Planning reform general

    What is planning reform?

    Planning reform is 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 encouraging innovation and streamlining the assessment of simple developments

      • promotes sustainable development and values the Territory environment

      • embraces technology through improved online systems.

    How do the reforms make the planning system more transparent?

    Transparency of the planning system will be improved by documenting what must be considered when a planning decision is made, including establishing:

    • in the Act, what the Minister for Planning must consider when making a change to the planning scheme

    • in the Scheme, the role of policy and the intent of zones and requirements in guiding development consent authority discretion to vary development requirements (and removing reliance on undefined “special circumstances”).

    Reforms also clarify:

    • who is responsible for different planning decisions

    • what must be considered by decision makers

    • when key decisions are made

    • why a decision is made

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

    • better 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

    • an easier to use planning scheme structure.

    How will accountability for planning decisions be increased?

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

    • existing 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)

    • 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 proposed to the Planning Act 1999?

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

    Some of the proposed 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

    • more enforcement powers.

    The Planning Amendment Bill 2020 was introduced into the Legislative Assembly on the 13 February 2020 and is currently going through the legislation making process. For a more comprehensive answer to this question you should read the Planning Reform: An Overview and the Planning Amendment Bill 2020.

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

    The Bill revises the objects of the Planning Act 1999 to increase the emphasis on strategic planning and to incorporate principles of sustainable development and intergenerational equity.

    The Bill also 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 some matters established under other legislation (eg the Environment Protection Act 2019 and Heritage Act 2011).

    Why are there changes to the Regulations?

    Some changes to the Planning Regulations 2000 are necessary to implement the changes within the Bill and to support the new structure of the NT Planning Scheme. 

    Key changes to the Regulations include;

    • introducing the classes of development that require a 28-day exhibition and submission period

    • introducing the classes of minor development that require limited notice (sign and letter only)

    • updating the types of capital works that can be included as infrastructure for the purpose of contribution plans

    • extending the third party right of review for residential zones to include Zone RL (Rural Living)

    • specifying the eligibility requirements for appointment as a specialist member to the Development Consent Authority

    • establishing the requirements and process for issuing an infringement notice.

The new NT Planning Scheme

    Why is the NT Planning Scheme being replaced?

    The draft NT Planning Scheme 2020 delivers the enhanced role of strategic planning in guiding decisions and future development, as proposed by the Planning Amendment Bill 2020.

    The new NT Planning Scheme is intended to:

    • establish a clear and concise framework to clarify components of the scheme and their influence on decisions

    • consolidate all strategic policy and land use plans

    • introduce overlays to clearly identify overarching considerations

    • review some existing and add new definitions

    • expand zone purpose and outcome statements and

    • improve development requirements.

    Compared with the existing Scheme, the proposed new Northern Territory Planning Scheme will:

    • be less complex;

    • be 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 the Explanatory Document.

    Where does the NT Planning Scheme apply?

    The NT Planning Scheme applies to the whole of the Northern Territory with the exception of Jabiru which has a separate Planning Scheme (Jabiru Town Plan 2019). The draft NT Planning Scheme 2020 will continue to apply to the same area as the current planning scheme. Outside the zoned urban and remote community areas controls are limited in most cases to subdivision, land clearing and controls of access to arterial roads.

    What will be the role of area plans under the new system?

    The importance of Area Plans will be strengthened through the clarification of the role of the strategic framework. The involvement of the local community in the development of Area Plans will encourage the community to contribute to the identification of 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 continue to be responsible for ensuring that local communities are actively engaged in the creation of Area Plans.

    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 respond to a land constraint, such as land subject to flooding.  They may, in the future, create opportunities to introduce particular requirements associated with unique needs of a locality or particular sensitivities to provide flexibility.  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 mapping of overlays within the Scheme will clarify when these additional requirements apply. Enhancements to online planning information will make it easier for land owners, developers and prospective purchasers to check if any overlays apply to a lot.

    Are zones changing?

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

    The draft Northern Territory Planning Scheme 2020 introduces a Purpose and Outcomes section for each zone that better describes 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 have been expanded to more comprehensively identify the requirements that may apply to each development within the zone. 

    Will there be any changes to specific use zones?

    A provision in the draft Bill will allow existing Specific Use Zones to continue to apply for a transition period of five years. This means the current requirements of the Specific Use Zones will continue to apply and development in these zones will be assessed under the previous Act and Scheme until they can be reviewed and updated to the format of the new Scheme.

    Due to the increased importance of strategic policy in guiding development and the ability of 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. However, any Specific Use Zones introduced after the commencement of the new Scheme will be in the new format and assessed under that Scheme.

    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 proposed changes to permitted or prohibited uses are identified in the Explanatory Document for the draft Northern Territory Planning Scheme 2020.

    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 and the zone purpose and outcomes 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.

    Are development requirements changing?

    The existing development requirements (performance criteria) have been restructured rather than changed to include “purpose”, “administration” and “requirement” sections. The purpose and administration sections will guide the interpretation of the requirements. In particular, the administration section identifies whether the consent authority has the option to vary the requirements and what factors must be considered if variations are allowed.

    The robust framework established in the new Scheme, including the integration of strategic planning, the zone purpose and outcome statements and the restructured development requirements, will allow the exercise of discretion by the consent authority to be more responsive to specific sites and proposals. 

    This will establish a clear basis for decisions rather than simply relying on ‘special circumstances’, for which the existing scheme provides no specific benchmarks or guidance. Any decision by the consent authority to vary a development requirement will now 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.

    It should be 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

    Are subdivision and consolidation requirements changing?

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

    The requirements have been rearranged to clarify all requirements relevant in a particular zone and 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 identifies 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 are needed to support the changes proposed in the Planning Amendment Bill 2020 intended to 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 structural changes are a significant reform to the planning scheme and focused consultation with industry and the community is necessary now to ensure they will function as intended.

    Further review of the NT Planning Scheme will be done as Phase 2 of planning reform after the new structure has been established.

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

    The draft Northern Territory Planning Scheme 2020 is on statutory exhibition as a planning scheme amendment from Friday 6 March 2020 to Friday 24 April 2020. The proposed amendment will progress in accordance with the statutory planning scheme amendment process under the Planning Act 1999, including hearings conducted by the NT Planning Commission. The amendment proposes to repeal the existing Northern Territory Planning Scheme in full, and substitute it with the new Northern Territory Planning Scheme 2020.

    It is proposed that the new Planning Scheme will be introduced to coincide with the commencement of the amended planning legislation in mid-2020.

Changes to Processes

    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 the Minister considers how any proposed amendments to the NT Planning Scheme advance the purpose and objectives of the Planning Act 1999 and are in the public interest

    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 considering a request, the Minister will have the option to seek the advice of the Planning Commission on any strategic implications of a proposal. 

    Following exhibition of a proposal the Minister will now be required to make a decision within 90 days of receiving a Reporting Body report from the Planning Commission. These Reporting Body reports will now be publicly available.

    What changes will be made to the development application process?

    Changes to the development application process will be limited to those associated with the introduction of “merit assessable” and “impact assessable” developments and the new notification streams for “local notification” and “designated developments”.

    These are discussed elsewhere in this Q&A.

    Will there be any changes to EDPs?

    The draft Bill introduces a two-year base period for EDPs the same as development permits and provides for the issuing of a certificate of compliance for EDPs. There are currently no other changes proposed to EDPs. This may be further considered as part of Phase 2 of planning reform.

    Will there be any changes to the concurrent application process?

    The draft Bill makes minor changes to the concurrent application process to align with the new requirements for planning scheme amendments and developments applications. Further changes may be considered as part of Phase 2 of planning reform.

Community Involvement and Submissions

    How will community involvement be encouraged?

    Recognising the increased role of the strategic plans and policies in the planning system 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.

    Are there 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 development 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 in accordance with exhibition periods for planning scheme amendments. 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.

    How will public notifications (signs and newspaper advertising) be improved?

    Investigations have commenced as to options to improve the format and information included on the pink and yellow notification signs.  Consideration is being given to the inclusion of more information such as the use of graphics to present concept drawings or images, site plans, and listing variations being sought by the applicant (eg height and setbacks).

    It is also intended that new signs will introduce the use of technology such as QR codes to allow easy online access to the detailed information about proposals through hand held devices such as smart phones. Following consultation on the proposed sign format the Minister may choose to issue an Administrative Direction to introduce new signage requirements under (new) section 135B of the Act.

    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 “Limited or Local Notification”. Community members will also have the opportunity to register for a new email notification service that automatically advises of proposed developments in their local area.

    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 adjoining land owners 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 continue to be notified.

    Feedback during consultation on the draft Regulations 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”?

    The draft Bill provides an extended exhibition period for 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 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 Regulations will be used to inform the types of development that may be included as designated developments.

Development Consent Authority

    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 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 number of votes for or against a proposal 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 community member for that local authority.

Enforcement and compliance

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

    Currently, the DCA’s ability to deal with use or development that contravenes the Planning Act 1999 is limited to the issue of a “notice to cease” to put a stop to the activity.  To increase the DCA’s enforcement powers, , 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 an immediate response to alleged offences is considered necessary to prevent harmful or irreversible impacts 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 same rights available in other residential zones.