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09 Jul 2020

Reforms passed to deliver best practice planning system in the Northern Territory

By Nicole Besgrove, Karen Trainor and Margaret Michaels

Amendments to the Northern Territory planning system are set to commence and deliver a key election commitment to better align the NT's planning system with best practice in Australia.

On 25 June 2020 after consideration of the Legislation Scrutiny Committee's report, the NT Parliament passed the Planning Amendment Bill 2020 with amendment. Upon its commencement, the NT Government believes that the amendments will deliver a modern planning system that is more efficient, understandable and accessible for the Territory. The Bill received assent on 1 July 2020 and will commence on the day fixed by the Administrator by Gazette notice.

Reform components

We previously examined the Bill as introduced which relevantly provided for a number of amendments to the Planning Act 1999. In its Report, the Committee recommended that the Bill be passed with 16 relatively minor amendments, most of which related to drafting clarifications. The NT Parliament made amendments with respect to all but three of the Committee's recommendations before the Bill was passed, however the Act largely remains the same as the Bill as introduced.

The other reform components which have been progressed by the NT Government alongside the amendment Act include:

Draft Planning Amendment Regulations 2020: The draft Regulations were released in April 2020 for public consultation and prescribe a number of matters for the amendments contained in the Act as discussed below.

Draft Northern Territory Planning Scheme 2020: The draft Planning Scheme was released for consultation along with the draft Regulations and will replace the existing Northern Territory Planning Scheme. The main changes which the new Planning Scheme will make once in effect relate to the following:

  • structure and creating a greater role for strategic planning in guiding decisions and future development;
  • the introduction of overlays which identify areas of constraint and associated additional requirements relevant to the unique needs of a locality; and
  • the separation of "Discretionary" development into two categories:
    • "Merit Assessable" (ie. minor developments or those that may be expected in a particular zone which require a simpler assessment); and
    • "Impact Assessable" (ie. complex developments or those that may have impacts on the purpose and outcomes of a particular zone which require a more rigorous assessment).

Changes to the planning system

The key changes to the planning system upon commence of the amendments will be:

Purpose and objectives of the NT Planning Act: The purpose and objectives include strategic planning, community accessibility and sustainable development elements and will become a mandatory requirement and consideration as:

  • a planning scheme must further the purpose and objectives;
  • when considering a request to amend a planning scheme or concurrent application (ie. an application which comprises both an amendment proposal and a development proposal), the Minister must consider (amongst other things) whether the proposed amendment promotes the purpose and objectives; and
  • when considering a significant development proposal, the NT Planning Commission must take into account the purpose and objectives in addition to the strategic framework within the planning scheme.

Planning scheme amendments: A new process will apply for making and considering requests for planning scheme amendments (including where a request for a planning scheme amendment is part of a concurrent application).

Development applications: Development applications must include the name and contact details of the owner of the site, the applicant and any person who entered into an agreement with an applicant or owner to acquire an estate or interest in the land to which the application relates (previously this was any person who would 'directly benefit' from the development). The regulations will be able to prescribe a class or classes of development applications which can provide to streamline processes for minor development applications.

Exhibition and notice requirements: The regulations specify the following with respect to public notification:

  • a development or class of developments for which a longer 28 day exhibition period will apply. The draft Regulations currently prescribed a minimum 28 day submission period for development such as development of more than 50 dwellings on one site, clearing of native vegetation on unzoned land and development of an abattoir or a new hospital;
  • where limited notice may only be required (e.g. where the development will not have a significant impact on the existing and future amenity of the area in which the development will be carried out); and
  • a development or class of development for which only local notice is required (eg. for a development application to make an addition or alteration to a dwelling-single).

Review of decisions: The consent authority decisions that are reviewable by the Civil and Administrative Tribunal are specified. This will include, decisions refusing a development proposal, refusing a certificate, imposing conditions on the certificate, requesting additional information, refusing to grant an extension of time, refusing to consent to a proposed development, issuing an enforcement notice, specifying the requirements of an enforcement notice, and to take no further action in response to a complaint in circumstances prescribed by regulation.

Enforcement powers: There will be significant changes to the enforcement provisions including, amongst other things:

  • increases in penalty for certain offences (eg. using or developing land or vegetation clearing that contravenes a planning scheme, interim development control order or permit);
  • a new show cause notice and enforcement notice process;
  • the ability to issue infringement notices as an alternative to penalty as prescribed by the regulations. The draft Regulations propose that this will include offences relating to a use or development that contravenes planning scheme or an interim development control order or a permit, and clearing native vegetation;
  • provisions for criminal liability of an executive officer of a body corporate and grounds for defence to prosecution; and
  • a two-year time limit on commencing a prosecution.

If you would like to understand how the planning reforms will impact your operations please contact us.

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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 communication. Persons listed may not be admitted in all States and Territories.