The Liberals Development Assessment Panels
#ScrapTheDAP
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Say Yes to Healthy Democracy & Say NO to The Liberals Development Assessment Panels
Make a Submission
The State Government is proposing a developer friendly development assessment and approval process for World Heritage Areas, National Parks and other Reserves as well as for all urban/private land across Tasmania.
There are two current ‘consultation’ processes:
DAPs on reserved/public land – The State Government is proposing a developer friendly development assessment and approval process for World Heritage Areas, National Parks and other Reserves. Submissions close on the 29 March 2024.
Summary
The Tasmanian Liberal Government proposes legislation to empower the Minister for Planning to remove assessment and approval of developments from the normal local council process to be replaced by State-appointed Development Assessment Panels (DAPs), conducted by the Tasmanian Planning Commission.
The Minister could remove assessment and approval of a development – at any stage in the council process – and transfer to DAPs.
This would allow property developers to bypass local councils and communities and remove elected councillors from having a say on the most controversial and destructive developments affecting local communities.
DAP decisions would be final – there will be no right for the community to appeal the final decision to the Tasmanian Civil and Administrative Tribunal. Developments could only be appealed to the Supreme Court on an error in law.
We anticipate the draft legislation may also give the Minister for Planning new powers to instruct councils to commence planning scheme changes but perversely, only when a local council has rejected such an application. This means, for example, rezoning land to facilitate developments such as Cambria Green, the Gorge Hotel in Launceston, and large-scale residential subdivisions.
Public comment on the proposed Tasmanian draft DAP framework closed on the 30 November 2023. Thank you to everyone who made a submission and sent a copy of their submission to State Parliamentarians – almost 250 community members called on the elected members of the Tasmanian Parliament to oppose the upcoming Bill.
PMAT's 2023 Submission
This Submission from PMAT is a Position Paper on a proposed Development Assessment Panel Framework.
PMAT's 2023 Submission Guide
This guide was created to help the Tasmanian community comment on the Position Paper on a proposed Development Assessment Panel Framework which closed on the 30 November 2023.
PMAT Supports
- Retaining assessment and approval of developments within local councils (that is, maintaining councils as a Planning Authority), rather than replacing them with DAPs, ensuring meaningful public participation in the planning process leading to better planning outcomes.
- Elected councillors deciding on development applications. This enhances transparency, independence, accountability, public participation in decision-making within the planning system – all critical elements of a healthy democracy.
- Rather than replacing councils with DAPs, we should be improving council governance and planning processes and providing more resources to local councils. As the Local Government Association of Tasmania says better councils mean better communities.
PMAT's Key Concerns
- Undermines local democracy and removes local decision making. DAPs will create an alternate planning approval pathway allowing property developers to bypass local councils and communities diminishing the democratic and community-based foundations of local council decisions.
- This fast-track process will remove elected councillors from having a say on development applications including the most controversial and destructive developments affecting local communities.
- The flawed DAP criteria being considered would enable virtually any development to be taken out of the normal local council assessment process and instead be assessed by DAPs. This will make it easier to approve large scale contentious developments including developments already refused such as the kunanyi/Mt Wellington cable car, high-rise buildings in Hobart and new developments such as large-scale high-density subdivisions like Skylands development at Droughty Point, the UTAS Sandy Bay campus re-development and developments in our National Parks, Reserves and World Heritage Areas.
- The Minister for Planning could take a development assessment from councils mid-way through the development assessment process if the developer does not like the way it is heading.
- Remove a review process ie as a DAP cannot independently review its own decisions.
- There will be no right for the community to appeal the final decision to the planning tribunal. The opportunity to lodge a merits-based appeal to the Tasmanian Civil and Administrative Tribunal will be removed.
- The DAPs are unaccountable and reduce transparency where members are to be appointed by the Tasmanian Planning Commission. Mainland communities running #Scrap the DAP campaigns have raised concerns that the majority of DAP members are unaccountable, not elected, are involved in the property development industry and are appointed by a State Government.
- The Tasmanian Planning Commission has been criticised for not being sufficiently at arm’s length from the State Government. The recent TPC 2020 review report found ‘There are inadequate safeguards in place to reduce the potential for avoidance of conflicts of interest (either perceived or actual) that is naturally elevated in land use decision-making and uniquely heightened in the Tasmanian context due to the small size of the planning profession’.
- Poor justification for planning changes. There is no evidence to support the notion that the role of Councillors is conflicted. Only about 1% of planning applications are appealed and the decisions made by elected representatives are no more likely to be appealed than those by council officers. According to the State Planning office’s own Position Paper, Tasmania’s planning system is already among the fastest, if not the fastest, in the country when it comes to determining development applications. There is no evidence that social housing projects are being held up.
- In 2022, PMAT surveyed 398 of the 505 local council candidates. Of the 398 candidates, 169 completed our survey. The overwhelming majority (99.4%) of local council candidates who took part in PMAT’s planning survey during the 2022 Local Government election believe local councils should retain their role as a Planning Authority. That is, local councils should retain the power to vote on the developments that have the greatest impact on their local community. They do not want to give up this right to represent their local communities.
- PMAT shares the concerns about DAPs highlighted in an opinion piece published in The Mercury on 21 December 2023 titled Where is the Evidence that councils are blocking developments and a new process is required? and authored by Peter McGlone, CEO of the Tasmanian Conservation Trust:
- What is the real reason the Minister for Planning Michael Ferguson, wants to create DAPs (Development Assessment Panels) to allow property developers to bypass local councils and communities and remove appeal rights?
- According to the Tasmanian Conservation Trust, it’s simple: a few very large and controversial developments have been stopped, including kunanyi/Mt Wellington cable car, Cambria development near Swansea and high-rise buildings in Hobart.
- The Minister for Planning wants to create a new process that offers developers an assured way to get big, controversial projects approved that cuts out councillors, removes appeal rights and ignores community concerns.
12. PMAT shares the concerns about DAPs outlined in an opinion piece published in The Mercury on 29 November 2023 entitled ‘New planning proposal removes independent review of decisions and risks, undermining confidence’, and authored by University of Tasmania lecturers in constitutional and administrative law Anja Hilkemeijer and Cleo Hansen-Lohrey, the piece highlights concerns including:
- allowing development applications to be decided by a single body (the DAP) appointed by the Tasmanian Planning Commission will diminish the democratic and community-based foundations of local council decisions;
- The Premier and Minister for Planning have said there is a problem with councils improperly rejecting development proposals based on political or ideological motivations. However, the State Government’s own DAP Framework Position Paper does not support that claim;
- Removing access to the Tasmanian Civil and Administrative Tribunal for review of planning decisions is likely to undermine public confidence in the fairness and validity of the planning approval process;
- Merits review by a tribunal, such as the Tasmanian Civil and Administrative Tribunal improves the quality and consistency of public decision making. In this way merits review plays an important role in improving public participation on a systematic level, ensuring both due process and government accountability;
- If access to the Tasmanian Civil and Administrative Tribunal is removed, there will be no review process – a DAP cannot independently review its own decisions; and
- Unlike the Tasmanian Civil and Administrative Tribunal, DAPs are not designed to ensure independent, expert decision making. In their structure and design, both the Tasmanian Planning Commission and the panels established by it have been described, by the Review into the Tasmanian Planning Commission as ‘not at sufficient arm’s length from Government’. Also, none of the commissioners or panelists are required to have legal training.
Further Background
Development Assessment Panels have been introduced in other States of Australia, including WA and NSW, and have been hugely controversial, leading to #ScraptheDAP campaigns.
Mainland experience in NSW demonstrates DAPs favour developers and undermine democratic accountability.
Creating an alternate planning process via DAPs will increase complexity in an already complex planning system and with it the risk of corruption. The NSW ICAC recommended in its report ‘Anti-corruption safeguards and the NSW planning system’ reducing complexity in the planning system as a deterrent to corruption.
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