Fact Sheet 2
The National Capital Plan and the Territory Plan
This Fact Sheet gives an overview of the planning law in
the ACT, particularly the implications
and interactions of the National Capital Plan and the Territory
Plan.
NB This fact sheet is under revision and additional information
will be added soon.
Index
Distinguishing ACT and Commonwealth planning
controls
What are Designated areas ?
Does development in designated areas require approval
from both the NCA and ACTPLA?
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.
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).
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)
Case study
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.
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 law as Nature
Reserves.
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 A.C.T. Planning and Land Management Act 1988
(Cth) .
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 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 March 2005.
The ACT EDO Fact Sheets have been designed to give readers plain
English background knowledge to 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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