These changes are being touted by the ACT government as a continuation of its recently announced property sector stimulus package but it also has the added benefit to the government of streamlining the approval process for ACT government flagship projects including the secure mental health facility and the Capital Metro Project. These changes aim to reduce delays caused when variations to the Territory Plan are required or 3rd party appeals are made or for impact track development, applications requiring an Environmental Impact Statement (EIS).
In summary the changes:
- allow for the creation of special precinct areas for priority developments;
- provide for the special treatment of key projects including the removal of 3rd party review rights to the ACT Civil and Administrative Tribunal (ACAT) and (controversially) to the Supreme Court for review under the Administrative Decisions Judicial Review Act (ADJRAct);
- introduces a new class of amendment the ACT Planning and Land Authority (ACTPLA) may prepare to the Territory Plan;
- allow developers to rely on draft Territory Plan variations when submitting DAs; and
- allow for a DA and EIS to be lodged and assessed concurrently.
Special precinct areas for priority development
Under the Bill, the Territory Executive will have the power to vary the Territory Plan to create new 'special precinct areas' for priority development if it gives effect to the objects of the Territory Plan, is consistent with the planning strategy, achieves a substantial public benefit and one of the following objectives:
- implementation or progress toward implementing the planning strategy or elements of the planning strategy;
- progress towards sustainable development of the Territory;
- economic, social cultural or environmental progress for the Territory.
The Minister for Planning may direct ACTPLA to prepare draft variations to create a special precinct area. These special precinct variations are subject to a separate consultation process (inviting comments from the National Capital Authority (NCA), select referral agencies if impacted – see below for further detail, and the public).
Following expiry of the consultation process and receipt of comments from relevant authorities including from the Minister for Planning, the Executive will be able to effect the variation unless the Legislative Assembly explicitly rejects the variation within a set period of time (through the disallowable instrument process). The Executive may also make revisions to the draft variation that are inconsistent with the advice of ACTPLA and the Minister if it considers appropriate to do so. Furthermore, the variations to the Territory Plan will take effect on the day that the special precinct area variation commences.
Importantly, the variation to create a special precinct area, has the effect of preventing third parties from seeking ACAT merits review of development applications in special precinct areas and enables the Executive to make decisions with respect to these special precinct areas that it would not otherwise be able to make.
Somewhat controversially, the Executive will be able to declare that the Heritage Act 2004 and/or the Tree Protection Act 2005 have a restricted operation in a special precinct area (restricted declaration) so long as the Conservator of flora and fauna and the Heritage Council (as impacted) has had the opportunity to comment in the consultation phase on the draft variation. This can preclude the Conservator of flora and fauna from registering significant trees in the special precinct area or the Heritage Council from registering properties on the heritage protection list for the duration of the restriction. Also, ACTPLA will be able to effect variations to special precinct areas (such as rezoning, or varying precinct codes or development tables) so long as a special, limited consultation process has been complied with.
The Bill also flags that the first special precinct area will be for the proposed Symonston mental health facility and should the Executive approve this precinct area the variation will not be subject to a disallowance motion by the Legislative Assembly.
In combination with a declaration of a special precinct area or separately, the Executive will be able to declare selected development proposals as 'projects of major significance' so long as the Executive considers the development proposal will achieve a substantial public benefit and is of major economic, social, cultural or environmental significance to the Territory. A separate proposal to declare a project as a 'project of major significance' is subject to public consultation and NCA comment, but a declaration will come into effect unless it is explicitly rejected by the Legislative Assembly within several days of being presented.
Development applications for projects of major significance will be decided by the Minister and the Minister’s decision is exempted from merits based review processes (including third party review by ACAT and Supreme Court review under the ADJR Act).