Sustainability in ACT planning law

Introduction

A key way in which sustainability issues intersect with the law concerns their treatment under planning and development law. This involves:

• requirements for sustainability considerations to be taken into account in planning of new suburbs and new construction and
• development and building approval exemptions for small scale renewable energy technologies such as photovoltaic (PV) and wind power.

Requirements to consider sustainability in the approval of new buildings and other developments are addressed in a number of ways including via the effect of Codes under the TP. The Planning Act states that the territory, the executive, a minister or a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the TP (s 50). Additionally, ACT planning law is now informed by the policy documents described in the section above including the Action Plan 2 (AP2), which aims to implement a strategy to achieve the territory’s legislated greenhouse gas reduction target of 40% by 2020 (see Chapter 2 in this Handbook for information on ACT planning; Chapter 3 for development approvals and Chapter 4 for environmental impact assessment).

Sustainable development in the Planning and Development Act (ACT)

The Planning Act includes amongst its objects to provide a planning and land system that contributes to the orderly and sustainable development of the ACT (s 6). The Act defines sustainable development (s 9) as the effective integration of social, economic and environmental considerations in decision-making processes achievable through the implementation of principles including the precautionary principle, the principle of intergenerational equity, the conservation of biodiversity and appropriate valuation and pricing of environmental resources.

The Planning Act does not directly require either the Planning Minister or the ACT Planning and Land Authority (ACTPLA) to make its decisions on a development application taking into account environmental sustainability (see ss 162 and 159 referring to the minister). However, this is indirectly achieved by ACTPLA via a requirement that it must exercise its functions in a way that, as far as practicable, gives effect to sustainable development (s 12(3)(a)).

The territory’s Action Plan (AP2) has some direct effect on the planning scheme. AP2, for instance, states that the ACT Government will introduce legislation to restrict the replacement and installation of high-emission water heaters in houses and townhouses in gas-reticulated areas, with a view to introduce new standards for hot water heaters of all new residential buildings in the 2015 revisions of the ACT building code.

Sustainability in the ACT Planning Strategy

The Planning Act requires the ACT executive to make a planning strategy that sets out long term planning policy and goals to promote the orderly and sustainable development of the ACT. This is the ACT Planning Strategy. The strategy is required to be consistent with the social, environmental and economic aspirations of the people of the ACT. The primary object of the strategy is to promote the development of the ACT as described and in accordance with sound financial principles (ss 105, 107). The Act requires that the strategy must be considered when proposed variations to the TP are drafted and when the statement of strategic directions in the TP is amended. However, the Act also specifically states that the planning strategy is not a relevant consideration in decision-making about development approvals, EIS and inquiries and management of public land (s 109).

In June 2012, the ACT Government adopted the Planning Strategy to replace the Canberra Spatial Plan. The Planning Strategy outlines long term planning policies for the future development of the ACT, up until the year 2030. The Strategy aims to identify areas where growth and change is needed, areas where specific planning is required and areas where investment and resources should be prioritised. An overview of the ACT Planning Strategy can be found on the Environment and Planning Directorate’s website.

The ACT Planning Strategy outlines five outcomes that it aims to achieve by 2030:

• Canberra will be a city where people are able to choose to live sustainably. This includes increasing housing by 50%, specifically attached housing whilst showing improving environmental trends in the ACT State of the Environment Report
• The citizens of Canberra will be able to enjoy a vibrant civic and cultural life, with well-established centres, open spaces and transport. This includes the development of the light rail, improving facilities in shopping centres and encouraging physical activity
• Canberra will have established a clean economy and a wide range of jobs. This includes: increasing ACT’s proportion of jobs in the private sector, encouraging businesses to be environmentally sustainable and encouraging post-secondary education
• Canberra will have improved its public spaces and buildings. This includes encouraging buildings to achieve 6-star Greenstar rating, increasing the number of tourists visiting Canberra each year and increase the number of recognized developments and buildings in Canberra
• Canberra will be the centre of a region known for its natural beauty. This involves improving natural resource management, and decreasing land-take per person.

Large wind farms

Large wind farms (with five or more turbines, or 5 MW (megawatts) or more capacity) and very large solar generating facilities are subject to an EIS requirement, as they fall into the ‘impact track’ under the Planning Act (s 123; sch 4). An application for a development proposal in the impact track must include a completed EIS, unless the minister exempts the application (s 127).

Wind farms located outside the ACT are not subject to ACT environmental impact assessment law.

Large solar farms

Large solar farms are also listed in Part 4.2 of the Planning Act as requiring an EIS. See below for more information on solar farms in the ACT.

Solar hot water and photovoltaic panels

Solar hot water and PV panels, where installed on a Class 1 building (a detached house or other attached dwelling) or a Class 10a building (a non–habitable structure such as a private garage, carport, or shed), are described as exempt building works. In other words, they are exempt from the usual requirements for planning approvals (Planning and Development Regulation 2008, Schedule 1, Reg.1.27) (see Chapter 3 in this Handbook for more information on ACT planning laws).

Sustainability in the Territory Plan

As discussed above, the Planning Act requires that the TP give effect to its objects in a way that gives effect to sustainability principles (s 49). The territory, the executive, a minister or territory authority must not do any act, or approve the doing of an act, that is inconsistent with the TP (s 50). The Act requires the TP to include a statement of strategic directions (s 51). This statement may contain a series of planning principles covering areas of national, regional and territory interest, including principles for sustainable development (s 52). The Statement of Strategic Directions (TP, pt 2) is also designed to guide environmental impact statements (EIS) (s 52). An EIS is taken into account in deciding development applications (s 208) (see Chapter 3 in this Handbook for information on development approvals).