Reform across Australia

Key Points:

Australian Capital Territory

The Planning and Development Act 2007 (ACT) and Planning and Development Regulation 2008 (ACT) commenced on 31 March 2008.

The new Act and Regulations implement the Territory's planning system reforms, including a restructured Territory Plan (the primary planning instrument for the ACT). The restructured Territory Plan is policy neutral, in that it does not alter existing land use rights. However, the assessment procedures for development proposals have been substantially overhauled.

Development proposals are either exempt, assessable or prohibited. Exempt development proposals do not require development approval and, in some cases, do not require building approval. Assessable development proposals will be assessed in one of the three new assessment tracks: merit track, code track or impact track.

• Code track proposals are assessed against specified Rules and must be approved if they satisfy all relevant Rules. The Territory must determine Code track applications within 20 working days of the proposal's lodgement. There is no public notification of Code track proposals and no third party appeal rights. Development proponents may only appeal conditional approvals, but may not appeal refusals, in the Administrative Appeals Tribunal.
• Merit track proposals are assessed against specified Rules and Criteria. Proposals in the Merit track must be approved if all relevant Rules are satisfied. However, failure to satisfy a Rule is not fatal to a proposal; if all Criteria are satisfied then the Territory may approve the proposal. Merit track proposals are subject to either minor or major public notification. The Territory must determine Merit track proposals within either 30 business days (if minor public notification occurred) or 45 working days (if major public notification occurred). Development proponents may appeal to the Administrative Appeals Tribunal. Third parties may also appeal decisions, but only if the development proposal was subject to major public notification.
• Impact track proposals, which will apply to major infrastructure or other installations, are assessed against relevant Rules and Criteria. However, even if a proposal does not satisfy all Rules and Criteria, it may be approved if it satisfies the intent and objectives of, and Statement of Strategic Direction in, the Territory Plan. Development proponents must have completed an Environmental Impact Statement prior to lodging an Impact track assessment. All Impact track proposals are subject to major public notification and the Territory must determine Impact track proposals within a maximum of 45 working days. Third parties and development proponents can appeal decisions on Impact track proposals to the Administrative Appeals Tribunal.

Development tables also form an integral part of the restructured Territory Plan. These tables consolidate information on the land uses for each zone. The development tables list whether a proposal is exempt, assessable or prohibited; the applicable assessment track; and the Codes against which the proposal will be assessed.

Environmental impact statements (EIS) have replaced Preliminary Assessments and are the only form of environmental report which will be required. All Impact track assessments will require an EIS to be lodged, and the EIS will be subject to public notification.

- Alfonso del Rio and Caitlin Sims

Queensland

In Queensland, two recent Acts create a regime for assessment by panels for development applications ("DAs") - the Urban Land Development Authority Act 2007 ("ULDA Act") and the Iconic Queensland Places Act 2008 ("IQP Act").

The Urban Land Development Authority (ULDA) under the ULDA Act assumes the planning approval role for DAs within areas that have been declared Urban Development Areas (UDAs).

UDAs are declared by regulation. Selection criteria includes areas of high growth or high housing stress, areas that contain significant portions of government land, areas that are close to public transport and employment opportunities and other services.

Under the IQP Act any DA for premises within a declared "iconic place" must be referred to the newly-created development assessment panel for a decision on whether the panel or the local government will decide the DA. This is known as the "reference decision".

In making its decision, the panel must consider the substantial effect that the development the subject of the DA has, or may have, on the place’s iconic values, having regard to the protected planning provisions for the place. The Minister has the power to reverse the panel’s reference decision at any time up until the panel, or the local government, gives a decision notice for the DA.

If the panel determines it should decide the DA, the local government must still continue to decide the DA as it ordinarily would, but its decision about the DA becomes merely a recommendation to the panel. Upon receipt of the local government recommendation, the panel must decide the DA as if the panel were the assessment manager for the DA.

- Karen Trainor

South Australia

South Australia was one of the first Australian jurisdictions to make effective use of panels to assist in the determination of development applications. Several of the ideas underpinning the NSW reforms are drawn from the SA experience.

Recent amendments to the SA Development Act 1993 strengthened the role and independence of local government panels.

SA has an established Development Assessment Commission, which determines applications for more significant developments. Major projects are determined by the Governor on the advice of Cabinet.

Complying development is a major feature of the SA planning regime.

As is (and, if the Bill is passed, will remain) the case in NSW, most determinations of development applications may be appealed to a specialist court - the Environment, Resources and Development Court.

- Nick Thomas

Victoria

The Planning and Environment Act 1987 is scheduled for review by an expert panel which is to report by the end of 2008. In announcing the review earlier this year, the State Government commented that the task of developing a new Planning and Environment Bill "will require extensive consultation and detailed research". As a consequence, it is unlikely that any new Bill will be ready for presentation to Parliament before 2009.

Major review of the Act was also one of the recommendations contained in the 2006 report, Cutting Red Tape in Planning. This report proposed a number of actions to modernise the planning system and reduce delays. To date most of the implemented recommendations have focused on administrative measures and simplification of procedures, including:

• removing permit requirements for a range of minor developments, cutting the need for approximately 4,000 permits each year;
• streamlining the planning scheme amendment process by fast-tracking amendments that remove redundant provisions in planning schemes; and
• setting performance targets for amendment processes and protocols for pre-setting panel hearing dates.

Flexibility in the environmental impact assessment process has also been available through amendments to the Environment Effects Act 1978 and new Ministerial guidelines, with the Minister now able to determine that no environment effects statement ("EES") is required for a project subject to meeting specified conditions. Of the 31 projects referred to the Planning Minister since 30 June 2006 when the amendments came into operation, 13 have been the subject of a conditional decision that no EES is required. Of the remaining decisions, two projects have required an EES, 13 have not required an EES (without the need to satisfy specified conditions) and a further project was determined unlikely to be environmentally acceptable. As at 3 June 2008 information on the Department of Planning and Community Development ("DPCD") website reveals that there remain another two projects waiting on a decision as to whether or not an EES is required.

A number of other initiatives have recently been announced in response to the first audit of Melbourne 2030 released earlier this year, to address Victoria’s population boom. These include:

• the establishment of Development Assessment Committees in partnership with local government to make permit decisions in relation to areas and matters of metropolitan significance including Melbourne’s 26 principal activity centres. It is proposed, however, that there be the same right of independent review by VCAT as presently exists where a council or the Planning Minister is the responsible authority;
• the development of criteria setting out areas and matters to be considered as having State, regional or metropolitan significance and the circumstances in which the Planning Minister will determine whether a matter or area is of such significance and the decision-making arrangements that will apply; and
• establishing a new unit within DPCD to drive Melbourne 2030 implementation and support new planning partnerships with local government.

While there have been improvements in the planning system, the expected review of the Act provides an opportunity for significant change and substantial improvement in reducing timelines. This review coupled with the expected project facilitation legislation also announced in February provide further opportunity to streamline the often protracted and costly assessment and approvals process for certain projects.

- Sallyanne Everett

Western Australia

A substantial reform of the WA planning regime occurred in 2005 with the commencement of the Planning and Development Act 2005 ("PD Act") and the establishment of the State Administrative Tribunal ("SAT").

The PD Act consolidated and repealed a number of other planning statutes and introduced two important purposes to the planning regime in WA:

• provision of an efficient and effective land use planning system; and
• the sustainable use and development of land within the State.

The SAT is an independent decision-making body administering a jurisdiction governed by more than 130 enabling Acts, dealing with a wide variety of areas of law apart from planning. A significant component of the SAT’s jurisdiction, however, is the review of decisions made by State and local government regulating the use, development and subdivision of land.

Given the emphasis in planning matters on expert evidence, the SAT regularly appoints hearing panels representing a range of professional disciplines relevant to the proceedings, for instance, law, town planning, engineering and architecture. The SAT conducts review hearings using an inquisitorial process which includes expert witnesses giving concurrent evidence.

WA has had a uniform code for certain planning controls since the early 1990s. The NSW reforms seek to draw on that experience in relation to complying development.

- Brad Wylynko