LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

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LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

Legislation Scrutiny Committee

Inquiry into the Planning Amendment Bill 2020

May 2020

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Contents

Chair’s Preface

This report details the Committee’s findings regarding its examination of the Planning Amendment Bill 2020. This Bill forms part of an overall reform programme to restore integrity and confidence in the Northern Territory (NT) planning system. Phase 1 consists of priority reforms and includes fundamental legislative changes, structural planning scheme amendments, and administrative changes while phase 2 will implement a comprehensive review of the NT Planning Scheme and the development of guidelines on a range of matters.

The Committee received 15 submissions to its inquiry. Support for the Bill varied, with the majority of submitters recommending amendments. Common points of contention raised in submissions from community members and environmental organisations relate to climate change, sustainable development and amenity. In addition, issues were identified with a number of the proposed amendments regarding whether they have sufficient regard to the rights and liberties of individuals and are unambiguous and drafted in a sufficiently clear and precise manner.

The Committee has recommended that the Assembly pass the Bill with the 16 amendments proposed in the recommendations. The majority of these recommendations (2-4; 6; 8-17) aim to ensure that the Bill is unambiguous and drafted in sufficiently clear and precise manner.

Recommendation 2 proposes that the Bill be amended to include a definition of

“sustainable development” to ensure its meaning is clearly understood while recommendation 3 proposes that section 2A(j) be amended to ensure consistency with the definition of amenity provided in section 3 of the Act. Recommendation 5 aims to ensure that rights and liberties are protected in relation to proposed s 75C which creates an offence relating to the clearing of native vegetation. This term is not defined in the Act, with the subsequent effect that a person could be subjected to criminal liability in circumstances where the indicia of the offence are not clear. Recommendation 7 proposes that section 135B be amended to remove any reference to the Minister issuing directions on how to interpret the Act. While it is appropriate for a Minister to provide guidance on how to administer and apply processes under the Act, interpretation is a matter for the courts.

On behalf of the Committee, I would like to thank all those who made submissions to the inquiry. The Committee also thanks Professor Aughterson and the Department of Planning, Infrastructure and Logistics for their advice. I also thank my fellow Committee members for their bipartisan commitment to the legislative review process.

Mr Tony Sievers MLA Chair

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Committee Members

Mr Tony Sievers Member for Brennan

Party: Territory Labor Committee Membership

Standing: House, Public Accounts

Sessional: Legislation Scrutiny Committee

Chair: Legislation Scrutiny Committee

Ms Sandra Nelson MLA Member for Katherine

Party: Territory Labor

Parliamentary Position Acting Deputy Speaker Committee Membership

Sessional: Legislation Scrutiny

Deputy Chair: Legislation Scrutiny Mr Joel Bowden MLA

Member for Johnston

Party: Territory Labor Committee Membership

Mrs Lia Finocchiaro MLA Member for Spillett

Party: Country Liberals

Parliamentary Position: Leader of the Opposition Committee Membership

Standing: Privileges

Mrs Robyn Lambley MLA Member for Araluen

Party: Territory Alliance Parliamentary Position: Acting Deputy Speaker Committee Membership

Standing: Standing Orders and Members’ Interests

Note: Pursuant to Standing Order 181, on Tuesday 10 March the Member for Karama, Ms Ngaree Ah Kit MLA was discharged from the Committee and replaced by Member for Johnston, Mr Joel Bowden MLA.

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Committee Secretariat

Committee Secretary: Jennifer Buckley Administration/Research Officer: Melissa Campaniello Administration Assistant: Kim Cowcher

Contact Details: GPO Box 3721 DARWIN NT 0801

Tel: +61 08 8946 1485 Email: [email protected]

Acknowledgements

The Committee acknowledges the individuals and organisations that provided written submissions.

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Acronyms and Abbreviations

ACT Australian Capital Territory

DCA Development Consent Authority

ECNT Environment Centre Northern Territory

EDONT Environmental Defenders Office NT

HIA Housing Industry Association

NT Northern Territory

NSW New South Wales

PLan The Planning Action Network Inc

Qld Queensland

Scarlet Alliance Scarlet Alliance, Sex Workers’ Outreach Program NT, Sex Workers’ Reference Group

SA South Australia

WA Western Australia

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Terms of Reference

Sessional Order 13

Establishment of Legislation Scrutiny Committee (1) Standing Order 178 is suspended.

(2) The Assembly appoints a Legislation Scrutiny Committee.

(3) The ordinary membership of the scrutiny committee will comprise three Government Members, one Opposition Member nominated to the Speaker in writing by the respective Whip and one non-party aligned Member to be appointed by motion.

The Committee’s membership will be supplemented by alternate members who may be nominated to participate at meetings and undertake a role on the committee in the place of ordinary committee members. The nomination of alternate committee members will be in writing by the ordinary member to the committee chair.

Alternate Committee members must be from the same category of Members of the Assembly as the ordinary member nominating them such as the same political party or a non-party aligned Member.

(4) The functions of the scrutiny committee shall be to inquire and report on:

(a) any matter referred to it:

(i) by the Assembly;

(ii) by a Minister; or (iii) on its own motion.

(b) any bill referred to it by the Assembly;

(c) in relation to any bill referred by the Assembly:

(i) whether the Assembly should pass the bill;

(ii) whether the Assembly should amend the bill;

(iii) whether the bill has sufficient regard to the rights and liberties of individuals, including whether the bill:

(A) makes rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review; and

(B) is consistent with principles of natural justice; and

(C) allows the delegation of administrative power only in appropriate cases and to appropriate persons; and

(D) does not reverse the onus of proof in criminal proceedings without adequate justification; and

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Terms of Reference

(E) confers powers to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer; and

(F) provides appropriate protection against self-incrimination; and (G) does not adversely affect rights and liberties, or impose

obligations, retrospectively; and

(H) does not confer immunity from proceeding or prosecution without adequate justification; and

(I) provides for the compulsory acquisition of property only with fair compensation; and

(J) has sufficient regard to Aboriginal tradition; and

(K) is unambiguous and drafted in a sufficiently clear and precise way.

(iv) whether the bill has sufficient regard to the institution of Parliament, including whether the bill:

(A) allows the delegation of legislative power only in appropriate cases and to appropriate persons; and

(B) sufficiently subjects the exercise of a delegated legislative power to the scrutiny of the Legislative Assembly; and

(C) authorises the amendment of an Act only by another Act.

(5) The Committee will elect a Government Member as Chair.

(6) The Committee will provide an annual report on its activities to the Assembly.

Adopted 27 November 2019

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Recommendations

Recommendation 1

The Committee recommends that the Legislative Assembly pass the Planning Amendment Bill 2020 with the proposed amendments set out in recommendations 2- 17.

The Committee recommends that the Bill be amended to include a definition of sustainable development in section 3 of the Act.

The Committee recommends that proposed section 2A(j) be amended to align with the definition of ‘amenity’ in proposed section 3, such as: “to promote good design and amenity of buildings and localities”.

The Committee recommends that proposed section 46(3)(aa) be re-drafted to provide greater clarity with regard to the meaning of the term “directly benefit” in subsection (iii).

The Committee recommends that the Bill be amended to provide a definition of “native vegetation” either in the Act or by reference to another appropriate instrument.

The Committee recommends that the Bill be amended to require that where the Minister terminates the appointment of a community member nominated by the local authority, the Minister provides the local authority and the terminated member with written reasons for their decision.

The Committee recommends that proposed s 135B be amended to remove any reference to the Minister issuing directions on how to interpret the Act.

The Committee recommends that proposed section 139A(1) be amended to require that, where possible, any document that is required to be published in a newspaper is also published on a website or other electronic platform.

The Committee recommends that the letter (b) be removed from proposed section 16(7) and replaced with the letter (a).

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Recommendations

The Committee recommends that the first instance of the word “in” be removed from proposed s 18.

The Committee recommends that the letter (b) be removed from proposed section 30(J)(3B) and replaced with the letter (a).

The Committee recommends that proposed s 30W(8) and s 52(6) be amended to insert the words “in writing” after the word “respond”, or words to that effect.

The Committee recommends that section 49 of the Bill be amended to:

• Define the term “exhibition period” for the purposes of Part 5 of the Act;

• Clarify whether submissions are to be lodged within the exhibition period or within the period specified in the notice.

The Committee recommends that proposed section 80B be amended to make it clear that the default penalty only applies for each day that the offence continues to be committed after the person has been notified that they are committing an offence.

The Committee recommends that proposed section 80F be amended by clarifying or replacing the term “declared provision” in subsection (1)(a).

The Committee recommends that proposed section 84(5) be amended so its words clearly express its intent, such as by inserting “and a person’s name may be entered on the register”, after the words “consent authority”.

The Committee recommends that proposed section 103(1A) be amended to require that the minutes of the Development Consent Authority must record the names of those who attend the meeting and whether a member has been given leave to be absent from the meeting.

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1 Introduction

Introduction of the Bill

1.1 The Planning Amendment Bill 2020 (the Bill) was introduced into the Legislative Assembly by the Minister for Infrastructure, Planning and Logistics, the Hon Eva Lawler MLA, on 13 February 2020. The Assembly subsequently referred the Bill to the Legislation Scrutiny Committee for inquiry and report by 5 May 2020.¹

Conduct of the Inquiry

1.2 On 14 February 2020 the Committee called for submissions by 11 March 2020. The call for submissions was advertised via the Legislative Assembly website, Facebook, Twitter feed and email subscription service. In addition, the Committee directly contacted a number of individuals and organisations.

1.3 The Bill, associated Explanatory Statement, and Statement of Compatibility with Human Rights was also forwarded to Professor Ned Aughterson for review of fundamental legislative principles under Sessional Order 13(4)(c).

1.4 As noted in Appendix 1, the Committee received 15 submissions to its inquiry.

Outcome of Committee’s Consideration

1.5 Sessional order 13(4)(c) requires that the Committee after examining the Bill determine:

(i) whether the Assembly should pass the bill;

(ii) whether the Assembly should amend the bill;

(iii) whether the bill has sufficient regard to the rights and liberties of individuals; and

(iv) whether the bill has sufficient regard to the institution of Parliament.

1.6 Following examination of the Bill, and consideration of the evidence received, the Committee is of the view that the Legislative Assembly should pass the Bill with proposed amendments as set out in recommendations 2-17.

The Committee recommends that the Legislative Assembly pass the Planning Amendment Bill 2020 with the proposed amendments set out in recommendations 2-17.

1 Hon Eva Lawler MLA, Minister for Infrastructure, Planning and Logistics, Draft - Daily Hansard – Day 3 – 13 February 2020, http://hdl.handle.net/10070/756093, p. 9.

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Introduction

Report Structure

1.7 Chapter 2 provides an overview of the policy objectives of the Bill and the purpose of the Bill as contained in the Explanatory Statement.

1.8 Chapter 3 considers the main issues raised in evidence received.

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2 Overview of the Bill

Background to the Bill

2.1 The Planning Amendment Bill 2020 is part of an overall reform programme to fulfil the Government’s election promise to “restore integrity and confidence through reform of the Northern Territory (NT) planning system”.² Phase 1 of the reform programme consists of priority reforms and includes fundamental legislative changes, structural planning scheme amendments, and administrative changes.

Phase 2 will implement a comprehensive review of the NT Planning Scheme and will include a review of definitions, zones and development provisions as well as the development of guidelines for a range of matters such as building design, subdivision and land clearing.³

2.2 Phase 1 of the reform programme has been conducted in three stages. Stage 1 included consultation with industry and the community to identify aspects of the planning system that needed to be improved while stage 2 sought feedback on the overall directions of the reform program including a set of initiatives proposed as priority reforms. Stage 3 comprised public consultation on a Consultation Draft Bill for Amendments to the Planning Act 1999 and the introduction to Parliament of the Planning Amendment Bill 2020.⁴

Purpose of the Bill

2.3 As noted in the Explanatory Statement, the purpose of the Bill is:

to support implementation of the Government’s planning reform commitments to increase transparency and accountability within the planning system and to deliver better development outcomes.⁵

2.4 When presenting the Bill, the Minister noted that the amendments would deliver the following key benefits:

• Increased emphasis on sustainable development that responds appropriately to the social, economic and environmental needs and values of current Territorians and future generations

• More certainty around how and where land uses are expected to change in the future

• Planning processes and planning documents that are easier to follow and understand

3 Northern Territory Government, Planning Reform Directions Paper: Building Confidence through Better Planning for the Northern Territory, https://dipl.nt.gov.au/__data/assets/pdf_file/0009/694692/planning- reform-directions-paper.pdf, p. 4.

4 Northern Territory Government, Progressing Planning Reform: A Snapshot, https://haveyoursay.nt.gov.au/planningreform, pp. 2-3.

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Overview of the Bill

• Planning processes that apply more rigor to assessing complex development and are simpler for ‘mum and dad’ applications

• More local input into local planning matters

• A framework that encourages better development outcomes, responds to local factors and supports innovative developments

• More information about how decisions are made

• More opportunities to review planning decisions

• Enforcement powers that will uphold a fairer system.⁶

6 Hon Eva Lawler MLA, Minister for Infrastructure, Planning and Logistics, Draft - Daily Hansard – Day 3 – 13 February 2020, http://hdl.handle.net/10070/756093, p.9.

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3 Examination of the Bill

Introduction

3.1 Five submitters considered the Bill should not be passed while four considered the Bill required significant amendments before being passed.⁷ These submitters made broad recommendations but did not refer to specific sections of the Bill. Six submitters identified specific amendments they considered necessary before the Bill is passed.⁸ 3.2 Nine of the 15 submissions were from individuals, with these generally focusing on

broad issues rather than addressing specific sections of the Bill. Key issues raised in these submissions included:

• Amenity

• Climate change

• Ecologically sustainable development

• Community focus

• Holistic approach

3.3 Legal advice from Professor Aughterson raised issues with the drafting of a number of the proposed amendments the majority of which relate to the extent to which they meet the Committee’s terms of reference in relation to clear and precise drafting - (4)(c)(iii)(K).

Clause 4 - Proposed section 2A replaced – Purpose and objectives

3.4 This amendment essentially aims to refocus the purpose and objectives of the Act to place a stronger emphasis on the role of strategic plans and policy in influencing planning decisions. In addition, it is intended to “support the new role of the objectives as mandatory considerations for the Minister in determining planning scheme amendments”.⁹ Three key issues were raised with regard to proposed s 2A, with these focusing on climate change; sustainable development; and amenity.

Climate Change

3.5 Both the Environmental Defenders Office NT, (EDONT) and the Environment Council of the NT (ECNT) considered that proposed s 2A should be amended to make climate change an explicit objective of the Act. In support of their argument, the EDONT noted that:

7 Submission 2 – Margie West, p. 1; Submission 4 – Nancy Batenburg, p. 2; Submission 10 – Heather Ferguson and Carl Stephens, p. 1; Submission 12 – Jo Vandermark, p. 1; Submission 13 – PLan the Planning Action Network, Inc, p. 2; Submission 1 – Diana Rickman and Greg Chapman; Submission 3 – Elizabeth Benson; Submission 6 – Dianne Koser; Submission 9 – Hugh Bradley.

8 Submission 5 – Housing Industry Association (HIA); Submission 7 – Litchfield Council; Submission 11 – Environmental Defenders Office NT (EDONT); Submission 14 – Environment Centre NT (ECNT);

Submission 15 – Scarlet Alliance/Sex Workers Outreach Program/Sex Workers Reference Group (Scarlet Alliance).

9 Explanatory Statement, Planning Amendment Bill 2020 (Serial 118), https://parliament.nt.gov.au/committees/LSC/118-2020#kd, p. 1.

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Examination of the Bill Even the NT Government’s own Climate Change Response identifies that one of the central ways it will respond to climate change includes embedding greenhouse gas (GHG) emissions reductions and climate risk response considerations across government decision-making. Despite this, and the fact that the current reform to the Act is a perfect opportunity to embed climate change considerations in planning decision-making, climate change is not referred to once in the Bill.¹⁰

3.6 The EDONT recommended further amendments to several sections of the Act in order to effectively integrate climate change into its provisions and to:

more appropriately position the Act to enable the planning system to play a fundamental role in ensuring the NT can appropriately respond to the risks associated with climate change and implement actions to mitigate emissions.¹¹ 3.7 In the absence of such changes they recommended that the Bill be amended to insert

a new subsection on climate change in proposed s 2A to:

ensure there is a clear mandate in the Act to integrate climate change considerations in the development of strategic plans, the NT Planning Scheme, and overlays under the Act, and for development consent decision-making.¹² 3.8 The ECNT suggested that an explicit objective in proposed s 2A could state:

Ensure appropriate and effective responses to the challenges of climate change - to reduce release and increase retention of greenhouse gases, and to create built environments and protect and support natural environments that help ensure the ‘liveability‘ of the Northern Territory.¹³

3.9 Planning legislation in most jurisdictions in Australia makes no reference to climate change, although Queensland (Qld) and South Australia (SA) both include climate change as a principle for consideration.¹⁴ South Australian legislation states that

“particular effort should be focussed on achieving energy efficient urban environments that address the implications of climate change” and requires the Minister to develop a specific state planning climate change policy while the Qld legislation includes climate change as a factor that should be taken into account when determining how best to maintain the cultural, economic, physical and social wellbeing of people and communities.¹⁵ Further detail on provisions relating to climate change in planning legislation of other Australian jurisdictions is provided in Appendix 2.

3.10 The Committee sought clarification from the Department regarding the effect on the operation of the Bill of including an amendment to provide that an objective of the Act is to promote effective responses to the challenges of climate change and was advised that:

Direct reference to 'climate change' within the objectives is not considered appropriate as it would raise climate considerations above the many other wide ranging environmental, social and economic issues that planning must consider to ensure the wellbeing of Territorians.

10 Submission 11 – EDONT, p. 2.

13 Submission 14 – ECNT, p. 2.

14 Planning Act 2016 (Qld); Planning, Development and Infrastructure Act 2016 (SA).

15 Planning, Development and Infrastructure Act 2016 (SA), s 14(e)(ii) and s 62; Planning Act 2016 (Qld), s 3(3)(c)(iv).

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The increased emphasis on strategic planning and policy within the Bill will allow for any future planning policies around climate change to have more influence on planning decisions. The inclusion of detailed policy within the NT Planning Scheme is considered a more appropriate and effective means of directing the role of planning in climate change action.¹⁶

Committee’s comments

3.11 The Committee is satisfied with the Department’s advice.

Sustainable development

3.12 While supporting many measures introduced by the Bill, both the EDONT and the ECNT considered the provisions on sustainable development should be strengthened. The EDONT considered the term “sustainable development” to be confusing as it “remains undefined in the Bill” while both EDONT and ECNT recommended that the Bill explicitly link proposed s 2A(e), “to promote the sustainable development of land”, with the definition and principles of ecologically sustainable development (ESD) as set out in the Environment Protection Act 2019 (s 4 and Part 2, Division 1).¹⁷ The EDONT commented that:

Adopting the principles of ESD in the Act (as defined in the Environment Protection Act 2019) through the objects clause would ensure there is integration and cohesion across related NT statutory frameworks, and embed these fundamental, and directly relevant, environmental principles within the planning system. Again, we refer to Qld’s Planning Act (ss 3-4) as a strong model for framing of ecological sustainability and climate change within an objects clause.

3.13 A review of comparable Australian planning legislation indicates that while there is considerable variation in how “sustainable development” is envisaged and provided for, most jurisdictions place significant emphasis on sustainability and provide a reasonably comprehensive definition of what it entails. The New South Wales (NSW) Environmental Planning and Assessment Act 1979 includes substantial provisions on ecologically sustainable development in s 1.3 – Objects of the Act and links the meaning of “ecologically sustainable development” with the definition in its Protection of the Environment Administration Act 1991 (NSW). The definition is comprehensive and includes provisions on the precautionary principle; inter-generational equity;

conservation of biological diversity and ecological integrity; and valuation, pricing and incentive mechanisms. Reasonably comprehensive definitions are also included in planning legislation in Qld, SA, Tasmania and the Australian Capital Territory (ACT), with the ACT definition being similar to that in the Protection of the Environment Administration Act 1991 (NSW) (see Appendix 2). By contrast, sustainable development is not defined in planning legislation in either Western Australia (WA) or Victoria and references to sustainability or conservation are relatively sparse.¹⁸ Provisions on sustainable development in the NT Planning Act 1999 are most similar to those in the WA Planning and Development Act 2005.¹⁹

16 Hon Eva Lawler MLA, Minister for Infrastructure, Planning and Logistics, Responses to Written Questions, 15 April 2020, https://parliament.nt.gov.au/committees/LSC/118-2020#Tabled%20Papers, p. 2.

17 Submission 11 – EDONT, pp. 2-3; Submission 14 – ECNT, p. 2.

18 Section 3, Planning and Development Act 2005 (WA); Sections 4 and 46AV, Planning and Environment Act 1987 (Vic).

19 Planning and Development Act 2005 (WA), s 3(c).

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Examination of the Bill

3.14 The Committee sought clarification from the Department as to the effect on the operation of the Bill of defining sustainable development in line with the definition and principles of ecologically sustainable development as set out in the Environment Protection Act 2019 (NT) and was advised that:

"Ecologically sustainable development" is appropriate to the new Environmental Protection Act 2019 as that legislation has a narrower objective of protecting the environment of the Territory. However, planning legislation must take into account a far broader range of environmental, social and economic issues in the public interest.

To identify "sustainable development" as being the same as "ecologically sustainable development" in the Environmental Protection Act 2019 would limit the ability of the Minister and the Consent Authority to consider the broad range of issues that should inform land use planning and development decisions.

"Sustainable development" is deliberately referenced in this Bill to ensure that planning for future development has a broader focus, and to avoid duplication with the role of the Environmental Protection Act 2019 to protect and manage the environment.

The essential principles of ecologically sustainable development that are appropriate to the planning legislation are brought into this Bill through the objectives to:

• promote the sustainable development of land;

• promote the responsible use of land and water resources to limit the adverse effects of development on ecological processes;

• maintain the health of natural environment and ecological processes; and

• protect the quality of life of future generations.²⁰

3.15 The Department further advised that the intended meaning of “sustainable development” in relation to proposed s 2A(e) is:

to achieve balance between economic growth, care for the environment and social well-being in a manner that satisfies the needs of the present population without compromising the capacity of future generations to meet their needs.²¹

3.16 The Committee is satisfied with the Department’s rationale for not linking the term ecologically sustainable development with the definition in the Environmental Protection Act 2019 (NT), however, it considers that the meaning of the term

“sustainable development” as it is applied in the Planning Act 1999 (NT) should be defined to ensure clarity.

The Committee recommends that the Bill be amended to include a definition of sustainable development in section 3 of the Act.

20 Hon Eva Lawler MLA, Minister for Infrastructure, Planning and Logistics, Responses to Written Questions, 15 April 2020, https://parliament.nt.gov.au/committees/LSC/118-2020#Tabled%20Papers, pp. 2-3.

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Amenity - proposed s 2A(j) – to promote good design and amenity of buildings and other works

3.17 A number of submitters commented that proposed s 2A(j) does not adequately reflect the meaning of amenity as typically applied in a planning context,²² with Heather Ferguson and Carl Stephens commenting that:

Amenity refers to aspects such as quality of lifestyle, environment and pleasant living conditions. It is fundamental to human health and wellbeing, and takes into consideration the needs of the humans living in the area, along with native animals and plants and development. It is the main reason people choose to live in a location – people do not aspire to live in a concrete high-rise with a concrete car-park next door, and encroaching high rise apartments on all sides. Yet this is the kind of environment the current Act has encouraged and the proposed planning amendment will facilitate.²³

3.18 The breadth of the meaning of “amenity” is illustrated in the following descriptions:

Amenity is an elusive concept. It has its usual meaning of pleasantness, but also has a wider ambit. It has a physical (or tangible) component, which could include character and appearance of building and works, proximity to shopping facilities, quality infrastructure and absence of noise, unsightliness or offensive odours. It has been said to embrace all the features, benefits and advantages inherent in the environment in question. It also has a psychological or social component.²⁴ A positive element or elements that contribute to the overall character or enjoyment of an area. For example, open land, trees, historic buildings and the inter-relationship between them, or less tangible factors such as tranquillity.²⁵

3.19 Noting that the promotion of “amenity” in proposed s 2A(j) is confined to “buildings and other works”, some submitters considered this section should be amended to capture the broader application of amenity in terms of locality and neighbourhood, while several submitters suggested that existing objective, s 2A(e), “minimising adverse impacts of development on existing amenity and, wherever possible, ensuring that amenity is enhanced as a result of development” should be retained.²⁶ 3.20 The Committee sought clarification from the Department regarding the reason for

removing s 2A(e) and replacing it with an object that applies a more limited concept of the term amenity and was advised that:

S 2A(e) from the current Act, has been replaced by s 2A(j) in the Bill to best respond to:

• expansion of the objectives of the Act to embrace a broader range of matters including intergenerational equity; and

• expansion of the role of the objectives of the Act to make them mandatory considerations for the Minister when making planning scheme amendments.

S 2A(j) of the Bill does not seek to limit the concept of "amenity" within the Act.

As noted by the committee, "amenity" retains its definition and it is also retained (without any changes to wording) as a matter that must be considered by the

22 Submission 1 – Diana and Greg Rickman, p. 1; Submission 2 – Margie West, p. 1; Submission 6 – Dianne Koser, p. 1; Submission 8 – Sue Bradley AM, p. 1; Submission 9 – Hugh Bradley, p. 1.

23 Submission 10 – Heather Ferguson and Carl Stephens, pp. 2-3.

24 Victorian Government Solicitor’s Office, Client Newsletter, What is “amenity”?, August 2008, https://www.vgso.vic.gov.au/sites/default/files/publications/What%20is%20amenity.pdf, p. 1.

25 United Kingdom, Planning Portal, Glossary, https://www.planningportal.co.uk/directory_record/101/amenity

26 Submission 1 – Diane Rickman and Greg Chapman, p. 1; Submission 2 – Margie West, p. 1; Submission - 8 Sue Bradley, p. 1; Submission 9 - Hugh Bradley, p. 1; Submission 13 – PLan, pp.4-5.

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Examination of the Bill consent authority when making a decision about a development application under s 51(n).

The revised objective s 2A(j) uses similar wording to that used in NSW legislation and is considered to strike the appropriate balance between strategic planning for future generations in the long term and the interests of existing residents.²⁷

3.21 The Department further advised that the removal of proposed s 2A(j) and the reinstatement of existing s 2A(e) would adversely affect the operation of the Bill, noting that:

With the new requirement for the Minister to consider and address the objectives under s 2A when making a planning scheme amendment decision, retaining the wording of s 2A(e) would constrain the Minister to preserve the "existing amenity"

of a location.

By virtue of protecting existing amenity (the status quo), significant limitations are placed on the achievement of strategic policy objectives that are required to accommodate future population growth, such as increasing density in locations where infrastructure has the best potential to support further development. This has a follow-on effect of undermining intergenerational equity principles by increasing future infrastructure costs and obstructing future generations from convenient access to facilities and employment.²⁸

3.22 Whilst acknowledging the Department’s concerns regarding the effect on the operation of the Bill of reinstating existing s 2A(j), the Committee is of the view that proposed s 2A(j) does not adequately reflect the application of the concept of amenity as defined in s 3 of the Act:

Amenity, in relation to a locality or building, means any quality, condition or factor that makes or contributes to making the locality or building harmonious, pleasant or enjoyable.

3.23 The Committee notes that while the Bill may not seek to limit the concept of "amenity"

within the Act, the reference to the “amenity of buildings and other works” in proposed s 2A(j) is inconsistent with the definition provided in s 3 which, due to its inclusion of

“locality”, provides for the concept of amenity to be applied more broadly.

Committee’s Comments

3.24 Although the Committee is satisfied with the Department’s reasons for retaining proposed s 2A(j) and not re-instating existing s 2(e), it is of the view that proposed section 2A(j) should be amended to ensure consistency with the existing definition of amenity in s 3 of the Act.

The Committee recommends that proposed section 2A(j) be amended to align with the definition of ‘amenity’ in proposed section 3, such as: “to promote good design and amenity of buildings and localities”.

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Cl 8 – Section 9 replaced – Planning Scheme

3.25 Proposed s 9 describes the elements that comprise a planning scheme, with these including a strategic framework for the land to which the planning scheme applies, overlay provisions, zone provisions, use and development requirements, and interpretive provisions and administrative guidelines. Its purpose is “to assist in improving understanding of the components of a planning scheme, their relationships to each other and their role in informing decisions”.²⁹

3.26 The EDONT commented that:

Specific provisions should be included in the strategic planning to require climate change plans, which could be inserted into proposed new sections s 9, 9A and 9B, including for example explicit requirements for climate change overlay(s) in the planning scheme (e.g. sea level rise overlay mapping to guide decision- making).³⁰

3.27 The purpose of proposed s 9 is to improve understanding of the components of a planning scheme. As climate change plans or overlays are not currently a component of the planning scheme it would not be appropriate to include these in proposed s 9.

The Committee notes that public consultation on a draft NT Planning Scheme 2020 was undertaken in April 2020 following the introduction of this Bill.³¹

Cl 14, 21, and 33 - Sections 22, 30M and 49 replaced or amended – submissions/hearings

3.28 These sections give the Planning Commission the option of not holding a hearing, provide the local authority with the opportunity to provide a comment rather than a submission, and state that where such a comment does not oppose the application it will not be considered a submission. In relation to a hearing held on planning schemes and proposals the consent authority must invite the local authority to a hearing, if one is held, regardless of whether advice/comment or a submission has been provided (proposed s(9)), however, it is not required to invite the local authority to hearings on concurrent applications (proposed s 30M(4) and (5)) and development permits (proposed 49(6) and (7)) if a local authority has provided advice/comment rather than a submission.

3.29 Litchfield Council commented that providing the Commission with an option to not hold a hearing could reduce transparency and limit the information normally available to Council through a hearing, noting that public hearings enable Council “to revise their comments during the hearing based on new understanding of the amendment revealed during the hearing and based on community views raised during the hearing”.³² They also expressed concern regarding how the Commission would

31 Hon Eva Lawler MLA, Minister for Infrastructure, Planning and Logistics, Draft - Daily Hansard – Day 3 – 13 February 2020, http://hdl.handle.net/10070/756093, p. 11; NTG, Have your Say – Planning Reform, https://haveyoursay.nt.gov.au/planningreform, accessed 6 April 2020.

32 Submission 7 – Litchfield Council, p. 3.

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determine whether or not a hearing would provide further useful information (proposed s 22(6)).

3.30 Scarlet Alliance recommended that provisions allowing local authorities to provide advice or comment to the Commission should be removed or, if retained, should include clarification that such comments or advice should only relate to the local authority’s role in providing infrastructure and services as stated in the Explanatory Statement for clause 13.³³ In addition, in order to ensure transparency and accountability they considered that the comments and advice should be made available to the public and that the applicant must be provided with an opportunity to respond.³⁴ Their recommendation largely arises due to concerns that local authorities may exert undue influence on the outcomes of applications pertaining to the sex industry and result in an inconsistent approach to planning in relation to this industry.

3.31 Although the Committee acknowledges the concerns raised by Litchfield Council, it notes that part of the intent of these amendments is to “minimise unnecessary administrative processes in situations where submissions raise only minor issues or support proposals”.³⁵ Under these circumstances it considers it reasonable for the Planning Commission to have discretion as to whether a hearing is required (proposed s 22(6)). The Committee notes that if the local authority has significant concerns regarding a concurrent application or development permit it has the option of providing a submission rather than comment or advice.

3.32 The Committee considers that the concerns raised by Scarlet Alliance are adequately addressed by the Bill and existing processes, noting that where a local authority makes advice or comment it is taken not to be a submission unless it opposes or contradicts the application (proposed s 22(5); 30M(5); 49(7)). By implication, if it opposes or contradicts the application it will be treated as a submission. In addition, the Committee understands that at the end of the exhibition period the applicant is provided with any submissions received and has an opportunity to respond to any issues raised at the public hearing.

Cl 24 – Section 30W amended – Limits on consent (Part 2A – concurrent applications) and Cl 37 - section 52 amended (Part 5 – Development permits)

Concern regarding discretionary power of Minister

3.33 These sections require the consent authority to make decisions in accordance with the planning scheme but allow the Minister, when acting as the consent authority, and the Development Consent Authority with the approval of the Minister, to make a decision contrary to a strategic framework within a planning scheme.

34 Submission 15 – Scarlet Alliance, p. 3.

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3.34 Several submitters expressed concern regarding the discretionary power of the Minister to consent to a proposed development despite it being contrary to any strategic framework in the planning scheme (proposed s 30W(5) and (6); proposed s 52(3) and (4)).³⁶ Litchfield Council commented that no criteria have been provided against which those decisions are to be reported or measured, while ECNT called for transparency in relation to any decision made under proposed s 53.³⁷

3.35 The Committee sought clarification from the Department regarding the rationale for enabling the Minister and the Development Consent Authority (under Minister’s authority) to consent to a proposed development that is contrary to a strategic framework in the planning scheme and was advised that:

The Minister is responsible for the establishment of the strategic framework in the planning scheme, including strategic policies and land use plans that guide the development of land. Within that context it is considered appropriate that the Minister be in a position to respond to proposals that may not have been anticipated or addressed by the strategic framework.

At s 30W(5) of the current Planning Act 1999, the Minister already has discretionary power to consent to a proposed development or approve the DCA consenting to a proposed development despite it being contrary to a planning scheme provision being a statement of policy in respect of the use in development of land. This discretionary power has not been increased at s 30W(5) and (6) in the Bill. The existing provisions have merely been redrafted to reflect the replacement of 'statements of policy' with the 'strategic framework'.

It is noted that this discretionary power applies only to the contradiction of and not to noncompliance with any other requirement in the scheme including zoning and development requirements.³⁸

3.36 Regarding criteria that the Minister or the DCA are required to consider when determining whether to consent to a proposed development that is contrary to a strategic framework, the Department advised that:

The Minister is responsible for the establishment of the strategic framework in the planning scheme. Amendment to s 13 in the Bill has introduced, for the first time, criteria which the Minister must consider when considering a request to amend the planning scheme.

These criteria would also be appropriate for the Minister to consider in deciding whether to consent to a proposed development that is contrary to a strategic framework. However, given the unpredictability of circumstances which may require approval for the granting of consent to a proposal contrary to the strategic framework, it is considered that the specific introduction of criteria may limit the Minister's ability to respond in a timely manner to a proposal that accords with all aspects of the scheme other than the strategic framework.³⁹

3.37 The Committee notes that transparency regarding decisions occurring under proposed sections 30W and 52 is provided by s 30X and s 53A which require determinations, including reasons for a determination, to be provided to applicants and submitters and to be made publically available.

36 Submission 1 – Diana and Greg Rickman, p. 2; Submission 7 – Litchfield Council, p. 4; Submission 14 – ECNT, pp. 2-3.

37 Submission 7 – Litchfield Council, p. 4; Submission 14 – ECNT, pp. 2-3.

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Committee’s comment

3.38 The Committee is satisfied with the Department’s response.

Cl 28 – Section 46 amended – Development applications

3.39 Proposed s 46(3)(aa) aims to ensure that the application for consent for a development identifies any person who directly benefits from the development.

3.40 Litchfield Council considered the meaning of the phrase “directly benefit from the development” to require further clarification, noting that a:

subsidy [sic] company that is currently involved in the future development proposed and would reap direct financial benefit could be feasible to note;

however, an individual or company who may be the future renter of a new independent unit or commercial warehouse may be a more difficult and private link to establish or meet any burden of proof.⁴⁰

3.41 The Committee sought clarification from the Department as to the effect on the operation of the Bill of defining what is meant by “directly benefiting from the development” and was advised that:

This requirement to identify the direct beneficiary is intended to improve transparency within the system while recognising that the ultimate benefit is to the land owner. Concern was expressed by the community and members of the Development Consent Authority that an application made on behalf of a land owner provides no indication of the intended developer, creating the potential for perceived or real conflict of interest.

An Assembly Amendment to provide greater clarity around the meaning of 'direct benefit' will be progressed in consultation with Parliamentary Counsel. It is also intended that the approved form required when lodging a development application will provide additional detail.⁴¹

3.42 The Committee is satisfied with the Department’s response and has made a recommendation accordingly.

The Committee recommends that proposed section 46(3)(aa) be re-drafted to provide greater clarity with regard to the meaning of the term “directly benefit”

in subsection (iii).

Clauses 42-46 – Sections 68, 69, 70, 71 and 72 - Contributions and contribution plans

3.43 Sections 68-70 introduce technical amendments to reflect the differentiation between local authorities and service authorities that is proposed by the Bill (s 3, definition of

40 Submission 7 – Litchfield Council, p. 4.

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service authority). Proposed sections 70-72 provide for a range of matters relating to contributions and contribution plans as set out in the Explanatory Statement.⁴² 3.44 The Housing Industry Association (HIA) requested clarification regarding

amendments to these sections, noting that “Levies and charges applied to development to cover physical and social infrastructure significantly affect new housing affordability. They are in effect a tax on new homebuyers”.⁴³

3.45 The Committee sought clarification from the Department regarding the impact of the proposed amendments on industry and was advised that:

The impact to industry and housing affordability from these amended and replaced sections is negligible. The changes will facilitate improved operation of contribution plans by clarifying contributions that are payable under a contributions plan, including that a contribution can be used to provide infrastructure in the future or to recover amounts already spent on infrastructure required to support future development.⁴⁴

3.46 The Committee is satisfied with the Department’s response.

Cl 49 – Proposed s 75C - Clearing native vegetation

Defining “native vegetation”

3.47 This provision creates an offence relating to the clearing of “native vegetation”, however, the term “native vegetation” is not defined. Professor Aughterson commented that:

A person should not be subjected to criminal liability in circumstances where the indicia of the offence are not clear. Compare, for example, the detailed definition of ‘native vegetation’ in the NSW Native Vegetation Conservation Act 1997.⁴⁵

3.48 The Committee sought clarification from the Department regarding the effect on the operation of the Bill of defining the term “native vegetation” and was advised that:

The 'clearing of native vegetation' is defined in the Northern Territory Planning Scheme which is the applicable planning scheme referenced at s 75C(1 )(a). This is the same as the offence at existing s 75A which has been subject to successful prosecution.

Section 7 of the Act applies the NT Planning Scheme to the whole of the Territory, except that which is not otherwise covered by another planning scheme or which is not specifically excluded in the NT Planning Scheme itself. The NT Planning Scheme contains a definition for 'clearing of native vegetation' as well as 'native vegetation'.

There are only two schemes currently in existence in the NT (the other being the Jabiru scheme). Any future scheme that may come into existence to supersede the NT Planning Scheme for an area of land would have its own requirements about the clearing of native vegetation.

42 Explanatory Statement, Planning Amendment Bill 2020 (Serial 118), https://parliament.nt.gov.au/committees/LSC/118-2020#kd, pp. 8-9.

43 Submission 5 –HIA, p. 2.

45 Professor Ned Aughterson, Legal Advice, Planning Amendment Bill 2020, pp. 2-3

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Examination of the Bill Consequently, for the purposes of s 75C the NT Planning Scheme and definitions therein would apply and it is proposed that no amendment is necessary.⁴⁶

3.49 The Committee notes that the Act forbids the clearing of native vegetation and while it allows a planning scheme to provide an exception, it does not allow a planning scheme to define what native vegetation is. A planning scheme cannot define a term for the purposes of the Act unless the Act states that it can. The Act as proposed only allows a planning scheme to define the exemptions, not the offence itself. If the Act is to adopt a planning scheme definition, then this needs to be specified in the Act.

The Committee recommends that the Bill be amended to provide a definition of

“native vegetation” either in the Act or by reference to another appropriate instrument.

Recommendation that higher penalties be applied to the unlawful clearing of native vegetation.

3.50 The EDONT, while supporting the amendment to make the unlawful clearing of native vegetation a strict liability offence, considered that higher penalties should apply, as the current proposal of 500 penalty units is not high enough to act as a deterrent for large scale development.⁴⁷ Under s 75A of the Act, which this proposed section replaces, the maximum penalty for an offender who is a natural person is 200 penalty units while for body corporates it is 1,000 penalty units but these are not strict liability offences. The EDONT considered that:

a tiered structure of offences (as per the drafting in the recent Environment Protection Act 2019) should be introduced that includes differing levels of liability and associated penalties, tied to the seriousness of an offence (e.g. to differentiate between wilful or negligent offences). This would ensure consistency in approach to other recently reformed legislation in the NT, as well as more rigorous offence provisions being available to suit individual circumstances.⁴⁸

3.51 The Committee sought comment from the Department as to whether any consideration had been given to introducing a “tiered structure of offences” as described by the EDONT and was advised that:

The tiered approach is appropriate to the Environment Protection Act 2019 to reflect the complexity of offences that can occur under that Act. It allows penalties to range in severity proportionate to the degree of environmental harm and negligence. Advice from the Department of Attorney-General and Justice (Legal Policy) was that a tiered approach is not necessary for the offence of unauthorised clearing of native vegetation given the far simpler nature of this offence - either vegetation was cleared or it was not.⁴⁹

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3.52 The Committee is satisfied with the Department’s advice.

Cl 49 – Enforcement - Complaints and investigation – Proposed s 79 – Investigation of complaint

3.53 Proposed s 78 allows a person to lodge a complaint that another person has contravened the Act or regulations. Professor Aughterson commented that:

By s 79(3), where the consent authority investigates a complaint they must give to the person the subject of the complaint a notice which includes ‘the substance of the complaint’. By s 79(4), the recipient of the notice may respond in writing.

However, there is no requirement to tell the person the subject of the complaint the name of the complainant. That detail could give context to the substance of the complaint and its reliability, including any motive for misrepresentation, and be an important consideration in formulating any response. It could, for example, give rise to suggestions as to other appropriate people the consent authority might consult. Certainly, it is unusual that a person who is the subject of an investigation does not know the identity of their accuser, in circumstances where following the investigation an enforcement notice can be issued: see s 79A(1)(b).

3.54 The Committee sought clarification from the Department regarding the effect on the operation of the Bill of amending proposed s 79(3) to provide that the written notice provided to the person who is the subject of the complaint include the name of the complainant and was advised that:

The types of conduct for which a complaint might be lodged under s 78 cover a range of issues. Generally speaking, those kinds of complaints would be for types of conduct where the credibility of the complainant is not relevant. For example;

whether or not something is on land in contravention of a provision of the Act.

In those circumstances, the substance of the complaint can be independently verified and presented to the person who is the subject of the complaint without divulging the name of the complainant. The person would not be impeded in their ability to answer the complaint by not knowing the name of the complainant.

Because of the nature of the environment in which such complaints are received, the identities of complainants is generally kept private as knowledge of the complainant could give rise to retribution, particularly in small communities. The consent authority also has the ability to consider if a complaint is frivolous or vexatious, including the reliability and motivation of the complainant.

If however, the credibility of the complainant were a factor in the person who is the subject of the complaint being able to understand the substance of the complaint and respond to it, the person who is the subject of the complaint might be entitled to know the identity of the complainant. The provision is drafted in such a way that the complainant's name is not required to be provided, but the consent authority is not specifically precluded from providing it either, should it be necessary.⁵⁰

3.55 The Committee is satisfied with the Department’s advice and considers no amendment is required.