Assessment tracks

It is the responsibility of the applicant to identify the applicable assessment track.

Code track

A code track assessment applies to simpler developments that meet all the relevant rules in the TP. With the increase in development types that can now be considered exempt (see above), there are few developments that are currently considered in this track. If applicable, an applicant must ensure that an application for development approval in the code track is accompanied by information or documents addressing the relevant rules.

Possible code track proposals include: a large pergola, a below ground swimming pool, a dual occupancy proposal, or a house extension.

The code track does not have any mandatory requirements for DAs to be referred to other entities (s 117(c)). However, if a code track development application requires approval from an entity (for example ActewAGL or TAMs), the approval must be: • obtained prior to the lodgement of the development application, and

• submitted as a supporting document.

There is no requirement to publicly notify a code track development application (s 117(a)) and there is no opportunity for third parties to lodge representations or objections to the proposal (s 156).

A DA in the code track, which complies with all the relevant rules, must be approved no later than 20 working days after the day the application is lodged (s 118). A development application is not considered lodged until full payment of fees is made. A schedule of fees and charges is available from ACTPLA and is available on its website.

Merit track

Most developments fall into this track, including applications to vary a lease. Multiunit and commercial developments are usually considered under the merit track, as are single houses when they do not meet all the relevant rules of the TP.

The aim of the merit track is to provide flexibility and a performance-based assessment that provides the opportunity for applicants to demonstrate that approval is possible even if their development deviates from prescriptive code requirements. The expected outcome is the facilitation of the best design outcome for a site and for neighbours. For example, under the TP, a code may specify that the side boundaries of a residential development be no less than 1.5 m. The applicant, however, can apply to deviate from this rule and seek permission for the side boundaries to be approved at 1.2 m. In this case the applicant would lodge the DA in the merit track with documentation supporting the TP deviation. This optional compliance with the rules or criteria does not apply where the rule is mandatory.

Examples of merit track proposals include: development in a residential zone, a childcare centre in residential area, a gymnasium in commercial area or an apartment in commercial area.

Approval process

Merit track DAs may be approved notwithstanding that they do not meet the prescriptive code requirements, provided that they meet the relevant merit criteria of the relevant code(s), the requirements of the TP or the NCP and the requirements set out in section 119 of the Planning Act, including the relevant objectives for the relevant zone. However, development approval in the merit track can only be given for land in a rural lease if the proposal is consistent with any land management agreement. Any proposed developments that will affect a registered tree or a declared site under the Tree Protection Act 2005 can only be approved if it is consistent with the advice of the conservator (s 119(1)).

Development approval must not be given for a proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred (s 119(2)). However, the decision maker can approve a development contrary to the advice of another entity if it is satisfied that any applicable guidelines and realistic alternatives to the development had been addressed and that the development is not inconsistent with the objects of the TP. This does not apply where the development concerns a registered tree or a declared site, in which case the decision maker must not approve a development that is inconsistent with the advice of the conservator (s 119(3)).

There is, however, an exception to this rule if the development is related to a light rail development proposal and if the proposal does not affect a protected matter. A ‘protected matter’ is defined under section 111A of the Planning Act as a matter protected by the Commonwealth or a protected matter as declared by the minister. The Planning and Development (Protected Matters) Declarations 2015 (No. 1) contains a schedule of species declared as a protected matter for the purposes of the Planning Act.

If the development is related to light rail, no protected matter is involved and ACTPLA (or the minister) is satisfied that an entity’s advice will risk significant delay, increase the cost or be a significant impediment to the development, then that entity’s advice may be disregarded (section 119A). Section 119A(2) expressly excludes the above described exception for registered trees, thus allowing the conservator’s advice to also be disregarded.

It is important to note that a proposal will be considered related to light rail if the development to which the proposal relates may facilitate the construction, ongoing operation and maintenance, repairs, refurbishment, relocation or replacement of a light rail track or infrastructure within 1km from an existing light rail track or a proposed light rail track (s 137A(1)(a)) or if a light rail declaration is made (s 137A(1)(b)).

ACTPLA (or the minister) will base its decision on whether or not to approve a development proposal in the merit track on:

• the relevant code of the TP
• the objectives for the zone
• the suitability of the land for development
• an environmental significance opinion if applicable (see below)
• all representations
• entity advice (subject to the above light rail exceptions)
• a plan of management for any public land
• the probable impact of the development, including environmental impact (s 120).

Public notification and comment

Merit track DAs must be publicly notified by ACTPLA (s 121). There are two categories of public notification (Division 7.3.4):

• minor—where written notice of the DA must be sent to adjoining neighbours (s 153)
• major—where a sign stating the development proposed must be displayed on the property to be developed and a notice of the application published in a newspaper (s 155).

Schedule 2 of the Planning Regulation prescribes the types of development for which minor or limited public notification is required. These include developments such as the building, alteration or demolition of a single dwelling, if the development would not result in more than one dwelling being on a block or the building, alteration or demolition of a building or structure defined as non-inhabitable under the Building Code.

Anyone may make a written comment or objection about a DA that has been publicly notified, that is, for all merit and impact track proposals and some amended development applications (s 156). Comments or objections are sent to ACTPLA and must be received during the notification period. For minor developments, representations must be received within 10 working days of notification (s 157, r 28(a)(ii)). The time-frame for major notifications is 15 working days (s 157, r 28(b)(ii)). A representation about a development application may relate to how the development proposed in the application meets, or does not meet, any finding or recommendation of the EIS for the development, but must not relate to the adequacy of the EIS for the development (see s 219 of the Planning Act and Chapter 4 in this Handbook for further details regarding EIS).

Representations form part of the public register and are made available to the applicant, unless an exemption has been granted. Anyone who has made a representation during the public notification period is notified in writing of the decision as well as any rights of review of the decision.

ACTPLA may by notice extend the time for allowing representations. ACTPLA will not consider representations made outside the set time-frames.

Assessment time-frames

ACTPLA may ask an applicant for further information at any time during the assessment process. ACTPLA must request this information in writing (s 141). The applicant is usually given 20 working days to provide the information (s 141(3)). If ACTPLA decides to amend a development application then the amended application must be publicly notified if the initial application was also so required.

Once all the relevant lodgement fees have been paid ACTPLA is required to make a decision on merit track DAs within 30 working days (s 122). However, if representations have been made this period is extended to 45 working days. This timeframe is also extended if ACTPLA has requested further information from the applicant or if the DA is amended (ss 166-169).

Impact track

DAs that are impact assessable undergo the broadest level of assessment and, unless exempt by the minister, must include a completed environmental impact statement (EIS) in relation to the proposal (see Chapter 4 in this Handbook for more information on EIS). They are also considered against the TP and statements of strategic directions.

Impact track assessment applies to infrastructure proposals and developments in sensitive areas, developments that have been declared impact assessable by the minister, and all other proposals not covered by the exempt, prohibited, code or merit tracks (ss 123 and 132). The types of developments which may be subject to impact track assessment include: constructing a major dam; constructing a major road; light rail line or other linear transport corridor; or clearing a significant area of native vegetation (see the Planning Act Schedule 4).

A DA is considered impact assessable if it falls within one or more of the following five criteria:

• the relevant development table of the TP states that impact assessment applies
• Schedule 4 of the Planning Act lists it as a development requiring an EIS (see below)
• the proposal is impact assessable under section 124 of the Planning Act by declaration of the minister (see below)
• the development is a controlled action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’), but is assessed under the ACT Planning Act in accordance with a bilateral agreement between the ACT and Commonwealth governments (see Chapter 4 in this Handbook for information on bilateral agreements)
• the proposal is impact assessable by declaration of the minister responsible for the Public Health Act 1997 (s 125).

Schedule 4 contains two sections, both of which mandate the completion of an EIS. The first relates to the development itself, for instance construction of a transport corridor including a major road, a permanent venue for the conduct of motor racing events or a large petroleum storage facility. The second relates to the areas or processes that the development may affect, for instance, a proposal that is likely to have a significant adverse environmental impact on an endangered species or ecological community (see Chapter 4 in this Handbook for more information on environmental impact assessment).

The minister may make a declaration that a proposal is impact assessable under section 124 if satisfied on reasonable grounds that there is a risk of significant adverse environmental impact on the site, or elsewhere, from the proposed development. A significant adverse environmental impact is defined in section 124A (see above).

Unless one of the above listed criteria applies and for certain impact track proposals itemised in Schedule 4 of the Planning Act, a proponent may apply for an environmental significance opinion from a relevant agency that the proposal is not likely to have a significant adverse environmental impact. The production of the opinion by the agency will take the proposal out of the impact track (obviating the requirement for an EIS) and it will be assessed in the merit track (s 138AA). For example, if a proposal is likely to have a significant adverse environmental impact on a critically endangered species or other protected matter, the conservator may be asked to provide an environmental significance opinion indicating that the proposal is not likely to have a significant adverse environmental impact.

Approval process

Under section 129 of the Planning Act, ACTPLA (or the minister) will base its decision on whether or not to approve a development proposal in the impact track on:

• the relevant code of the TP
• the objectives for the zone
• the suitability of the land for development
• all representations
• entity advice (subject to light rail exceptions – see below)
• a plan of management for any public land
• the probable impact of the development, including the environmental impact
• the completed EIS for the proposal
• the conclusions of any inquiry about an EIS for the proposal (see below and see Chapter 4 in this Handbook for more information on EIA and EIS)
• the offsets policy. An offset, for a development that is likely to have a significant adverse environmental impact on a protected matter, means environmental compensation for the likely impact (s 111C). The offsets policy is a notifiable instrument prepared by the minister in consultation with ACTPLA and the conservator describing what is considered suitable for an offset and how environmental compensation may be made to offset the impact of developments that have a significant adverse environmental impact on protected matters (s 111E) (see the merit track section above for what is a ‘protected matter’). What is a significant adverse environmental impact is described in section 124A (detailed above). An offset must be consistent with the offsets policy (s 111S) and ACTPLA must take reasonable steps to implement the offsets policy (s 111M).

Part 8.3 of the Planning Act allows the minister to establish a panel to conduct an inquiry about any or all aspects of an EIS. Under the Planning Act, the Public Health Act minister may also direct the minister to conduct an inquiry in relation to the effects on public health of the proposal that is the subject of the EIS. Part 8.3 also sets out the timeframes and procedures the minister must follow in conducting an inquiry.

Under section 128 an impact track DA must not be approved unless an EIS has been completed, or the minister, under section 211, has exempted that application. Nor must the DA be approved unless the proposal is consistent with:

• the National Capital Plan
• the Territory Plan including the Statement of Strategic Directions (see below)
• any land management agreement for the land if it is in a rural lease
• the related advice of the conservator if the proposal will affect a registered tree or declared site
• the conditional requirements of an EIS exemption if such an instrument is in force
• advice of the Commonwealth Environment Minister if the proposed development is likely to have a significant adverse environmental impact on a Commonwealth protected matter by the Commonwealth or
• the advice of the conservator if the proposed development is likely to have a significant adverse environmental impact on a protected matter (s 147A). However, the conservator’s advice on a protected matter may be overridden

if the minister is to decide the development application (using the minister’s call-in power, see the relevant section below) and the minister is satisfied that the approval is consistent with the offsets policy and that the approval would provide a substantial public benefit.

The Statement of Strategic Directions sets out the principles for giving effect to the main object of the TP. The object of the TP is to ensure, in a manner not inconsistent with the NCP, the planning and development of the ACT provide the people of the territory with an attractive, safe and efficient environment in which to live, work and have their recreation. The principles set to achieve this object include economic, social and environmental sustainability and spatial and urban planning design principles.

Similar to the merit track assessment above (s 119), section 128 also provides that approval must not be given if inconsistent with any advice given by an entity, unless the decision maker is satisfied any applicable guidelines, all reasonable development options and design solutions, and any realistic alternative to the proposed development have been considered and the decision is consistent with the objects of the TP. This exception does not apply to advice given by the conservator where the development involves a registered tree or declared site. In these cases development approval must not be given by ACTPLA if it is inconsistent with the conservator’s advice (s 128(3) (4)).

Similar to the merit track, the Planning Act provides for a light rail exception. Where the development proposal is related to light rail and does not involve a protected matter, ACTPLA (or the minister) may grant approval regardless of any inconsistent entity advice where it is satisfied that the entity’s advice will risk significant delay, will increase the cost or be a significant impediment to the development to which the proposal relates (section 128A). Section 128A(2) expressly excludes the requirement that a light rail proposal be consistent with the advice of the conservator in relation to registered trees or declared sites. However, unlike its merit track equivalent, this section does not specifically exclude section 128(4) which otherwise provides protection for registered trees or declared sites. This part of the legislation creates an ambiguity as to the issuing of a DA where the proposal is in the impact track, relates to light rail and is inconsistent with the conservator’s advice relating to a registered tree or declared site.

See above in merit track section for an explanation of a ‘protected matter’ (s 111A) and ‘related to light rail’ (s 137A).

Public comment, entity referrals and assessment time frames

Public notification of impact track applications must always undergo the major notification process (s 152(1)(b)). Otherwise, the procedures and timeframes for representations, entity referrals, requests for further information from ACTPLA, and for making a decision in the impact track are the same for development applications in the merit track discussed above (ss 130 and 131).

Pre-DA community consultation

Community consultation is also required for all larger scale development proposals before the development application is lodged. In short, if a development proposal meets one of the triggers listed below then a pre-DA community consultation must be completed and lodged before the DA will be accepted by ACTPLA:

• a building for residential use with 3 or more storeys and 15 or more dwellings
• a building with a gross floor area of more than 5000m²
• a building or structure more than 25m above finished ground level
• a variation of a lease to remove its concessional status (s 138AE).

The pre-DA lodgement community consultation form is available on the ACTPLA website and provides details about the consultation, however it is up to the proponent to determine the type of community consultation that they will complete.

Certain development proposals are exempt from pre-DA community consultation. If the area is outlined in bold in one of the maps depicted in Schedule 1B of the Planning Regulation (accessed via the ACT legislation register) then it will be exempt. For example, at the time of writing, a development proposal for development in areas including Gungahlin, Molonglo, Kenny, Throsby and Jacka. The operation of this exemption must be reviewed by ACTPLA at least once every 5 years.