Norfolk Island Legislation Amendment (Planning Measures) Ordinance 2018

EXPLANATORY STATEMENT

Issued by the authority of the Assistant Minister for Regional Development and Territories, Parliamentary Secretary to the Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development

Norfolk Island Act 1979

Norfolk Island Legislation Amendment (Planning Measures) Ordinance 2018

Authority

The Norfolk Island Act 1979 (the Act) provides for the Government of the Territory of Norfolk Island.

Section 19A of the Act provides that the Governor-General may make Ordinances for the peace, order and good government of the Territory of Norfolk Island.

The Norfolk Island Legislation Amendment (Planning Measures) Ordinance 2018 (the Ordinance) amends the Norfolk Island Continued Laws Ordinance 2015 (the Principal Ordinance) to amend the Planning Act 2002 (the Planning Act), a Norfolk Island enactment. Norfolk Island enactments, made by the former Legislative Assembly, have been continued in force under section 16A of the Act and, under section 17, may be amended or repealed by a section 19A Ordinance.

Purpose and operation

The Ordinance amends the Norfolk Island Planning Act to facilitate construction of important public infrastructure on Norfolk Island. The amendments add a new process to provide for the relevant Commonwealth Minister (the Minister) to declare public infrastructure projects that meet certain criteria to be a ‘significant development’ making them eligible for consideration under a modified development approval process.

Criteria for projects to be declared significant include demonstrating economic or community benefits, and consistency with existing strategic and development plans. Examples of public infrastructure that may be declared significant include waste management facilities, sewerage treatment plants, emergency services facilities, roads, and freight warehouses. The elected members (Councillors) of the Norfolk Island Regional Council (the Council) consider applications for declaration and make a recommendation to the Minister.

Following declaration, the process for approving significant developments is similar to the current development approval process. Many of the statutory requirements continue to apply to significant development applications, including the need for an environmental impact statement, a minimum 28-day public exhibition period and time for the community to make submissions. After the statutory requirements have been met, the application is referred directly to the Minister for decision. The approval process for significant developments is different from the existing process in that applications are not referred to the Norfolk Island Planning and Environment Board (the Board) and the decision of the Minister is not subject to merits review.

Consultation

Detailed information about the proposed amendments was published in Norfolk Island’s local newspaper and on the Council’s website and public submissions were called for in September 2017. The main concerns raised were lack of local involvement in planning decisions and not being able to appeal decisions relating to significant developments. These are addressed below.

Local involvement in planning decisions

Previously, the Planning Act required certain types of development application to be referred to the Board for consideration. The Board has not been functional for some time as it struggles to attract volunteer members who, in a small community, are willing to make decisions that may negatively affect friends or family.

The Ordinance achieves more effective community involvement in local planning decisions by transferring the functions of the Board (e.g. making recommendations to the Minister on development applications and heritage proposals) to the Councillors. The Norfolk Island Planning and Environment Board Act 2002 has been repealed, effectively abolishing the Board.

The functions transferred to the Councillors are similar to those undertaken by elected members in other jurisdictions. The new declaration process also requires the consideration of applications by the Councillors before making a recommendation to the Minister.

Merits review

Some submissions raised concerns about not being able to appeal decisions made by the Minister in relation to significant developments.

The Minister’s decisions to declare and approve significant developments would not be subject to merits review. This is consistent with similar development approval processes in other jurisdictions which aim to expedite the construction of infrastructure to support economic growth and improve public amenity.

This approach is also consistent with advice relating to what types of decision should be subject to merits review developed by the Administrative Review Council (ARC).[1] The advice states that decisions that are preliminary in nature which facilitate the making of a substantive decision (i.e. declaring a development ‘significant’) are not suitable for review.

Declaring or not declaring a development significant will not have a substantive consequence on the applicant as the decision simply determines whether an application for development approval needs to be made through the significant development or the standard development approval pathway. The project may still be approved and go ahead, albeit following a different process, regardless of whether it is declared as a significant development or not.

The ARC advice also states that decisions allocating a finite resource may be unsuitable for merits review. The very limited amount of land suitable for developing public infrastructure on Norfolk Island meets the definition of a finite resource. Unlike in mainland Australia, there may only be one location on Norfolk Island that is suitable for certain public infrastructure.

Should approval to develop a particular piece of land be overturned through an appeals process, it is likely another suitable piece of land either could not be found, or, if the development was approved to be located somewhere else on the Island, it would impact another party. Restricting access to merits review on this basis is similar to the example given by the ARC where overturning a decision made to allocate a grant from a limited funding pool to one party would likely affect all other parties.

To further counteract any concerns about the availability of merits review, there are a number of checks and balances to protect the rights of individuals that may be affected by significant development decisions. These include:

• Elected Councillors performing a ‘gate-keeper’ role at the declaration stage.
• Public disclosure of reasons for declaration decisions.
• Exhibition of development applications for a minimum of 28 days.
• Requirement that all public submissions be provided to the Minister to consider.
• Ability of the Minister to place conditions on the development approval.
• Extension of the Minister’s broad power to inquire to include significant developments.

In essence, the nature of these developments, as assessed through the declaration and approval process to be ‘significant’, is that the benefit to the community as a whole outweighs the interests of any one person.

Details of the Ordinance are set out in the Attachment.

The Ordinance is a legislative instrument for the purposes of the Legislation Act 2003.

The Ordinance commences the later of the start of the day after registration on the Federal Register of Legislation; and immediately after the commencement of the Norfolk Island Continued Laws Amendment (Statutory Appointments and Other Matters) Ordinance 2018.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Norfolk Island Legislation Amendment (Planning Measures) Ordinance 2018

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Norfolk Island Legislation Amendment (Planning Measures) Ordinance 2018 amends the Planning Act 2002 (NI) to include a new process for declaring and approving significant public infrastructure developments on Norfolk Island.  

Human rights implications

This Disallowable Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

Assistant Minister for Regional Development and Territories,
Parliamentary Secretary to the Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development
The Hon Sussan Ley MP

ATTACHMENT

Norfolk Island Legislation Amendment (Planning Measures) Ordinance 2018 (the Ordinance)

Section 1 – Name

Section 1 of the Ordinance provides that the title of the Ordinance is the Norfolk Island Legislation Amendment (Planning Measures) Ordinance 2018.

Section 2 – Commencement

This section provides for the Ordinance to commence the later of the start of the day after this Ordinance is registered; and immediately after the commencement of the Norfolk Island Continued Laws Amendment (Statutory Appointments and Other Matters) Ordinance 2018. This is to provide that the Ordinance will not commence before the commencement of the Norfolk Island Continued Laws Amendment (Statutory Appointments and Other Matters) Ordinance 2018 to allow for sequential numbering in the Norfolk Island Continued Laws Ordinance 2015.

Section 3 – Authority

This section provides that the Ordinance is made under section 19A of the Norfolk Island Act 1979 (the Act).

Section 4 – Schedules

This section provides that each instrument that is specified in a Schedule to the Ordinance is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Ordinance has effect according to its terms.

Schedule 1 – Amendments

Norfolk Island Applied Laws Ordinance 2016

Item 1 – Item 3 of Schedule 4 (at the end of paragraph (1A)(b))

Item 1 of Schedule 1 to the Ordinance amends the Norfolk Island Applied Laws Ordinance 2016 in order to add subparagraphs to subsection 68(1A) of the Local Government Act 1993 (NSW) (NI). That subsection provides that development activities under the Planning Act 2002 (NI) (the Planning Act), and certain other uses and developments under that Act, are exempt from the application of section 68 of the Local Government Act 1993 (NSW) (NI). Therefore, those activities do not require the approval of the Norfolk Island Regional Council (the Council). The amendment adds specific references in paragraph 68(1A)(b) to ‘a significant development’ and ‘an ancillary project for a declared significant development’ to clarify that such developments do not require the approval of the Council.

Norfolk Island Continued Laws Ordinance 2015 (the Principal Ordinance)

Items 2 to 18 of Schedule 1 to the Ordinance amends the Principal Ordinance in order to amend several Norfolk Island laws that have been continued in force under section 16A of the Act.

Item 2 – After item 37E of Schedule 1

Item 2 of Schedule 1 amends subsection 17(1) of the Community Title Act 2015 (NI) to include a reference to new subsection 44D(1) of the Planning Act. Subsection 17(1) of the Community Title Act 2015 (NI) provides that if an application under section 44 of the Planning Act is a community scheme development application, the Chief Executive Officer (CEO) may impose additional requirements in relation to the application. Namely, the CEO may require a survey plan of the proposed community scheme to be prepared and certified, and may require the applicant to comply with specified conditions in respect of the proposed community scheme.

The amendment in item 2 has the effect that the CEO may also impose these further requirements in relation to a development application for a declared significant development or ancillary project that is a community scheme development application. Note that subsection 12(2) of the Interpretation Act 1979 (NI) provides that a reference to the ‘Chief Executive Officer’ is a reference to the general manager of the Council.

Items 3 and 4

Items 3 and 4 of Schedule 1 to the Ordinance amend the Heritage Act 2002 (NI) and the Heritage Regulations 2003 (NI).

Item 3 – Before item 110AA of Schedule 1

Item 3 of Schedule 1 to the Ordinance amends the definition of ‘Board’ in section 5 of the Heritage Act 2002 (NI). The previous definition provided that ‘Board’ meant the Norfolk Island Planning and Environment Board established under the Norfolk Island Planning and Environment Act 2002 (NI). The reference is intended to be a reference to the Norfolk Island Planning and Environment Board Act 2002 (NI), which is repealed by item 18 of Schedule 1 to the Ordinance. The definition as amended by item 3 provides that ‘Board’ means the Council.

This amendment transfers the functions of the Board to the Councillors. The two main functions transferred to the Councillors are considering and making recommendations to the Minister on certain development applications and on heritage proposals. This is similar to the role Councillors play in other jurisdictions and gives the Councillors more say in local planning decisions.

Item 4 – After item 111 of Schedule 1

Item 4 of Schedule 1 to the Ordinance amends Division 2 of Part 3 of the Heritage Act 2002 (NI). Previously, the Division provided for a heritage adviser to be a member of the Board when the Board considered and made recommendations on certain matters related to heritage. The amended Division provides that the Council may request advice from a heritage adviser for the purposes of considering and making recommendations on those matters. This does not limit when the Council may request advice.

Item 4 also amends the Heritage Regulations 2003 (NI) to repeal the definitions of ‘chairperson’ and ‘member’ in regulation 3 and repeal subregulation 6(2).

These amendments are consequential to the repeal of the Norfolk Island Planning and Environment Board Act 2002 (NI) by item 18 of Schedule 1 to the Ordinance.

Items 5 and 6

Items 5 and 6 of Schedule 1 to the Ordinance repeal an amendment of the Norfolk Island Planning and Environment Board Act 2002 (NI) and an associated heading. Since item 18 of Schedule 1 to the Ordinance repeals that Act, the amendment and associated heading are no longer required.

Item 5 – Part 1 of Schedule 1 (heading specifying Norfolk Island Planning and Environment Board Act 2002 (Norfolk Island))

Item 5 of Schedule 1 to the Ordinance omits the heading specifying the Norfolk Island Planning and Environment Board Act 2002 (NI).

Item 6 – Item 209A of Schedule 1

Item 6 of Schedule 1 to the Ordinance repeals item 209A of Schedule 1 to the Principal Ordinance. Item 209A of Schedule 1 repealed the definition of ‘Chief Executive Officer’ in section 3 of the Norfolk Island Planning and Environment Board Act 2002 (NI).

Items 7 to 13

Items 7 to 13 of Schedule 1 to the Ordinance amends the Planning Act.

Item 7 – Before item 212 of Schedule 1

Item 7 of Schedule 1 to the Ordinance inserts a definition of ‘ancillary project’ into section 6 of the Planning Act. An ancillary project for a declared significant development is a development that is integral and subservient to the declared significant development. The intention is that an ‘ancillary project’ need not necessarily be at the same site as the declared significant development. For example, a pier redevelopment may rely on an ancillary project, such as quarrying rock, at a site some distance away from the main redevelopment.

Item 8– After item 213 of Schedule 1

Item 8 of Schedule 1 to the Ordinance replaces the definition of ‘Board’ in section 6 of the Planning Act, so that it means the Council.

Item 9– After item 213A of Schedule 1

Item 9 of Schedule 1 to the Ordinance inserts a definition of ‘declared significant development’ into section 6 of the Planning Act. A declared significant development is a significant development in relation to which a declaration under paragraph 28C(5)(a) is in effect. Under that paragraph, the Minister may make a declaration after receiving an application for a declaration along with the Council’s recommendation on the application and any other relevant material.

Item 10 – After item 214 of Schedule 1

Item 10 of Schedule 1 to the Ordinance repeals the definition of ‘performance security’ in section 6 of the Planning Act.

It also repeals the definition of ‘prohibited use or development’ in that section and substitutes a revised definition. The revised definition provides that a prohibited use or development is an activity specified as such in the Norfolk Island Plan 2002 (the NI Plan), other than any such activity that is a declared significant development or an ancillary project for a declared significant development. The amendment allows approval to be given to a declared significant development that is categorised as ‘prohibited use or development’ in the NI Plan.

The NI Plan is the Council’s strategic land management plan which sets out four dominant land uses (i.e. conservation, semi-rural, urban, activity node) divided into specific land-use zones (e.g. residential, light industry, open space). Amending the NI Plan requires the approval of the Minister. If a development has been declared significant there is no need to separately apply to vary or amend the NI Plan to rezone a specific parcel of land to allow the development if it is consistent with the dominant land use for that zone.

Item 10 also inserts a definition of ‘significant development’ into section 6 of the Planning Act. The definition provides that ‘significant development’ means a development to establish or upgrade infrastructure to support economic growth or community welfare, or both, in Norfolk Island.

Item 11 – After item 221 of Schedule 1

Item 11 of Schedule 1 to the Ordinance inserts a new Part 3A after Part 3 in the Planning Act, and make numerous other amendments to the Planning Act as outlined below.

Item 221A – After Part 3

Item 221A inserts a new Part 3A into the Planning Act.

New Part 3A sets out the process for the declaration of significant developments including how applications can be made, how applications are processed, and the matters to be considered when deciding whether a development should be declared significant. New Part 3A also provides for notification of decisions made in relation to applications, and for declarations to be revoked.

Item 221B – Section 30 (heading)

Item 221B repeals the heading to section 30 of the Planning Act, which is about development approvals, and substitute a revised heading that includes a reference to a declared significant development or ancillary project. This amendment clarifies that section 30 applies to declared significant developments and ancillary projects.

Item 221C – Subsection 38(3)

Item 221C amends subsection 38(3) of the Planning Act, which is about amending a development application, to include a reference to a declared significant development or an ancillary project for a declared significant development. This proposed amendment has the effect that, where an application for a declared significant development or an ancillary project for a declared significant development is amended, the CEO should publish notice of the amended application in the Gazette.

Item 221D – Subsection 39(1)

Item 221D amends subsection 39(1) of the Planning Act to refer to proposed new paragraphs 44D(2)(a) and (b).

Subsection 39(1) of the Planning Act provides for withdrawal of development applications up to the time a decision is made on the application. The amendment provides that this rule about withdrawal of development applications also applies to applications for a declared significant development or ancillary project.

Item 221E – At the end of Division 1 of Part 5

Item 221E adds a new section 40A to the Planning Act. New section 40A provides that an application for development approval for an ancillary project for a declared significant development must be refused if the CEO is not satisfied the proposed use or development is integral and subservient to the declared significant development. The new section relies on the meaning of ‘ancillary project’ inserted into section 6 by item 8 of Schedule 1 to the Ordinance. The CEO must give the applicant notice of the refusal within 14 days after the application is made.

Item 221F – After Subdivision 2 of Division 2 of Part 5

Item 221F inserts a new Subdivision 2A in Division 2 of Part 5 of the Planning Act. New Subdivision 2A relates to declared significant developments and ancillary projects.

New section 44A provides that if a development activity satisfies the criteria for more than one type of development activity, development approval may be sought for any one of those activities. The Planning Act would then apply in relation to the application and any subsequent approval as if the development activity were that type of development activity only. The note to new section 44A clarifies that, if the development application seeks approval for a permitted use or development or a permissible (with consent) use or development, Subdivision 1 or 2 of Division 2 would apply in relation to the application. However, if the development application seeks development approval for a declared significant development or an ancillary project for a declared significant development, Subdivision 2A of Division 2 would apply.

New section 44B requires the CEO to cause notice of an application for a declared significant development or ancillary project to be displayed on or near the land that is the subject of the application as soon as practicable after the application has been accepted. The notice must include any matters prescribed by the regulations for such notices. The owner of the land on which a notice is displayed must ensure that it is not removed until a decision is made on the application or the application is withdrawn. Subsection 44B(4) provides that failure to give the notice does not prevent the processing of the application or the making of decisions on it.

New section 44C requires the CEO to cause notice of a development application for a declared significant development or ancillary project to be published in the Gazette. The notice must include a summary of the application, an invitation for public submissions within a specified period of not less than 28 days after notification, and a statement that the application may be inspected at an office of the Council during usual business hours. The application and accompanying documents must be available for public inspection until a decision is made on the application or the application is withdrawn.

New section 44D sets out how applications must be processed after the public submission period. At the end of the public submission period, the CEO must refer the application to the Minister with a copy of any public submissions and other relevant documents and a report and recommendations on the application. On receiving the application, the Minister must give, or refuse to give, development approval, or refer the application back to the CEO with directions to take further action.

New subsections 44D(3) and (4) provides that an approval may be subject to conditions including setting a timeframe for completion of the development and providing performance security for failure to comply with the conditions of the approval.

New subsection 44D(5) provides that an approval may modify development or environmental standards specified in the NI Plan, provided the modification is consistent with the objectives of the standards in the Plan. Subsection 44D(6) provides that the standards as modified are taken to be the standards under the Plan for the use or development approved.

Item 221G – Subsection 45(4)

Item 221G amends subsection 45(4) of the Planning Act to provide that an application for a declared significant development or an ancillary project for a declared significant development must be accompanied by an environmental impact statement prepared in accordance with section 45.

Item 221H – Subsection 45(10)

Item 221H amends subsection 45(10) of the Planning Act to remove the description of section 44 and insert a reference to new section 44D. This provides for the CEO to process a development application for a declared significant development or ancillary project in accordance with the requirements of new section 44D.

Item 221J – Paragraph 46(e)

Item 221J amends paragraph 46(e) of the Planning Act to include a reference to new subsection 44C(2). Section 46 provides for matters to which the Minister must have regard in considering a development application. The amendment to paragraph (e) has the effect that the Minister must have regard to any public submissions received in relation to a development application for a declared significant development or ancillary project.

Item 221K – Subsection 47(1)

Item 221K fixes an error in subsection 47(1) of the Planning Act by substituting the word ‘less’ with the word ‘more’. The current wording requires the Minister to give notice of a decision to the applicant ‘not less than 14 days’ after a decision has been made, i.e. at least 14 days must pass before the Minister gives notice. The correction provides for notice to be given to applicants within 14 days after a decision has been made.

Item 221L – Subsection 47(2)

Item 221L repeals and substitutes subsection 47(2) of the Planning Act. The previous wording of the subsection provided that, where the Minister made a reviewable decision about a development application, the notice of the decision given to the applicant was to include a statement of reasons for the decision. The revised wording provides that a statement of reasons for the decision must be included in the notice regardless of whether or not the decision is a reviewable decision.

Item 221M – Subsection 48(1)

Item 221M amends subsection 48(1) of the Planning Act to include a reference to section 44D. Subsection 48(1) provides for notice of decisions on development applications to be published in the Gazette. The amendment provides that this rule also applies to decisions on applications for declared significant developments and ancillary projects. Notice of a decision must be published in the Gazette not more than 14 days after the decision has been made.

Item 221N – Paragraph 49(2)(b)

Item 221N amends paragraph 49(2)(b) of the Planning Act to include a reference to a declared significant development or an ancillary project for a declared significant development. Section 49 provides that a development application that is not dealt with within the time limit fixed by that section is to be taken to have been refused approval. The revised paragraph 49(2)(b) provides that the time limit for dealing with development applications for a declared significant development or ancillary project is 56 days. This is consistent with the time limit for permissible (with consent) use or development. If an application is not dealt with within 56 days, it is to be taken to have been refused approval.

Item 221P – At the end of Division 3 of Part 5

Item 221P adds a new section 50A at the end of Division 3 of Part 5 of the Planning Act.

New section 50A provides that development approval for a declared significant development or ancillary project takes effect immediately when the approval is given. This is different to other types of development approvals where approval takes effect after 28 days or after a final determination is made on a review (if undertaken) of the approval decision. The immediate effect of the development approval for significant developments is to facilitate the faster construction of public infrastructure.

Items 221Q to 221S – Sections 56 and 59

Items 221Q to 221S amends provisions in the Planning Act relating to development approval modification applications.

Item 221Q amends the heading to section 56 to indicate that the section is to apply to a declared significant development or ancillary project. Section 56 is about processing development approval modification applications.

Item 221R amends subsection 56(1) to include a reference to a declared significant development or ancillary project. The revised subsection provides that the CEO must refer a development approval modification application in relation to such a development to the Minister together with a recommendation by the CEO.

Item 221S amends paragraph 59(2)(c) to clarify that the notice to the applicant of a decision about a development approval modification application need only include particulars of the applicant’s right to apply to the Administrative Review Tribunal for review if the decision is a reviewable decision.

Item 221T – Sections 61 and 61A

Item 221T repeals and substitutes section 61 of the Planning Act to include a reference to new section 61A. The previous wording of section 61 provided that a development approval could only be revoked in accordance with the written consent of the owner of the land in relation to which the approval was given. The effect of the amendment is to provide an additional situation in which a development approval may be revoked (i.e. as outlined in new section 61A).

Item 221T also inserts new section 61A into the Planning Act. New section 61A provides that the Minister may revoke a development approval for a declared significant development or ancillary project if the declaration in relation to the significant development is revoked and the Minister is satisfied the approval should be revoked. As soon as practicable after the revocation, the Minister must give notice of the revocation, including a statement of reasons, to the owner of the land to which the development or project relates. New section 61A in the Planning Act means that revocation of a development approval for a significant development or ancillary project does not have to be in accordance with the written consent of the owner of the land.

Item 12 – After item 225 of Schedule 1

Item 12 of Schedule 1 to the Ordinance amends the Planning Act in relation to administrative review, enforcement, and inquiries.

Items 225A and 225B – Paragraphs 78(1)(a) and (b)

Items 225A and 225B amends paragraphs 78(1)(a) and (b) to exclude decisions the Minister makes in relation to development applications for declared significant developments or ancillary projects, and development approval modification applications for declared significant developments and ancillary projects. The effect of these amendments is that such decisions are not subject to merits review.

While merits review is not be available under the new provisions, the option for judicial review remains. This is consistent with the principles developed by the Administrative Review Council that decisions relating to the allocation of a finite resource, in this case the allocation of land for the development of public infrastructure, are unsuitable for merits review. To ensure adequate consideration of relevant interests, the development approval pathway for significant developments includes the requirement for development applications to be on public display for a minimum of 28 days and allows for submissions to be made by the community. Any submissions made are required to be submitted to the Minister for consideration in the decision making process. Further, conditions can be set on significant developments to address concerns raised through this process.

Item 225C – Subsection 86(1)

Item 225C amends subsection 86(1) to include a reference to an application for a declaration in relation to a significant development. The revised subsection 86(1) provides that a person shall not knowingly make a false or misleading statement in connection with an application for a declaration in relation to a significant development.

Item 225D – After paragraph 91(1)(a)

Item 225D amends subsection 91(1) of the Planning Act. Subsection 91(1) lists matters in relation to which the Minister may arrange an inquiry. The effect of the amendment is to allow the Minister to appoint a person to investigate matters relating to an application for development approval for a declared significant development or ancillary project. The ability of the Minister to call for an inquiry into development matters is an important avenue for investigating and resolving concerns about specific development applications that are raised during the public submissions period.

Item 13 – After item 229 of Schedule 1

Item 13 of Schedule 1 to the Ordinance amends subsection 96(1) of the Planning Act. Subsection 96(1) lists the documents that are statutory documents for the purposes of that section. New paragraph 96(1)(ba) provides that a declaration in relation to a significant development notified in the Gazette is a statutory document. Under subsection 96(2), the validity of a statutory document notified in the Gazette cannot be questioned in any legal proceedings except proceedings commenced within three months of the notification.

Item 14 – After item 231 of Schedule 1

Item 14 of Schedule 1 to the  Ordinance amends the Planning Regulations 2004 (NI) (the Planning Regulations).

Item 231A – After Part 3

Item 231A inserts a new Part 3A into the Planning Regulations. Section 15A in the new Part lists the types of infrastructure that are eligible for declaration as significant by the Minister under new section 28D of the Act, which is inserted by item 12. The list includes air transport facilities, emergency services facilities, port and wharf facilities, sewerage systems and telecommunications facilities. Section 15B in new Part 3A provides that the report the CEO refers to the Council under proposed new subsection 28C(1) of the Planning Act, with an application for a declaration in relation to a significant development, must include consideration of each matter mentioned in new subsection 28D(2) of that Act. These matters include any potential economic or community benefits from the development, any links the development has, or could have, with other developments, consistency with the NI Plan, the Council’s community strategic plan, delivery program and operational plan.

Items 231B and 231C – Regulation 18

Item 231B renumbers the pre-existing text of regulation 18 of the Planning Regulations as subregulation 18(1). This amendment is consequential to the addition of  new subregulation 18(2) by item 231C.

New subregulation 18(2) requires the applicant for development approval for a significant development or an ancillary project to provide as many copies of the application and supporting documentation as the CEO reasonably requires for the purpose of public inspection.

Items 231D to 231G – Regulation 19

Item 231D amends the heading to regulation 19 of the Planning Regulations to include a reference to a declared significant development or ancillary project.

Item 231E amends regulation 19 to include a reference to new subsection 44C(1). The effect of this amendment is that a notice for a declared significant development or an ancillary project published in the Gazette is required to be titled ‘Development Application’ and include the information specified by regulation 19. This is consistent with notices of development applications for permissible (with consent) use or development.

Item 231F amends subparagraph 19(i)(i) to replace the reference to ‘section 19(h)’ with a reference to ‘paragraph 43(2)(b) or 44C(2)(b) of the Act’. Subparagraph 19(i)(i) provides that a development application notice published in the Gazette must include a statement that any person may, during a specified period, make written submissions to the CEO about the development application. It is likely that the former wording was intended to refer to the specified period mentioned in paragraph 19(h) of the Planning Regulations. The amended wording refers instead to the specified periods allowed under the Planning Act. The specified period must be at least as long as the relevant period specified by the Act (i.e. at least 14 days or 28 days depending on the type of development application).

Item 231G repeals subparagraphs 19(i)(iii) and (iv) and substitutes a new subparagraph 19(i)(iii). The revised subparagraph 19(i)(iii) provides that, for decisions in relation to applications for permissible (with consent) use or development, the notice published in the Gazette must include a statement that the decision of the Minister is a reviewable decision. For decisions in relation to applications for declared significant developments and ancillary projects, such a statement is not required. This is because such decisions are not reviewable decisions, per section 78 of the Planning Act as amended.

Subparagraph 19(i)(iv) provided that, where a person had been appointed under section 91 of the Planning Act to inquire into and make recommendations on matters relevant to the decision, the decision was reviewable only to the extent the decision did not conform with the recommendation. This subparagraph is repealed because it is inconsistent with the Act.

Item 231H – Regulation 20

Item 231H amends regulation 20 of the Planning Regulations to include a reference to new subsection 44B(2). This amendment has the effect of applying the requirements in regulation 20 to a notice displayed on land in relation to a development application for a declared significant development or ancillary project. For example, the notice must be at least A4 in size, be clear and legible and displayed where visible from a public road, and briefly describe the nature of the proposed development.

Item 231J – Regulation 22 (heading)

Item 231J amends the heading to regulation 22 of the Planning Regulations to include a reference to a declared significant development or ancillary project. Item 12 of Schedule 1 to the Ordinance amends subsection 38(3) of the Planning Act so that it applies to a declared significant development or an ancillary project. Since regulation 22 relates to subsection 38(3), regulation 22 also applies to a declared significant development or an ancillary project. The change to the heading reflects that fact.

Item 231K – Regulation 24

Item 231K amends regulation 24 of the Planning Regulations to replace the reference to subsection 41(4) with a reference to subsection 44(1). This amendment fixes an incorrect cross-reference to the Planning Act.

Item 231L – After regulation 24

Item 231L inserts a new regulation 24A into the Planning Regulations, about processing development applications for a declared significant development or ancillary project. New regulation 24A prescribes the contents of the report the CEO must provide to the Minister about a development application for a declared significant development or ancillary project (see new subsection 44D(1) of the Planning Act, which is inserted by item 12 of Schedule 1 to the proposed Ordinance).

Item 231M – Regulation 25 (heading)

Item 231M amends the heading to regulation 25 of the Planning Regulations. Regulation 25 relates to subsection 47(1) of the Planning Act. Subsection 47(1) applies generally to all types of development applications under the Planning Act. The heading to regulation 25, as amended, therefore also provides that the regulation applies to all types of development applications, not just development applications for permissible (with consent) use or development i.e. regulation 25 also applies to development applications for declared significant development or ancillary projects.

Item 231N – Regulation 26 (heading)

Item 231N amends the heading to regulation 26 of the Planning Regulations to include a reference to a declared significant development or ancillary project. Regulation 26 prescribes content to be included in a notice published in the Gazette under subsection 48(1) of the Planning Act. Item 12 amends subsection 48(1) so that it applies to decisions in relation to development applications for a declared significant development or an ancillary project. Therefore, regulation 26 also applies to notices in relation to such decisions. The amendment to the heading to regulation 26 reflects that fact.

Item 231P – Paragraph 26(i)

Item 231P makes a minor amendment to paragraph 26(i) of the Planning Regulations to account for the circumstance where an applicant or person who made a written submission on a development application has no rights to apply to the Administrative Review Tribunal for review of the decision under section 79 of the Planning Act. For example, section 79 provides that application may be made to the Administrative Review Tribunal for the review of a reviewable decision within the meaning of section 78 of the Planning Act. Item 13 amends section 78 to exclude, from the definition of reviewable decision, decisions in relation to declaration, development applications and development approval modification applications for declared significant developments or ancillary projects.

Item 231Q – Subregulation 27(2)

Item 231Q amends subregulation 27(2) to include a reference to a declared significant development or an ancillary project for a declared significant development. The amendment has the effect of requiring an applicant for such a development to provide the CEO with details of the proposed use or development and the subject land, and a request for directions in relation to the application under subsection 45(6) of the Planning Act. That subsection relates to directions given by the CEO about environmental impact assessments and environmental impact statements.

Items 231R to 231T – Paragraph 27(2)(b), subregulation 27(3) and paragraph 28(b)

Items 231R to 231T amends paragraph 27(2)(b), subregulation 27(3) and paragraph 28(b) of the Planning Regulations to replace incorrect references to subsection 45(5) of the Planning Act with the correct references to subsection 45(6) of the Planning Act.

Item 231U – Regulation 29

Item 231U amends regulation 29 of the Planning Regulations to include a reference to a declared significant development or ancillary project. The amendment has the effect of requiring an applicant to provide the CEO with as many copies of an environmental impact statement relating to these applications as are reasonably required for the purposes of the Planning Act.

Item 231V – Paragraph 33(1)(b)

Item 231V amends paragraph 33(1)(b) of the Planning Regulations to replace an incorrect reference to Part 9 of the regulations with the correct reference to regulation 47.

Item 15 – After item 232 of Schedule 1

Item 15 of Schedule 1 to the Ordinance amends regulations 44 and 47 of the Planning Regulations, and Schedule 3 to the Planning Regulations.

Item 232AA – Before subregulation 44(1)

Item 232AA inserts new subregulation 44(1A) into the Planning Regulations to provide that the fee for an application for a declaration in relation to a significant development is 46 fee units. The amount of a ‘fee unit’ is set out in section 12B of the Interpretation Act 1979 (NI).

Item 232AB – Subregulation 44(6)

Subregulation 44(6) is about refunding fees when an application is withdrawn. Item 232AB amends subregulation 44(6) of the Planning Regulations to include a reference to new section 28B of the Planning Act. The effect of the amendment is that the provisions in subregulation 44(6) about refunds apply to an application for a declaration in relation to a significant development.

Item 232AC – Subparagraphs 47(2)(a)(vi) and (b)(v)

Item 232AC amends subparagraphs 47(2)(a)(vi) and (b)(v) of the Planning Regulations to include references to a declared significant development or ancillary project. These amendments provide that the Development Application and Approvals Register must contain details, for each development application or development approval modification application, as to whether the application is for permitted use or development, permissible (with consent) use or development, a declared significant development or an ancillary project for a declared significant development.

Item 232AD – Schedule 3 (Table 1, heading to column headed ‘PERMISSIBLE (WITH CONSENT)’)

Item 232AD amends a heading in Table 1 of Schedule 3 to the Planning Regulations, to include a reference to a declared significant development or ancillary project for a declared significant development. The amendment indicates that the fees in the right column of Table 1 apply to development applications for those types of developments.

Item 16 – After item 294A of Schedule 1

Item 16 of Schedule 1 to the Ordinance amends subsection 10(1) of the Roads Act 2002 (NI) to insert a reference to new subsection 44D(1) of the Planning Act. Subsection 10(1) contains requirements that the CEO may make in relation to road project development applications, in addition to the requirements set out in the Planning Act. The amendment provides that the additional requirements may also apply to a development application for a road project development that is a declared significant development or an ancillary project for a declared significant development. This allows the CEO to require a survey plan of the proposed road project and to require the applicant to comply with specified conditions in respect of the proposed road project.

Item 17 – After item 335A of Schedule 1

Item 17 of Schedule 1 to the Ordinance amends subsection 7(1) of the Subdivision Act 2002 (NI) to include a reference to new subsection 44D(1) of the Planning Act. Subsection 7(1) provides for requirements that the CEO may make in relation to a subdivision development application, in addition to the requirements set out in the Planning Act. The amendment provides that the additional requirements may also apply to a subdivision development application that is a declared significant development or an ancillary project for a declared significant development. This allows the CEO to require a survey plan of the proposed subdivision or amalgamation and to require the applicant to comply with specified conditions in respect of the proposed subdivision or amalgamation.

Item 18 – Item 1 of Schedule 2

Item 18 of Schedule 1 to the Ordinance amends Schedule 2 to the Principal Ordinance to include the Norfolk Island Planning and Environment Board Act 2002(NI) in the list of Norfolk Island Acts that are repealed.

[1] https://www.arc.ag.gov.au/Publications/Reports/Pages/Downloads/Whatdecisionsshouldbesubjecttomeritreview1999.aspx#auto