A new bill has been introduced into the ACT Parliament,
the ninth bill since 2011, to ensure that the ACT planning,
building and environment legislation is up-to-date and consistent
with technological and societal change.
The Planning, Building and Environment Legislation Amendment
Bill 2015 (No 2) was presented to the ACT Parliament on 19 November
2015 to provide policy, technical and editorial amendments to key
pieces of planning, building and environment legislation.
In this article we briefly examine two of the key amendments
proposed to the Planning and Development Act 2007. If passed the
Bill will also make some minor policy and editorial amendments to
the Building (General) Regulation 2008, Nature Conservation Act
2014 and the Environment Protection Act 1997 and its
Planning and Development Act - policy amendment
Currently, under the Planning and Development Act a development
application that is for an impact track development
proposal will require the preparation and submission of an
Environmental Impact Statement (EIS) unless there is an EIS
exemption in place. However, this means that key documents that
relate to an EIS exemption, such as the revised exemption
application, the recent study on which the exemption is based upon
and the EIS exemption itself, are not considered in the assessment
of the development application.
These documents are significant for the assessment of a
development application as they are relevant to the impact track
development assessment process and are important for the
consideration of environmental impacts. In particular, inclusion of
these documents will provide a mechanism to ensure that there is an
assessment of avoidance, mitigation and offsets measures as well as
consideration of appropriateness in relation to "protected
matters" (ie. a matter protected under the Environment
Protection and Biodiversity Conservation Act 1999 (Cth)
1) and other Schedule 4 items (such as significant
adverse impacts on endangered or threatened species or a heritage
place or object).
Therefore, amendment is proposed to include the EIS exemption,
the recent study and the revised EIS exemption application as
additional matters which the decision-maker must consider when
deciding an application for development approval.
Planning and Development Act ? technical amendment
Technical amendment is also proposed to make it clear that the
planning and land authority is bound to comply with the advice of
the Conservator in relation to a protected matter only. Currently,
the Planning and Development Act provides that:
the planning and land authority is required to refer certain
development applications to the Conservator for advice if satisfied
the development application is likely to have a significant adverse
environmental impact on a protected matter;
the advice of the Conservator must include an assessment of
whether the proposed development is likely to have a significant
adverse environmental impact on a protected matter and if so,
advice about suitable offsets;
the Conservator may also provide advice in relation to the
development application that is not related to the protected
development approval must not be given for a development
application for a development proposal in the impact track unless
consistent with the advice is given by the conservator.
It is because of the Conservator's ability to provide advice
that is not related to the protected matter that amendment is
required to confirm that it is only the advice regarding a
protected matter which the planning and land authority is bound by
when making a decision on whether to give a development approval.
Advice of the Conservator that is not related to a protected matter
must still be taken into account along with advice from any other
referral agency but it is not binding.
If the Bill is passed it will commence on the day after its
If you would like any further information or would like to
discuss the implications of the amendments please do not hesitate
to contact us.
1A "protected matter" under the
Environment Protection and Biodiversity Conservation Act are
referred to as matters of national environmental significance
(MNES) which includes world heritage properties, national heritage
places, wetlands of international importance (listed under the
Ramsar Convention), listed threatened species and ecological
communities, migratory species protected under international
agreements, Commonwealth marine areas, the Great Barrier Reef
Marine Park, nuclear actions and a water resource in relation to
coal seam gas development and large coal mining
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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