Fact
Sheet 3
The Law Applying to Development
This
Fact Sheet gives an overview of the law applying to approval of
development in the ACT, particularly under Part 6 of the Land
(Planning and Environment) Act 1991, administered
by ACTPLA and the Planning Minister.
Note:
Far Reaching Changes to the Legislation (including reduction
in public rights to appeal against development proposals) have
been proposed in the form of the Planning and Development
Bill 2006 now released as an exposure draft on the Legislation
Register website.
Index
Distinguishing
ACT and Commonwealth planning controls
When is Development Approval Needed?
Lease variation
Exempt work
Building Approval
Development in Nature Reserves
What are Designated areas ?
Does development in designated areas require approval
from both the NCA and ACTPLA?
Rural Development
The Register of Development Applications
Who Must Be Notified of a Development
Application?
Who Can Object to a Development Application?
How Should an Objection be Made?
What Happens to Objections?
Who Determines a Development Application?
Ministerial Call-in Powers
Who
is Notified of Decisions about Development?
Reconsideration of Decisions about Development
Appealing Decisions about Development
Applying for an Order to Enforce the Act
Who Can Apply
for Review of a Decision about an Order?
What Happens if an Order is Breached?
Contacts
Further
Information & Disclaimer
Distinguishing ACT and Commonwealth planning controls
There are two
different development approval systems operating in the ACT. One
is managed by the National
Capital Authority (NCA), a Commonwealth agency, and the other
by the ACT Planning and
Land Authority (ACTPLA), a Territory authority.
The primary
Commonwealth legislation which deals with planning and works approval
for land managed by the NCA is Australian
Capital Territory (Planning and Land Management) Act 1988 (Cth).
The principal
Territory legislation dealing with planning, development approvals
and leasing matters is the Land
(Planning and Environment) Act 1991, administered by ACTPLA.
This Fact Sheet
only deals with ACT laws controlling development. Fact Sheet 2 explains
NCA approvals.
When is Development Approval Needed?
Development
approval from ACTPLA is required for many forms of development unless
the land has been identified as being within national land or a
“designated area” under the National Capital Plan (see
Fact Sheet 2).
A Development
Application (DA) must be made in order to lawfully undertake activities
in relation to land which are defined as “development (s.222),
including:
• the erection, alteration or demolition of a building or
structure on the land;
• the carrying out of earthworks or other construction work
on land;
• The use of land for a business not expressly authorised
by a current lease (eg. home businesses);
• a variation of the Crown Lease of the land;
• the use or change of use of a building or works on land;
• subdivision, changes to a boundary (including encroachments
over a lease boundary) or the consolidation of separate blocks;
• work that would affect the landscape of the land where the
land is not leased for residential purposes or is registered, or
nominated for provisional registration under the Heritage Act 2004.
• the displaying of a sign or advertising material on land
structure or building;
• the use of unleased Territory Land that is not authorised
by a current licence or permit; and
• applications for single residential dwellings and associated
minor structures.
It is an offence
to commence undertake development without approval, or in breach
of the terms of an approval.(s.225)
Demolition
falls within the definition of development and requires approval.
Photo: JP
Lease variation
It may also
be necessary to apply to have the Crown Lease varied to authorise
new land uses on a particular site, where the lease does not expressly
authorise that land use. This involves a change to the lease purpose
clause to enable a wider range of purposes or a different land use
purpose. Other lease
variations may be required to facilitate development such as
altering clauses concerning development rights and obligations,
eg. to extend the allowable gross floor area to accommodate future
growth, or to add land to a lease or consolidate two blocks as one
leasehold.
Exempt
work
A
DA is not required for everything, such as minor residential structures
(e.g. sheds and carports). The full list of available exemptions
is listed in the Land (Planning and Environment) Regulations 1992
(Division 4.3). Apart from absolute exemptions (Schedule 1), there
are also exemptions from notification requirements (Schedule 4,
5), and exemptions from appeal provisions of the Act (all developments
listed in Schedule 6). In addition, numerous types of developments
are exempt from appeal by objectors and third parties (Schedule
7).
Development
and building exemption does not remove the need to obtain other
kinds of approval for parts of the work such as works under or within
2 metres of a significant tree canopy that is protected under Tree
Protection legislation (see Fact Sheet 8). Further, the exemptions
for certain types of developments are limited, as they do not apply
to works that are inconsistent with a listing on the heritage places
register or interim heritage places register, or works inconsistent
with a condition of development approval, a provision of a Crown
lease, or an agreement collateral to the grant of a lease.
Although
DAs are generally not required for minor residential structures
such as sheds and carports, building applications (BAs) are often
required (see Building Approval, below). Forms for DAs and BAs are
available from ACTPLA.
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Building Approval
Building Approvals
are required under the
Building Act 2004.
A building approval
is an approval of the method and quality of workmanship of the physical
construction of a building or structure rather than of its design
and siting. Approval for building work must be sought from a private
certifier (i.e. a registered construction practitioner). The ACT
Government no longer provides building approvals. Building approval
is not required for some minor works. At certain stages during the
building process builders are required to notify the appointed private
certifier that it is time for an inspection. Guided by the Act,
the private certifier decides what and when to inspect during the
building process.
This
legislation also affects the generation and disposal of waste in
building. The Act defines building work to include demolition of
a building, and includes disposal of waste materials generated (s.6).
If an application involves the demolition of a building a waste
management plan must be lodged with the building approval application
(s.26(2)). In order for the plan to be declared adequate, it must
mention a recycling facility for the reuse or recycling of waste
and it must state that the material will be disposed of, if practicable,
at the facility (s.29(4)).
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Development
in Nature Reserves
Areas such as
Canberra Nature Parks (including Black Mt, Mt. Ainslie. Mt Taylor)
are classified as Nature Reserves under the Land Act (s.193) and
must be managed in accordance with management principles for public
land which are set out in Schedule 1 of the Land Act (Fact
Sheet 5).
When is development
in nature reserves exempt?
• Tree and shrub planting or removal on unleased territory
land by or on behalf of the Territory. (Regulations, Schedule 2)
• Development carried out by or on behalf of the Territory
in an emergency to protect the health or safety of the public, or
for the protection of public property. (Regs. Sch. 1)
In
order to facilitate building of the Gunghalin Drive Extension (‘GDE’)
freeway, the ACT Legislative Assembly enacted special provisions
in the Gungahlin
Drive Extension Authorisation Act 2004 so that the Minister
could declare that an area reserved under the Land Act and Nature
Conservation Act was no longer a nature reserve, for the duration
of that declaration (s.6A). The Land
Act Regulations were also amended (reg. 40(5)) so that development
approval requirements do not apply to the construction, alteration
or demolition of a public road in a designated area and any related
works; or any other development in a designated area that requires
Commonwealth approval.
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What are Designated
areas ?
The National
Capital Authority (NCA) has administrative responsibility for control
of development on ‘designated areas’ of land identified
as such in the National Capital Plan (NCP), being “areas of
land that have the special characteristics of the National Capital”.
For example, the area of bushland known as the Inner Hills is a
designated area under the National Capital Plan. These areas are
simultaneously reserved under ACT legislation as Nature Reserves.
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Does development in designated areas require approval from both
the NCA and ACTPLA?
This question arose in the Supreme Court in Save the Ridge Incorporated
v Australian Capital Territory [2004] ACTSC 13 (31 March 2004).
The case concerned proposed construction of the Gunghalin Drive
Extension (‘GDE’) freeway through parts of Kaleen grasslands,
O’Connor Ridge, Bruce Ridge and Black Mountain. Some of this
land was in designated areas under the National Capital Plan. The
question was whether approval by the National Capital Authority
excluded the need for any approval under Territory legislation.
The court also considered whether a regulation under the Land Act
(1991) (ACT) effectively exempted land in designated areas from
need for approval under the Land Act. Justice Crispin noted that
“the works on the designated areas clearly form an integral
part of an overall project involving the construction of an arterial
road covering the whole of the relevant distance between the Barton
Highway and the Glenloch Interchange and it is, in my opinion, inescapable
that the developments in the designated areas are associated with
those proposed for the non designated areas. Accordingly, the development
in the designated areas is not exempted from the application of
Pt 6 of the Act…”
However
recent amendments of the Land Act and Regulations have since altered
the law. The legislation now states that Territory development approval
requirements do not apply to the development in a designated area
that requires approval from the NCA under Commonwealth legislation,
the Planning and Land Management Act 1988 (see Fact Sheet 2).
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Rural Development
The Land Act
prevents development applications for the consolidation or subdivision
of rural leases (s.226(3)). It also sets out restrictions on rural
leases (in Division 5.4), particularly a requirement to enter into
a land management agreement with ACTPLA to obtain the grant of a
lease or to have a lease varied or assigned or transferred (s.186C).
Some rural development
works (eg. construction and earthworks) are exempt from requirements
for approval, but only if the development is a minor development;
and is reasonably connected with rural purposes and the work does
not require other water and environmental approvals under ACT and
Commonwealth law. The exemption is not available if works will result
in substantial clearing of 0.5ha or more of native vegetation.(Schedule
1, Item 3).
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The Register
of Development Applications
Once a development application has been accepted for consideration
by ACTPLA it will be placed on the
Application Register on the ACTPLA website and at the ACTPLA
Shopfront (the Applications Secretariat) , where it is available
for inspection by members of the public (s.227). The Register contains
details of lessee names, the block identifier, description of the
development and associated plans.
Importantly
also the Register must contain other information such as notices
given to the Heritage Council by ACTPLA, advices given by the Heritage
Council, copies of approvals, orders made, as well as comments of
the Planning and Land Council in relation to developments subject
to the Ministerial Call-in process (see below).
There
is no fee to inspect the Register, but fees apply to copy parts
of the Register. There is provision in the Land Act for the exclusion
of sensitive information from public inspection, although a decision
to do this is subject to appeal to the ACT Administrative Appeals
Tribunal (AAT).
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Who Must Be
Notified of a Development Application?
The following
types of proposals require Public Notification:
• changes in the terms of a lease, e.g. dual occupancies,
lease purpose variation;
• some building work proposals affecting design and siting,
such as siting a building closer to the property boundary than allowed
in the Territory Plan; and
• activities that affect a property listed in the Heritage
Places Register or Interim Heritage Places Register.
Generally, neighbours
must be notified of a DA if it will affect them. Neighbour notification
usually occurs by way of letter from ACTPLA. Neighbours usually
have 10 business days to lodge objections, if this is the only notification
required.
However, there
are some exceptions to neighbour notification, so it is best to
check the Register of Applications if there are grounds to believe
that a DA has already been lodged. The types of Applications not
requiring public notification are listed in Schedule 4, Land Regulations.
Sometimes, developers
will consult neighbours about their views prior to lodging a DA,
particularly if it may be contentious. Objections expressed to developers
verbally or in writing must be formally notified to ACTPLA, otherwise
the objections may not be taken into account. Worse, the objector
may lose review rights in the Administrative Appeals Tribunal.
Notification
by posting a sign on the land and by notice in the Canberra Times
may also be required, generally for developments other than single
residential dwellings. Once again, exceptions apply, so it is wise
to check the Register if there are any grounds to believe that a
DA has been lodged. People with concerns usually have 15 business
days from publication of the newspaper notice to lodge objections
with ACTPLA.
In certain circumstances,
notice must also be given to:
• The Heritage Council - if the DA relates to a place or object
registered or provisionally registered under the Heritage Act 2004
(see Fact Sheet 6);
• The Conservator of Flora and Fauna - if the DA relates to
public land (see Fact Sheet 5) or if the application involves, or
is likely to involve, damage to a significant tree under Tree Protection
law (see Fact Sheet 8);
• The Environment Protection Authority - if the DA relates
to an activity scheduled by the Environment Protection Act 1997
or likely to cause serious or material environmental harm (see Fact
Sheet 10).
These bodies
are invited to comment and their comments must be considered in
the decision regarding the DA. A specialist unit within ACTPLA also
examines DAs to see if Environment Impact Assessment is required
(see Fact Sheet 4).
Where
an important development has been “called-in” by the
Planning Minister, the Planning and Land Council is notified and
asked to provide comments (see below).
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Who Can Object to a Development Application?
Any
person or group, whose interests may be affected, can object. Interests
may be affected directly, eg by a development significantly overshadowing
a person’s dwelling or interests may be affected less directly,
eg by the development changing the character of an area in which
a person’s dwelling is located. The less direct the effect,
the more difficult it can be to establish that a person’s
interests are affected. However, groups may be able to establish
that their interests are affected if their objects include relevant
interests, such as the preservation of the character of an area.
This issue may arise in AAT review proceedings, as the right to
apply for a review is partly linked to the right to object. If in
doubt, it is better to lodge an objection than not to, as, even
if it is ultimately found to be insufficient to found an application
in the AAT, it should be taken into account by the decision-maker,
either as an objection, or just as a submission.
[Top]
How Should an Objection be Made?
An objection
must be in writing and set out the grounds for objection. The Territory
Plan (see Fact Sheet 2) sets out land use policies
and requirements, which are relevant to whether particular DAs are
an appropriate development for their proposed location. For example,
developments in areas (i.e. zoned) with particular land use policies
(eg. Rural or River Corridor or Hills, Ridges and Buffer Areas)
will each be subject to particular requirements and considerations
specific to those zonings.
Appendix I to
the Territory
Plan also sets out general matters taken into account in determining
DAs and provides a good guide to the types of matters which may
found objections. Appendix III sets out design and siting codes
for residential developments, which are relevant to objections in
residential areas.
LINK
Time limits
for lodging objections depend on the type of notification required.
For neighbour notification only, it is 10 business days from the
latest letter. For full notification, it is 15 business days from
the notice in the newspaper. If no notification is required, it
is the day before the application is determined.
What Happens
to Objections?
Objections are
referred to applicants and to the decision-maker. Objections are
also available for public inspection. An objector can request that
their identity not be disclosed and the Minister may approve this.
Who Determines a Development Application?
ACTPLA is the
decision maker in relation to most DA’s, except for developments
subject to the Ministerial call-in process (s.229B)).
Matters that
must be considered by the decision maker - ACTPLA or the Planning
Minister - in determining (i.e. making a decision about) a DA include:
• the comments of the Conservator of Flora and Fauna, or the
Environment Protection Authority if the DA was referred to them
for comment;
• each objection or submission received by ACTPLA;
• the content of a preliminary assessment or a report about
the environmental impact of proposed development;
• an Environmental Impact Statement or Public Environment
Report if these were made, or the report of any inquiry conducted,
in relation to the proposed development;
• advice of the heritage council about effect of development
on heritage significance
• the comments of the planning and land council where the
DA was “called-in” by the Planning Minister.
In addition,
a development application that is inconsistent with the Territory
Plan cannot be approved by a ACTPLA or the Planning Minister (Land
Act, s.8).
Other matters
that ACTPLA states it considers include the following:
• the
merits of the proposed use of the land;
• impacts on the site and on surrounding people and land;
• parking and access;
• design and siting (setbacks, shading, etc.);
• environmental and heritage issues;
• compliance with existing leases;
• potential for unit titling;
• any other on-site or off-site impacts (e.g. employment,
transport, or on social services and facilities).
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Ministerial Call-in Powers
Most development applications are determined by ACTPLA. However,
the Planning Minister has the power to 'call in' an application
if he or she thinks it raises a major policy issue, if the development
would have a substantial effect on the achievement or development
of the objectives of the Territory Plan, or if the approval or refusal
of an application would provide a substantial public benefit (s.229A).
If the Minister
'calls in' a development application he or she must tell ACTPLA
about the decision. That advice must be notified in the
Legislation
Register within a period of 3 weeks. The Minister is also required
to take into account the comments of ACTPLA and the Planning and
Land Council in making his or her decision. The Minister is required,
within three sitting days of determining an application, to table
a statement in the Legislative Assembly giving details of the application
and the minister's decision. This means that the Assembly can be
advised after the decision has already been made.
Whether
the decision-maker is ACTPLA or the Minister, the DA will be determined
as approved, (conditionally or unconditionally), or refused.
[Top]
Who is Notified of Decisions about Development?
Apart
from the applicant, neighbours and objectors are notified of approvals
where it is possible to seek review of them in the Administrative
Appeals Tribunal. The notice must specify how to make an application
for review. Some decisions may also be notified in the Canberra
Times. The applicant, neighbours and objectors are also notified
of refusals.
[Top]
Reconsideration of Decisions about Developments
Any person
whose development application is refused or approved subject to
unwelcome conditions is entitled to apply to ACTPLA for reconsideration
of the decision. Some exceptions apply, eg if the DA has been “called
in” by the Minister.
This
right to reconsideration applies in addition to rights to apply
to the ACT Administrative Appeals Tribunal (AAT) for review of the
decision. Anyone pursuing this option has 28 days from the date
of the decision to apply for reconsideration. The reconsideration
will be carried out by a person within ACTPLA who was not the original
decision-maker. Neighbours, objectors and other interested persons
can apply to be heard at such a review.
[Top]
How Can I Appeal
a Decision about a Development ?
As
well as reconsideration by ACTPLA, it is often possible to appeal
against many decisions to the Administrative Appeals Tribunal (see
further: Fact Sheet 10).
Appeals are generally available in two situations:
• to objectors to an application whose interests are affected
by the decision; or
• to an applicant who is dissatisfied with a decision that
refuses an application or approves it subject to conditions.
It
is necessary to have already made an objection (ie be "an objector")
in order to be entitled to appeal to the AAT (s.276(2)).
Objections must be made in writing, and can be made by "any
person whose interests may be affected by the approval of an application"
for development approval. (see s.237)
If an objection was not made, it will be necessary to satisfy the
AAT that there was a good reason for not objecting at the time,
ie that the person "had reasonable grounds for not objecting
within the prescribed period" (s.276(2)(b).
A person
whose interests are affected by decisions such as a decision to
grant a development approval may apply to the AAT for review of
the decision.(s.275(1)) Appeal rights only lie in relation to decisions
listed in Schedule
4 of the Act (see schedule 4, part 4.1, column 4).
The proposed
Planning and Development Bill 2006 (presently released as an
Exposure Draft) represents a signficant shift in these appeal rights;
with appellants being required to show that they meet a test of
"material detriment" (see: s.374).
The
Land and Planning Division of the AAT hears applications for review
of decisions made under the Land (Planning and Environment)
Act 1991 and the Tree Protection Act 2005. See Fact
Sheet on Tree Protection and s.107
of the Tree Protection Act.
Neighbours and
other interested persons or groups can often - but not always -
apply for review of development approvals. Forms of application
for review of a decision (“an appeal”) are available
from AAT Registry and from www.courts.act.gov.au
Click here For
a copy of the Form
: Application for Review of a Decision (AAT)
Applications
by community groups are required to be accompanied within seven
days of filing by a statement of the objects and purposes of the
association, in order to comply with a Practice
Direction of the Tribunal.
A fee
of $159.00 (subject to change) is payable on lodging the application.
If you did not
object within time to a development that was notified, you may not
be able to seek review in the AAT of a subsequent decision to approve
that development. However, you may still be able to apply for a
review of the decision if you can demonstrate to the AAT that you
were unable to object at the appropriate time.
Some
important exceptions apply, notably in relation to single residential
dwellings and a range of developments which comply with certain
performance measures.
It is also not possible to appeal if the development application
has been ‘called-in’ by the Minister under s.229B.
It is crucial to get advice about exemptions and also the ‘standing’
of objectors to bring an application as these issues often affect
whether the AAT is willing to review the decision.
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Applying for an Order to Enforce the Act
It is possible
to obtain orders against persons carrying on development without
approval or carrying on a range of other activities such (s.257(3),
and Schedule Five) as:
• Development
in breach of approval terms and conditions
• Demolition of a building or structure without approval
• Unapproved work affecting a heritage place (see Fact Sheet
5)
• Failure to keep a leasehold clean
• Causing soil erosion
• managing land in a way that fails to control propagation
of pest animal/ plant
• carrying out an activity that involves destroying, removing
or interfering with vegetation or interfering with soil in a watercourse
or 20 metres of its banks or on steeply sloped land.
Any person can
apply to ACTPLA for an order against the lessee of the relevant
land or the person conducting the activity.
Applications
for orders must set out the grounds upon which the order is sought.
A standard application
form is available from ACTPLA. A nominal lodgement
fee applies. The application is processed by ACTPLA. The person
against whom the order is sought is notified and invited to respond
to the application. ACTPLA considers the application and the response
and makes or refuses the order sought.
Who Can Apply for Review of a Decision about an Order?
The applicant
or the person against whom an order is issued or "a person
whose interests are affected" can apply to the AAT for review
of an order or a refusal to make an order (s.277(1)(b)). Reviews
are conducted by the AAT, whose functions and procedures are discussed
in Fact Sheet 9.
ACTPLA has 21
days within which to make a decision on an application for an order.
If it does not make an order within 21 days then the application
is deemed to have been refused and you may apply to the AAT for
review of the decision.
What Happens if an Order is Breached?
If an order
is not complied with then there are three possible remedies. Firstly,
ACTPLA may prosecute the person not complying with the order, except
that Territory authorities are not liable to prosecution under this
section (s.258). The maximum fine for non-compliance with an order
is $10,000.
Secondly, ACTPLA
or anyone else may apply to the Supreme Court for an injunction
restraining any activity in breach of an order (s.260C(2)). If the
defendant then breaches an injunction that has been granted, they
may be in contempt of court.
Thirdly, inspectors
authorised by ACTPLA may enter the land upon which the order is
being breached and take action to remedy the breach.
Contacts
ACT Planning and Land Authority (ACTPLA)
Applications Secretariat
Dame Pattie Menzies House
16 Challis St
Dickson ACT 2602
(02) 6207 1687
www.actpla.act.gov.au
ACT
Heritage Unit (Environment ACT)
(02) 6207 9777
email: heritage@act.gov.au
A recent Heritage Places List is available at http://www.environment.act.gov.au/heritage/registrationsforheritageplacesandobjects.html
To confirm current status of a place & enquiries re Heritage
Places Register: ph 6207 2164
Enquiries re development affecting Heritage Places: ph (02) 6207
2208 or (02) 6207 2161
Enquiries relating to Aboriginal Heritage Places: ph (02) 6207 7946
ACT
Administrative Appeals Tribunal
4 Knowles Place
CANBERRA ACT 2602
By Post: GPO Box 370 CANBERRA CITY ACT 2601
Ph: (02) 6217 4261 or (02) 6217 4279
Fax: (02) 6217 4505
Email: magistrates.court@act.gov.au
http://www.courts.act.gov.au/magistrates/index.html
ACT
Ombudsman
GPO Box 442
Canberra ACT 2601
Ph: 1300 362 072, 6276 0111
Email: ombudsman@ombudsman.gov.au
Website: http://act.ombudsman.gov.au
Further Information and Disclaimer
The law described in this Fact Sheet is current at August 2006.
The ACT EDO
Fact Sheets have been designed to give readers plain English background
knowledge of planning and environmental decision making in the ACT.
The ACT EDO Fact Sheets cannot replace the need for professional
legal advice in individual cases.
The information
contained in this publication is for general reference only. If
you are contemplating legal action, you should seek legal advice
on the specific facts of your case as soon as possible. These Fact
Sheets cannot replace the need for professional legal advice in
individual cases.
Duplication
and reproduction of the information provided in any ACT EDO Fact
Sheet is permitted with acknowledgment of the ACT EDO as source.
The ACT EDO
Fact Sheets Project was carried out with the assistance of funds
made available by the ACT Government under the ACT Environment Grants
Program.
Important:
Readers are advised to seek professional legal advice in relation
to specific legal questions. These fact sheets provide a summary
of the law and are not intended to be comprehensive or to cover
the specifics of any given situation. While every effort has been
made to ensure the content is as accurate as possible, the EDO does
not accept any responsibility for any loss or disadvantage resulting
from reliance or use of this work.
Other
Fact Sheet Titles
Note: Some
EDO fact sheet titles are unavailable at this time as they are being
updated following legislative amendments and administrative changes.
These fact sheets will be added as soon as possible.
Fact Sheet 1
Environmental and Planning Law in the ACT
Fact Sheet 2 National Capital
Plan and the Territory Plan
Fact Sheet 3 The Development Approval
Process
Fact Sheet 4 EIA Law in the ACT
Fact Sheet 5 Management of Public Lands
Fact Sheet 6 Heritage Law
Fact Sheet 7 Biodiversity Protection Law in the ACT
Fact Sheet 8 Tree Protection
Fact Sheet 9 Investigating Decision Making about the Environment
Fact Sheet 10 Challenging
Decision Making about the Environment
Fact Sheet 11
Pollution Control Law in the ACT
Fact Sheet 12 Noise Pollution Control in the ACT
Fact Sheet 13 Freedom of Information
Law in the ACT
Fact Sheet 14 Freedom of Information Law (Commonwealth)
Fact Sheet 15
Incorporating an Environmental Group
in the ACT
For information
about State environmental legislation, follow the links from the
national EDO website.
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