Review of development approvals

There are two types of review that may be available in relation to a decision on a DA — merits review and judicial review. Merits review is where a court or tribunal looks at whether a decision should have been made and the court or tribunal has the power to remake the decision. Judicial review is a review by a court as to whether the correct legal procedures were followed, that is, whether the decision was made according to the law. It does not look into whether the decision was right on the facts of the case. Because of the nature of most ACT planning appeals, this chapter deals primarily with merits review.

The following information is for general reference only. If you are contemplating any legal action then it is necessary to seek legal advice on the specific facts of your case.

Merits review

Whether or not a decision to approve or refuse a DA can be reviewed on its merits depends on which assessment track applied to the development. Generally there are two ways in which a development approval may be reviewed:

• it can be reconsidered by ACTPLA if the applicant makes an application for reconsideration. For example, the applicant may seek a right of review in relation to a code track proposal if the development application is approved subject to a condition (s 117).There are no rights for a third party to apply to ACTPLA for reconsideration of a decision
• it can be reviewed by the ACT Civil and Administrative Tribunal (ACAT).

An applicant and, in some cases, a third party who made a representation may have a right to apply to ACAT for a review of a decision (see Chapter 12 in this Handbook for more information about applying to ACAT). What is a ‘reviewable decision’ made under the Planning Act is itemised in Schedule 1 Column 2 located towards the end of the Act.

A decision of the minister to approve or refuse an application pursuant to the call-in power described above is not a reviewable decision before ACAT (see s 407, def ‘decision maker’ and ‘reviewable decision’; sch 1). Nor is there a right of ACAT review for a decision of ACTPLA to refuse a development application because the minister has decided under section 261 that it is not in the public interest to consider the application (s 407).

Code track developments

Rights of the applicant

If a development is in the code track (that is, a minor development) there are limited rights of review. If ACTPLA refuses an application in the code track there is no opportunity for the applicant to seek a reconsideration of the decision or an ACAT review (ss 117(d), 191(2)(a), 407 definition of ‘reviewable decision’; sch 1). However, if ACTPLA approves a development in the code track subject to conditions the applicant can seek reconsideration of the decision with ACTPLA (ss 117(b), s 191(1)(a)) and appeal to ACAT against the conditions imposed (s 407, definition of ‘reviewable decision’; sch 1 item 2).

An application for reconsideration must be made within 20 working days from the date the applicant is told about the original decision by ACTPLA (although this can be extended by ACTPLA) and must set out the grounds for the reconsideration

(ss 191(5)-(6)).

ACTPLA must reconsider the application and make a new decision or confirm the original decision within 20 working days of receiving an application for reconsideration (s 193). This time can be extended by agreement.

ACTPLA can only reconsider the original decision to the extent that the development proposal approved in the original decision is subject to a rule and does not comply with the rule, or is not subject to a rule (s 193(3)).

The reconsideration must be carried out by a person within ACTPLA who was not the original decision-maker (s 193(7)). In reconsidering an application, the decisionmaker can confirm the original decision or make any decision that could have been made on the original application. If the reconsideration is not finalised within 20 working days, ACTPLA is taken to have confirmed the original decision (s 194).

As well as having a decision reconsidered by ACTPLA, an applicant can seek a review before ACAT of a decision to approve a code track DA subject to conditions (s 407; sch 1 item 2). The applicant must generally seek ACAT review within 28 days of the decision being made by ACTPLA (ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ‘ACAT Act’) s 10(2)).

Rights of a third party

A third party (such as an objector) cannot apply to ACTPLA for a reconsideration of a decision nor does a third party have a right to review a code track development in ACAT (s 40; definition of ‘reviewable decision’; sch 1 item 2 of the table). Schedule 1 of the Planning Act does not list third parties as an entity eligible to seek an ACAT review for a code track proposal. Further, when reconsidering an application, ACTPLA need not publicly notify the reconsideration because notification and public representations are not required in relation to code track proposals.

Merit track developments

Rights of the applicant

If a development is in the merit track, an application that has been approved subject to conditions or refused by ACTPLA can be reconsidered by ACTPLA if the applicant makes an application for reconsideration (s 191). The process and time-frames for seeking reconsideration are the same as those for a decision in the code track as discussed in the section above.

For most merit track reconsiderations, before reconsidering the application, ACTPLA need not publicly notify the reconsideration application (s 193(5)(a)). However, they must inform anyone who has made a representation on the original application that a request for reconsideration has been received, and they must give them a reasonable opportunity (at least two weeks) to make a further submission (s 193(5)(b)).

As well as reconsideration by ACTPLA, it is also possible in certain circumstances for an applicant to appeal to ACAT against an ACTPLA decision to refuse an application in the merit track or approve an application subject to conditions. An applicant may only appeal the decision to the extent that a proposal is subject to a rule and it does not comply with the rule or is not subject to a rule (s 407 definition of ‘reviewable decision’; sch 1 item 3). An applicant may also seek review of a reconsideration decision if ACTPLA decides to impose a condition or confirm the original decision pursuant to section 193 (s 407 definition of ‘reviewable decision’; sch 1 items 11, 13).

Applicants must generally apply for an ACAT review within 28 days of the decision being made (ACAT Act s 10(2)). The time for applying for an ACAT review may also be extended by the tribunal under rules made under section 25(1)(e) of the ACAT Act.

Rights of a third party

A third party cannot apply to ACTPA for a reconsideration of a decision regarding a DA in the merit track.

A person who has made an objection or representation about a proposal and who may suffer material detriment from the approval of the development, may appeal to ACAT against ACTPLA’s decision to approve a DA in the merit track (whether subject to a condition or not) (s 162, s 407 definition of ‘reviewable decision’; sch 1 item 4). Such a person may also appeal to ACAT against a reconsideration decision where ACTPLA makes a decision in substitution for the original decision (s 193 (1)(b)(i), s 407 definition of ‘reviewable decision’; sch 1 item 12).

A person suffers ‘material detriment’ if the decision is likely to adversely affect their use or enjoyment of the land. For organisations, ‘material detriment’ is satisfied if an entity has objects or purposes and the decision relates to a matter included in the entity’s objects or purposes (s 419(1)).

This third party right of review of a decision to approve a DA applies only to applications that require public notice to adjoining premises (s 153) and major public notification (s 155) (s 152; sch 1 item 4). The Planning Regulation also exempts numerous merit track decisions from third-party ACAT review. Merit track development proposals currently exempt from third-party ACAT review are development proposals relating to light rail (other than a development involving a protected matter); a development on land in the city centre; or a town centre (e.g. Belconnen or Woden); or an industrial zone; or the Kingston Foreshore; or a review of single dwelling developments (s 350; sch 3 pt 3.2 items 17, 4, 3).

Third party appellants must lodge appeals within four weeks (20 working days) of receiving notification of the decision (s 409). Objectors must make sure any appeal is lodged within this time, as the time cannot be extended under the ACAT Act (s 409(3) of the Planning Act).

Impact track developments

Rights of the applicant

If the development is in the impact track, an application that has been refused by ACTPLA or has been approved subject to a condition, can be reconsidered by ACTPLA if the applicant makes an application for reconsideration (s 191). The process and timing for reconsideration of a decision is the same as that in the code track discussed above.

It is also possible for an applicant to appeal to the ACAT against an ACTPLA decision (or a reconsideration decision) to refuse an impact track development application or approve it subject to conditions (s 407 definition of ‘reviewable decision’; sch 1 items 5, 11, 13). Applicants must generally apply for ACAT review within 28 days of the decision being made (ACAT Act s 10(2)). The time for applying for an ACAT review may also be extended by the tribunal pursuant to s 25(1)(e) of the ACAT Act.

Rights of a third party

A third party cannot apply to ACTPLA for a reconsideration of a decision regarding a DA in the impact track.

A person who has made an objection or representation about a proposal and who may suffer material detriment from the approval of the development, may appeal to ACAT against ACTPLA’s decision to approve a DA in the impact track (whether subject to a condition or not) (s 162, s 407, definition of ‘reviewable decision; sch 1 item 6). Such a person may also appeal against a reconsideration decision which substitutes the original decision (s 193(1)(b)(i), s 407 definition of ‘reviewable decision’; sch 1 item 12).

A person suffers ‘material detriment’ if the decision is likely to adversely affect their use or enjoyment of the land. For organisations, ‘material detriment’ is satisfied if an entity has objects or purposes and the decision relates to a matter included in the entity’s objects or purposes (s 419(1)).

The process and timing for an ACAT review is the same as that in the merit track, discussed above, that is, four weeks (20 working days) from the notification of the decision (s 409). Objectors must make sure any appeal is lodged within this time as the time cannot be extended under the ACAT Act (s 409(3) of the Planning Act).

The Planning Regulation exempts certain impact track decisions from a third-party ACAT review. Impact track development proposals currently exempt from third party ACAT review are development proposals relating to light rail (other than a development involving a protected matter); developments in relation to the Symonston mental health facility and the building; or alteration or demolition of public facilities on unleased land, such as playground equipment, barbeques and seating (s 351; sch 3 pt 3.3 items 1-3).

Other appeals to ACAT

Apart from decisions on development applications there are a range of other decisions under the Planning Act that are subject to review. These are set out in section 407 and Schedule 1 of the Act and include decisions in relation to leases granted under the Planning Act; decisions relating to certificates of compliance; the determination of change-of-use charges; and controlled activity orders.

Appeals are heard and determined by ACAT. The formal requirements for making an application for an ACAT review are contained in the ACAT Act (see Chapter 12 in this Handbook for more information about applying to ACAT).

Judicial Review

The Administrative Decisions Judicial Review Act 1989 (ACT) (‘ADJR Act’) provides a right of judicial review in relation to many administrative decisions, including decisions relating to DAs. In a judicial review, a court will decide whether or not a DA was decided in accordance with the law. It does not consider the merits of a decision, that is, whether it was a ‘good’ or ‘bad’ decision based on the particular facts. It is worth noting that judicial review proceedings are often very complex and costly, and legal advice should always be obtained before proceeding with such an application (see Chapter 12 in this Handbook for more information on taking a matter before a court).

The Planning Act regulates legal challenges to the validity of a ministerial decision about a development application. The right to challenge the validity of ministerial decisions on development applications (s 162) is time limited and can only be brought no later than 28 days after the date of the decision (s 410) (see Chapter 12 in this Handbook for more information about judicial review).

Matters exempt from judicial review

Schedule 1 of the ADJR Act lists all the decisions which are excluded from judicial review. In relation to the Planning Act this includes decisions to make a light rail declaration or decisions about a development approval, an EIS or a lease/licence relating to a light rail development proposal, other than a development proposal involving a protected matter (‘Decisions to which this Act does not apply’; sch 1 item 15 col 3).

If the light rail decision relates to a protected matter it may be judicially reviewed and there is a time limit of 60 days within which a person may commence proceedings in relation to a light rail declaration (s 137C of the Planning Act) or a light rail decision made in relation to a development approval, an EIS or Leases and Licences (s 137D).