The foundations of the ACT’s new planning regime the Planning Bill 2022: key changes from the P&D Act and the draft Bill

Background

The Minister for Planning and Land Management presented the Planning Bill 2022 (Planning Bill) in the ACT Legislative Assembly on 21 September 2022. The Planning Bill 2022 is based on the initial draft Planning Bill which was open for public consultation between March and June 2022. A number of changes have been incorporated into the Planning Bill 2022 as a result of the public consultation.

If passed, the Planning Bill will become the ‘Planning Act 2023’ and replace the Planning and Development Act 2007 (ACT) (P&D Act), with an anticipated commencement date of mid to late 2023. It also proposed to replace the existing regulation with two new regulations: the Planning (General) Regulation (General Regulation) and the Planning (Exempt Development) Regulation (Exempt Regulation).

The General Regulation will continue to support the operation of the P&D Act, while the Exempt Regulation introduces some new exemptions to development application (DA) requirements such as allowing murals and minor utility works.

The Planning Bill will set the foundation for a reformed planning system through three key areas:

1. creating a new Planning Act;
2. introducing new District Strategies; and
3. creating a new Territory Plan.

The Planning Bill contains some significant changes from the P&D Act, whilst preserving some existing features and processes which remain effective and fit-for-purpose. The Planning Bill has incorporated a number of changes brought about by the public consultation on the initial draft Planning Bill.

Alongside the Planning Bill, the draft District Strategies and the draft Territory Plan which have been released for public comment are beginning to form some colour around ACT’s new planning system which is set to commence next year. Nonetheless, questions remain as to how this outcome-focused planning system will be practically implemented by the Authority and whether the community will accept less of a rules-based approach to planning in their city.

In this briefing, we summarise the key proposed changes and the material amendments made to the Planning Bill following public consultation.

Summary

If passed, the Planning Bill will bring about changes to the way the ACT planning regime operates, including:

1. introducing new ‘principles of good planning’ and ‘principles of good consultation’ to replace the current mandatory pre-DA requirements;
2. expanding strategic planning provisions, including the introduction of district planning through district strategies;
3. expanding the scope of the planning system to give effect to other government policies such as climate change, wellbeing and environmental policies;
4. renaming the current planning and land authority to the “Territory Planning Authority”;
5. establishing a new Territory Plan and introducing a more efficient Territory Plan amendment process;
6. streamlining the development assessment system, introducing pre-decision advice on DAs and broadening decision-making considerations for DAs;
7. simplifying the Environmental Impact Statement (EIS) process and removing EIS exemptions;
8. introducing processes for ‘Territory Priority Projects’; and
9. splitting the existing regulation into a standalone exempt development regulation and a general regulation.

A New Planning Act

Changes to the Objects of the P&D Act and Introduction of Key Planning Principles

A key change to the object of the Planning Bill is the creation of an outcomes-focussed planning system. Rather than focusing on compliance with prescribed rules, this approach focuses instead on outcomes that can be achieved through the planning system with respect to, for example, housing, the environment, and transport. The claimed benefit of not prescribing how things need to be done in every minute detail is seen as providing developers with flexibility and freedom in how results can be achieved. Two other key changes to the objects of the Planning Bill include promoting and facilitating ecologically sustainable development and providing a scheme for community participation.

The Planning Bill introduces two key planning principles that do not exist under the P&D Act.

The first are ‘principles of good planning’ which, alongside the objects of the Planning Bill, must be considered when developing planning strategies, plans and policies. Some examples of these principles include ‘activation and liveability principles’ and ‘high quality design principles’, each of which are defined under the Planning Bill.

The second are ‘principles of good consultation’ which are to be created by the Minister, and which will guide the various consultation processes in the Planning Bill, such that community views inform decision making. The goal for consultation is that it must be accessible, balanced, inclusive, meaningful, resourced, respectful, timely, transparent and understandable.

The recently published draft Territory Plan is designed to support this new approach to development assessment through structural and policy-based changes. The ACT Government maintains that it has drafted a new Territory Plan that is “outcomes focussed” rather than “compliance focussed”, by:

1. restructuring the Territory Plan components;
2. transforming strict assessment rules and criteria into a set of policy, impact and outcome-based development assessment requirements; and
3. introducing supporting materials, including Design Guides and Technical Specifications through policies within the Territory Plan.

KWM had a first look and summarised the key changes to the Territory Plan in our recent client briefing, which you can find here.

Changes to the Process of Approving Development Applications

The Planning Bill:

1. Overhauls the DA track system and replaces it with a singular pathway of ‘assessable development’. The categories of prohibited and exempt development are retained.
2. Introduces the category of ‘significant development’. These are proposed developments that require a subdivision design application (previously known as an ‘estate development plan’), a referral to the National Capital Design Review Panel, or an environmental impact statement, and will involve an extended time frame for assessment and public notification.
3. Introduces a new stage into the development assessment process known as ‘pre-decision advice’, which will be published online and generate publicity around applications. Under the Planning Bill, the Territory Planning Authority may, before making a decision on a DA, give the applicant pre-decision advice when it considers that the application fails to meet the Territory Plan requirements. This pre-decision advice will be published on its website. The applicant can, thereafter, amend the DA, or proceed with no amendment. The ultimate decision-maker for the DA must consider the pre-decision advice and any response by the applicant to that advice when deciding development applications.
4. Makes changes to the considerations the Territory Planning Authority needs to take into account when considering DAs. This changes the focus to the performance and suitability of a development proposal for the relevant site and its surrounds.

Changes to the Ministerial ‘Call-in’ Power

Under the P&D Act, the Minister may currently direct the Planning and Land Authority to refer a DA (that has not already been decided by the Planning and Land Authority, and which is not a development proposal in the code track) to the Minister for consideration and potential decision. If the Minister elects to decide a DA, there is an extended ability to depart from entity advice, the decision is exempt from third party ACAT review, and judicial review of the Minister’s decision is time limited.

The Planning Bill replaces this power with a new ‘Territory Priority Project’ declaration power. This is one of the chapters of the draft Planning Bill which was materially amended as a result of the public consultation.

This new power allows the Chief Minister and Minister to jointly declare a development proposal to be a Territory Priority Project (Declaration) if the Minister and Chief Minister are satisfied that the proposal:

1. would achieve a major government policy outcome that is of significant benefit to the people of the ACT;
2. would substantially facilitate the achievement of the desired future planning outcomes set out in the planning strategy, a relevant district strategy, the Territory Plan or any relevant zone; or
3. is for significant infrastructure or facilities, that are of significant benefit to the people of the ACT.

In contrast to the Planning Bill, the draft Planning Bill proposed to grant this power to the Minister alone and required that the proposals are for ‘time-crucial developments’ that had ‘sufficient community consultation’. This has been significantly changed following the public consultation.

Before making a Declaration, the Minister:

1. must publish a notice on the Authority website detailing the proposed declaration and invite written comments during the consultation period of at least 15 working days; and
2. must consider any comments received during the consultation period.

As a result of the draft Planning Bill amendments, the Minister may now also seek the advice of the Authority before making a Declaration.

The ministerial Declaration will be a notifiable instrument, and being non-legislative in nature, will not be subject to parliamentary scrutiny or sun-setting (automatic repeal).

A key difference between the current call-in power under the P&D Act and the new declaration power is that the Declaration for a development proposal must be made before the development application for the proposal is lodged (rather than called-in after the development application is lodged).

Following the public consultation amendments, the Planning Bill no longer limits the power of the Minister to make a declaration. Under the draft Planning Bill, the Chief Planner would have been the decision-maker for a DA for a Territory Priority Project. However, in the Planning Bill, once declared, a development proposal must be decided by the Minister.

As before, the decisions will remains exempt from ACAT appeal and judicial review is limited by a time frame to appeal. When deciding whether to approve or refuse a development application for the proposal, the Minister can also depart from the Conservator’s advice in relation to registered trees, declared sites and protected matters in limited circumstances.

Nonetheless, before the Minister decides a development application for a Territory Priority Project, the Territory Planning Authority must advise the Minister whether, in its opinion, the proposal meets the requirements of the Act and the Territory Plan. This reflects the practice that occurs with decisions that are called-in.

Though the post-consultation amendments reduce public transparency somewhat, they will nonetheless provide certainty to the progress and timelines of projects, as the Declarations will not be subject to the delays arising from third-party ACAT review and Supreme Court Appeals.

The proposed power, therefore, recognises that important government projects aimed at delivering public infrastructure and facilities, or private projects of public benefit, may require a degree of prioritisation.

Changes to Leases

Changes to the process of removing concessional leases

A concessional lease is a lease granted by the government for less than the full market value of the lease, allowing the government to provide core community and social facilities to benefit the community.

Under the P&D Act, a concessional status of lease can only be removed by a variation of the lease. Before the Planning and Land Authority can consider the application, the Minister must decide whether it is in the public interest to consider the application. The Planning and Land Authority must not grant a variation of a concessional lease if the Minister decides that considering the application is not in the public interest. In determining this, the Minister must consider matters such as whether approving the application would cause any disadvantage to the community considering other uses of the land, whether the Territory should buy back or otherwise acquire the lease, and whether the Territory wishes to encourage the continued use of the land for an authorised use under the lease by retaining the lease’s concessional status.

The Planning Bill grants the Minister, rather than the Territory Planning Authority, the power to remove the concessional lease. Where a DA relates to a proposal to remove the concessional status of a concessional lease, the Territory Planning Authority must refer the application to the Minister for consideration and decision in accordance with criteria relevant to assessing the public interest. The Minister must not, however, approve the DA without the Executive’s approval. This means that the decision to deconcessionalise remains a political decision.

Changes to land uses for other than the leased purpose, where there is public benefit

Under the existing P&D Act, the use of lease purpose clauses, which regulate land use in the Territory, means that land use is regulated with a degree of inflexibility. A new DA is required if the use is altered from its approved purpose for which it is leased, unless one of the exemptions apply, such as if the Territory wishes to carry out development for emergencies affecting public health or safety, or property (see Planning and Development Regulation 2008).

The Planning Bill, by contrast, allows the Territory Planning Authority to authorise, for as long as reasonably necessary, use of land or a building or structure on that land for a purpose other than that authorised by the lease, if it is satisfied that it is needed urgently for a purpose that will achieve significant public benefit (such as converting a building for use as a testing centre during a pandemic).

Changes to the Review of Decisions

Under the P&D Act, the right of review for a decision on a merit track DA is limited to the decision itself and the applicable rules which were not complied with.

Under the Planning Bill, if an application is made to ACAT for a review of a decision made under the Planning Bill, ACAT has the same powers as the original decision maker, i.e. the Territory Planning Authority. This could potentially open up an ACAT dispute to a wide variety of arguments as ACAT would no longer be required to determine whether a development proposal is subject to a rule or not. This change reflects the way in which the new Territory Plan will work.  ACAT disputes are predicted to increase under the new planning regime.

The Planning Bill also clarifies the scope of reviewable decisions by reducing the items of review – though some decisions reviewable under the existing P&D Act will not be reviewable under the Planning Bill. The Planning Bill also seeks to identify decisions that are exempt from review in the primary legislation itself, rather than the existing approach of making regulations under the P&D Act. This will make it harder to expand in the future the number of areas exempt from third party review. Developments in the city, and town centres in Belconnen, Gungahlin, Tuggeranong, Woden, along with the Kingston Foreshore, Fyshwick and the University of Canberra site, continue to be exempt from review.

Transitioning to the new system

Once the Planning Bill passes, the current planning system, based on the Planning and Development Act 2007 and the Territory Plan 2008, will come to an end.

To ensure a smooth and effective transition to the ACT’s new planning system, the Planning Bill contains a chapter of transitional provisions. This chapter will be effective for 3 years after the commencement of the new act and preserves certain aspects of the current planning system. This will ensure that things that were approved, granted or made under the previous legislation to continue to have legal effect within the parameters of the new legislation. This includes:

1. leases and licences;
2. applications to renew;
3. development approvals;
4. land management plans;
5. environmental significance opinions;
6. design review panels;
7. environmental impact statements; and
8. relevant instruments.

For example, development approvals granted before the commencement of the new Planning Act will continue to have legal effect until the DA’s expiry. Nonetheless, an application to amend the development approval under the repealed act may only be made within 6 months after the commencement of the new Planning Act. Beyond 6 months, the application will be assessed as if the approval was given under the new Act.

Likewise, development applications lodged after the commencement of the new Planning Act will be assessed under the new system (ie the new Territory Plan and new assessment regime), whereas development applications that were lodged prior to the commencement of the new Planning Act will be assessed against the current planning system (ie the current Territory Plan and assessment regime). Still, applicants can withdraw their existing applications and relodge a new application under the new system. So as we lead up to the new system coming into effect, this will require developers to investigate under which planning regime they would prefer to have their DA assessed under.

Furthermore, most investigations, proceedings or remedies in relation to existing rights, privileges or liabilities under the Planning and Development Act 2007 will take place as if the repeal of that act had not happened.

Planning Strategy: Introducing District Strategies

Under the P&D Act, the Executive must make a planning strategy for the ACT that sets out the long-term planning policy and goals to promote Territory developments that align with the social, environmental and economic aspirations of the people of the ACT. The Planning Strategy is not part of the Territory Plan, but may be used to develop the statement of the strategic directions of the Territory Plan. The Planning Strategy must be considered when the Minister and Planning Authority make decisions.

The Planning Bill sets out an additional strategy the Planning Authority and Minister must take into account, which is termed the ‘District Strategy’ (i.e., for Belconnen, Woden, Inner North and City, and Inner South etc). District Strategies are proposed to fill the disconnect between city-wide strategic planning and details and the site-specific Territory Plan, and will include strategies, policies and desired future planning outcomes to guide future district change. Similar to the ACT Planning Strategy, the District Strategy will be administered by the Territory Planning Authority. The idea of precinct and suburb master plans will end.

Following public consultation, further amendments were made regarding District Strategies, including that:

1. the Territory Planning Authority must decide whether to review the district strategies at least once every 5 years; and
2. estate development plans will be titled ‘subdivision design applications’, which include strategic planning elements that will be incorporated into a district strategy through the preparation of a planning and response report, being a detailed planning report prepared for a district or for an area within a district which may also identify proposed amendments to the Territory Plan.

Pre-DA consultation

The Planning Bill proposes to replace the current mandatory pre-DA consultation requirements by the “principles of good consultation”, with early engagement identified as a principle of best practice planning.

Generally, when undertaking any consultation, a person must consider that consultation should be accessible, balanced, inclusive, meaningful, resourced, respectful, timely, transparent and understandable.

The Minister may also make a guideline about the principles of good consultation and how these principles will be implemented. Just how far these guidelines will differ from the current public consultation requirements is not yet known.

A New Territory Plan

The Planning Bill requires a new Territory Plan to give effect to the new outcomes-focussed planning system. It differs in that the new Territory Plan will give effect to the newly proposed ‘principles of good planning’ and ‘district strategies’, as well as giving effect to the planning strategy and relevant outcomes related to planning contained in other government strategies and policies.

On 1 November 2022, the draft Territory Plan was published for public consultation, which will end on 14 February 2023.

The ACT Government claims that it has drafted a new Territory Plan that is “outcomes focussed” rather than “compliance focussed”, by:

1. restructuring the Territory Plan components;
2. transforming strict assessment rules and criteria into a set of policy, impact and outcome-based development assessment requirements; and
3. introducing supporting materials, including Design Guides and Technical Specifications through policies within the Territory Plan.

The formation of a new Territory Planning Authority

To accompany the fundamental shift from a rules-based system to an outcomes-focussed system, the Planning Bill proposes the establishment of a new planning authority. The new Planning Authority has a different name, being called the ‘Territory Planning Authority’ rather than the ‘Planning and Land Authority’.

Similar to the existing Planning and Land Authority, the Territory Planning Authority will maintain its role as an independent decision-maker and will be led by a person appointed by the Executive. In the Planning Bill, this person is called the ‘Chief Planner’ rather than, per the P&D Act, the ‘Chief Planning Executive’. The Territory Planning Authority will still prepare and administer the Territory Plan, but will have an increased role in advising on desired future planning outcomes, and will promote the newly introduced district strategies.

Private Territory Plan Amendments: Proponent-initiated Amendments

Under the Planning Bill, there are two types of amendments that can be made: minor and major amendments.

Minor amendments are the same as ‘technical amendments’ under the existing P&D Act, which are approved by the Territory Planning Authority following public notice and any required consultation.

Major amendments, on the other hand, are those approved by the Minister, and may be initiated through 3 avenues:

1. the Territory Planning Authority initiating its own amendment;
2. the Minister directing the Territory Planning Authority to prepare an amendment; and
3. a proponent applying for the Territory Plan to be amended.

The third avenue of amendment, proponent-initiated amendments, is new. Under the existing P&D Act, there is no statutory process for such amendments, as they occur upon request from the Territory Planning Authority, and consequently lack certainty of process and timing.

Under the Planning Bill, a proponent seeking amendments to the Territory Plan will apply to the Territory Planning Authority. If the proposed amendment is accepted, the application and associated information will, amongst other things, be provided to the Minister for consideration. However, accepting an application does not compel the Territory Planning Authority to implement the proposed amendment.

As a result of the public consultation process for the draft Planning Bill, the following amendments were made to the Territory Plan provisions of the bill:

1. the initial review period for proponent-initiated territory plan amendments by the planning authority has been reduced from 60 to 30 days;
2. the Minister ‘must’ refer the draft plan amendments to the relevant Assembly committee which has 10 working days to advise the Minister whether it will prepare a report on the draft amendment;
3. the Minister may consult with community on the need to review Territory Plan; and
4. a process has been introduced for an interim Territory Plan to be approved by the Legislative Assembly, while the draft Territory Plan is referred to the Legislative Assembly Standing Committee for a potential inquiry.

Conclusion

The Planning Bill contains some significant changes from the P&D Act, whilst preserving some existing features and processes which remain effective and fit-for-purpose. The Planning Bill has incorporated a number of changes brought about by the public consultation on the initial draft Planning Bill.

Alongside the Planning Bill, the draft District Strategies and the draft Territory Plan are beginning to form some colour around ACT’s new planning system which is set to commence next year. Nonetheless, questions remain as to how this outcome-focused planning system will be practically implemented by the Authority and whether the community will accept less of a rules-based approach to planning in their city.