Planning Reform General

What is planning reform?

Planning reform involves a comprehensive review of all components of the planning system in the Northern Territory, including changes to planning legislation, the NT Planning Scheme, online information systems and administrative processes.

The NT Government is committed to improving the NT planning system to ensure that it:

  • delivers transparent and accountable decisions;

  • values community participation and respects the character of our diverse communities;

  • supports economic development by allowing for innovative developments and streamlining the assessment of simple developments;

  • promotes sustainable development and values the Territory environment; and

  • embraces technology through improved online systems.

How will the reforms make the planning system more transparent?

Reforms will improve the transparency of the planning system by giving more guidance around what must be considered when a planning decision is made, including establishing:

  • matters in the Act that the Minister for planning must consider when making a change to the planning scheme; and

  • an increased role of policy in the planning scheme to guide development consent authority discretion to vary development requirements (and removing reliance on undefined “special circumstances”)

Reforms will also clarify:

  • who is responsible for different planning decisions;

  • what matters must be considered by decision makers;

  • when key decisions are made; and

  • why a decision was made.

This is supported by reforms that make information easier to find and understand, including:

  • more targeted notifications about proposed developments;

  • improved notification signs;

  • timeframes for key decision points;

  • notification requirements for when and why decisions are deferred;

  • easier to understand online planning information; and

  • an easier to use planning scheme structure.

How will accountability for planning decisions be increased?

In addition to the introduction of matters into the Act that must be considered when a planning decision is made, more opportunities will also be introduced for people to request Northern Territory Civil Administration Tribunal (NTCAT) review of decisions. These will include:

  • third party rights to review a decision extended to Zone RL (Rural Living);

  • the right to review a decision by the consent authority to not issue an Enforcement Notice if you made a complaint (in circumstances where you would normally have third party appeal rights on the development decision); and

  • applicant and land owner rights to review consent authority decisions in line with natural justice requirements for new enforcement powers and decision points.

Changes to the Planning Act and Regulations

What are the key changes to the Planning Act?

Changes to the Planning Act 1999 are necessary to allow many of the planning reforms to happen.

Some of the changes to the Act include:

  • expanded purpose and objectives of the Act;
  • clearer definition of planning scheme components;
  • changes to the Development Consent Authority (DCA) appointment and termination requirements;
  • changes to public notification requirements; and
  • more enforcement powers.

For a more comprehensive answer to this question you should read the Planning Reform: An Overview and the Consultation Draft Bill for Amendments to the Planning Act1999.

Why are the purpose and objectives of the Act being changed?

The existing objects of the Planning Act 1999 have been expanded to increase the emphasis on strategic planning and to incorporate principles of sustainable development and intergenerational equity.

The new purpose of the Planning Act 1999 clarifies the primary purpose of the Act, which is to establish a system for planning the development of land. The revised objectives underlying this purpose reinforce the importance of the holistic consideration of social, environmental and economic factors. They also clarify that the role of the Act is to assist, not override or replace, decision making responsibilities for these matters that are established under other legislation (eg the Environment Protection Act 2019 and Heritage Act 2011).

Will there be any changes to the Regulations?

Some changes to the Planning Regulations 2000 will be needed to complement the changes proposed to the Planning Act 1999 and to support the new structure of the NT Planning Scheme.

The Regulation changes will be drafted following introduction of the Bill in the Legislative Assembly.

Changes to the NT Planning Scheme

What changes are proposed to the NT Planning Scheme?

The proposed changes to the Planning Act 1999 will necessitate revision of the NT Planning Scheme to implement the enhanced role of strategic planning in guiding decisions and future development.

Changes to the planning scheme will include:

  • a restructure of the planning scheme;

  • consolidation of all strategic policy and land use plans under one Part;

  • introduction of overlays;

  • review of some definitions;

  • expanded zone purpose and outcome statements; and

  • improved development requirements.

The proposed changes to the planning scheme will:

  • reduce its complexity;

  • make it easier for users to navigate; and

  • more clearly identify all requirements and considerations relevant to a particular development and how they will influence the exercise of discretion by the consent authority.

For more detail you should read Planning Reform: An Overview and the Draft Examples of Potential Changes to the Planning Scheme.

What is an “overlay”?

Overlays are a new way of conveying particular development requirements in the NT Planning Scheme that apply to an area regardless of the zone. These requirements typically arise in response to a land constraint, such as land subject to flooding. An overlay may impose additional requirements from usual (eg habitable buildings must be constructed 300mm above flood level) or alter the assessment level of a development (eg requiring assessment for a single dwelling that is usually permitted).

The creation of overlays will clarify when these additional requirements apply as affected land will be mapped within the planning scheme. Improvements to online planning information will also make it easy for land owners, developers and prospective purchasers to check online if any overlays apply to a lot.

What changes are being made to zones?

No new zones or substantial departures from the intent of existing zones are proposed for Phase 1 of planning reform.

Review of existing zones will result in a Purpose and Outcomes section for each zone that will better describe the intent of the zone including preferred uses and the level of amenity that is expected in that zone. This will better inform consideration of whether a proposed development is appropriate within a zone.

Assessment tables for each zone will also be expanded to more comprehensively identify the requirements within the planning scheme that may apply to each development within the zone.

What changes are being made to development requirements?

Existing development requirements will be restructured to include “purpose”, “administration” and “requirement” sections. The purpose and administration sections will guide the interpretation of the development requirement. In particular, the administration section will identify whether the consent authority has the option to vary criteria for assessment set out in the requirements section and what factors must be considered if variations are allowed.

The use of “special circumstances”, whereby proponents can argue and the consent authority can justify variation of development requirements within the NT Planning Scheme, will cease. Instead, any decision by the consent authority to vary a development requirement will need to be consistent with:

  • the purpose and administration of the varied development requirement;

  • the purpose and outcomes statements of the applicable zone; and

  • the applicable components of the strategic framework.

Use of these policy components in place of undefined “special circumstances” will increase transparency around the circumstances which influence the exercise of discretion and inform decisions.

It is noted that this new structure will not negate the responsibility of the consent authority to consider relevant criteria under section 51 of the Planning Act 1999.

Will there be any changes to subdivision and consolidation requirements?

The existing requirements for subdivision and consolidation, such as minimum lot sizes, will be unchanged.

Subdivision and consolidation requirements will be restructured like the development requirements to include “purpose”, “administration” and “requirement” sections. The purpose and administration sections will guide the interpretation of the requirements. In particular, the administration section will identify whether the consent authority has the option to vary criteria for assessment set out in the requirements section and what factors must be considered if variations are allowed.

Why isn’t the whole NT Planning Scheme being reviewed now?

Changes to the structure of the NT Planning Scheme need to be made now to support the changes to the Planning Act 1999 that enhance the role of strategic planning in guiding decisions and future development, and to respond to feedback that identified the need for clearer and more accessible planning information. These changes already require a lot of consideration and consultation with industry and the community to ensure they will function as intended.

More comprehensive changes to the planning scheme and those that may change development rights will need even more time for consultation and feedback. Further review of the NT Planning Scheme will be done in Phase 2 of planning reform after the new structure has been established.

When will the changes to the NT Planning Scheme come into effect?

It is proposed that the current version of the NT Planning Scheme will be repealed, and the restructured planning scheme will be introduced to coincide with the commencement of the amended planning legislation in 2020.

A complete draft of the proposed planning scheme will undergo the statutory planning scheme amendment process with an extended public exhibition and consultation period early in 2020.

Strategic Planning

How will the role of area plans change under the new system?

The role and importance of area plans will be strengthened through the clarification of the role of the strategic framework. Area plans will become the main mechanism which allows the local community to influence the future structure, form and type of developments that will contribute to the achievement of their aspirations.

Area plans can establish alternative development requirements that enable local variations to support desired outcomes. For example, an area plan might specify that a height variation is supported in a particular location subject to the provision of additional landscaping and open space. Area plans will not, however, change the assessment category that is identified in a zone’s assessment table (ie it cannot prohibit a permitted use, or permit a prohibited use).

The Planning Commission will be responsible for ensuring that local communities are actively engaged in the creation of area plans.

Rezoning Applications

What are the changes to the rezoning process?

The draft Bill proposes new criteria to guide the Minister’s decisions about changes to a planning scheme (including rezoning). These criteria will ensure any amendments to the NT Planning Scheme advance the purpose and objectives of the Planning Act 1999 and are consistent with the strategic framework within the planning scheme.

Requests to the Minister to amend a planning scheme will need to respond to new criteria, including submitting a description of how the proposal:

  • promotes the purpose and objectives of the Act;

  • benefits the planning scheme; and

  • benefits the public interest.

Before making a decision to approve, refuse or further consider a request, the Minister will have the option to seek the advice of the Planning Commission on any strategic implications of a proposal.

The Minister will be required to make a decision on the request for an amendment to a planning scheme after exhibition of the proposal and within 90 days from receiving a report from the Planning Commission.

Will there be any changes to specific use zones?

The existing specific use zones will be retained and continue to operate as they do now. Specific use zone provisions that refer back to standard development provisions will be subject to the new standard development requirements. 

Due to the increased importance of strategic policy in guiding development and the ability of local area plans to introduce flexibility into the application of development requirements, it is anticipated that the need for new Specific Use Zones will significantly decrease and there will be the potential to review the existing ones in the future.

Development Applications

What changes will be made to the development application process?

While the overall process remains the same, there will be a few changes, including:

  • introduction of “merit assessable” and “impact assessable” developments; and

  • new notification streams for “local notification” and “designated developments”

You can read more about the differences between these new development assessments and notification streams further on in this FAQ.

Will there be any changes to permitted and prohibited uses?

Generally, there will be no changes to the uses that are permitted or prohibited in a zone.

The exception to this rule may be where definitions have to be altered to align with other legislation and this requires a change to the assessment level (eg changes to child care definitions to align with the Education and Care Services National Regulations may require some new facilities to become assessable). Any changes to permitted or prohibited uses will be very clearly flagged when the whole of the new NT Planning Scheme is exhibited.

What is the difference between merit and impact assessable developments?

Developments that are currently “discretionary” in the NT Planning Scheme will be split into either “merit assessable” or “impact assessable” categories.  Introduction of these categories of assessment is consistent with industry best practice and focuses the greatest assessment scrutiny on the types of applications with the potential for the greatest impact.

Merit assessable developments are those generally expected to be seen in a zone and to contribute to achievement of the purpose of the zone. Whilst assessment is required to ensure the proposal complies with the development requirements and that the particular site is suitable for the development proposed, they can be processed through a streamlined application and assessment process.

Impact assessable developments are those that may be suitable in a zone depending on the site capability, surrounding development, the scale and intensity of the development and whether adverse impacts can be managed. Applications for impact assessable developments will need to address and be assessed in terms of any relevant component of the strategic planning framework that applies to the locality, in addition to addressing the development requirements.  This approach will ensure potentially suitable uses in a zone are only established if they are achieving the strategic policy outcomes previously developed in consultation with the community.

Will there be any changes to Exceptional Development Permits (EDPs)?

There are currently no changes proposed to EDPs. This may be considered as part of Phase 2 of planning reform.

Will there be any changes to the concurrent application process?

There are currently no changes proposed to concurrent applications. This may be considered as part of Phase 2 of planning reform.

Submissions and Community Involvement

Will there be changes to how I make a submission?

Written submissions will continue to be accepted via the online submission system, email, post, or in-person at planning offices. Most applications will continue to require submissions to be made within 14 days from the commencement of the notification period. For more complex “designated developments”, the period for submissions will be extended to 28 days. The notice of application and signs will show the submission period that applies.

The draft Bill proposes the following submission requirements, namely the submission must:

  • be received during the exhibition period;

  • be in writing (electronic acceptable);

  • be signed by the person making the submission (email signature is acceptable);

  • include the name and contact details of each person making the submission; and

  • identify one person to be the nominated contact in the case of multiple signatories.

Will there be any changes to public notifications (signs and newspaper advertising)?

The pink and yellow notification signs will include more information including the use of graphics such as concept drawings or images, site plans, and what variations are being sought by the applicant (eg height and setbacks). The use of technology such as QR codes will be introduced to allow easy access to the detailed information about proposals through hand held devices such as smart phones. Specific details of the new signage requirements will be included as part of the amendments to the Planning Regulations.

The draft Bill introduces the option for future transition from newspaper advertisement in recognition that digital media is increasingly becoming the primary source of information accessed by the community. However, newspaper advertisement of development applications will continue with the exception of minor developments prescribed as “Local Notification”.

What is “local notification”?

Local notification is a new notification type for minor developments that only have localised impacts. Notification would only be required to immediate local residents by letter and a sign on the land. Signs and notices will provide details of where the application may be viewed electronically (on the department website). Newspaper advertisement will not be required. The local council and service authorities will also be notified.

Feedback during consultation on the draft Bill will be used to inform the types of development that may be included in the category of Local Notification recognizing that enhanced notification of the local residents is more appropriate for minor developments than the traditional newspaper advertisement.

What is “designated development”?

Changes to the Planning Act 1999 will provide for the prescription of designated developments that have the potential for significant impact on the amenity or environment. These developments will be subject to all of the standard notification requirements PLUS an extended exhibition period of 28 days. The extended exhibition period will allow greater time for submissions and assessment by service authorities.

Feedback during consultation on the draft Bill will be used to inform the types of development that may be included as designated developments.

Development Consent Authority and NT Planning Commission

What changes are being made to the Development Consent Authority (DCA)?

A number of changes are proposed to the Development Consent Authority (DCA) to ensure its membership, decision making ability and independence is appropriate within the context of the reformed planning system.

The consideration of development applications is becoming increasingly complex and it is important that the members of the DCA have the necessary knowledge and skills not only to undertake assessment of applications but also in the conduct of meetings and meaningful engagement with the community.

Introducing specialist members with professional skills and experience in areas relevant to the assessment of development applications will bring a higher level of scrutiny to the consideration of proposals. The introduction of mandatory training for all members prior to participating in meetings will ensure that they have the necessary knowledge of the planning system to properly carry out their role.

A Code of Conduct will be introduced for the DCA so that members fully understand their obligations and responsibilities This will ensure that members operate professionally, honestly and ethically at all times with a high degree of accountability. Failure to comply with the Code of Conduct may lead to termination of appointment by the Minister.

Further measures to improve the transparency of the DCA are the introduction of the requirement for the minutes to record the voting by each member on development applications and for the provision of an Annual Report which must be tabled in the Legislative Assembly by the Minister.

To protect the independence of decision making and to address perceptions of conflicts of interest, employees of the Department of Infrastructure, Planning and Logistics will no longer be eligible for appointment to any division of the DCA and employees of a local authority will not be eligible for appointment as a local authority member for that local authority.

What changes are being made to the NT Planning Commission?

The NT Planning Commission will be required to develop and publish a community engagement policy and include a review of activities under the policy in its annual report.

Reporting Body reports prepared by the Commission for the Minister for Planning will also now be made publicly available.

Enforcement and Compliance

How is the new “enforcement notice” different from the current “notice to cease”?

Currently, the DCA can only issue of a “notice to cease” to stop a use or development that contravenes the Planning Act 1999. To increase the DCA’s enforcement powers, particularly for harmful and irreversible developments, the draft Bill replaces powers to issue a “notice to cease” with powers to issue an “enforcement notice”.

An “enforcement notice” has the ability to require a person to:

  • cease the work or use;

  • act within conditions that limit the impacts of the activity;

  • carry out rectification works (eg demolition of a building or planting of vegetation); or

  • take any other action specified to address the non-compliance.

This approach removes the current need to obtain a Court order in relation to action required to remedy the non-compliance, reducing costs and providing for faster resolution of any non-compliance.

What is the new “show cause” process?

A new “Show Cause” process will be introduced to allow the consent authority to require a person suspected of an alleged offence to advise in writing why an “Enforcement Notice’ should not be issued.

The consent authority will also have the ability to issue an ‘Enforcement Notice" without first issuing a "Show Cause" notice in circumstances where immediate response to alleged offences is considered necessary such as: 

  • the clearing of native vegetation;

  • demolition of a building; or

  • significant risk of environmental harm or adverse impact on public amenity.

Will penalties for breaching the Planning Act increase?

The maximum penalties for most offences are proposed to increase for an individual from 200 penalty units ($31,400) to 500 penalty units ($78,500) and for a corporation from 1000 penalty units ($157,000) to 2500 penalty units ($392,500). The default penalty units are proposed to increase for most offences from 2 units ($314) to 4 units ($628). These penalties are comparable to penalties in other jurisdictions and better reflect the high value the community places on compliance.

The Local Court will also be able to impose orders for the recovery of investigation expenses if an offence is proven, which will minimise the impact of enhanced enforcement on the costs to Government.

What are PINs?

Penalty Infringement Notices (PINs) are on-the-spot fines for minor offences that may be issued by an authorised enforcement officer. They provide another new tool to contribute to an effective and flexible enforcement/compliance regime. PINs have proven effective in many jurisdictions as a simple way of dealing with minor compliance issues that have short term impact on amenity or the environment. PINs also provide an owner or occupier of land who has committed an offence with a means of redressing that offence, without the cost of court appearances and the formal recording of a conviction or a finding of guilt. The maximum value of a PIN will be 10 Penalty Units ($1570).

PINs will be subject to guidelines to limit their use to circumstances where it is appropriate. A person may elect to either pay the fine or to seek review through the Court.  The use of PINs will encourage a culture of compliance and create a fairer environment for those who do the right thing.

What is the purpose of a Certificate of Existing Use?

Existing Use Rights are common in planning legislation to protect the continued use of land for a purpose for which it was used legally immediately before a change in the planning scheme that prohibits or requires consent for such uses. This protects the right of an owner to continue use of the land for an existing legally established purpose.

The administration of existing uses currently provides no certainty for the owners who have significant investment and rely on the continuing use for their livelihood nor does it allow effective compliance management or certainty for a future owner in the event of a change of ownership.

The introduction of a process to allow a person to apply for a certificate certifying the extent of existing use rights will allow all parties to clearly understand the legitimacy of such uses and any limitations under which they must operate.

Will there be any new third party rights of review?

Yes. Third party rights of review will be extended to lots in or adjacent to Zone RL (Rural Living). These rights of review will be consistent with the rights available to development in other residential zones.