General information. This page describes Tasmania’s planning law in general terms. It is not legal or planning advice for any application. The State Planning Office, the local council and TASCAT are the official places to check, and the Act itself is on the Tasmanian Legislation website.
A use or development classed as Permitted or Discretionary in the Tasmanian Planning Scheme needs planning approval. A permitted application that meets the scheme must be granted within 28 days, or a longer period agreed in writing. Unless the council refuses it as soon as it arrives, a discretionary one is advertised, open to representations from anyone for 14 days (or up to 14 more if the council allows), and decided within 42 days of the council receiving it (56 if the Heritage Council needs extra time), or a longer period agreed in writing.
Reading the scheme
The scheme places every possible use and development in a broad use class; there are 34 of them, listed in Table 6.2. Some use and development is exempt, and the exemptions are in clause 4.
Each zone sets Use and Development Standards, covering matters such as setbacks, height limits and hours of operation, and an application has to show how it meets them. A standard can be met two ways. An Acceptable Solution is a measurable test; Performance Criteria ask the council to use judgement. An application for a Permitted use or development that rests entirely on the measurable Acceptable Solutions must be approved, and needs no consultation.
Two kinds of application
| Step | Permitted (section 58) | Discretionary (section 57) |
|---|---|---|
| What makes it this kind | The scheme binds the council to grant a permit, with or without conditions | The scheme gives the council a discretion to refuse or permit, or the proposal needs a requirement of the scheme waived, relaxed or modified |
| Public notice | Section 58 sets none | Given by the council, unless it requires the applicant to give it. None is needed if the council refuses the application on receipt; it then serves notice of the refusal on the applicant within 7 days |
| Representations | No representation period in section 58 | Anyone, for 14 days from the notice, or up to 14 more days if the council allows |
| Decision due | Within 28 days of the council receiving it, or a longer period agreed in writing | Unless refused on receipt: not before the representation period ends, and within 42 days of receipt (56 if the Heritage Council needs extra time), or longer if agreed in writing |
| Notice of decision | To the applicant, within 7 days | To the applicant and everyone who made a representation, within 7 days |
| Who may appeal | The applicant, against conditions or restrictions | The applicant, against a refusal or conditions; anyone who made a representation, against a grant |
The State Planning Office counts these as calendar days. If the council needs more information, the clock stops until the applicant supplies it, and an approval needed from Heritage Tasmania or the Environment Protection Authority can lengthen the time. Councils often refer applications elsewhere for specialist advice; the Electricity Supply Act 1995, for one, requires a referral to TasNetworks where its work would be needed first or its operations would be affected.
Representations on a discretionary application
The notice of a discretionary application names a place where the application, its plans and its other documents can be inspected during the representation period. The rest of the period runs on these rules:
- A notice displayed on the land must not be obscured or removed during the period; the fine is up to 10 penalty units.
- Days on which the council’s office is closed in normal business hours are added to the period.
- A representation can be withdrawn in writing at any time before the decision, and is then treated as never made.
- The applicant, or anyone who made a representation, can ask the council in writing for mediation. The council then seeks the other parties’ agreement, and if mediation goes ahead the decision period can be extended.
When the council runs out of time
If a council does not decide a permitted or discretionary application within its period, the Act treats that as a decision to grant a permit, on conditions TASCAT decides. The applicant can then ask TASCAT for an order setting those conditions, and the council must tell anyone who made a representation within 7 days of hearing from TASCAT. TASCAT can then grant the permit, with or without conditions, or, for a discretionary application, direct that no permit be granted.
Appeals to TASCAT
The Act sends planning appeals to the Appeal Tribunal, which it defines as the Tasmanian Civil and Administrative Tribunal; the appeal rules sit in Part 4, Division 3. Section 61 gives these rights, each within 14 days of the notice being served:
| Decision | Who may appeal |
|---|---|
| A permit refused, or granted with conditions or restrictions | The applicant |
| A permit granted on a discretionary application | Any person or relevant agency that made a representation |
| A request for more information | The applicant |
| A permit amended by the council | The people the Act names for that amendment; the State Planning Office lists the applicant, the landowner, adjoining owners, those who made representations and, where relevant, the Environment Protection Authority |
| An enforcement notice | The person it is served on |
| A permit cancelled | An owner or occupier of the land |
An appeal is lodged in writing on TASCAT’s forms, and it is not received until the fee is paid. TASCAT may be able to extend time in some appeals, but cannot grant an extension before the time has run out.
TASCAT’s guide to its Resource and Planning Stream sets out what follows. A preliminary conference is listed within 10 to 14 days of filing, and mediation or another form of dispute resolution, which is common, usually follows within 7 to 14 days of that. A case that does not settle goes to a hearing, and the decision usually comes within 4 weeks of it. The State Planning Office says the Tribunal must resolve proceedings within 90 days. In TASCAT’s Resource and Planning Stream, the number of people for or against a proposal is not a relevant factor, and the usual order at the end is that each party bears its own costs, though the parties get 21 days to apply for a costs order against one or more of the parties before that order takes effect. From TASCAT, an appeal lies to the Supreme Court within 30 days, on a question of law only.