Decisions are made under the Planning and Development Act 2007 (ACT) (‘PD Act’) every day. These decisions may impact on applicants and the general public depending on the nature of the decision. Some, but not all, decisions made under the PD Act are reviewable. This factsheet discusses planning and development decisions that are reviewable at the ACT Civil and Administrative Tribunal (ACAT).
What is the ACT Civil and Administrative Tribunal (ACAT)?
ACAT is an independent body with exclusive jurisdiction to hear and determine particular disputes in the ACT. It is created under the ACT Civil and Administrative Tribunal Act 2008 (ACT) (‘ACAT Act’). ACAT has many functions including the power to review a government decision. When making decisions, ACAT stands in the shoes of the decision-maker and decides whether the correct or preferable decision has been made. This is called ‘merits review’.
What can ACAT do?
ACAT can exercise any function the original decision maker can exercise under an Act (see Part 6, of the ACAT Act). So, once ACAT has reviewed a decision, it may either:
- confirm the original decision (section 68(3)(a) of the ACAT Act));
- vary the original decision (section 68(3)(b) of the ACAT Act);
- set aside the decision and make a substitute decision (section 68(3)(c)(i) of the ACAT Act); or
- set aside the decision and send the matter back to the original decision-maker for reconsideration, with a direction or recommendation of the tribunal (section 68(3)(c)(ii) of the ACAT Act).
What decisions can ACAT review?
ACAT only has jurisdiction to review a matter if the decision is a “reviewable decision”. A “reviewable decision” is a decision that ACAT is specifically allowed to review under an authorising law (this is a law that gives authority for ACAT to review the decision). There is a list of authorising laws on the ACAT website.
- A decision made under section 162 of the ACAT Act to approve a development application in the merit track (Item 4);
- A decision made under section 162 of the ACAT Act to approve a development application in the merit track (Item 6);
- A decision made under section 184(3) of the ACAT Act to refuse to extend the period for finishing development (Item 9).
Do I have standing to bring an application for review to ACAT?
Schedule 1 of the PD Act lists the decisions that ACAT can review, and who can apply to ACAT for a review. Eligible entities are listed in Column 3 of Schedule 1. In order to have standing, you need to show that you comply with sections 408 and 419 of the PD Act, as well as the requirements set out in Schedule 1 of the PD Act.
As an example, if you want to apply to ACAT for the review of a decision made under section 162 of the PD Act to approve a development application in the merit track (Item 4), then you will have previously made a representation on the development proposal when the development application was open for public comment or you had a reasonable excuse for not making a representation (Item 4, Column 3(a)). In addition, you will need to prove that the approval of the development application may cause you to suffer material detriment (Item 4, Column 3(b)).
If you are an individual, “material detriment” means that the government decision is likely to have an adverse impact on your land (section 419(1)(a) of the PD Act). If you are an entity that has objects or purposes, “material detriment” means that the decision relates to a matter included in your entity’s objects or purposes (section 419(1)(b) of the PD Act).
Are you in an organisation or group? There are special rules for standing for incorporated associations. See the Incorporated Associations factsheet and Third Parties in Planning Appeals for more information.
When do I need to apply to ACAT?
There are special timing rules for planning matters. If you are not the person applying for the development application, and you want a review of a decision under the PD Act, you need to lodge your application within 20 working days after the decision has been made. ACAT cannot extend this time period for making an application (section 409 of the PD Act).
How do I apply to ACAT?
To make the application for ACAT to review a planning decision, you need to:
- Fill in the form (available on the ACAT website);
- You then need to take the form to the ACAT registry (at Level 4, 1 Moore Street, Canberra City, ACT);
- You need to pay a fee. Information about ACAT fees is available on the ACAT website.
ACAT has 120 days to decide on your application (section 22P of the ACAT Act) if it is made under the Heritage Act 2004 (ACT), Planning and Development Act 2007 (ACT), or Tree Protection Act 2005 (ACT). However, this time can be extended in some circumstances.
How much will it cost?
There are fees for making an administrative review application with the ACAT. In general, each ACAT party will pay for the cost of their own application, lawyers and other fees (section 48 of the ACAT Act). However, if ACAT finds in your favour, it can ask that the other party pay for the cost of your application fee and other legal fees (section 48(2)(a) of the ACAT Act).
If ACAT thinks that you have caused an unreasonable delay, or your application is frivolous or vexatious, it can order you to pay costs (section 48(2)(b) of the ACAT Act). If your application for review of a decision is under the Heritage Act 2004 (ACT), Planning and Development Act 2007 (ACT), or Tree Protection Act 2005 (ACT), and ACAT makes an order under section 32(2) (Dismissing or striking out applications), ACAT may order you to pay the reasonable costs of the other party (section 48(2)(d) of the ACAT Act).
Do I need to be represented by a lawyer?
You do not need a lawyer to make an application for merits review before ACAT. ACAT is less formal than a court, and is designed for people to represent themselves. EDO ACT may assist you if your matter involves public interest environmental law issues.
Where can I go for more information?
- You can visit the ACAT website (http://acat.act.gov.au);
- See the EDO Environmental Law Handbook (www.edoact.org.au/handbook);
- The EDO at www.edo.org.au;
- Your local EDO Canberra office on (02) 6243 3460.
Disclaimer: The law described in this fact sheet is current at January 2019. This fact sheet has been designed to give readers plain English background information in planning and environmental law in the ACT. It is brief, for general information purposes only and does not replace the need for professional legal advice in individual cases. To request free initial legal advice, please contact us on (02) 6243 3460. While every effort has been made to ensure the information is accurate, the EDO ACT does not accept any responsibility for any loss or damage resulting from any error in this fact sheet, or reliance or use of this work. Duplication and reproduction of the information is permitted with acknowledgment of the EDO ACT. This fact sheet was produced with the assistance of funds made available by the ACT Government through the Justice and Community Services Directorate.