Major Infrastructure Development Approvals Amendment Act 2001

Major Infrastructure Development Approvals Amendment Act 2001

An Act to amend the Major Infrastructure Development Approvals Act 1999 and the Land Acquisition Act 1993

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Major Infrastructure Development Approvals Amendment Act 2001 .

2.   Commencement

This Act commences on the day on which this Act receives the Royal Assent.

3.   Principal Act

In this Act, the Major Infrastructure Development Approvals Act 1999 is referred to as the Principal Act.

4.    Section 3 amended (Interpretation)

Section 3(1) of the Principal Act is amended by inserting "or section 14A(4) " after " section 14(3) " in the definition of notified corridor .

5.    Section 11 amended (Effect of order declaring major infrastructure project)

Section 11 of the Principal Act is amended as follows:

(a) by omitting from subsection (2)(b)(ii) "proposed corridor, the owners of all land within the proposed corridor" and substituting "corridor proposed in the application, the owners of all land within that corridor";

(b) by inserting the following subsection after subsection (4) :

(4A)  If an order under section 7(2) declares that compliance with section 52(1) of the Land Use Planning and Approvals Act 1993 is not required, a request by the proponent for the amendment of a permit in respect of a use or development comprised in the major infrastructure project may be made under section 56(1) of the Land Use Planning and Approvals Act 1993 without the consent of the owner of the land to which the permit relates.

6.    Section 11A inserted

After section 11 of the Principal Act , the following section is inserted in Part 2:

11A.   Amendment of planning schemes, &c., to remove inconsistencies

(1)  As soon as practicable after the making of an order under section 7(2) , the Commission must, in consultation with the relevant planning authority, amend each relevant planning scheme or special planning order to remove any inconsistency between the planning scheme or special planning order and –

(a) section 11(1)(a) ; and

(b) the order under section 7(2) .

(2)  The Land Use Planning and Approvals Act 1993 does not apply to an amendment made under subsection (1) .

(3)  Where the Commission amends a planning scheme or special planning order under subsection (1)  –

(a) the amendment is taken to have come into operation on the date on which the order under section 7(2) was made; and

(b) the Commission must give notice, as prescribed, of the amendment.

7.    Section 13A inserted

After section 13 of the Principal Act , the following section is inserted in Part 2:

13A.   Selling of easements in gross

(1)  An easement without a dominant tenement acquired by the Crown pursuant to this Act may be sold by the Crown in accordance with an order under section 7(2) .

(2)  An easement without a dominant tenement over Crown land may be granted for the purposes of a major infrastructure project.

8.    Sections 14A and 14B inserted

After section 14 of the Principal Act , the following sections are inserted in Part 2:

14A.   Amended corridors

(1)  The proponent of a major infrastructure project may request the Minister to amend a notified corridor.

(2)  The request is to be accompanied by a plan of the proposed amended corridor.

(3)  A plan for the purposes of subsection (2) is to identify the boundaries of the proposed amended corridor with sufficient accuracy to enable an owner of land to determine whether or not that land will be affected by the amended corridor.

(4)  If the Minister is satisfied that it is reasonable to amend a notified corridor, the Minister must cause notice of the amended corridor to be served on –

(a) the Commission; and

(b) each planning authority on which obligations are imposed by the order under section 7(2) or which is otherwise affected by the amended corridor; and

(c) each owner of land added to the notified corridor by the amendment of that corridor; and

(d) each owner of land deleted from the notified corridor by the amendment of that corridor.

(5)  The Commission must, in the performance of its functions and exercise of its powers, have regard to any notice which is served on it under subsection (4) .

(6)  A planning authority must, in the performance of its functions and exercise of its powers, have regard to any notice which is served on it under subsection (4) .

(7)  Notice to an owner of land for the purposes of subsection (4)(c) is to –

(a) be served no later than the time at which notice of the making of an application for a permit in respect of that land is served under section 11(2)(b) ; and

(b) contain such information as is prescribed for the purposes of section 14(6)(b) ; and

(c) be accompanied by a copy of that part of the plan referred to in subsection (2) which relates to the owner's land.

14B.   Urgent amendment of permit

(1)  A proponent may apply to the Minister to amend a corridor described in a permit in respect of a major infrastructure project.

(2)  Subject to this section, the Minister may grant an application under subsection (1) and, for that purpose, may make an order which amends a permit in respect of the major infrastructure project.

(3)  An order under subsection (2) may provide for the corridor which is described in the permit to extend beyond the boundaries of a notified corridor.

(4)  An order under subsection (2) may amend a permit by including such conditions or restrictions as the Minister thinks fit in connection with the amendment of the corridor described in the permit.

(5)  An application under subsection (1) is to be accompanied by –

(a) a copy of the permit; and

(b) a plan which accurately identifies the boundaries of any area to be added to or deleted from the corridor described in the permit pursuant to the proposed amendment; and

(c) a plan which identifies each parcel of land which is within any area to be added to the corridor described in the permit or which abuts such an area; and

(d) a report which –

(i) includes a statement of the reasons why the amendment is sought; and

(ii) addresses each of the matters which the Minister must take into account under subsections (6) and (7) ; and

(iii) includes the name and address of the owner of each parcel of land referred to in paragraph (c) ; and

(e) in respect of each such owner of land, notice from or on behalf of the owner that the owner consents or does not consent to the proposed amendment or details as to why the proponent is unable to provide such a notice.

(6)  The Minister may only grant an application under subsection (1) if the Minister is satisfied that –

(a) it is not practicable or expedient for the proponent to seek the proposed amendment of the corridor by means of an application to a planning authority for a permit or for an amendment to a permit; and

(b) it is in the public interest to do so.

(7)  In determining whether it is in the public interest to grant an application under subsection (1) , the Minister must have regard to –

(a) whether the proponent could reasonably have avoided the need for the application, by better planning or otherwise; and

(b) the public interest in the timely completion of the major infrastructure project; and

(c) the potential effect upon the environment if the application is granted and, if the Minister considers that it is necessary that the advice of the Director of Environmental Management or of the Board of Environmental Management and Pollution Control be obtained in relation to the application, the advice of the Director or of the Board; and

(d) the potential effect upon archaeological, architectural, cultural, historical, scientific, social or technical values if the application is granted and, if the Minister considers that it is necessary that the advice of the Tasmanian Heritage Council be obtained in relation to the application, the advice of the Council; and

(e) the potential effect on land use planning if the application is granted and, if the Minister considers that it is necessary that the advice of a planning authority or the Commission be obtained in relation to the application, the advice of the planning authority or Commission; and

(f) the degree to which the corridor described in the permit will extend beyond the boundaries of a notified corridor if the application is granted.

(8)  The Minister must not grant an application under subsection (1) unless –

(a) the application is consented to by the owner of each parcel of land referred to in subsection (5)(c) ; or

(b) the Minister has caused notice of the application to be served upon any such owner who has not consented to the proposed amendment, and the Minister has taken into account any representations made to the Minister by that owner within –

(i) a period of 7 days after personal service of the notice; or

(ii) a period of 14 days after service of the notice by post.

(9)  The Minister must cause a copy of an order which is made under this section to be served as soon as practicable on –

(a) the proponent; and

(b) the planning authority which granted the permit amended by the order; and

(c) the owner of each parcel of land referred to in subsection (5)(c) .

(10)  If an order is made under this section –

(a) each use or development which is permitted by reason of the amendment to the permit is taken to be a use or development which is comprised in the major infrastructure project; and

(b) section 14(12) , (13) , (14) and (16) apply to any land which is included in the corridor described in the permit by reason of the amendment to the permit as if –

(i) that land was land within a notified corridor; and

(ii) the making of the order was a grant of a permit; and

(iii) the date of the making of the order was the date of service of notice of a proposed corridor; and

(c) section 14(12) , (13) and (14) apply to any parcel of land which abuts land to which paragraph (b) refers as if –

(i) the land within that parcel was land within a notified corridor; and

(ii) the making of the order was a grant of a permit; and

(iii) the date of the making of the order was the date of service of notice of a proposed corridor.

(11)  The Minister may decline to grant an application under this section unless the applicant pays to the Crown an amount to cover the costs and expenses which have been or may be incurred by the Crown or any person in connection with the application.

9.    Section 15 amended (Registration of notified corridor)

Section 15 of the Principal Act is amended as follows:

(a) by inserting in subsection (1) "or section 14A(4) " after " section 14(3) ";

(b) by inserting in subsection (1)(b) ", is not unallocated Crown land" after " Land Titles Act 1980 ";

(c) by omitting from subsection (1)(c) "lodge" and substituting "if the land is unallocated Crown land or is being purchased under a Crown lands contract, lodge";

(d) by inserting the following subsection after subsection (5) :

(6)  If an order under section 14B  –

(a) makes an amendment to a permit which results in a use or development being permitted on land under the Land Titles Act 1980 which was not formerly permitted by the permit, the Minister must within 14 days of the making of the order lodge with the Recorder of Titles –

(i) a copy of the order; and

(ii) a copy of any plan which accompanied the order; and

(iii) details of the name of the registered proprietor of the land and of the volume and folio of the Register within which the land is comprised –

and the Recorder must register the notice by making an appropriate entry on that folio of the Register; or

(b) makes an amendment to a permit which results in a use or development being permitted on land which is not under the Land Titles Act 1980 , and which is not unallocated Crown land, which was not formerly permitted by the permit, the Minister must within 14 days of the making of the order lodge in the Registry of Deeds a copy of the order and a copy of any plan which accompanied the order; or

(c) makes an amendment to a permit which results in a use or development being permitted on land which is unallocated Crown land or which is being purchased under a Crown lands contract, lodge with the Director-General of Lands –

(i) a copy of the order; and

(ii) a copy of any plan which accompanied the order; and

(iii) if the land is being purchased under a Crown lands contract, details of the name of the purchaser of the land –

and the Director-General must make an appropriate entry in the registers held by the Director-General.

10.    Section 18A inserted

After section 18 of the Principal Act , the following section is inserted in Part 2:

18A.   Order declaring part of order declaring major infrastructure project to cease to have effect

(1)  The Governor may make an order which declares that a provision or part of a provision included in an order made under section 7(2) pursuant to section 10(3) is to –

(a) cease to have effect; or

(b) cease to have effect in such manner or to such extent as is specified in the order –

from a date specified in the order.

(2)  On the making of an order under subsection (1) , each provision or part of a provision to which the order relates ceases to have effect in accordance with the terms of the order.

11.    Land Acquisition Act 1993 amended

The Land Acquisition Act 1993 is amended as follows:

(a) by inserting the following definition after the definition of local authority in section 3(1) :

major infrastructure project has the same meaning as in the Major Infrastructure Development Approvals Act 1999 ;

(b) by inserting the following section after section 7A :

7AB.   Application of Part 1A

This Part does not apply to the acquisition of land for a major infrastructure project.

(c) by inserting the following subsection after subsection (5) in section 7E :

(5A)  If an order under section 7B(2) declares that compliance with section 52(1) of the Land Use Planning and Approvals Act 1993 is not required, a request by the proponent for the amendment of a permit granted in connection with the proposed infrastructure may be made under section 56(1) of the Land Use Planning and Approvals Act 1993 without the consent of the owner of the land to which the permit relates.

(d) by omitting from section 18(2) "A" and substituting "Except as provided in subsection (2A) , a";

(e) by inserting the following subsection after subsection (2) in section 18 :

(2A)  If a notice of acquisition relates to a major infrastructure project, the notice is to be gazetted after the expiration of 30 days and before the expiration of 18 months –

(a) after the day on which the notice to treat was served; or

(b) where more than one notice to treat was served, after the day on which the first notice to treat was served.

(f) by omitting paragraph (b) from section 24(5) and substituting the following paragraph:

(b) the owner or occupier has suffered any damage, loss or expense by reason of –

(i) the exercise of those powers; or

(ii) action lawfully taken by a person pursuant to authorisation given under section 54 , 54A , 55 or 56 .

(g) by omitting section 33 and substituting the following section:

33.   Matters to be disregarded in determining compensation

(1)  Each of the following matters is to be disregarded in the determination of compensation in respect of subject land:

(a) any increase in the value of the subject land resulting from its use in a manner, or for a purpose, contrary to law;

(b) any increase or decrease in the value of the subject land arising from the carrying out, or the proposal to carry out, the authorised purpose for which the land was taken;

(c) any special value the subject land may have to the acquiring authority which –

(i) is caused by the particular need the authority has for that land; and

(ii) is in addition to its market value;

(d) any expectation by a claimant who was a lessee of the subject land that the claimant's lease would be renewed, other than an expectation which is based on an option of renewal in the lease contract;

(e) in relation to land which has been acquired or is being acquired for the purposes of a major infrastructure project, any increase or decrease in the value of the subject land arising, either directly or indirectly, from –

(i) the order under section 7(2) of the Major Infrastructure Development Approvals Act 1999 by which the major infrastructure project was declared or anything done pursuant to that order; or

(ii) the amendment, in relation to the major infrastructure project, of a planning scheme or special planning order pursuant to section 11A of the Major Infrastructure Development Approvals Act 1999 or under any other Act; or

(iii) the grant of a permit for a use or development which is comprised in the major infrastructure project, whether the permit relates to the subject land or to other land; or

(iv) any use or development of the subject land or of other land which is proposed or which has occurred in connection with the major infrastructure project.

(2)  For the purposes of subsection (1) , "development", "permit" and "use" have the same meanings as in the Land Use Planning and Approvals Act 1993 .

(h) by omitting from section 35(c) "land." and substituting "land; or";

(i) by inserting the following paragraph after paragraph (c) in section 35 :

(d) where the land is land referred to in section 54A , as at the day on which a person enters on to the land pursuant to an authorisation under section 54A(2) or the day on which a notice to treat in relation to the land is served on the owner of the land under section 11 , whichever is the earlier.

(j) by inserting in section 39(1) "or, in the case of a major infrastructure project, the period of 6 months" after "60 days";

(k) by inserting in section 44 "or, in the case of a major infrastructure project, the period of 6 months" after "90 days";

(l) by inserting in section 54(2)(b) ", take samples" after "soil";

(m) by omitting from section 54(2)(b) "land." and substituting "land; and";

(n) by inserting the following paragraph after paragraph (b) in section 54(2) :

(c) remove from the land any samples taken under paragraph (b) .

(o) by inserting the following section after section 54 :

54A.   Powers of entry to carry out works in relation to major infrastructure projects

(1)  In this section –

authorisation means an authorisation given under subsection (2) ;

notified corridor has the same meaning as in the Major Infrastructure Development Approvals Act 1999 ;

permit has the same meaning as in the Land Use Planning and Approvals Act 1993 ;

prescribed person means –

(a) the occupier, if any, of the land on to which a person is authorised to enter; or

(b) the owner in fee simple of that land; or

(c) if that land is not subject to the Land Titles Act 1980 but is subject to a mortgage, the mortgagor.

(2)  Subject to subsection (4) , the Minister may authorise in writing a person to enter, for a period not exceeding 6 months, on to land within a notified corridor for the purposes of the construction of a major infrastructure project.

(3)  If an order under section 14B of the Major Infrastructure Development Approvals Act 1999 amends a corridor described in a permit by adding land to the corridor, that land is taken to be within a notified corridor for the purposes of subsection (2) .

(4)  The Minister may not authorise entry under subsection (2) unless the Minister is satisfied that the works that are proposed to be carried out on the land are authorised by a permit and –

(a) the period specified under section 61 of the Land Use Planning and Approvals Act 1993 for appealing the decision of the planning authority to grant the permit has expired and no appeal has been lodged; or

(b) where such an appeal has been lodged, the appeal has been determined.

(5)  The Minister may impose conditions or restrictions on any authorisation given under subsection (2) .

(6)  The Minister must give notice in writing to any prescribed person of an authorisation given under subsection (2) .

(7)  The Minister may revoke an authorisation given under subsection (2) .

(8)  If notice under subsection (6) is given to a prescribed person by post, the notice is taken to have been received by the prescribed person 5 days after the day on which it was posted.

(9)  After 7 days from the day on which the notice is taken under subsection (8) to have been received by a prescribed person, a person authorised to enter on to the land referred to in the notice may enter and remain on the land and use that land as permitted under a permit referred to in subsection (4) .

(10)  The proponent of the major infrastructure project for which entry is authorised under subsection (2) must provide the acquiring authority with a plan indicating the land to be acquired for the use or development comprised in the major infrastructure project in respect of which the authorisation is given not later than 5 months after the date of the authorisation referred to in subsection (2) .

(11)  The plan referred to in subsection (10) is to contain such detail as the acquiring authority may require to undertake the acquisition of the land to be acquired and is to include all land on which works have been constructed pursuant to the authorisation referred to in subsection (2) .

(12)  Within 28 days of receipt of the plan referred to in subsection (10) , the acquiring authority must cause a notice to treat to be served in accordance with section 11 on the owner of the land to be acquired.

(p) by inserting in section 55(2) "or, in the case of a major infrastructure project, the proponent of that project" after "it";

(q) by omitting the definition of required land from section 56(1) and substituting the following definition:

required land means –

(a) land –

(i) in respect of which an acquiring authority has served a notice to treat; and

(ii) which the authority has not yet acquired; or

(b) land in respect of which an authorisation has been given under section 54A(2) .

(r) by inserting in section 56(2)(a) "or, in the case of a major infrastructure project, the proponent of that project" after "it";

(s) by omitting from section 57(1) " section 54 or 56 ," and substituting " section 54 , 54A or 56 ,";

(t) by omitting from section 57(4) " section 54 or 56 " and substituting " section 54 , 54A or 56 ";

(u) by inserting in section 58(1) "or, in the case of a major infrastructure project, the proponent of that project" after "the authority";

(v) by inserting in section 58(2) "or, in the case of a major infrastructure project, the proponent of that project" after "an acquiring authority";

(w) by inserting in section 58(2) "or the proponent, as the case may be," after "the acquiring authority";

(x) by omitting from section 69(1)(a) " section 54 , 55 or 56 " and substituting " section 54 , 54A , 55 or 56 ";

(y) by omitting from section 69(2)(a) " section 54 , 55 or 56 " and substituting " section 54 , 54A , 55 or 56 ".

[Second reading presentation speech made in:

House of Assembly on 22 MARCH 2001

Legislative Council on 27 MARCH 2001]