Background
The Minister for Planning and Land Management presented the Planning Bill 2022 (Planning Bill) in the ACT Legislative Assembly on 21 September 2022. Public consultation took place between March and June 2022. If passed, the Planning Bill will become the ‘Planning Act 2023’ and replace the Planning and Development Act 2007 (ACT) (P&D Act). It is anticipated that the Planning Bill will be passed into law in Q3 this year.
The Standing Committee on Planning, Transport and City Services (Standing Committee) released its report on the Inquiry into the Planning Amendment Bill 2022 in December 2022 which included 49 recommendations touching on various themes and areas of the Planning Bill.
The ACT Government released its response to the Standing Committee’s recommendations in May 2023. In this briefing, we focus on the ACT Government’s response to the key recommendations of the Standing Committee’s Report and how they are likely to impact DA proponents and their advisers.
Standing Committee’s inquiry
The Standing Committee is broadly in favour of the Planning Bill acknowledging it as a first step in the planning reform process to improve and modernise the ACT’s planning framework.
A number of issues were raised in evidence provided to the Committee including:
- the need for genuine consultation and consultation periods;
- developments and development applications;
- exempt developments;
- environmental provisions; and
- compliance and enforcement mechanisms.
These concerns form the cornerstone of the key recommendations made by the Standing Committee. We have focused on the ACT Government’s response to the recommendations associated with these themes.
Key Recommendations and ACT Government Response
The need for genuine consultation and consultation periods
The ACT Government broadly agreed with the Standing Committees recommendations acknowledging the fundamental element of community consultation in a good planning system.
In particular the ACT Government was in complete agreement with Recommendation 7 regarding the requirement of early consultation, noting that any consultation conducted prior to the lodgement of a Development Application would be expected to be undertaken in accordance with the Principles of Good Consultation as outlined under s 11 of the Planning Bill. This would include transparency on how community views have been taken into account.
Not surprisingly, the ACT Government, in its response to Recommendation 6, additionally outlined how there will be an increased focus on consultation during the statutory Development Application process, and that future guidelines will detail best practice consultation approaches.
The ACT Government does not completely agree with the expanded timeframes for public consultation recommended by the Standing Committee, prioritising efficiency in the planning system, however, the ACT Government did note that it will amend the Planning Bill and Regulations in relation to significant developments to include a 2 stage process. Stage 1 notification will involve consultation for 20 working days, after which the proponent will be required to respond to public comments and entity advice, and Stage 2 commencing once a response has been received by the proponent and will involve a further consultation period of 10 working days where the public can view and comment on the proponent’s responses. Consequently the assessment minimum time frames will also be extended. This change has the potential to significantly extend the time for public consultation and lengthen the time for the assessment of DAs for most commercial projects of any material size. The time then for this consultation phase could be up to 40 working days or more depending on how long the proponent takes to review representations and to prepare its response.
Developments and Development Applications
The ACT Government agreed in principle to Recommendation 8 regarding a threshold for amendments to Development Applications, noting that it will explore ways to reduce the number of amendments to Development Applications, including increasing fees where a proponent makes a large number of changes. However, it was acknowledged that a balance would need to be found with limitations that may increase the costs and timeframes for projects, and ultimately reduce efficiency in the planning system.
Exempt developments
The ACT Government noted Recommendation 10 regarding clearer penalties, outlining how s 399 of the Planning Bill already provides for significant penalties where a person or corporation undertakes development without development approval (ranging from 60 to 2,500 penalty units ($9,600 to $400,000) for an individual and 2,500 penalty units ($400,000) for a corporation).
The ACT Government is proposing to have 2 separate regulations. One general regulation and another dealing with exempt developments. This is perceived to make it easier to locate and navigate the provisions for exempt developments.
Good Planning Principles and Environmental provisions
Recommendations 28 and 39 reflect a desire for the Planning Bill to further entrench climate resilience considerations as part of planning and approval decisions.
The ACT Government agrees with this sentiment, emphasising how the Planning Bill reflects the considerations of other ACT Government policies including environmental and climate change policies. The ACT Government considers that climate resilience will be a significant consideration and decision-makers will refer to these along with other factors.
In response to the more mandatory considerations called for in Recommendation 39, the ACT Government’s response was less ambitious, suggesting that the current objects, principles and concepts contained in Chapter 2 of the Planning Bill provide sufficient coverage to climate change and resilience, and there is no need for mandatory considerations to be placed in the Planning Bill.
Chapter 2 of the Planning Bill outlines the objects and key elements of the Act including the object to enhance the Territory’s liveability and prosperity, and promote the well-being of residents. Importantly, the Planning Bill states clearly that in achieving the objects of the Act, the ACT’s biodiversity is to be taken into account, along with the consideration of a sustainable and resilient environment designed for a net-zero greenhouse gas future. The Planning Principles and important concepts are also outlined which must be considered in the development of planning strategies, plans and policies. These include sustainability, resilience and high quality design principles, and principles of good consultation.
The Planning Bill carries over from the P&D Act a similar item in relation to greenhouse emissions and development applications, noting in Item 9 of Part 2.2 in Schedule 2 that if the annual amount of expected greenhouse gas emissions for an application for a proposed development exceeds those prescribed by regulation (Excess Emissions), then an ‘expected greenhouse gas emissions statement’ is required for the development. This is different from the P&D Act under which a development that is expected to have Excess Emissions triggers the need for an EIS and, consequently, the need for the development to be assessed in the impact track.
Compliance and enforcement mechanisms
The ACT Government does not agree with the Standing Committee’s suggestion in Recommendation 25 that the Assembly Committee have 20 business days to decide whether to inquire into any variations referred to the Assembly Committee. The ACT Government noted that a reduction from 20 days to 10 days is to improve the efficiency of the planning system and provide greater certainty to proponents.
The ACT Government additionally noted in response to Recommendation 25, that is does not find it practical or feasible to undertake an independent review of all planning decisions, including the approval of all new developments.
Conclusion
The ACT Government primarily agrees with the recommendations of the Standing Committee, however, has emphasised at times the need for efficiency in the planning system where the Standing Committee has recommended longer time frames or more burdensome processes.
Despite this emphasis on efficiency found through the ACT Government’s response, it appears clear that there will be further time and effort needed by proponents to meet the consultation requirements the ACT Government is aiming for, and satisfying good planning principles and environmental provisions of the Planning Bill. Ultimately proponents will need to allow for more time delays with DA assessments and greater engagement with DA objections and community comments. So potential advantages with perhaps greater flexibility in DA assessments arising under the new planning reforms will need to be balanced against greater DA consultation and assessment time delays and costs.