Norfolk Island Legislation Amendment (Planning Measures) Ordinance 2018 (Cth)
Norfolk Island Legislation Amendment (Planning Measures) Ordinance 2018
I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Ordinance.
Dated 11 October 2018
Peter Cosgrove
Governor‑General
By His Excellency’s Command
Sussan Ley
Assistant Minister for Regional Development and Territories
Parliamentary Secretary to the Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development
Contents
1............ Name............................................................................................................................. 1
2............ Commencement............................................................................................................. 1
3............ Authority....................................................................................................................... 1
4............ Schedules...................................................................................................................... 1
Schedule 1—Amendments 2
Norfolk Island Applied Laws Ordinance 2016 2
Norfolk Island Continued Laws Ordinance 2015 2
1 Name
This Ordinance is the Norfolk Island Legislation Amendment (Planning Measures) Ordinance 2018.
2 Commencement
(1) Each provision of this Ordinance specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information | ||
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this Ordinance | The later of: (a) the start of the day after this Ordinance is registered; and (b) immediately after the commencement of the Norfolk Island Continued Laws Amendment (Statutory Appointments and Other Matters) Ordinance 2018. | 13 October 2018 (paragraph (a) applies) |
Note: This table relates only to the provisions of this Ordinance as originally made. It will not be amended to deal with any later amendments of this Ordinance.
(2) Any information in column 3 of the table is not part of this Ordinance. Information may be inserted in this column, or information in it may be edited, in any published version of this Ordinance.
3 Authority
This Ordinance is made under section 19A of the Norfolk Island Act 1979.
4 Schedules
Each instrument that is specified in a Schedule to this Ordinance is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Ordinance has effect according to its terms.
Schedule 1—Amendments
Norfolk Island Applied Laws Ordinance 2016
1 Item 3 of Schedule 4 (at the end of paragraph (1A)(b))
Add:
; (v) a significant development;
(vi) an ancillary project for a declared significant development.
Norfolk Island Continued Laws Ordinance 2015
2 After item 37E of Schedule 1
Insert:
37EA Subsection 17(1)
Omit “to the Norfolk Island Planning and Environment Board under section 44”, substitute “under subsection 44(1) or 44D(1)”.
3 Before item 110AA of Schedule 1
Insert:
109 Section 5 (definition of Board)
Repeal the definition, substitute:
Board means the Norfolk Island Regional Council.
4 After item 111 of Schedule 1
Insert:
112 Division 2 of Part 3
Repeal the Division, substitute:
Division 2—Consulting heritage advisers
26 Heritage adviser may be consulted
(1) The Board may request advice from a heritage adviser for the purposes of considering and making recommendations on any of the following matters:
(a) the Heritage Register;
(b) a heritage proposal;
(c) development applications made under the Planning Act 2002 in relation to objects and places listed in the Heritage Register;
(d) heritage conservation on Norfolk Island;
(e) the application of money from a heritage conservation fund in furtherance of the objects of this Act.
(2) Subsection (1) does not limit when the Board may request advice.
Heritage Regulations 2003 (Norfolk Island)
113 Regulation 3 (definition of chairperson)
Repeal the definition.
114 Regulation 3 (definition of member)
Repeal the definition.
115 Subregulation 6(2)
Repeal the subregulation.
5 Part 1 of Schedule 1 (heading specifying Norfolk Island Planning and Environment Board Act 2002 (Norfolk Island))
Repeal the heading.
6 Item 209A of Schedule 1
Repeal the item.
7 Before item 212 of Schedule 1
Insert:
211H Section 6
Insert:
ancillary project, for a declared significant development, means a development that is integral and subservient to the declared significant development.
8 After item 213 of Schedule 1
Insert:
213AA Section 6 (definition of Board)
Repeal the definition, substitute:
Board means the Norfolk Island Regional Council.
9 After item 213A of Schedule 1
Insert:
213B Section 6
Insert:
declared significant development means a significant development in relation to which a declaration under paragraph 28C(5)(a) is in effect.
10 After item 214 of Schedule 1
Insert:
214A Section 6 (definition of performance security)
Repeal the definition.
214B Section 6 (definition of prohibited use or development)
Repeal the definition, substitute:
prohibited use or development means an activity specified in the Plan as a prohibited use or development other than any such activity that is:
(a) a declared significant development; or
(b) an ancillary project for a declared significant development.
214C Section 6
Insert:
significant development means a development to establish or upgrade infrastructure to support economic growth or community welfare, or both, in Norfolk Island.
11 After item 221 of Schedule 1
Insert:
221A After Part 3
Insert:
Part 3A—Significant developments
28A Applicants
(1) An application for a declaration in relation to a significant development may be made by:
(a) the owner of the land to which the application relates; or
(b) another person with the owner’s permission; or
(c) a person eligible to apply under any other enactment.
(2) An application by a person with the permission of the owner of the relevant land must be accompanied by written confirmation signed by the owner that permission has been granted to the person to make the application.
28B Formalities
(1) An application for a declaration in relation to a significant development must be made to the Chief Executive Officer.
(2) The application must be:
(a) in the form approved by the Chief Executive Officer; and
(b) accompanied by the prescribed fee (if any).
28C Processing application for declaration in relation to significant development
(1) The Chief Executive Officer must refer an application for a declaration in relation to a significant development to the Norfolk Island Regional Council together with a report and recommendation on the application from the Chief Executive Officer.
(2) After the application has been referred to the Norfolk Island Regional Council, the Norfolk Island Regional Council must make a recommendation about the application.
(3) If the Norfolk Island Regional Council’s recommendation is different from that of the Chief Executive Officer’s, the reasons for the difference must be specified in the Norfolk Island Regional Council’s recommendation.
(4) Within 56 days after the application is made, the Norfolk Island Regional Council must refer to the Commonwealth Minister the application, its recommendation and any other relevant material including the Chief Executive Officer’s report to the Norfolk Island Regional Council on the application.
(5) After receiving the application under subsection (4), the Commonwealth Minister must:
(a) make a declaration in relation to the significant development; or
(b) refuse to make a declaration in relation to the significant development; or
(c) refer the application back to the Chief Executive Officer with directions to take specified further actions.
Note: Matters for consideration by the Minister are set out in section 28D.
(6) A declaration in relation to a significant development may be subject to conditions.
(7) A declaration in relation to a significant development takes effect when it is made.
(8) A declaration in relation to a significant development ceases to be in effect at the earlier of:
(a) the end of:
(i) unless subparagraph (ii) applies—the period specified in the declaration; or
(ii) if the Minister has, under subsection (9), extended the period for which the declaration is in effect—the extended period; and
(b) the time the declaration is revoked under section 28G.
(9) Before a declaration in relation to a significant development ceases to be in effect, the Minister may, by notice to the applicant for the declaration, extend, or further extend, the period for which the declaration is in effect.
(10) To avoid doubt, declared significant developments and ancillary projects for declared significant developments require development approval.
28D Matters to be considered
(1) The Commonwealth Minister may make a declaration in relation to a significant development only if:
(a) the development is to establish or upgrade infrastructure of a type prescribed by the regulations; or
(b) the Commonwealth Minister considers that the development is to establish or upgrade other infrastructure having a significant benefit in Norfolk Island.
(2) In considering whether to make a declaration in relation to a significant development, the Commonwealth Minister must have regard to the following matters:
(a) any potential economic or community benefits from the development;
(b) any links the development has, or could have, with other developments;
(c) consistency with the Plan;
(d) the Norfolk Island Regional Council’s community strategic plan, delivery program and operational plan;
(e) any other matters considered by the Commonwealth Minister to be relevant.
28E Notice to applicants
(1) As soon as practicable and not more than 14 days after the Commonwealth Minister makes a decision about an application for a declaration in relation to a significant development, the Commonwealth Minister must give the applicant notice of the decision.
(2) Notice of the decision must include:
(a) a statement of reasons for the decision; and
(b) if the Commonwealth Minister makes a declaration in relation to the significant development:
(i) the period the declaration will be in effect (unless the period is extended or the declaration is revoked); and
(ii) any conditions to which the declaration is subject.
28F Notice in Gazette of declarations
(1) As soon as practicable and not more than 14 days after the Commonwealth Minister makes a declaration in relation to a significant development, notice of the declaration must be published in the Gazette.
(2) The notice must include:
(a) a statement of reasons for the declaration; and
(b) any conditions to which the declaration is subject; and
(c) an outline of the development approval process for declared significant developments and ancillary projects for declared significant developments.
28G Revocation of declaration
(1) The Commonwealth Minister may revoke a declaration in relation to a significant development if the Commonwealth Minister is satisfied that the declaration should be revoked, having regard to the matters mentioned in subsection 28D(2).
(2) As soon as practicable after the Commonwealth Minister revokes a declaration in relation to a significant development, the Commonwealth Minister must give the applicant for the declaration notice of the revocation.
(3) The notice of the revocation must include a statement of reasons for the revocation.
221B Section 30 (heading)
Repeal the heading, substitute:
30 Approval for permitted use or development, permissible (with consent) use or development, declared significant development or ancillary project
221C Subsection 38(3)
After “permissible (with consent) use or development,”, insert “a declared significant development or an ancillary project for a declared significant development,”.
221D Subsection 39(1)
Omit “44(6)(b)”, substitute “(b) or 44D(2)(a) or (b)”.
221E At the end of Division 1 of Part 5
Add:
40A Rejection of development applications for ancillary project if not ancillary project
(1) This section applies if:
(a) a development application seeks development approval for use or development of land as an ancillary project for a declared significant development; and
(b) the Chief Executive Officer is not satisfied the proposed use or development is an ancillary project for the declared significant development.
(2) Within 14 days after the application is made, the Chief Executive Officer must give the applicant a notice refusing the application and specifying the reasons for the refusal.
Note: If the proposed use or development of land is a permitted use or development or permissible (with consent) use or development, the applicant may submit an application for development approval on that basis (see section 44A).
221F After Subdivision 2 of Division 2 of Part 5
Insert:
Subdivision 2A—Declared significant developments and ancillary projects
44A Development activity of more than one type
(1) If a development activity is:
(a) a permitted use or development; and
(b) a declared significant development or an ancillary project for a declared significant development;
then:
(c) a development application in relation to the development activity may seek development approval for a permitted use or development, a declared significant development or an ancillary project for a declared significant development; and
(d) this Act applies in relation to the application, any approval based on the application and any application for modification of any such approval as if the development activity were that type of development activity only.
(2) If a development activity is:
(a) a permissible (with consent) use or development; and
(b) a declared significant development or an ancillary project for a declared significant development;
then:
(c) a development application in relation to the development activity may seek development approval for a permissible (with consent) use or development, a declared significant development or an ancillary project for a declared significant development; and
(d) this Act applies in relation to the application, any approval based on the application and any application for modification of any such approval as if the development activity were that type of development activity only.
Note: If the development application seeks approval for a permitted use or development or a permissible (with consent) use or development, Subdivision 1 or 2 applies in relation to the application. If the development application seeks development approval for a declared significant development or an ancillary project for a declared significant development, this Subdivision applies.
44B Notice of application for declared significant developments and ancillary projects to be displayed on land
(1) As soon as practicable after giving notice of acceptance of a development application for a declared significant development or an ancillary project for a declared significant development under section 35, the Chief Executive Officer:
(a) must cause a notice to be displayed on or near the land the subject of the application; and
(b) may cause other notices to be displayed at such places as the Chief Executive Officer considers appropriate.
(2) The notice must include the matters prescribed by the regulations for such notices.
(3) The owner of the land on which a notice is displayed under paragraph (1)(a) must ensure the notice remains as placed on the land until a decision under paragraph 44D(2)(a) or (b) is made on the development application or the application is withdrawn.
(4) A notice under subsection (1) is for information only and any failure to give the notice does not prevent the processing of the application or the making of decisions on it.
44C Publication of notice of a development application for declared significant development or ancillary project
(1) The Chief Executive Officer must cause a notice of a development application for a declared significant development or an ancillary project for a declared significant development to be published in the Gazette.
(2) The notice must include:
(a) a summary of the development application; and
(b) an invitation for written public submissions to be directed to the Chief Executive Officer within a specified period of not less than 28 days after notification; and
(c) a statement that the application may be inspected at a specified office of the Norfolk Island Regional Council during usual business hours.
(3) An application notified under subsection (1) and accompanying documents to the extent specified in the regulations must be available for public inspection until a decision under paragraph 44D(2)(a) or (b) is made on the application or the application is withdrawn.
44D Processing development applications after notice
(1) After the end of the period specified in the notice published under subsection 44C(1), the Chief Executive Officer must refer the application to the Commonwealth Minister together with a copy of any public submissions and other relevant documents and a report and recommendations on the application from the Chief Executive Officer.
(2) After receiving the application under subsection (1), the Commonwealth Minister must:
(a) give development approval for the use and development of the land; or
(b) refuse to give development approval for the use and development of the land; or
(c) refer the application back to the Chief Executive Officer with directions to take specified further actions.
(3) An approval may be subject to conditions.
(4) Without limiting the conditions which may be imposed, conditions of approval may include:
(a) conditions requiring the use or development of the land to be achieved within a specified time or stages of the use or development to be achieved at specified times; and
(b) a condition requiring the provision of performance security for failure to comply with the conditions of the approval.
(5) An approval may modify development or environmental standards specified in the Plan provided the modification is consistent with the objectives of the standards specified in the Plan.
(6) The standards as modified under subsection (5) are taken to be the standards under the Plan for the use or development approved.
221G Subsection 45(4)
After “prescribed use or development of land”, insert “, a declared significant development or an ancillary project for a declared significant development”.
221H Subsection 45(10)
Omit “relating to the procedures for processing development applications for permissible (with consent) use or development”, substitute “or 44D, as appropriate”.
221J Paragraph 46(e)
After “43(2)”, insert “, 44C(2)”.
221K Subsection 47(1)
Omit “less”, substitute “more”.
221L Subsection 47(2)
Repeal the subsection, substitute:
(2) Notice of the decision must include:
(a) a statement of reasons for the decision; and
(b) if the decision is a reviewable decision (within the meaning of section 78) and the decision is at variance with the recommendation of the Chief Executive Officer, the Board or a person appointed under section 91 to investigate any matters relating to the application—a statement of the reasons why the recommendation was not followed; and
(c) if the decision is a reviewable decision (within the meaning of section 78)—particulars of the applicant’s right to apply to the Administrative Review Tribunal for review of the decision.
221M Subsection 48(1)
Omit “subsection 44(6)”, substitute “paragraph 44(6)(a) or (b) or 44D(2)(a) or (b)”.
221N Paragraph 49(2)(b)
After “permissible (with consent) use or development”, insert “, a declared significant development or an ancillary project for a declared significant development”.
221P At the end of Division 3 of Part 5
Add:
50A When development approval for declared significant development or ancillary project takes effect
A development approval for a declared significant development or an ancillary project for a declared significant development takes effect when the approval is given.
221Q Section 56 (heading)
Repeal the heading, substitute:
56 Processing development approval modification applications for permitted use or development, declared significant development or ancillary project
221R Subsection 56(1)
After “permitted use or development,”, insert “a declared significant development or an ancillary project for a declared significant development,”.
221S Paragraph 59(2)(c)
Before “particulars”, insert “if the decision is a reviewable decision (within the meaning of section 78)—”.
221T Section 61
Repeal the section, substitute:
61 Revocation of approval
A development approval is only revocable in accordance with:
(a) the written consent of the owner of the land in relation to which the approval is given; or
(b) section 61A.
61A Revocation of approval for declared significant development or ancillary project
(1) The Commonwealth Minister may revoke a development approval for a declared significant development or an ancillary project for a declared significant development if:
(a) the declaration in relation to the significant development is revoked; and
(b) the Commonwealth Minister is satisfied that the approval should be revoked.
(2) As soon as practicable after the Commonwealth Minister revokes a development approval for a declared significant development or an ancillary project for a declared significant development, the Commonwealth Minister must give the owner of the land to which the development or project relates notice of the revocation.
(3) The notice of the revocation must include a statement of reasons for the revocation.
12 After item 225 of Schedule 1
Insert:
225A At the end of paragraph 78(1)(a)
Add “, other than in relation to development applications for declared significant developments or ancillary projects for declared significant developments”.
225B Paragraph 78(1)(b)
Omit “on a development approval modification application”, substitute “or 57(6) on a development approval modification application, other than on a development approval modification application for a declared significant development or an ancillary project for a declared significant development”.
225C Subsection 86(1)
After “development approval application”, insert “, or an application for a declaration in relation to a significant development,”.
225D After paragraph 91(1)(a)
Insert:
(aa) an application is made for development approval for a declared significant development or an ancillary project for a declared significant development; or
13 After item 229 of Schedule 1
Insert:
229A After paragraph 96(1)(b)
Insert:
(ba) a declaration in relation to a significant development notice of which is published in the Gazette in accordance with section 28F; or
14 After item 231 of Schedule 1
Insert:
231A After Part 3
Insert:
Part 3A—Significant developments
15A Types of significant development
For the purposes of paragraph 28D(1)(a) of the Act, the following types of infrastructure are prescribed:
(a) air transport facilities;
(b) educational establishments;
(c) electricity generating works or alternative energy systems;
(d) electricity transmission or distribution networks;
(e) emergency services facilities;
(f) extractive industries;
(g) hospital and health services facilities;
(h) port and wharf facilities;
(i) public works‑major or public works‑minor, as defined in the Plan;
(j) roads and traffic facilities;
(k) sewerage systems;
(l) sport and recreation facilities;
(m) stormwater management systems;
(n) telecommunications facilities;
(o) warehouse and freight facilities;
(p) waste disposal and resource management facilities;
(q) water supply, storage and treatment facilities.
15B Processing application for declaration in relation to significant development
The report the Chief Executive Officer refers to the Norfolk Island Regional Council under subsection 28C(1) of the Act must include consideration of the matters mentioned in paragraphs 28D(2)(a) to (d) of the Act.
231B Regulation 18
Before “The applicant”, insert “(1)”.
231C At the end of regulation 18
Add:
(2) The applicant for development approval for a declared significant development or an ancillary project for a declared significant development must provide the Chief Executive Officer with as many copies of the development application and supporting documentation as the Chief Executive Officer reasonably requires for public inspection under subsection 44C(2) of the Act.
231D Regulation 19 (heading)
Repeal the heading, substitute:
19 Notice of development applications for permissible (with consent) use or development, declared significant development or ancillary project
231E Regulation 19
After “subsection 43(1)”, insert “or 44C(1)”.
231F Subparagraph 19(i)(i)
Omit “section 19(h)”, substitute “paragraph 43(2)(b) or 44C(2)(b) of the Act”.
231G Subparagraph 19(i)(iii) and (iv)
Repeal the subparagraphs, substitute:
(iii) if the application is for permissible (with consent) use or development—the decision of the Minister is a reviewable decision within the meaning of section 78 of the Act.
231H Regulation 20
After “subsection 42(2)”, insert “and 44B(2)”.
231J Regulation 22 (heading)
Repeal the heading, substitute:
22 Notice of amended development application for permissible (with consent) use or development, declared significant development or ancillary project
231K Regulation 24
Omit “41(4)”, substitute “44(1)”.
231L After regulation 24
Insert:
24A Processing development applications for declared significant development or ancillary project
The report the Chief Executive Officer refers to the Commonwealth Minister under subsection 44D(1) of the Act must include:
(a) a summary of the planning issues raised in the public submissions received during the public inspection period including how the issues have been addressed; and
(b) consideration of each matter mentioned in section 46 of the Act to the extent that the matter is relevant to the application; and
(c) consideration of any other relevant matters; and
(d) a recommendation to approve or refuse approval of the development application; and
(e) recommended conditions of approval, if any.
231M Regulation 25 (heading)
Repeal the heading, substitute:
25 Notice to applicant of determination of development application
231N Regulation 26 (heading)
Repeal the heading, substitute:
26 Notice in the Gazette of Minister’s decision on development applications for permissible (with consent) use or development, declared significant development or ancillary project
231P Paragraph 26(i)
After “the rights”, insert “(if any)”.
231Q Subregulation 27(2)
Omit “prescribed use or development shall”, substitute “prescribed use or development, a declared significant development or an ancillary project for a declared significant development must”.
231R Paragraph 27(2)(b)
Omit “45(5)”, substitute “45(6)”.
231S Subregulation 27(3)
Omit “45(5)”, substitute “45(6)”.
231T Paragraph 28(b)
Omit “45(5)”, substitute “45(6)”.
231U Regulation 29
Omit “permissible (with consent) use or development of land shall”, substitute “permissible (with consent) use or development, a declared significant development or an ancillary project for a declared significant development must”.
231V Paragraph 33(1)(b)
Omit “Part 9 of the regulations”, substitute “regulation 47”.
15 After item 232 of Schedule 1
Insert:
232AA Before subregulation 44(1)
Insert:
(1A) For the purposes of paragraph 28B(2)(b) of the Act, the fee for an application for a declaration in relation to a significant development is 46 fee units.
232AB Subregulation 44(6)
Omit “section 34 or section 53”, substitute “section 28B, 34 or 53”.
232AC Subparagraphs 47(2)(a)(vi) and (b)(v)
Omit “permitted use or development or for permissible (with consent) use or development”, substitute “permitted use or development, permissible (with consent) use or development, a declared significant development or an ancillary project for a declared significant development”.
232AD Schedule 3 (Table 1, heading to column headed “PERMISSIBLE (WITH CONSENT)”)
Repeal the heading, substitute:
“PERMISSIBLE (WITH CONSENT), DECLARED SIGNIFICANT DEVELOPMENT OR ANCILLARY PROJECT FOR A DECLARED SIGNIFICANT DEVELOPMENT”
16 After item 294A of Schedule 1
Insert:
294B Subsection 10(1)
Omit “to the Norfolk Island Planning and Environment Board under section 44”, substitute “under subsection 44(1) or 44D(1)”.
17 After item 335A of Schedule 1
Insert:
335B Subsection 7(1)
Omit “to the Norfolk Island Planning and Environment Board under section 44”, substitute “under subsection 44(1) or 44D(1)”.
18 Item 1 of Schedule 2
Insert:
Norfolk Island Planning and Environment Board Act 2002
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