Australia: New streamlined planning and environmental processes in the ACT

Key Points:

The Planning and Development (Efficiencies) Amendment Bill will allow a proponent to select a concurrent approval process for certain planning and environmental processes.

On 7 April 2016, the ACT Legislative Assembly unanimously supported the Planning and Development (Efficiencies) Amendment Bill 2016 which was presented by the Minister for Planning and Land Management, Mr Mick Gentleman, on 10 March 2016, to allow certain planning and environmental processes to occur concurrently.

Purpose of amendments

Upon commencement, amendments will be made to the Planning and Development Act 2007 to improve the efficiency, timeframes and red tape, of three key planning processes:

  • Territory Plan 2008 variations;
  • environmental assessment; and
  • development application assessment

by allowing a proponent to elect to bring together these planning processes into a streamlined concurrent process.

The Explanatory Statement for the Bill provides that the amendments will:
  • consolidate common administrative processes to reduce red tape and improve efficiency; and
  • consolidate notification requirements of a number of processes as a single notification which will give the community a holistic package of planning information to consider and comment on.

A development application will be the starting point for the new concurrent process provisions where there is a proposed Territory Plan variation or a requirement for an environmental impact statement (EIS).

Concurrent process - development application and Territory Plan variation

A variation of the Territory Plan (other than a special variation or technical amendment) begins when the Planning and Land Authority (Authority) prepares a draft plan variation:

  • on its own initiative; or
  • in accordance with a direction from the Minister.

Currently, where a development proposal requires a variation to the Territory Plan, a development application cannot be lodged for assessment until that variation is made.

What the new legislation proposes is a development application could be lodged in anticipation of a Territory Plan variation, and that application assessed concurrently with the draft Territory Plan variation itself. The Authority will assess the development application against the draft Territory Plan variation rather than the existing Territory Plan. Where the draft Territory Plan variation is not approved, the development application will also be refused.

Concurrent process - development applications and EIS

A development application in the impact track triggers the requirement of an EIS. Currently, a development application in these circumstances cannot be lodged for assessment until the EIS has been completed or an EIS exemption is in force.

The amendments provide for a concurrent process which allows a development application in this scenario to also be lodged for assessment where it is accompanied by:

  • a draft EIS; or
  • an application for an EIS exemption.

Therefore, the proponent will be able to complete the EIS or have the EIS exemption assessed at the same time as the assessment of the development application.

Assessment timeframes

Amendments will also be made to the public notification timeframes where the concurrent process is selected, with the timeframes for the remaining stages of assessment remaining the same.

Currently, the following consultation periods apply:

  • A proposed Territory Plan variation - not less than 30 working days.
  • Merit track development application - 10 working days (minor public notification) or 15 working days (major public notification).
  • Impact track development application - 15 working days.
  • EIS exemption application - not less than 15 working days.
  • Draft EIS - not less than 20 working days.

Under the new timeframes, if the proponent elects to proceed with the concurrent process, a combined consultation period of not less than 35 working days will apply. While this period is longer than the periods currently stipulated for individual processes, it is one single consultation period and it is likely to result in shorter timeframes for an approval compared to two separate consultation periods which are likely to occur months apart.

When deciding whether to elect to proceed under the concurrent process, proponents will need to consider the risk of a Territory Plan variation not being approved and the costs associated with preparing the plans and reports accompanying the development application versus the reduced timeframe for getting an approval if they are lodged together.

Amendments will also be made which will allow the Authority to specify in the scoping document for the EIS the time in which a draft EIS must be provided. A scoping document must be requested where the requirement for an EIS is triggered and it sets out what must be addressed in the EIS. Under the current provisions, a scoping document expires after 18 months after the day it is notified. Under the amending provisions, a draft EIS must be given to the Authority by the end of:

  • the period of 18 months starting on the day the Authority gives the scoping document for the development proposal to the applicant; or
  • if the scoping document states that a shorter period applies - the shorter period.

Technical amendments to the Territory Plan

A new process to allow for technical amendments of the Territory Plan to be made will now apply. Technical amendments will be able to be made in the following circumstances with no need for consultation:

  • a variation (error variation) that:
    • would not adversely affect anyone's rights if approved; and
    • has as its only object the correction of a formal error in the plan;
  • a variation to change the boundary of a zone or overlay;
  • a variation, in relation to an estate development plan, other than where it incorporates an ongoing provision that was not included in the plan (see limited consultation list below);
  • a variation required to bring the Territory Plan into line with the national capital plan; and
  • a variation to omit something that is obsolete or redundant in the Territory Plan (for example, a structure plan that is no longer relevant because all the land that the structure plan applies to ceases to be in a future urban area or a provision of the Territory Plan that has become redundant because the enactment of a law that applies in the Territory).

Technical amendments will also be able to be made in the following circumstances with only limited consultation needed:

  • a variation (a code variation) that:
    • would only change a code; and
    • is consistent with the policy purpose and policy framework of the code; and
    • is not an error variation;
  • a variation to change the boundary of a zone for development encroaching on adjoining territory land;
  • a variation in relation to a future urban area. A variation to rezone land that is not in a future urban area is not a technical amendment.
  • a variation in relation to an estate development plan if it incorporates an ongoing provision that was not included in the plan;
  • a variation to clarify the language in the Territory Plan if it does not change the substance of the plan; and
  • a variation to relocate a provision within the Territory Plan if the substance of the provision is not changed (for example relocating an area-specific policy from a development code to a precinct code.

Commencement of the new ACT planning laws

Now that the Bill has been passed by the Legislative Assembly, it will commence on the day after its notification.

If you would like any further information or would like to understand the full implications of the new provisions for your organisation, please contact us.

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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. Persons listed may not be admitted in all states and territories.

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