Environment and planning laws

This section summarises the most important Commonwealth and ACT environment and planning laws that apply in the ACT. All of these Acts are discussed in greater detail in later chapters of this Handbook.

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth)

Prior to self-government in 1988, the Commonwealth government owned and administered all land in the ACT. Under the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) (‘Planning and Land Management Act’), the Commonwealth retains ownership of all land, and land in the ACT continues to be leased to occupiers rather than sold as freehold.

However, responsibility for administering ACT land was divided between the Commonwealth and the ACT governments. The land that remains under the Commonwealth’s administrative control is known as ‘national land’ (ss 6 and 27). The ACT government has primary responsibility for administering the rest of the land in the ACT, which is known as ‘territory land’ (s 29).

However, the ACT does not have sole control over all of that land. The Planning and Land Management Act states that the National Capital Authority is responsible

for developments on ‘designated areas’ of territory land (s 12). ‘Designated areas’ are areas of land that are designated because they have the special characteristics of the national capital (ss 4 and 10). Other territory land may be subject to ‘special requirements’. These areas are developed by the both the ACT and the Commonwealth governments in the interests of the national capital.

The Planning and Land Management Act also provides that the National Capital Authority must prepare and maintain a National Capital Plan, setting out planning principles for all land in the ACT, as well as dealing specifically with national land, designated areas and special requirements areas (s 10). The ACT Legislative Assembly is given power to establish its own planning authority (ACTPLA) and to prepare a Territory Plan that is consistent with the National Capital Plan and deals with more specific planning for territory land (s 25) (see Chapter 2 of this Handbook for more information on the National Capital Plan, the Territory Plan and the leasehold system).

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) is the Commonwealth’s most important environmental legislation. It came into force on 16 July 2000 and replaced five Commonwealth Acts: the Environmental Protection (Impact of Proposals) Act 1974; the Endangered Species Protection Act 1992; the National Parks and Wildlife Conservation Act 1975; the World Heritage Properties Conservation Act 1988; and the Whale Protection Act 1980. The EPBC Act has also replaced the Wildlife Protection (Regulation of Exports and Imports) Act 1982, and together with the Australian Heritage Council Act 2003, the EPBC Act has replaced the Australian Heritage Commission Act 1975.

The EPBC Act regulates the assessment and approval of activities that have a significant impact on matters of national environmental significance (MNES), which include nationally important flora, fauna, ecological communities and heritage places. There are currently 9 listed matters of national environmental significance, including world and national heritage properties, Ramsar wetlands, migratory species, Commonwealth marine areas, water resources and nuclear actions. The assessment and approval processes for MNES under the EPBC Act are additional to those applicable under state and territory laws, although assessment and approval of the Commonwealth minister under the EPBC Act may not be necessary if an activity is undertaken in accordance with an accredited state assessment or approval process. Through bilateral agreements, the Commonwealth may accredit and rely upon state assessment and approval processes for actions impacting upon MNES. To date, only bilateral assessment agreements have been entered into; although all states and territories have released notices of intent or draft bilateral approval agreements, which may also accredit state approval processes. At the time of writing however, no bilateral approval agreements have been concluded (see Chapter 4 of this Handbook for more information on the bilateral assessment and approval processes).

The EPBC Act also protects biodiversity, through the creation and regulation of protected areas, such as World Heritage properties, and the listing and management of threatened species and ecological communities (see Chapter 5 of this Handbook for more information on the EPBC Act).

Planning and Development Act 2007 (ACT)

The Planning and Development Act 2007 (ACT) (‘Planning Act’) replaced the old Land (Planning and Environment) Act 1991 (ACT) and the Planning and Land Act 2002 (ACT) as the ACT’s primary piece of planning legislation. This Act introduced substantial changes to the previous planning regime. The Act commenced on 31 March 2008.

A planning authority, the ACT Planning and Land Authority (ACTPLA), which was previously established under the Land (Planning and Environment) Act, was continued under the Planning Act. ACTPLA has the functions of administering the Territory Plan, and managing the leasing of land and approvals for development applications (Chapter 3 of the Planning Act). The establishment and functions of the Land Development Agency to develop land is also provided for in the Planning Act (Chapter 4).

The Act also includes the creation of the Territory Plan, including its content and processes for variation (Chapter 5); and provisions for the development of a planning strategy (Chapter 6); the process of gaining approval for developments (Chapter 7); provision for environmental impact assessments (Chapter 8); the administration of the leasehold system (Chapter 9); and the reservation of public land for national parks and reserves (Chapter 10) (see Chapters 2, 3, 4 and 7 of this Handbook for more information on the Planning Act).

Nature Conservation Act 2014 (ACT)

The Nature Conservation Act 2014 amends and updates the previous 1980 Act. The Nature Conservation Act aims to protect, conserve and enhance the biodiversity in the Territory, and considers biodiversity at genetic, species, ecological community and ecosystem levels.

The Act establishes the ACT Parks and Conservation Service (s 27) and the office of the Conservator of Flora and Fauna (Part 2.1). The conservator is responsible for monitoring biodiversity and can develop and publish guidelines that articulate the biodiversity priorities that the conservator will pursue through the development and planning process. The conservator must develop a Nature Conservation Strategy (Part 3) and has a responsibility to monitor the state of nature conservation in the ACT, its management and to make these reports publicly available. The conservator must prepare and implement Action Plans (Part 4.5) for each relevant species, ecological community and key threatening process, if they occur in the ACT. The action plans must consider matters such as the impact of climate change and other threats on the species or ecological community, connectivity requirements and critical habitat of the species or ecological community. Progress reports on each action plan are required after five years with a review by the Scientific Committee every 10 years.

The Act also restricts activities that can be undertaken in reserved areas including wilderness areas, national park, nature reserves and public land (Part 8). It also sets up a system of nature conservation licences for activities involving native plants and animals (Part 11) and establishes a range of offences for the protection of native species (Part 6) and offences for illegal activity in reserves (Chapters 9 and 10). For example, section 236 creates an offence when a person knowingly clears native vegetation in a reserved area causing serious harm, with a maximum fine of currently $350,000 for individuals, $1,750,000 fine for corporations or seven years’ imprisonment (see Chapters 5 and 7 of this Handbook for more information on biodiversity and ACT public land).

Water Resources Act 2007 (ACT)

The Water Resources Act 2007 sets up a system of sustainable management and use of the territory’s water resources. Section 7 of the Act states that the Territory has the right to the use, flow and control of all the water resources in the ACT, allowing the ACT government to determine the appropriate use of water, water flows, and limits on water usage.

The Act gives the ACT government broad powers to define access rights to water resources, environmental flow provisions, and water licensing requirements. It also sets up resource management and monitoring responsibilities, such as an ecologically sustainable management system that is managed by the Environment Protection Authority (see below), and penalties for water-related offences. For example, section 77A makes it an offence to take surface or ground water without a licence, with a maximum penalty 6 months imprisonment or payment of a fine (see Chapter 8 of this Handbook for more information about the Water Resources Act).

Environment Protection Act 1997 (ACT)

The Environment Protection Act is designed to prevent harm to the environment by pollution and to enhance the quality of the environment. The Act establishes the Environment Protection Authority (EPA) as the statutory decision maker for environmental regulation and policy (Part 2). The EPA also administers the regulatory framework set out in the Act.

The Environment Protection Act places a general environmental duty on all citizens to prevent or minimise environmental harm and nuisance (s 22). It also regulates activity through a system of environmental protection agreements (Part 7) and environmental authorisations (Part 8) to control activities that might cause pollution. For example,

section 42 states that a person must not conduct an activity listed in Schedule 1 unless they hold an environmental authorisation in relation to that activity. Activities requiring an environmental authorisation include the conduct of motor racing events, large outdoor concerts, or the operation of a sewage treatment plant (see Chapter 10 of this Handbook for more information about this Act and the EPA).