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05 Mar 2020

Reforming the Northern Territory planning system – have your say

Nicole Besgrove, Margaret Michaels

After first commencing discussions about reforming the planning and development system in 2017, the Northern Territory Government has now opened public consultation on an amendment bill which closes on 11 March 2020.

On 13 February 2020, the NT Government introduced the Planning Amendment Bill 2020 to Parliament and it was subsequently referred to the Legislation Scrutiny Committee for inquiry and report by 5 May 2020. The aim of the Bill is to amend the Planning Act 1999 (NT) to better align the NT's planning system with best practice in Australia in line with the NT Government's reform commitments.

It is understood that to coincide with this Committee inquiry, the proposed amendment to the NT Planning Scheme, and a draft of amendments to the Planning Regulations 2000, will also be released shortly for consultation.

The Bill proposes a suite of amendments, the most notable of which are considered below.

Purpose and objectives of the NT Planning Act

The Bill proposes to amend the objects of the Planning Act so that its purpose is to establish a system to facilitate planning for the orderly use and development of land to achieve a number of objectives, including:

  • ensuring that strategic planning, which reflects the wishes and needs of the community, is applied to planning schemes and implemented in planning decisions;
  • ensuring it is accessible to the community, with appropriate public consultation and decision review opportunities;
  • ensuring that decisions under the Act take account of a broad range of considerations that promote sustainable development, intergenerational equity and reflect good planning principles; and
  • assisting other legislation with regard to resource management, environment and heritage protection and the provision of public utilities, infrastructure and facilities for the benefit of the community.

The purpose and objectives of the Act will become a mandatory requirement and consideration in that:

  • 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

The Bill proposes a new process for making and considering requests for planning scheme amendments:

  • prescribing what a written request to the Minister for a planning scheme amendment must include (for example, an explanation of the proposed amendment, a statement of the purpose of the proposed amendment and its desired effect, an assessment of the matters which are to be considered by the Minister and community consultation details (if any));
  • allowing the Minister to request further information necessary to enable a proper consideration of the request;
  • allowing the Minister to ask the Commission for its views on the strategic planning implications of a proposed amendment to a planning scheme;
  • prescribing what the Minister must consider when making a decision with respect to a request (for example, whether the proposed amendment promotes the purpose and intent of the Act, is contrary to any strategic framework in the planning scheme, requires public exhibition and is in the public interest along with any other matter considered appropriate);
  • identifying the information to be included when a proposed planning scheme amendment is made available for public comment; and
  • if the Minister receives a report from the Commission, imposing a timeframe of 90 days after receipt of the report by which the Minister is to make a decision.

For consistency, similar amendments are proposed with respect to those provisions which relate to a request for a planning scheme amendment which is part of a concurrent application.

Development applications

A number of changes are proposed to the requirements for development applications, in particular:

  • a development application must now include the name and contact details of any person who would directly benefit from the development;
  • the regulations may prescribe a class or classes of development applications that are required to contain only some of the reports or information specified in section 46(3) of the Planning Act (for example a public environmental report or an environmental impact statement) in order to streamline processes for minor development applications;
  • an applicant must provide information where required by the consent authority within 30 days of receiving the request or as otherwise extended by the consent authority; and
  • the consent authority may reject an application if the applicant does not provide the information within 30 days of receiving the request or any longer period extended by the consent authority.

When considering a development application, the Bill proposes an amendment which requires that the consent authority must apply the relevant considerations to only those components of the development that triggered the requirement for consent under the planning scheme. The Explanatory Statement states that the basis of this amendment is to limit the range of issues that have to be considered in relation to minor developments or when a permitted use becomes merit assessable because of the need for a variation of a development requirement (for example a boundary setback).

Exhibition and notice requirements

The Bill proposes to insert new public notice requirements in the following circumstances:

  • longer public notice: the regulations could prescribe a development or class of developments for which a longer 28 day exhibition period will apply. Currently the period is 14 days, however the Explanatory Statement says the amendment will facilitate longer exhibition for more complex proposals. For development not prescribed by the regulations, the exhibition period will continue to be 14 days;
  • limited notice: where prescribed by the regulations, a development application solely for consent to use or develop land to accommodate people requiring privacy, or to carry out a use or development that will not have a significant effect on the existing and future amenity of the area in which it will be carried out, will only require written notification of adjoining owners or occupiers; and
  • local notice: where the regulations prescribe a development or class of development for which only local notice is required, only written notice to adjoining owners and occupiers and a sign on the land that is legible from the boundary of the public road nearest to the land will be required. No newspaper advertising will be required in these circumstances.

Review of decisions

The Bill proposes amendments to identify all consent authority decisions reviewable by the Civil and Administrative Tribunal including the new decision provisions to be introduced by the Bill. This will include allowing third parties to seek review of a decision to not issue an enforcement notice in response to a complaint in circumstances prescribed by regulation.

Enforcement powers

The Bill proposes significant changes to the enforcement provisions currently contained in the Act, the aim of which is to align planning enforcement powers with environmental enforcement legislation.

A new show cause notice and enforcement notice process will be established which is triggered where the consent authority believes on reasonable grounds that a person has contravened, is contravening or is likely to contravene, certain planning offence provisions. The consent authority will be able to:

  • issue a show cause notice stating the consent authority's intention to issue an enforcement notice and asking the recipient to show cause why the enforcement notice should not be issued. A person issued with a show cause notice with have a minimum of 20 business days to respond;
  • issue a subsequent enforcement notice (only after the show cause notice process above has been followed) which specifies the action or activity that the person is required to take or refrain from taking to remedy the contravention and to comply with the provision being contravened; and
  • issue an enforcement notice without first issuing a show cause notice if the consent authority believes on reasonable grounds that issuing the show cause notice first is not appropriate in the circumstances (for example where required to prevent vegetation clearing, the demolition of a building, an irreversible change to the landscape, the risk of material environmental harm, or the risk of significant adverse effect on amenity or public health).

With respect to offences of using or developing land or vegetation clearing that contravenes a planning scheme, interim development control order or permit, the penalty has been increased from 200 penalty units and a default of 4 penalty units to a maximum penalty of 500 penalty units with a default of 4 penalty units. The same penalty will apply to the new offence of failure to comply with an enforcement notice.

The Bill also proposes a number of amendments with respect to the appointment, roles and responsibilities and management of authorised officers, complaints and investigations, court powers, infringement notices as an alternative to penalty for offences to be prescribed by regulations, 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.

Have your say

If you have current or future development opportunities in the NT, it is important that you understand the changes proposed by the Bill and make a submission if there are any changes which you do not agree with or believe require improvement before being made as law.

Submissions on the Bill can be made to the Committee via email to [email protected] by close of business Wednesday, 11 March 2020. Copies of all relevant documents can be found here.

Please contact us if you require any assistance with your submission, or would like to understand the impact of these changes on your business.

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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.