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 2023.
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. The ACT Government released its response to the Standing Committee’s recommendations in May 2023 (Government Response).
On 6 June 2023, the final Planning Bill passed the ACT Legislative Assembly with 128 amendments. On 19 June 2023 the Planning Act 2023 (Planning Act) was notified.
We advised earlier on the material features of the Planning Bill. As well as the Government’s Response.
When does the Planning Act come into effect?
The Planning Bill came into effect as the Planning Act immediately after the Planning Act’s notification day on 20 June 2023. However, the commencement date for certain sections in the Planning Act will differ, ultimately falling within one of the below periods:
(a) for all sections of the Planning Act relating to the District Strategy, Design Guides, Technical specifications and Strategic and Spatial Planning - the day after the Planning Act’s notification day, being 20 June 2023; or
(b) for all other sections of the Planning Act - on a day to be fixed by the Minister by written notice (which has yet to occur). We anticipate this written notice will take place in Quarter 4 of 2023 after the new Territory Plan is presented to, and approved by, the Legislative Assembly.
Amendments to the Planning Act
Of the 128 amendments made to the Planning Bill, there are a number of material changes.
Section 179 – Further public notification – significant development
The Government Response foreshadowed that a two-stage notification process for significant developments would be included as part of the Planning Act.
Consequently, new section 179 sets out the public notification requirements for significant developments following the completion of the first public notification period. Two stages of public notification will occur for all significant developments. The time period for each stage will be set through the Planning (General) Regulation 2023.
Following the first public notification period, the applicant must give a statement to the Territory Planning Authority setting out any advice or representations made, and how the applicant has addressed these. The second public notification period cannot commence until such a statement is provided. Do this process will extend the assessment time for DAs and so delay further the obtaining of DA approvals.
Updated appeal rights
Decisions made under sections 424, 425 and 427 of the Planning Act, relating to controlled activity orders made by the Territory Planning Authority, are appealable. These updates have been made to Schedule 5 of the Planning Act, setting out decisions that are reviewable by ACAT.
Design guides
New section 50 of the Planning Act has been included in respect of design guides. This section allows the Minister to make design guides to support the Territory Plan and provide design guidance for development proposals. Any design guides must be published on the Territory Planning Authority’s website. These design guides will be particularly important for proponents seeking to understand how the Authority is interpretating the new Territory Plan elements.
Territory priority projects
The process for the declaration of ‘Territory Priority Projects’ in section 218 of the Planning Act has been amended. Section 218 now provides the Planning Minister together with the Chief Minister the power to declare a development proposal as a Territory Priority Project if satisfied that the proposal:
(a) would achieve a major government policy outcome that is of significant benefit to the ACT;
(b) would substantially facilitate the achievement of future planning outcomes; and
(c) is for significant infrastructure or facilities that are of significant benefit to the ACT people.
So the threshold for the “call in power” equivalent will significantly harder to satisfy compared the current position under the Planning and Development Act 2007 (P&D Act). The amendment means that all the conditions to qualify for the Territory Priority Project status will need to be satisfied and not just any one of the conditions. This will mean that the “call in” power is unlikely to be used except for the rarest projects (and essentially Government infrastructure projects).
Section 219 has been inserted to outline the process for the Minister to present a Territory Priority Project declaration and statement to the Legislative Assembly. The Legislative Assembly may either approve or refuse to approve the Territory Priority Project declaration within 2 sitting days.
Environmental Impact Statement (EIS) consultation periods
The public consultation period during which representations may be made on a draft EIS under section 114 has been extended from 20 working days to 30 working days. This will add to greater delays with the assessment of the major development proposals.
Key changes to the ACT’s planning system through the commencement of the Planning Act
Consultation
The Planning Act reflects the ACT Government’s view that a fundamental element of a good planning system is community consultation. This is evident through the principles of good planning in Part 2.2 of the Planning Act that must be considered for any development, and the two stage public notification period for both amended development applications (s 178) and significant developments (s 179). Consultation is outlined as needing to be meaningful, genuinely seeking community feedback that is considered and incorporated into final decisions, is transparent, and provides sufficient time for stakeholders to form views (s 11).
Environmental provisions
Climate resilience and climate change considerations will be significant factors that need to be taken into account for any proposed development. The objects of the Planning Act to be considered include the ACT’s biodiversity and landscape setting, and sustainable and resilient environments designed for a net-zero greenhouse gas future (s 7).
The Planning Act carries over from the P&D Act a similar item in relation to greenhouse emissions and development applications, noting in Item 12 of Part 1.2 in Schedule 1 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.
Penalties
Section 403 of the Planning Act provides for significant penalties where a person or corporation undertakes development without development approval, ranging from 60 to 2,000 penalty units ($9,600 to $320,000) for an individual and 2,500 penalty units ($400,000) for a corporation).
Exempt developments
A separate regulation is being proposed that deals with exempt developments under section 145 of the Planning Act. This is perceived to make it easier to locate and navigate the provisions for exempt developments.
Transition provisions
There are several transition provisions to assist in the transition from the P&D Act to the Planning Act. These provisions will come into effect on a day to be fixed by the Minister by written notice, and at this point the P&D Act will continue to apply to development applications and approvals.
Development applications
For development applications made before the commencement day of the Planning Act that have not been finally decided, the P&D Act will continue to apply.
Development applications may be amended under the P&D Act, however only if the applicant asks for the amendment no later than 6 months after the commencement day of the Planning Act.
Development applications are taken to have been withdrawn if the application was made under any of the following sections of the P&D Act:
(a) section 137AA – Applications in anticipation of territory plan variation (made before the draft plan variation was prepared);
(b) section 137AB – Applications in anticipation of territory plan variation (made after the draft plan variation was prepared); and
(c) section 137AD – Applications for development encroaching on adjoining territory land if development prohibited. If the application was accompanied by a proposed technical amendment under the P&D Act.
Development approvals
For development approvals that were made under the P&D Act, the development approval continues in force until the time when then approval would have ended under the P&D Act.
If an applicant seeks to apply to amend a development approval made before the commencement of the Planning Act, then the P&D Act will continue to apply. However, if the development proposal which was approved under the P&D Act changes and is not covered by the development approval, and 6 months has passed since the commencement of the Planning Act, an application to amend the development approval must be made under the Planning Act.