As many who are interested in or working within the development space will be aware, there has been an ongoing process of review and reform of the planning system in the ACT.
Unsurprisingly, the review found that the ACT system has become overly complex and is not a system that is accessible, easy to use and which delivers improved development outcomes across the ACT.[1] The goal of the latest reform is to provide “a new, simpler system” and achieve “the best outcomes for our city, our environment and our people”.[2] While a noble goal, it is too early to tell if that will be achieved from the information currently available about the reforms.
The key changes arising from the reforms are:
We have provided a high-level update on where these steps are up to, and what we know about each of the key reforms, below.
The first step in the reforms is a new Act, to replace the Planning and Development Act 2007, which provides the legal framework for the system of planning in the ACT.
The Planning Act 2023 has now been passed by the Legislative Assembly. Parts of the Act have commenced; however, these are primarily limited to the sections which relate to the development of the various new strategies, plans and guidance documents which are to be implemented under the new Act. The Planning and Development Act 2007 is still in force and will continue to apply to any development applications made before it is repealed.[3]
The new Act has introduced a swathe of new principles and strategic planning measures to guide the new planning system. The practical changes to the development application and approval process under the Act appear to be relatively modest, and we expect the operational provisions required to facilitate the ‘move to a simpler planning system’ will be introduced under the new Territory Plan.
Notable matters under the new Act which will impact developers include:
The remaining parts of the reforms, discussed below, are yet to be finalised; drafts are currently available online to be viewed by the public.
The new Territory Plan will be a notifiable instrument and under the new Act. The new Territory Plan will:
It seems the move to an “objectives-based approach” to planning in the ACT is therefore intended to primarily be achieved through the new Territory Plan. In particular, the intention appears to be to depart from the existing system of regulation through Code based ‘rules’ and ‘criteria’.
Interestingly, the only reference to the Territory Plan in the list of matters which a decision maker must consider in assessing a development application under s.186 of the new Act is a reference to the “applicable desired outcomes in the territory plan”. The new Act does, however, still include the restriction that the decision‑maker may only approve a development application if the proposal is consistent with, among other things, the relevant provisions of the Territory Plan.
District Strategies are a new type of document which are intended to identify the long-term planning policy and goals for 9 districts (currently Belconnen, Tuggeranong, Woden, Molonglo, Weston Creek, Inner South, Inner North and City, Gungahlin, and East Canberra).
The District Strategies are not expressly identified as a mandatory consideration in the assessment of a development application under s.186 of the Act. Instead, it appears that the key function of the Strategies will be to inform the preparation of, and any amendment to, the Territory Plan. They are also a matter which will be relevant to the declaration of a Territory Priority Project.
The new Territory Plan will also include “District Policies” which are intended to give effect to the Strategies. Importantly, the draft Policies indicate that they will identify additional types of assessable and prohibited development, as well as include development controls. To understand what development is permissible, and what controls will apply, the District Policies will need to be read in conjunction with the relevant zone policy within the Territory Plan (similar to the current Precinct Maps and Codes).
The reforms also introduce “Design Guides” and “Technical Specifications” to support the Territory Plan, but which are separate to the Plan. Design Guides (but not the Technical Specifications) are a mandatory consideration in the assessment of a DA under s.186 of the new Act.
There are two design guides proposed; one for urban development and one for housing. The Explanation of Intended Effects does not identify the role the guides will have in the assessment of development applications in great detail. The guidance indicates that the Design Guides will assist in interpreting the planning provisions in the Territory Plan which are “less prescriptive and leave more room for interpretation and innovation.”[4]
The draft Technical Specifications appear to include many of the numerical standards currently found in the various codes within the Territory Plan. The consultation documents suggest that the specifications will not be mandatory requirements, but compliance with a standard will mean that a development will be deemed to have met the corresponding outcome required to be achieved under the Territory Plan, thereby providing certainty to a developer. However, based on the consultation drafts, linking the specifications to their corresponding Territory Plan outcomes may, at times, be a difficult exercise.
If you need assistance in navigating the ACT planning system, please contact Alice Menyhart or Victoria McGinness from our dedicated Planning Law team.
Disclaimers
The content contained in this guide is general commentary only. It is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.
Please note that the law detailed in this Article is correct as at 16 August 2023.
[1] Legislative Assembly for the ACT: 2022 Week 08 Hansard (Wednesday, 21 September 2022) Page 2615.
[2] Legislative Assembly for the ACT: 2022 Week 08 Hansard (Wednesday, 21 September 2022) Page 2615.
[3] Part 20.4 of the Planning Act 2023.
[4] ACT Planning System Review and Reform Project, Explanation of Intended Effects for: ACT Urban Design Guide ACT Housing Design Guide November 2022, Page 8