Development applications to the NCA

Introduction

The NCA is established under section 5 of the Planning and Land Management Act and is responsible for administering and reviewing the NCP (s 6), the objective of which is to ensure that Canberra and the Australian Capital Territory are planned and developed in accordance with their national significance (s 9). On behalf of the Australian Government, the NCA manages ‘national land’ as opposed the ‘territory land’, designated as land intended to be used by the Commonwealth and for the special purposes of Canberra as the national capital. The NCA also administers the Planning and Land Management Act which is the principal legislation dealing with planning and works approval for land managed by the NCA. Section references in this part of this chapter are to that Act unless stated otherwise. Currently, the Assistant Minister for Infrastructure and Regional Development is the Commonwealth minister with primary responsibility for this Act, referred to as the minister in this section of this chapter.

NCA approval is required prior to the carrying out of any ‘works’ in a designated area (s 12). Works include the construction, alteration, extension or demolition of buildings or structures (unless it is purely internal work), landscaping, tree felling and excavation (s 4). Designated areas are shown in various sections of Part One of the NCP and include:

• the Central National Area, comprising the Parliamentary Zone, Lake Burley Griffin and its foreshores, major national institutions and defence establishments such as the Australian National University and the Australian Defence Force Academy
• the inner hills that form the setting for the Central National Area such as Mt Majura, Mt Ainslie, Black Mountain and Red Hill
• the main avenues and approach routes to Canberra, for example, State Circle, Kings Avenue, Commonwealth Avenue, Northbourne Avenue, Canberra Avenue and the Barton, Federal and Monaro Highways.

The NCA also approves developments for offices in Barton, and the residential area of Forrest/Deakin due to their proximity to Parliament House. Some projects approved by the NCA in the past include Commonwealth Place, Reconciliation Place, Speakers Square and the new National Portrait Gallery, all of which are in the Parliamentary Zone.

Given the nature of these areas, a certain percentage of development in them is carried out by government authorities. As a general rule the NCA is under no statutory obligation to advertise applications prior to determining them and the community has no right to make comments or objections under the Planning and Land Management Act. This rule is subject to several exceptions discussed below under ‘Public notification/consultation’. The NCA has also adopted a consultation protocol - ‘Commitment to Community Engagement’ which is available on the NCA website (see Contacts list at the back of this book) and sets out the NCA’s community consultation process for development proposals. The protocol contains a commitment to engage with the community as part of NCA decision making, and recognition that inclusion and engagement - particularly at the early and formative stages of projects and proposals - are vital to building and maintaining community trust. Most applications for a works approval are listed on the NCA website.

Development in a designated area

The NCA is required to give works approval prior to any works being undertaken in a designated area. An applicant should discuss the proposed works with the NCA before completing and lodging an application for works approval. Discussions focus on the requirements of the NCP which might affect the proposal, and will help identify any major issues that require resolution prior to approval. It is also an opportunity to become familiar with the procedures that will need to be followed and the planning and development control provisions that may impact on the type of development that can be carried out on a particular site.

The NCA also requires preliminary sketch designs showing the development intention for its consideration and comment before proceeding with any development application. Detailed design drawings may also be submitted for ‘in principle’ support before submitting a Works Approval application.

A development likely to have a significant impact on a National Heritage place must obtain approval from the Commonwealth Minister for the Environment as required under section 15B of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), and should seek advice from the ACT Heritage Council for places on the ACT Heritage Register if the development is likely to have an impact on ACT heritage within a designated area (see Chapter 9 of this Handbook for more information on ACT heritage law). The applicant may be required to provide evidence of an environmental clearance or approval from the Department of the Environment before the NCA will give its approval to development proposals on:

• Commonwealth land
• Designated areas
• Sites that may have endangered and protected species of flora and fauna, or some other environmental value (including heritage) or
• Development that has a significant impact on the heritage values of a ‘place’ entered in the Commonwealth or National Heritage list.

Once the NCA has given its in principle support to the project the formal application for works approval can be lodged. There is an application form, schedule of fees and information checklist available on the NCA website.

The application for works approval needs to include an application form and the relevant fee calculated by reference to the estimated cost of the work. The application also needs to be supported by detailed working drawings and supporting documents. Prior to lodging an application, applicants should check with the NCA what information is required for their specific proposal as larger or complex projects may require more detailed information, such as models, to be submitted in support of the application.

The information required by the NCA is detailed and includes:

• a locality plan
• a site analysis plan
• a detailed site plan
• design concept drawings/statements
• a schedule of proposed works
• architectural drawings, including floor plans, section, elevations and perspective drawings
• landscape plans
• civil & excavation plans
• a Planning Report
• a Public Consultation Report (in accordance with the NCA’s Consultation Protocol)
• a Traffic Assessment Report
• a site establishment and construction management plan
• a design model (for any major development and/or proposed in a prominent location).

The NCA will consider the formal application and, once it is satisfied that all relevant matters have been resolved and the proposal is in accordance with the NCP, will issue a formal works approval. The NCA has committed to finalise applications within 15 working days (see the NCA’s Planning and Development Service Charter on its website). Major projects and those which require consultation or clearance from external agencies may take longer.

External agency clearances

Consultations with ACT government agencies may also be required covering issues such as vehicular access, traffic safety, waste management, storm water drainage, leasing and lease compliance, tree preservation and verge landscaping and management.

Public notification/consultation

Except in limited circumstances there is no statutory obligation on the NCA under the Planning and Land Management Act to give public notice of applications for works approval. Public notification and consultation is only necessary when required by the NCP. Specific circumstances in which public notification and consultation are required by the NCP include:

• Residential development and/or development in the Deakin/Forrest residential area between State Circle and National Circuit. For single dwellings, neighbours must be notified, while for other proposals notification and invitations for comment are more widely sought through a generally circulating newspaper (see paragraph 4 of Appendix M of the NCP). The NCA will take into account comments received before assessing and approving the application
• Dual occupancy applications in residential areas. There are only a few such areas under the control of the NCA. In these cases the NCA requires neighbours to be informed of the application, and comments from neighbours will assist the NCA in determining whether performance criteria has been met and establishing conditions of approval (Appendix P of the NCP)
• Applications for telecommunications facilities where the NCA is of the opinion that they will have a high visual impact (Chapter 12.4 of the NCP). Consultation is via notification in a generally circulating newspaper, and will invite interested parties to submit written comments with the NCA
• Residential and commercial development proposed for Campbell Section 5 requires public notification and consultation (Appendix T8 of the NCP)
• If the NCA determines that a development in Section 6 or Blocks 12 and 13 Section 9 Barton constitutes a major works, then as per the detailed conditions, the application for works approval is subject to public notification and consultation.

The NCA is otherwise under no statutory obligation to invite public comment on applications for works approval.

Community Consultation Protocol

The NCA has developed a Consultation Protocol called ‘Commitment to Community Engagement’ which is available on its website and details the consultation the NCA will undertake. This protocol is not legally binding.

The purpose of the protocol is to formalise arrangements for when and how the NCA conducts consultation. The protocol aims to provide guidance for the community and stakeholders and to ensure consistency in the application of consultation as required by the Act and the NCP and sets out minimum requirements only. Additional community engagement activities may be adopted for complex issues, and when they would demonstrably improve the effectiveness of community engagement and the potential outcome for the community.

NCA policy is to apply the protocol in all situations and to keep exemptions to a minimum. The NCA states it will consider the potential for limited consultation in preference to exemption from any form of consultation. In situations where consultation is limited or exempt, the NCA will state the grounds on which this decision has been made. Examples include cases where consultation might compromise national security or undermine the Commonwealth’s fulfilment of international treaty obligations.

The consultation protocol states that the NCA website will provide a public notification process for all works approval applications, irrespective of their proposed capital expenditure. Full public consultation for works approvals will be required where the NCA’s perceived risk rating is ‘significant’ or ‘high’, and also for any development where consultation is a mandatory requirement under the NCP. When a works approval application is lodged and consultation is required, the applicant is required to consult with the community and stakeholders. The NCA may stipulate specific requirements for consultation and, for higher perceived risk proposals, may undertake the consultation process itself.

The protocol for works approval applications and their respective consultation processes are set out in detail in the policy, which is available on the NCA’s website. Organisations that are interested in various aspects of the NCA are invited to register their details with the NCA so they can advise directly about projects and proposals which may be within the organisation’s area of interest. The NCA has also developed an online forum for public participation, found under ’Public Consultation’ on the website, which allows interested persons to comment on draft plans and also outlines other opportunities for public participation. The list of current works approvals can be inspected on the NCA website (see also Contacts list at the back of this book).

Review of approvals

There is no provision for planning appeals relating to the merits or otherwise of development proposals approved or disallowed by the NCA. In this respect the decision of the NCA in relation to an application for works approval is final.

While there are no appeal rights relating to the merits of the NCA’s decision, there may be the opportunity for recourse under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to determine whether a decision of the NCA has been made in accordance with the law. In practice, this is likely to be a very limited right of review as it is only where a citizen’s rights are affected that there may be an appeal and only a small amount of leased land exists within the designated areas.

Development on national land – other than a designated area

As mentioned above, national land is land intended to be used by the Commonwealth (s 27). Examples of national land include the Canberra Deep Space Communication Complex at Tidbinbilla and the Parliamentary Zone.

At the time of writing, selected areas which are not a designated area may still be national land and subject to ’special requirements’ under the NCP (s 10(2)(d)). Proposals for this land are assessed in relation to the provisions of both the TP and the NCP. Under the NCP, development (including proposals to subdivide or lease) on national land must conform to a development control plan approved by the NCA (NCP provisions 4.5.1, 5.3.1, 8.4.2, 9.4.3). Where both planning regimes apply, the TP has no effect to the extent that it is inconsistent with the NCP, but the TP shall be taken to be consistent with the NCP to the extent that it is capable of operating concurrently with the NCP (s 11).

Development in the Parliamentary Zone

The Parliamentary Zone is a key-hole shaped area of land bounded by State Circle, Commonwealth and Kings Avenues and Lake Burley Griffin. Because of the cultural and historical significance of the land in the Parliamentary Zone, works proposed in this area require the approval of the NCA and both Houses of Federal Parliament. To get approval an applicant needs to follow the process outlined above in relation to applying for approval from the NCA for development in a designated area. The NCA then coordinates the parliamentary approval process.