public consultation and inclusion.

The Planning Minister’s Sept 2015 ‘Fact Sheet’ states:

“The draft legislation itself was released in June 2015 and subject to a six-week period of public consultation.”

“To ensure feedback is provided to stakeholders who provide commentary on the draft legislation, a number of meetings have been held to provide updates on the amendments to the draft legislation in line with responses.”

It is notable that the submissions made to the Dept of Justice to the draft Land Use Planning And Approvals Amendment (Tasmanian Planning Scheme) Bill 2015 have not even been made public, even now. That is pathetic and against the RMPS objectives itself. It would seem the Dept of Justice is in name only. The public would without some published explanation thus have very limited understanding and thus be uninformed so as to be in a poor position to lobby yourselves over Bill 45 of 2015. It is scurrilous really.

Indeed TEA can see nothing to assist the public understand the changes which have been made though this complex Bill 45 of 2015. Discussing things with a bunch of stakeholders is of course not sufficient and indeed is in essence a discriminatory non-inclusive action.

TEA made a comprehensive detailed submission to DOJ of some 30 pages to the draft Bill. No one from Government contacted us to discuss our concerns or the outcome. We therefore consider no valid meeting as referred to by The Minister was held.

We expect that, aside from Government Department representations, there were significant concerns and objections raised by respondents over the draft Bill.

We are aware the LGAT considers their concerns were not adequately considered and bear in mind the LGAT is a member of the Planning Reform Taskforce.

Behaviour by political representatives or their minions and governments that people view as untrustworthy is always unforgivable, intolerable and never forgotten.

It is our view that the Liberal’s Planning Reform Taskforce, which has not been included in the RMPS system and remains run by the friend of Elise Archer, is obviously ad hoc in its processes and those aspects, which although lauded by the Minister but criticised by many, should be examined by the Legislative Council.

TEA claims the Planning Reform Taskforce has a covert function beyond upholding the RMPS objectives and that is expressed in the Minister’s statements such as:

“The Taskforce has the right mix of experience and skills to advise on the development of an appropriate planning and approvals system which will help grow the economy and create jobs.”

For the record, land use planning is concerned with other public interest issues besides jobs and the economy and such an inadequate and narrow focus simply represents a prejudiced approach.

TEA is in no doubt that there should be within the State Government bureaucracy a sufficiently and professionally staffed section of independent Policy development that creates and reviews State Policies but let’s be clear it should not be something of the ilk of the Planning Reform Taskforce. Tasmania has a chronic dearth of competent statewide policy development, which supports the broader public interest of Tasmania’s planning system.

TEA has far reaching concerns and objection to the propositions being given force through Bill 45 of 2015. The importance of the dire consequences of this Bill – one way or the other – must be recognised and a precautionary approach adopted.

We are especially disturbed over the misleading and inaccurate Liberal premise under which Bill 45 of 2015 has been introduced. This is a highly relevant aspect , which deserves independent deliberation by the Legislative Council. Indeed on this issue alone should see this matter sent to a Select Committee so the general public may have a better opportunity to understand and scrutinise this important and fundamental change to planning legislation, affecting virtually all land (private and public) in Tasmania as well as the fatuous reasons and spurious claims around its introduction.

The misleading premise to which we are referring has been stated over and over in recent years by The Liberals in slightly varying versions but in any case the Government’s September 2015 document ‘Fact Sheet’ (Pathetically the only document on the Planning Reform Taskforce website) titled: ‘Tasmanian Planning Scheme A Message From The Minister’ states:

“The current regionally based approach to planning isn’t working with different rules for different areas making the system complex and difficult to navigate.”

“That is why we are introducing a new Tasmanian Planning Scheme which will take a statewide approach.”

TEA claims the recently finalised Interim Planning Schemes for 28 of Tasmania’s 29 Municipal Councils are working and even though they have been given limited time in operation Tasmania is seeing the benefits of the regional cooperation and revised statewide template as well as schemes which are supportive of the Regional Land Use Strategies. We claim the premise that the interim schemes are not working to be a lie.

Bear in mind that whilst a Statewide Planning Scheme was promised by the Liberals at the last election it was based on a falsehood about a newly introduced planning system, which was just starting to deliver new planning schemes. TEA considers that aspect alone should be sufficient grounds for quashing the Bill 45 legislation. At the minimum it represents sound justification for holding an enquiry.

As well the Liberals committed to retaining the Regional Land Use Strategies (RLUS). We have formed the conclusion and consider The Government now plans to subvert those RLUS and thus this Bill 45 inadequately deals with the retention of those strategies, which of course are a reflection of public aspiration and sentiment. Indeed there is no adequate means that links the State Provisions with the Regional Land Use Strategies in Bill 45 of 2015. This is grossly and completely unacceptable to TEA as the consequence of the RLUS is to provide an amount of policy where otherwise there remains a nasty, incompetent void. In the existing LUPAA legislation:

“regional land use strategy, in relation to a regional area, means the regional land use strategy declared under section 30C(3) in relation to the area;”

30A. Purposes of Division

The purposes of this Division are –

(a) to ensure greater consistency between planning schemes within regional areas; and

(b) to ensure greater consistency between planning schemes across the State as a whole – including by ensuring that there are regional land use strategies for all regional areas of the State.

30E. Contents of interim planning schemes

(6) Subject to section 20(1), a draft interim planning scheme and an interim planning scheme are to be, in the opinion of the decision-maker, within the meaning of section 20(2A), as far as practicable consistent with the regional land use strategy, if any, for the regional area in which the schemes are to apply.”

So the removal from the current LUPAA legislation through the amending Bill 45 of 2015, of the link between planning schemes and the regional land use strategies is inadequate because Section 5 does not have a clause such as Section 30E in the current LUPAA . Bear in mind that although the Liberal mantra is for a Tasmanian Planning Scheme, there would in effect still be 29 schemes (if there remain 29 Councils), as there would be 29 local planning provision schedules.

Primarily what is happening here with Bill 45 of 2015 is a transference of power to the Minister, the undermining and breaking of the Liberal’s promises to keep regional land use strategies and the avoidance of the Liberal’s promised State Polices, as well as the consequent embodiment of planning policy changes in an untransparent way directly into the body of the Tasmanian Planning Scheme by way of reference only to a small select number of stakeholders. TEA considers Bill 45 is exacerbating the Premier’s avoidance of the creation of explicit State Policies which is against the State Polices and Projects Act that sets out the consultative public process for creating State Polices, which in itself is an important part of the RMPS and Tasmanians’ rights to participate in land use planning including State Policy development.

This is a relevant consideration for the Legislative Council because LUPAA is a part of the RMPS and the RMPS objectives are embodied into LUPAA including in Bill 45. Indeed the only thing, which the Tasmanian Planning Scheme (TPS) is intending to support, is the RMPS objectives. By way of evidence for our claim we quote from a recently leaked version 1.5 of the draft “Tasmanian Planning Scheme December 2016” (dated 2-10-2015):

“2 Planning Scheme Purpose

2.1.1 The purpose of this planning scheme is:

To further the Objectives of the Resource Management and Planning System and of the Planning Process as set out in Parts 1 and 2 of Schedule 1 of the Act; and

To achieve the planning scheme objectives set out in clause 3.0 by regulating or prohibiting the use or development of land in the planning scheme area.”

Then if one goes to Section 3 of the draft “Tasmanian Planning Scheme December 2016” strangely one finds no objectives.

This claimed draft “Tasmanian Planning Scheme December 2016”, is actually a document of State Planning Provisions (SPPs) of course, should be on a website somewhere, right now. When will those (such as the Planning Reform Taskforce), who are consuming public funds actually act in the public interest, as expressed by, say the RMPS objectives? If it were to be placed in the public arena the whole misleading nature of the “Tasmanian Planning Scheme December 2016” documentation would possibly cause great uncertainty and confusion, it (including the overarching Bill 45 of 2015) has been so poorly thought through.

In that context what we have seen of the “Tasmanian Planning Scheme December 2016” makes us conclude that passing any enabling or supporting legislation such as in Bill 45 of 2015 could only be described as rash and reckless.

It is a massive public interest concern when the mantra of the lobbyist becomes a premise for reform rather than Government conducting a genuine and thorough evaluation of the situation, which may actually lead to effective solutions, which would address the long standing deficiencies in the Tasmanian planning system, the RMPS.

TEA considers there is a raft of reforms, which could be legislated, to improve land use planning in Tasmania but we are certain this Bill 45 of 2015 does not achieve those reforms.

It is notable and lamentable there has been no public consultation process to canvass what reforms may be considered by Tasmanians to improve land use planning and our long established RMPS. It is remarkable and concerning that many of the recommendations of past planning review processes have been ignored in several respects and on several occasions, despite the repeated reiteration by independent professional advice.

Nor has there been a public consultation over the various sections of the drafting of the new Tasmanian Planning Scheme. Indeed, stupidly, even local government has obviously not been properly consulted. We thus reject the Minister’s Fact sheet of September 2015, which states:

“The process that has been underway for the drafting of the State Planning Provisions of the Tasmanian Planning Scheme is the most comprehensive consultative process ever undertaken in planning.

“It is the first time that stakeholders including Local Government have been asked to work collaboratively on each section of the State Planning Provisions.”

“Local Government is fundamental to the success of the Tasmanian Planning Scheme and, together with State Government, forms a strong partnership in ensuring the community has confidence in the Planning Scheme.”

If you look at the LGAT’s response one can see dissatisfaction regarding the consultation.

It would be reasonable for the Legislative Council to hold onto this Bill until a finalised set of draft State Planning Provisions are finalised.

Several aspects of the Bill No 45 of 2015 would mean that an amended LUPAA would have unintended adverse consequences. There are numerous timeframes, which are simply unachievable for example.

Consider, for example, the restrictive time provided to local government to prepare their local planning schedules. How absurd to give all the land use planners only 42 days to create local planning schedules!

On the timeframe issue TEA suggests you should firstly find out how long the Planning Reform Taskforce has been working, reworking and revising the State Provisions, which in any case arose out of the Launceston Interim Planning Scheme.

TEA has been made aware there have already been four Tranches of Planning Reform Taskforce documents so far and as far as TEA can see the Planning Reform Taskforce has been working on the content and meaning of the State Planning Provisions more or less since its inception in about May or June 2014.

But Bill 45 of 2015 conveniently and irresponsibly fails to recognise the stark reality of this double standard and stupidly advocates only 42 days for the complex Local Provisions drafting task once Planning Reform Taskforce has finished with the State Provisions.

Indeed Local Government cannot even start the drafting task, which may include embedded zone changes and additional zones, embedded policy changes and a plethora of other changes that could not be foreseen, not even envisaged until the State Provisions are bedded down. Just imagine how Local Councils could have a conversation and how could it possibly make responsible decisions, including consultation with local communities over policy proposals which directly affect their land. It is absurd, completely ludicrous.

This Forty Two days Local Provision proposition has come from ignorance and incompetence and makes us laugh loudly. Ninety days would also be insufficient.

We very strongly suggest The Legislative Council ascertain how long the various Interim Planning Schemes took to create via a Select Committee of Inquiry. Bear in mind each local government planning section relied on the one existing state planning template. Bear in mind too it is in essence this Template which is being reworked and becoming the State Planning Provisions and the reworking is embedding policy changes which would require a complete or at least major rework of those sections of the schemes which would become known as Local Provisions.

Likewise under Bill 45 of 2015 the Tasmanian Planning Commission would have a short timeframe to prepare a report on representations over the State Provisions, similar to the existing Local Government Section 30J report. This short reporting time would have the inevitable consequence that representations would not be adequately considered or the concerns not adequately reported to the Minister. Thus the Minister (and the Parliament) is creating an incompetent system of representation reporting leading up to hearings. We do not know the reasons for the short timeframes but recognise clearly the incompetence.

TEA wishes to put firmly into perspective to the Legislative Council the draconian set of timeframes within Bill 45 of 2015. The Minister for planning is committed to providing a biannual Statement of Expectation to the Tasmanian Planning Commission. This legislated document was meant to be in place by end January 2014. The new (the current one) Planning Minister arrived in March 2014 and has had from April 2014 to October 2014 to put a biannual Statement of Expectation in place - roughly some 18 months or about 540 days to put it in place - Minister Gutwein’s legislatively obligated Statement of Expectation to the TPC. Meanwhile, whilst he ignored his biannual Statement of Expectation obligation, he slashed the budget and capacity of the TPC.

Planning Minister Gutwein now, via Bill 45 of 2015, wants to put in place tighter timeframes for this and that including the unworkable and stupid 21 days Permitted Development timeframe. Why would one make planning harder simply to provide the apparition of faster planning? Such an apparition is irrelevant in terms of proceeding with a development. The important aspects of planning approvals are the quality of the planning assessment not the speed.

Why should anyone listen to a Minister who cannot for over 500 days, even write a few pages of Expectation for the critically important statewide body, the Tasmania Planning Commission, which is supposedly under his care.

But as it is hard to consider that the Government has any commitment to probity and fairness at all, it may be it intends for LUPAA to actually become more unfair, contrary to their stated intent and that the unfairness extends both to our local government planning sections and to the Tasmanian Planning Commission.

We are of the opinion Bill No 45 of 2015 is trashing fairness despite the hollow government rhetoric to the contrary. Indeed fairness would seem to have been erroneously expressed by the Liberals as a reduction in appeal rights, what a Liberal misunderstanding of the RMPS Objectives and the long held rights of Tasmanians to participate in land use planning. Land Use has been a contested matter in Tasmania and it is thus wrong to try and nullify such a legitimate social norm.

But the Liberals are now pretending there is not an appeal issue with the vastly increased permitted developments proposed in the concomitant Tasmanian Planning Scheme. We claim the Minister has in his September 2015 Fact Sheet falsely and misleadingly stated:

“Will this mean any changes to appeal rights?

The legislation retains the public involvement in making representation about what zones apply to land through the preparation and assessment of the Local Provisions Schedules.

The legislation doesn’t make any changes to the way individual developments are assessed or what appeal rights and processes follow from councils decisions on development applications.”

It is the obvious intention of this Liberal Government to reduce appeal rights and the ability of Tasmanians to appeal developments and thus Minister Gutwein intends to reduce the rights of participation in the RMPS and within LUPAA.

TEA’s position is very straightforward and unambiguous. We fully and completely oppose unreasonable and undemocratic legislation wherever it either demonstrably or on balance makes the RMPS less fair, less just and/or less workable.

TEA is also concerned at the vast expenditure of public money on this Statewide project, which is based on a false and/or erroneous premise that the current planning system in not working.

We provide a 2012 PowerPoint presentation document to you from Brian Risby, which was made to the PIA in 2012, which evaluates the current planning system and the interim schemes. We ask you to read it please.

The various claims of a dysfunctional Tasmanian planning system and about high levels of planning appeals have been successfully and critically analysed and considered in factual terms by the DOJ’s professional planner, Mr Brian Risby, in Tasmania.

Mr Risby, a senior Government planner, who apparently now works part of the time in the Department of Justice (DOJ) and part of the time for the Planning Reform Taskforce in the Department of State Growth. His title is: Senior Planning Adviser, Agency, Department of Justice, Tasmanian Planning Commission.

The fairly simple 28-3-2012, Risby document, which provides the analysis, is titled: ‘Making a good system better. Tasmania’s planning system a comparative performance assessment and reform update’ It is a PDF of a Microsoft PowerPoint - Brian Risby_Presentation to API Campbell Town, March 2012, on planning system performance and reforms. ENCLOSED

The exposure draft Land Use Planning and Approvals (Tasmanian Planning Scheme) Amendment Bill 2015 was predicated on the overriding need for a statewide planning scheme, presumably because of the claims that the current regional model was in some way inadequate, a poor performer or broken.

But importantly, the 2012 DOJ Brian Risby presentation shows exactly the opposite. The planning system of Tasmania is not a poor performer at all. TEA reiterates a large amount of public money is being wasted.

Indeed the independent Productivity Commission Report into Local Government Planning across Australia titled: Performance Benchmarking of Australian Business Regulation: Planning, Zoning and Development Assessments of April 2011, not surprisingly, also provides a similar assessment to the Risby report. TEA therefore contends The Hodgeman Liberal Government is proceeding with reforms the need for which are essentially based on a big lie.

Mr Risby’s March 2012 comparative performance assessment shows just how much more simple the current Tasmanian system is than either Victoria or NSW. Risby also shows that Tasmania’s system has a median approval speed second only to South Australia, so it is not slow at all. Risby shows that 95% of all planning applications were decided within the specified 42 days. His PowerPoint document also shows the good performance across all councils, with only Hobart scoring lower.

Regarding the seemingly contentious issues of appeals the Risby PowerPoint report shows Tasmanian appeals at 3.7% in 2008/9, which is about half of the Victorian 7% and not dissimilar to Qld and WA and ACT.

But when Mr Risby divides up the appeals between Developer and Third Party, as per the 2011 results, there were 47 third party appeals and 101 developer appeals. Of the 47 third party appeals (remember the Liberals support Developer appeals but are seeking to lambast and diminish third party appeal rights), only 22 were contested, the rest were mediated.

So the Property Council/Liberal mantra of the need for some massive crackdown on appeals is fallacious. Why are the Liberals focused on this issue?

The Risby PowerPoint report also shows the number of appeals trending down.

The Risby assessment PowerPoint document also shows Tasmania already has a considerable number of strong pro developer features.

Mr Risby also shows that over $2.3 million has been spent on the regionalised planning reform to assist local governments prepare 29 new planning schemes, which the Liberals now propose largely be discarded.

Of course Risby didn’t know in 2012 that the Liberals would come to power and intend to waste much of that public money.

The question is whether this fallaciously reasoned discarding of public funded work is a reasonable use of taxpayer dollars. In TEA’s opinion this matter is worthy of a Select Committee scrutiny before passing Bill 45 of 2015, being the enabling legislation.

Further the DOJ Risby presentation shows that under the Regionalised IPS process, all current 28 planning schemes have the same framework and further that there are consistent definitions for all interim schemes, the Use classes are the same and there is a standard set of 23 zones and either state or regionally consistent and mandated codes.

TEA asserts on the basis of the 2012 DOJ Risby presentation, Tasmania’s planning system does not need to be radically reformed, or at least does not need to be reformed in the locally disempowering and disadvantaging way in which the Liberal Government intends.

Currently the regionally consistent, interim local government land use planning schemes are in the final stages of implementation and it has been a large task. Something should be learnt from that exercise.

TEA claims significant public funds are being wasted in a cynical party political process that is creating an unnecessary, overbearing, state-controlled planning scheme, which would have less functionality than the current model.

TEA claims The Liberal Government’s claim of an overriding imperative for planning reform, including any claimed need for a statewide planning scheme or indeed a reduced appeal right is fallacious and deserves to be exposed and examined via a Legislative Council Select Committee.

Justice is a public interest issue: this Bill 45 of 2015 is unjust and would be confusing and hard to administer! It provides and shifts power to the Minister, whereas the RMPS was originally wisely intended to have a degree of separation and independence from Ministerial influence.

We are making this representation to the MLC members purely on the basis of public interest, urging you to take action to preserve the public interest intent of the original LUPAA legislation.

In a civilised democracy all people have a right to make representations, to effectively convey their views about matters of concern and to voice their opposition in a safe a proper fashion and to have those matters adequately considered.

TEA would seek to defend any person’s rights to make their democratic voice heard especially through the legislated planning and appeal processes afforded by the RMPS and LUPAA.

It has been suggested by The Planning Minister that the Tasmanian Planning Reform Taskforce has been conducting “the most comprehensive consultation process ever” over the conversion of the Launceston Interim Planning Scheme into a set of Statewide Planning Provisions, which he erroneously believed and termed are to be the Tasmanian Planning Scheme. That error reflects a profound error of perception and misunderstanding. TEA fairly claims there will in fact never be a single statewide planning scheme document.

TEA was invited to participate in this select coterie of stakeholders but we declined, as we felt the process lacked openness, rigour and fairness. In truth TEA also has concern that some stakeholders are being consulted but many certainly are not. There can be no adequate reason or support for such arbitrary discrimination. It is, in our view, completely without probity. Our action in refusing the Stakeholder invitation was described by the Minster’s office as “pathetic”. We admit we hate clandestine rubbish consultation processes.

TEA expects those consulted may be fooled into thinking that they are in the process of reviewing and designing the Tasmanian Planning Scheme. This may in fact be because they have been misled.

The chair of the Planning Reform Taskforce, Mary Massina, says streamlined planning would help all residents.

“This will actually fundamentally bring Tasmania’s planning system from the worst, to the first.” (Reported on http://www.engineeringcareer.net.au/news/tassie-planning-proposal-gets-green-groups-riled)

We disagree completely. We question whether Ms Massina even has planning qualifications to be making such statements, which are clearly at odds with Mr Risby’s.

Tasmania’s planning system was never the worst, was never near the worst. It is our view that Ms Massina has misled the general public and breached her obligations under the State Service Act.

Another misleading premise for a Statewide Scheme which has been stated over and over in slightly varying versions but the Governments September 2015 document ‘Fact Sheet’ titled: ‘Tasmanian Planning Scheme A Message From The Minister’ states:

“This is all about creating a planning system that is fairer, faster, cheaper and simpler…”

TEA simply wishes to place on the record that we consider the Tasmanian Planning Scheme if established under the current Bill 45, which is before you will:

a. Not reduce the expense of land use planning; indeed it would cost Tasmania a significant additional amount both in start up and in ongoing fees to developers. The Tasmanian Planning Scheme would not be cheaper.

b. Reduce certainty for a number of years, as it is making changes in an untransparent manner and in the absence of proper policy development. The start up of the Tasmanian Planning Scheme would also take longer than stated and or planned to implement, again impacting on certainty. The Tasmanian Planning Scheme will almost inevitably be a contentious issue at the next State election.

c. Not increase fairness at all, as measured by the RMPS objectives, which are the only objectives currently being supported in the proposed Tasmanian Planning Scheme.

d. Undermine the RMPS system including the existing State Policies.

e. Undermine the RLUS a key part of Tasmania’s 3 Regional land use strategies. TEA can show that the September 2015 draft “Tasmanian Planning Scheme 2016” is in the malfeasant process of white-anting those regional strategies now.

f. Not be faster in any useful or practical way, despite the shorter timeframes impost.

g. Not deliver better planning at all indeed TEA consider the reverse would be the case and public interest planning outcomes would be diminished.

h. Not be simpler. This is obvious. One can simply refer you to the Bill before you, which makes participation in Municipal schemes (being a combination of State and Local Provisions) vastly harder and more complex, as an example.

i. Undermine aspirations for local amenity retention, which surely is a reasonable expectation.

j. Increase the complexity and amount of hearings.

k. Not of itself increase investment.

l. Not be easier to navigate, indeed we consider it would be harder and more complex in several respects.

m. Potentially harm the Tasmanian brand.

The truth is Land Use planning is not simple. If you want it to be simple then what you will mandate would be an open slather approach. Land Use planning is the balancing of private property rights with standards and provisions and policies, which protect the public interest.

The problems of the Tasmanian planning system lie elsewhere. This Bill 45 of 2015 does not address them.

Bill 45 does not even create the much-touted single statewide ‘Tasmanian Planning Scheme’ document but rather 29 schemes based around admittedly a revised set of statewide provisions. That could have occurred anyway. An illusion of change is being created.

Bill 45 of 2015 does not get rid of RED and GREEN tape, whatever such pejorative terms may be considered to be (and we do not know to which planning aspects the government refers).

The Bill would make public participation in the RMPS far more difficult and onerous. At the first consultation of the State Planning Provisions it not be able to easily perceive the full intent, as it would not be a completed Tasmanian Planning Scheme. An unreal and misleading expectation of a single statewide scheme has been created and that will lead to massive confusion and such a result is we argue against the RMPS objectives.

It would not solve the problems but rather create more problems which will invariably lead to more legislative amendments and that means less certainty.

TEA also claims Bill 45 of 2015 would create an almost inevitable perception both of Ministerial bias and interference.

Suffice to say we do not support several aspects of this Bill No 45 of 2015 at all. Bill 45 of 2015 is yet another unfortunate attempt that does not go to the heart of the matter.

Worse, Bill 45 of 2015 disenfranchises the long-standing participation of the Tasmanian public, the real stakeholders and undermines their trust in the RMPS because of the vast undocumented policy change the State Planning Provisions constitute.

This Bill 45 of 2015 does little to improve Tasmanian land use planning and if passed makes a number of deeply flawed and unjust laws. Governments continue to ignore reasonable suggestions and proposals, which have been made over decades now.

Perhaps the worst is that The Planning Minister has charge of the content of State Planning Provisions (SPPs). At this stage he is deferring the creation of the SPPs to Mary Massina and the Planning Reform Taskforce but he will always have the final say. This is poor governance and TEA opposes the approach taken in Bill 45, which in essence is the party partisan politicisation of land use planning.

The appropriate place in the RMPS to influence planning provisions is via State Policy development and implementation.

The Lack of a Full Compliment Of State Planning Policies

TEA argues that fair and orderly planning under the RMPS requires State Polices to be created under their relevant legislation, The State Policies and Projects Act, within the RMPS.

TEA is highly critical of the lack of a set of state wide planning policies. State Policies, state the TPC website, are purposed to achieve a State consistency:

“State Policies are made under the State Policies and Projects Act 1993 (the Act) to articulate the Tasmanian Government’s strategic policy direction on matters of State significance related to sustainable development of natural and physical resources, land use planning, land management, environmental management and environment protection. “

Note that Tasmania has only three State Polices and thus a statewide approach has been avoided on many issues of great relevance to land use planning. Bill 45 thus rather than being introduced after a set of State Policies may actually embody and embed policy decisions in an untransparent manner against the RMPS objectives.

Why doesn’t Tasmania have a proper set of State planning policies? Herein lies the real nub of the issue… a lack of rigorous State Policies. The lack of a suite of State Policies was identified way back in the 1990s as a problem. The Edwards report mentions it.

Any PIA Planner would tell you to get the policies right first. The Policies give you an insight into the planning outcome where the planning scheme is built upon the policies as well as the land use strategy.

Importantly the Liberal brochure of 14th February 2014, titled: ‘A fairer, faster, cheaper, simpler planning system: Building a Tasmania we can be proud of.’ clearly states:

“Immediately after the election, a majority Liberal Government will provide the leadership and consistency that has been lacking under Labor and the Greens. We will commence drafting state policies to provide the necessary guidance to councils on how to implement the single statewide planning scheme and plan for Tasmania’s future land use needs.”

And TEA wishes to highlight and reiterate the words “ to provide the necessary guidance to councils on how to implement the single statewide planning scheme”. This is actually not entirely true, as a State Policy would apply to all aspects of the RMPS system including the intended Tasmanian Planning Scheme. But clearly there is a major disconnect here.

It is normal and considered good planning practice that land use policies (termed State Policies in Tasmania) create the values and principles and positions to achieve sustainable development objectives, which underpin the planning scheme provisions. TEA cannot understand the logic of the Liberal Government, which seems to be doing it back to front and failing on its promise. How could anyone have confidence in such an illogical idea?

Why is Tasmania’s single statewide planning scheme being written and now designed before statewide policies, which are intended to be purposed to deal with state significance issues, are put in place? How could any public decision maker support such incompetence?

The Legislative Council should put Bill 45 on hold until the State Policies have been created. Don’t become part of the problem. Be the solution. Bill 45 must in itself meet the RMPS objectives, yet TEA claims by its very nature it undermines the opportunity to put in place State Policies and thus we claim the Bill is actually a diminishing of the RMPS in this regard.

Why, when the Liberals stated their intent to, “Immediately after the election…We will commence drafting state policies ...”. is the Tasmanian community still waiting?

Tasmanians have not seen a single draft State Policy since the Liberals came to power in March 2014. There is not even a schedule and timeline naming the Policies to be created. There has not been a single background discussion paper on any of the promised but mythical new State Polices.

TEA has absolutely no confidence in any clandestine stakeholder process that creates pseudo and motherhood policies obviously a reconstruction exercise post the drafting, and potentially after the introduction, of the so-called Tasmanian Planning Scheme.

The Tasmanian Planning Scheme in itself is, TEA claims, intending to make policy and translation changes to the 28 Interim Planning Schemes beyond any reasonable and fair process and would never meet the RMPS objectives, let along the recently created regional strategies.

This in itself will cost a fortune. What a stupid and untransparent, useless idea. It is, in fact, against the Development Assessment Forum (DAF), A Leading Practice Model For Development Assessment In Australia’s recommendations of March 2005. Bear in mind that DAF is from the far right of town.

Indeed the deferral of Policy creation whilst the Taskforce is obviously working away on the development of the Tasmanian Planning Scheme could be considered both dishonest and devoid of best planning practice, as well as against the Liberal planning brochure of February 2014.

What does the legislation say?

“A State Policy:
• must seek to further the objectives of the Resource Management and Planning System (RMPS) (which are set out in Schedule 1 of the Act);

• may be made only where there is, in the opinion of the Minister, a matter of State significance to be dealt with in the State Policy;


• must seek to ensure that a consistent and coordinated approach is maintained throughout the State with respect to the matters contained in the State Policy; and

• must incorporate the minimum amount of regulation necessary to achieve its objectives.

The Premier is the Minister responsible for State Policies.”

Further information on State Policies can be found on the Tasmanian Planning Commission’s website.”

Currently the absence of a suite of State Policies reduces the community’s ability to understand the qualitative values and intent of Tasmania’s planning system and the underpinning strategic and policy positions, which are necessary to achieve sustainable development, as envisaged by the RMPS objectives. It reduces the State’s ability to design planning schemes, which achieve sustainable development.

State Policies should, obviously as a prerequisite, guide the State Planning Template, which it would seem, would under Bill 45, become the State Planning Provisions over a range of important planning matters to achieve state consistency.

State Policies are the long established mechanism in the RMPS that possibly even avoids the claimed need for of a single statewide planning scheme - a primitive and inflexible approach.

The Tasmanian Planning Scheme will almost inevitably give the green light to development, which the community finds unacceptable because there is an insufficient guiding suite of balancing State Policy instruments to create either a statewide planning scheme or indeed any other scheme. More importantly TEA argues there is insufficient policy to guide all land uses to meet the RMPS objectives.

The Tasmanian Planning Scheme created in the absence of a full suite of State Polices will reduce both government and the community’s ability to plan to avoid and or rein in poor quality development, which harms amenity, the environment and way of life and potentially will impact adversely on land values.

TEA seeks, as a matter of some urgency a process for State Policies be started now so as to guide and underpin any new planning scheme/s, which are created under the RMPS.

Tasmania continues to place most of its effort into the wrong areas and seemingly has a complete inability to operate the RMPS system properly. Operating the existing system does not require new legislation.

Some Specific Considerations

Approval Times: Why does cutting planning approval times from 28 days to 21 days create jobs or indeed promote more investment? Where is the research that shows this will be achieved?

Planning Minister Gutwein states:

“Tasmania’s overly complex planning system has been a handbrake on investment and jobs and we will establish a planning system that is fairer, faster, cheaper and simpler, and ensure that Tasmania is once again open for business.”

Let’s look at the Minister’s claims. Tasmania’s planning system is overly complex. TEA could not agree. By many standards, Tasmania’s planning system is very simple.

How is planning “overly” complex? Indeed is complexity a bad thing? Planning systems are by their very nature complex or, rather more accurately sophisticated. Even the 2011 Productivity Commission’s Research Report of 2011 acknowledges that in Chapter 1.

TEA believes the problem in terms of community misunderstanding planning and its benefit, lies not in the complexity of the planning system or the current schemes but rather in the explanatory material communicating the detail and principles of the planning process. It has to be remembered that Tasmania has lower literacy rates than almost anywhere else in Australia. That is not a reason for the Tasmanian Government instituting a dumbed-down planning system.

Additional complexity would be generated and confusion will result because many, many terms are being changed and even zone names and code names and the purpose of those is being changed. In the name of simpler, cheaper, fairer? Pull the other one. This new Liberal planning approach will be proven to be a travesty of simplicity and fairness.

Further the substantial policy changes embodied and already embedded in September 2015 draft “Tasmanian Planning Scheme 2016” would make for a very much more complex situation indeed. Although as Legislative Councillors you may consider these unidentified changes to the statewide scheme itself are not your responsibility, we argue the contrary. We respectfully request that you take this vital matter through the Select Committee process to ensure that this Bill 45 of 2015 will be reviewed in an attempt to prevent a complex and unworkable shambles in terms of the RMPS objectives.

Is it the fault of the Regional Planning Process? This (Regional Strategic Planning consistent Local Government Planning Schemes) – in our view – is being cancelled without a competent analysis or honest identification of the claimed shortcomings. TEA recommends an independent analysis be initiated by the Legislative Council through its select committee process, which would seem to be able to handle such issues.

TEA claims it would be significantly cheaper to actually identify, access and fix the shortcomings of the current almost finalised process rather than construct what is, in effect, a new system based on the substantial diminishment of local government planning. It is almost as if The Minister does not trust Local Government.

Is it the fault of the three regional land use strategies? The Regional Land Use Strategies are, in our view, good documents and reflect some years’ work including a number of rounds of significant community consultation with the community. The opportunity with these is to ensure they remain relevant and become enhanced. Bill 45 could be far more responsible and supportive of the three RLUS. Indeed the opposite is occurring but disdainfully has not been declared.

Is it the fault of the 29 local governments? In about five years 28 of the 29 local governments in Tasmania have created an almost complete set of new planning schemes. What are the physical limitations facing the 29 local governments many of whom have limited planning resources? Why is this issue not the subject of reform. Tasmania has many local governments and in some instances those have very limited planning resources. The Tasmanian Planning Scheme Bill 45 of 2015 will not solve those issues or the limitations of those smaller councils and will not deliver better planning outcomes in many cases.

Why, when there is so much work for the TPC to perform, were they not given the budgetary resources to perform their task and indeed why was their budget slashed when a statewide approach was being pursued and the TPC was a statewide organisation? Why does the Tasmanian Planning Commission have so few land use planners? Why does it have a smaller planning staff than Hobart City Council? How does that accord with a statewide approach? The answer is, of course, it doesn’t.

In general, it is not the fault of the Regional Planning Process or the three regional land use strategies (RLUS), nor the 29 local governments - nor the Tasmanian Planning Commission. All these issues should be the subject of a Legislative Council Select Committee inquiry.

Ah! Is it the fault of the small percentage of people who appeal developments in their local areas? Does the Tasmanian Government and the Property Council simply want to get rid of our appeal rights?

Apparently and contrary to the misleading Fact Sheet of September 2015 the Liberal Government is intending to further reduce the right of the community to appeal developments and in so doing is almost inevitably going to deliberately reduce the rights and ability of communities to protect their local amenity.

The Liberal brochure on planning states:

“Labor and the Greens have allowed anti-development front groups to abuse the appeal process in our planning system.

A majority Liberal government will crack down on third party appeals, introducing a test limiting those able to make a third party appeal to those directly affected by a proposed development or community groups with a longstanding interest — not groups expressly set up to oppose development.

Further, we will make any legislative amendments required to award costs to the successful party in an appeal, as is the norm in other legal proceedings.

This measure will ensure Tasmania is in line with other jurisdictions and will act as another deterrent to third party appeals designed to simply obstruct.”

The method it is using to reduce appeal rights is to cover up the policy changes by creating a Statewide Planning Scheme, so people cannot easily notice or quantify the reduction in their rights and to act as a distraction to one of the most important rights of citizens.

According to the Productivity Commission’s Report Tasmania did have in 2009, relatively high appeal rates compared to most other states, except Victoria who performed far more poorly than Tasmania.

Those Tasmanian appeal figures however were prior to our Interim Planning Schemes (IPS) being introduced. But, despite this progress and reduction in appeals under the IPS, Tasmania is adopting one of the poorest performing models in appeal terms, whilst claiming it will seek to further reduce appeals. It simply does not make any sense at all and is just another reason for the Legislative Council holding a Select Committee hearing into the matter.

TEA refutes the offensive and erroneous claim that there are anti-development front groups or that they have been allowed to obstruct through the planning system. Perhaps the Legislative Council would have the decency to call upon the Liberal Government to substantiate the claim. Bigotry is never acceptable.

The well researched 2012 DOJ Risby PowerPoint presentation does not support the Liberal’s poorly investigated claim of some massive appeal burden on Tasmania’s current planning system and shows a decline in appeals post the IPS.

So how could Tasmania’s planning system be made more simple? The new statewide system Tasmania is proposing via Bill 45 of 2015 is based on the Victorian model. Planners, both in Tasmania and in Victoria, regard this model poorly.

The claimed failure of the planning system has been unreasonably blamed on the slow introduction of the Regional Planning Process and the Resource Management and Planning System (RMPS), which admittedly has taken longer than anticipated, mainly because the Regional Land Use Strategies were time consuming. TEA advised our local council the process would take longer than proposed but we were ignored. Good planning is time consuming and valuable. It is about time it is respected and appreciated.

Between 2010 and 2015 there has been an extensive process and considerable inter-Council cooperation to create the three regional strategies and the almost finalisation of 28 regionalised and consistent planning schemes has been achieved. Those 28 schemes are modern, consistent, comply with the current state planning template, comply with the three RLUS and incorporate consistent mandatory and optional regional model template provisions. This in TEA’s view is not complexity but rather a modicum of sophistication. Bill 45 of 2015 is proposing to discard quite an amount of the Regional IPS sophistication under the mantra of simpler. Our mantra: dumbing down Bill 45 is dumber.

TEA completely disagrees and disputes any assertion that the Regional Planning Process and the Resource Management and Planning System (RMPS) are the culprits. The expectations of the reform process were unrealistic time wise and considering the amount of human resources provided to do the tasks were inadequate, when one considers the need for community consultation and participation in the process.

If indeed there is any fault with the administration of planning in Tasmania it may be far more fruitful to look at other aspects rather than the almost 29 newly created interim planning schemes themselves. That said TEA has never supported bringing planning schemes into operation without an exposure draft and was always critical of the IPS process over that issue.

No recent, cogent, articulate analysis of the failings of the RMPS has been published, thus the reasoning for making this huge change relies largely on relatively vague rhetoric and Property Council mantra plus an underlying compliance with the wishes of the Property Council of Tasmania. In fact the Risby PowerPoint presentation of 2012 details a quite satisfactory statewide planning performance indeed.

Broader Planning System Issues

We urge the Legislative Council to ensure an open inclusive design process, canvassing broad reform proposals to Tasmania’s planning system in such a way so the whole Tasmanian public has an informed opportunity to make comment.

The obvious reform would be to bring all land use planning related legislation under and into the RMPS system, enhanced and guided by a full and fair set of State Policies.

TEA acknowledges that there could be great benefit from a universal application of the state-wide RMPS planning system, which would remove significant arcane legislations and complexities and anomalies from land uses, which are regulated under legislation currently not within the RMPS, such as mining, forestry and marine farming. TEA has long advocated to bring all land uses under the RMPS. The great opportunity for Tasmania is not a statewide Planning Scheme but a single State Land Use Planning System.

It is the whole land use planning system which needs to be Statewide not the existing 29 Local Government Schemes. In that context, Bill 45 of 2015 unwisely continues the various exemptions for various privileged industry sectors. TEA opposes those parts of Bill 45 of 2015, which pander to and exempt Forestry, Mining, Aquaculture and the like, including the provisions and exemptions regarding land clearance. For a more simple, more efficient and effective land use planning system incorporate mining, forestry and marine farming into the RMPS.

Land Clearance is a threatening process under the EPBC Act and should be treated as such not the subject of exemption in Bill 45.

Please consider what happens when Governments fail to uphold the laudable objectives of the RMPS in a genuine way and in so doing further reduce redress and increase the potential for conflict. People protest because they have been denied adequate, fair and reasonable legal redress to contest and forestry in Tasmania is perhaps the best example that comes to mind. How is forestry now?

Such conflicts, which have attracted massive media and damaged Tasmania’s reputation are all land use planning or rather the obstinate absence of a resolution of conflicts around land use planning.

Appeals represent a miniscule proportion of developments, which are approved and indeed it has been shown by Mr Risby that there are more developer appeals than third party ones. The Legislative Council should find out now the reason the Government is ignoring the statistical truth.

Governments and the Tasmanian community should at this stage be having a consultative conversation about what the design of a modernised planning system should look like, as well as what needs to be fixed, improved, added or removed etc. But sadly Tasmania does not seem to be capable of having such a strategic discussion, notwithstanding the objectives of the RMPS.

Conclusion

The government … is shamelessly running roughshod over everyone’s rights and has been doing so for some time. For example Local Government comment on the previous draft LUPAA Bill No 36 of 2014 was open to local government for the stunningly ludicrous period of five business days. Why? How did that give rise to good legislation? This one aspect alone is shameful.

This government plan so far is not fairer, is unlikely to make planning appreciably faster, certainly not significantly cheaper and most definitely neither better nor smarter. The resultant scheme arising from Bill 45 is obviously going to be substantially less fair, less just, less adequate, poorer and dumber. Mark our words it is shaping up to be not only a sham but also a shambles.

Land Use Planning is critically important to the State and it is an increasingly sophisticated professional discipline and an area of increasing competence in sustainability terms of our society. Yet the Liberal approach is cheaper, faster and nastier. TEA advocates the approach which accords with our strategic advantages is to build higher quality of land use planning and enhancing a greater capacity of Councils to work together, to pool resources and to further the collaborative work which started with the Regional planning initiative.

Tasmania still has a long way to go. In the past we had open slather and now there is a modicum of control, standards, acceptable solutions and other prescriptions. If you need to confirm how primitive Tasmanian land use planning is, just go and look at the land use planning systems currently in place in the UK. Tasmania still has a long, long way to go.

For a long time Tasmania has devoted a low amount of resources to land use planning, much lower amounts than most other states. Even after over 20 years of operation of the RMPS there are few State Policies. There is certainly no balanced suite of State Policies to guide the creation of the Tasmanian Planning Scheme. Compared with other states Tasmania’s RMPS planning system is very basic and relatively primitive and now the Liberal proposal is to dumb it down. Well if it gets dumbed down Tasmania will become a poorer place to live. People who have amenity expectations are likely to leave.

High quality land use planning is an extremely important resource – unless people happen to be content to have a slum.

We strongly encourage you to more carefully and fairly consider this inadequate Bill 45 preferably by way of a Select Committee so that the Public and the hundreds of unconsulted Stakeholders, would have a fair and just pathway to make detailed comment, critique and suggestions on this Bill which in part is a very inadequate and unwise set of legislative proposals under the RMPS.

In the final analysis, our fundamental and well principled criticisms; which we contend are sound and well reasoned, should give rise to the Bill No 45 of 2015 being quashed.

If that does not occur, we propose that Bill 45 of 2015 should be held over within a Select Committee remaining in force till the Legislative Council can see an example of what is proposed (ie the finished combination of draft SPPs and draft LPPs all in a single document). A trial run of draft SPPs and LPPs should be done and legislated timelines adjusted. When a trial run of one Municipal area is finished then the Legislative Council would be able to see just what a crock of “rubbish” (to use Ms Massina’s term) this Bill 45 of 2015 actually is.

TEA does support the finalisation of the 29 Interim Planning Schemes in a fair and proper way, not as Bill 36 of 2014 envisages. We consider this would be an act of good faith to finish one process before another is interposed on top of it, as is currently the case. On that score what is happening under both LUPAA Bill 36 of 2014 and with Bill 45 of 2015 is not fair and orderly planning and thus is against the RMPS objectives.

Sadly we consider there is little to support in Bill 45 of 2015 at this stage.

Under the Land Use Planning And Approvals Amendment (Tasmanian Planning Scheme) Bill 2015 (Bill No 45 of 2015), Tasmania is set to waste substantial financial resources and would lose many opportunities because a reasonable if not perfect system is being gutted for not good reason.

In the event the Legislative Council does not hold a Select Committee Hearing, we consider the Legislative Council should vote down the Bill.

Yours sincerely,

Andrew Ricketts

Convenor

The Environment Association (TEA) Inc is a not for profit, volunteer based, regional environment community association and although not invited to participate we assert we are a stakeholder in this land use legislation process.

TEA has a long-term interest in environmental, social and land use planning, including outcomes in our region, Northern Tasmania. We have long worked on various land use issues including planning schemes, strategies, policies, so called legislative reforms, heritage issues, scenic protection and the lack thereof, catchment management, forest conservation, biodiversity and forestry issues.

The Environment Association has worked in the public interest since its inception in 1990. As one of only two rural based environment centres in Tasmania, The Environment Association (TEA) is a long-term independent stakeholder in any resolution to complex land use conflicts in Tasmania.

TEA is not represented by any other conservation organisation, formally or informally. Accordingly we consider it vital to put our position.

Please Note: We reserve the right to publish this submission at any stage and in any forum or form.

SCHEDULE 1 – Objectives

Sections 5, 8, 20, 32, 44, 51, and 72

PART 1 - Objectives of the Resource Management and Planning System of Tasmania

1. The objectives of the resource management and planning system of Tasmania are –

(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b) to provide for the fair, orderly and sustainable use and development of air, land and water; and

(c) to encourage public involvement in resource management and planning; and

(d) to facilitate economic development in accordance with the objectives set out in paragraphs (a), (b) and (c); and

(e) to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State.