Is Part 3 of the Local Government (Building & Miscellaneous Provisions) Act 1993 (Tas) Effective Regulation for Subdivision in Tasmania?

The Property and Commercial Law Committee acknowledges planning and subdivision is an area requiring substantial reform.

In her below article, author Ann Hamilton provides a link to her thesis and recommendations.

Part 3 of the Local Government (Building & Miscellaneous Provisions) Act 1993 (Tas) is Tasmania’s prevailing legislation for subdivision. How effective is it as regulation for subdivision? How effective will reform to establish a single statewide planning scheme be without review of the underpinning legislation (including Part 3) and policy?

A study of Part 3
The Local Government (Building & Miscellaneous Provisions) Act 1993 (Tas) (LGBMP) was designed as a temporary means of preserving some of the regulatory provisions that applied prior to the substantial changes made in 1993 to Tasmania’s local government and planning systems. Hansard records the Government’s intention to repeal and replace LGBMP within months.1 Part 3 of LGBMP (referred to as Part 3 in this article) carries forward several provisions from earlier legislation relating to subdivision. Section 122 of Part 3 provides that Part 3 is still the prevailing legislation for subdivision in Tasmania and despite the initial, and subsequent proposals to reform and review it since 1993, no substantial review and reform of Part 3 has taken place.

This article contains a link to a thesis submitted for the degree of Master of Laws, which degree was awarded at the end of 2018. The thesis is a study of Part 3 and asks whether it is effective as regulation for subdivision in Tasmania. The research of the thesis was prompted by the author’s experience as a commercial property lawyer, puzzled and concerned by the definition of ‘subdivide’ in s 80 of Part 3 that includes certain leases. The scope of the thesis expanded to include other provisions of Part 3 as a result of research done into Australian planning systems, case law and legislation, and particularly into Part 3 and other Tasmanian legislation and case law. The research for the thesis involved interviews with people who deal with Part 3 on a daily basis, including local government planning officers, surveyors, lawyers, and staff of the Land Titles Office.

Out-dated language and cumbersome procedures
This article provides an outline of the conclusions reached by the thesis. The author studied the work of regulatory theorists who considered the effectiveness of regulation, what it is that makes regulation effective or ineffective and how regulation can be designed and maintained as effective. Theory as to the effectiveness of regulation was used as a structure and background against which to consider Part 3 and an outline of that theory is in chapter 3 of the thesis. The thesis concludes that there are issues that detract from the effectiveness of Part 3 as effective regulation. The people who were interviewed for the thesis identified some of those issues and they are considered in chapter 5 of the thesis. They include:

• provisions that reflect now redundant policy (for example s 95 provision for road titles (that is out of step with the provisions of other states), and s 109 provisions for building areas);
• cumbersome procedures (for example s 103 providing for the removal of redundant easements and covenants);
• lack of clarity and precision in wording and policy (for example the public open space provisions ss 83,116, 117 and s 110 providing for Adhesion Orders).

Leases as subdivisions
Commercial property lawyers in particular should be concerned by the difficulty of establishing from the Part 3 provisions what leases are included as subdivisions. Chapter 6 of the thesis considers the Tasmanian provisions and case law and also those of other Australian states, New Zealand and Canada. The implications for commercial property lawyers and their clients of the failure to have leases that should be (but are not), compliant with planning processes are significant as the enforceability of the leases and the ability to register them may be open to question.

Part 3 and the LUPAA system

The study conducted by the thesis also raises broader and more far-reaching issues that are relevant to the Government’s proposal to replace 30 planning schemes with one statewide planning scheme. The proposal has been presented as a means of improving the efficiency and effectiveness of Tasmania’s planning system. The Part 3 provisions include powers and discretions granted to councils (for example s 84 and s 85) that provide a parallel system for the assessment and regulation of subdivision by councils acting as councils, not as planning authorities in the system established under Land Use Planning and Approvals Act 1993 (Tas) (LUPAA). Chapter 4 of the thesis considers the interaction between the planning system established under LUPAA and Part 3 noting that the discretions in Part 3 are alive and well. In P Barker & A Woolley v Clarence City Council the RMPAT considered the discretions in Part 3 and commented:

Section 85 of [Part 3] confers a power through which subdivision can be regulated independently of the [Planning] Scheme. At its ‘bluntest’ the power of refusal therein could be exercised repeatedly until an acceptable subdivision application addressing public open space, was submitted. 2

As there is a lack of integration between what is Tasmania’s prevailing legislation for subdivision and the system established under LUPAA, the effectiveness of Tasmania’s planning system will be affected. Uncertainty, delay and expense can adversely affect the coherence of the system.

Conclusions
Review and reform of the legislative and policy framework underpinning Tasmanian’s planning system, particularly as it affects subdivision, is long overdue and essential to the effective operation of the system. The introduction of a single state-wide planning scheme without adequate and timely review of the underpinning legislative and policy frameworks risks increasing the lack of cohesion and uncertainty already inherent in Tasmania’s planning system. To be effective, review and reform must include adequate consultation with all stakeholders. Rushed review and reform will not address (and may exacerbate), the uncertainty and inefficiencies to which Tasmania’s planning system is already susceptible.

Ann Hamilton
annham@bigpond.com

Ann Hamilton practiced as a commercial property lawyer in Tasmania for approximately 20 years before retiring from legal practice in March 2019.

https://eprints.utas.edu.au/30161/

1. Tasmania, Parliamentary Debates, Legislative Council, 10 November 1993, 4588 (P McKay)
2. P Barker & A Woolley v Clarence City Council [2017] TASRMPAT 15 (30 August 2017) [78]