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CLAUSE NOTES
Canal Estates (Prohibition) Bill 2011
PART 1 - PRELIMINARY
CLAUSE 1 SHORT TITLE
This clause provides the short title to be used when citing the proposed Act for any legal
purpose.
CLAUSE 2 COMMENCEMENT
The proposed Act commences on the day it receives Royal Assent.
PART 2 LAND USE PLANNING AND APPROVALS ACT 1993
AMENDED
CLAUSE 3 PRINCIPAL ACT
This clause provides that, for the purposes of Part 2, the Land Use Planning and Approvals
Act 1993 (LUPAA) is the Act to be amended.
CLAUSE 4 SECTION 3 AMENDED (INTERPRETATION)
This clause amends section 3(1) of LUPAA by inserting the definition of a `canal estate'
after the definition of `building'. The definition of a `canal estate' is set out in a new
section 17 to be inserted into LUPAA. The definition is explained in detail under
Clause 6 below.
CLAUSE 5 SECTION 9A INSERTED
Clause 5 provides for the insertion of a new section 9A in Part 2A of LUPAA. The new
section 9A provides that a planning directive, as defined in LUPAA, may not permit a canal
estate. In effect this means that a planning directive may not in any way authorise a
development or use of land that consists either wholly or partially of a canal estate.
CLAUSE 6 PART 2B CANAL ESTATES PROHIBITED - INSERTED
Clause Notes (CA344170) Canal Estates (Prohibition) Bill 2011 1
This clause provides for the insertion of a new Part 2B, prohibiting canal estates, after
section 16 of LUPAA.
Part 2B comprises two new sections: section 17 which prohibits the development or use of
canal estates; and section 18 which provides for the amendment of planning schemes to
ensure that they are consistent with the new section 17 of LUPAA.
New Section 17 Development or use of a canal estate prohibited:
This clause prohibits the development or use of canal estates.
Subsection 17(1) defines `canal', `drainage or water supply canal', `premises',
`recreational canal', and `residential dwellings' for the purposes of the Act.
`canal' means an artificial or `man-made' watercourse or channel.
`drainage or water supply canal' means a canal used for drainage and other works
associated with the supply or treatment of water, for example canals used for the
purpose of sewerage treatment, irrigation or electricity generation etc., where the
canal is constructed by a person or body responsible for that activity, or their agent,
and the canal is no larger than is reasonably necessary to carry out that activity
`premises', as the term is used in the definition of `residential dwellings', does not
include a vessel, ship, boat or habitable building situated on a floating structure.
`recreational canal' means a `man-made' or artificial canal (watercourse), other than
a drainage or water supply canal, or transport canal, that is formed by excavating
land, elevating land on one or more sides of a canal or extending land into a water
body, and that is inundated by, or drains to, a natural waterway or natural water
body by surface or groundwater movement.
`residential dwellings' means any premises used, or intended to be used, primarily
for accommodating persons (whether temporarily or permanently) but does not
include premises for accommodating persons engaged in farming the land on, or
land adjacent to, the canal, caretaking or as otherwise employed in respect of the
land, or monitoring the use of canals or water bodies.
`transport canal' means a canal used or intended to be used primarily for the
movement of vessels.
Subsection 17(2) prohibits both the use and development of land as a `canal estate'.
Subsection 17(3) defines a `canal estate'. A canal estate is an area of land on part of
which one or more `recreational canals' are situated and on any part of which `residential
dwellings' are currently situated, or are intended to be situated.
Subsection 17(4) provides that a canal estate is not an area of land, where there is a
single dam and where residential dwellings are currently situated, or are intended to be
situated.
Clause Notes (CA344170) Canal Estates (Prohibition) Bill 2011 2
Subsection 17(5) provides that a canal estate is not an area of land where there is a
recreational canal already in existence when this Act comes into effect, and where
residential dwellings are currently situated, or are intended to be situated.
Subsection 17(6) provides that a canal is not formed merely by virtue of the fact that it is a
structure that constitutes a wharf, jetty or pier unless the structure is situated on land on one
or more sides of a canal that was constructed after this Act comes into effect by excavating,
elevating or extending land into a body of water.
New Section 18 Amendment of planning schemes, &c.:
This clause provides for the amendment of planning schemes to ensure they are consistent
with the new section 17 of LUPAA.
As soon as practicable after the new section 17 of LUPAA comes into operation the
Tasmanian Planning Commission must, in consultation with the relevant planning authority
and by notice in the Gazette, amend any planning schemes (including interim planning
schemes) and special planning orders to remove any inconsistency with the new section 17
and give notice of any such amendment in an appropriate manner.
CLAUSE 7 SECTION 20 AMENDED (WHAT CAN A PLANNING SCHEME
PROVIDE FOR?)
This clause amends section 20 of LUPAA by inserting after subsection (2) a new subsection
(2A), which provides that a planning scheme may not authorise, or issue a permit that
authorises, a development or use that consists wholly or partially of a canal estate.
CLAUSE 8 SECTION 30R AMENDED (GRANT AND REVOCATION OF
DISPENSATIONS)
This clause amends section 30R of LUPAA by inserting after subsection (2) subsection (2A),
which provides that the Tasmanian Planning Commission may not grant a dispensation for
the application of a local provision of an interim planning scheme if it would authorise, or
issue a permit that authorises, a development or use that consists wholly or partially of a
canal estate..
CLAUSE 9 SECTION 32 AMENDED (REQUIREMENTS FOR PREPARATION
OF AMENDMENTS)
This clause applies the amendment to section 20 of LUPAA made by this Act to the
amendment of planning schemes also.
Clause Notes (CA344170) Canal Estates (Prohibition) Bill 2011 3
It also rectifies inconsistencies that currently exist between section 20 of LUPAA, insofar as it
deals with those things that a planning scheme can provide for, and section 32 of LUPAA,
insofar as it deals with those things that a planning amendment can provide for.
CLAUSE 10 SECTION 60C AMENDED (PROJECTS ELIGIBLE TO BE
DECLARED PROJECTS OF REGIONAL SIGNIFICANCE)
This clause amends section 60C of LUPAA by inserting after subsection (1) subsection (1A),
which provides that a project is not eligible to be declared or assessed as a project of
regional significance, as defined in that Act, if it consists wholly or partially of a canal
estate.
CLAUSE 11 SECTION 63 AMENDED (OBSTRUCTION OF SEALED
SCHEMES)
This clause makes it an offence for a person to use land in a way, or undertake
development, or do any other act, that is in contravention of the new section 17 of LUPAA
and makes that person liable for a fine not exceeding 500 penalty units.
PART 3 STATE POLICIES AND PROJECTS ACT 1993 AMENDED
CLAUSE 12 PRINCIPAL ACT
This clause provides that for the purposes of Part 3 of the Act, the State Policies and Projects
Act 1993 (SPPA) is the Act to be amended.
CLAUSE 13 SECTION 16 AMENDED (INTERPRETATION: PART 3)
This clause amends section 16 of the SPPA to provide that a project is not eligible to be
declared or assessed as a project of State significance if it consists wholly or partially of a
canal estate.
Clause Notes (CA344170) Canal Estates (Prohibition) Bill 2011 4
PART 4 REPEAL
CLAUSE 14 REPEAL
This clause is a drafting convention for amendment Acts and provides that the Act is
repealed ninety days from the day it commences.
Clause Notes (CA344170) Canal Estates (Prohibition) Bill 2011 5