10 Dec 2015

Ninth planning, building and environment legislation amendment bill introduced into ACT Parliament

by Nicole Besgrove, Claire Smith

A new bill has been introduced into the ACT Parliament, the ninth bill since 2011, to ensure that the ACT planning, building and environment legislation is up-to-date and consistent with technological and societal change.

The Planning, Building and Environment Legislation Amendment Bill 2015 (No 2) was presented to the ACT Parliament on 19 November 2015 to provide policy, technical and editorial amendments to key pieces of planning, building and environment legislation.

In this article we briefly examine two of the key amendments proposed to the Planning and Development Act 2007. If passed the Bill will also make some minor policy and editorial amendments to the Building (General) Regulation 2008, Nature Conservation Act 2014 and the Environment Protection Act 1997 and its Regulation.

Planning and Development Act ‒ policy amendment

Currently, under the Planning and Development Act a development application that is for an impact track development proposal will require the preparation and submission of an Environmental Impact Statement (EIS) unless there is an EIS exemption in place. However, this means that key documents that relate to an EIS exemption, such as the revised exemption application, the recent study on which the exemption is based upon and the EIS exemption itself, are not considered in the assessment of the development application.

These documents are significant for the assessment of a development application as they are relevant to the impact track development assessment process and are important for the consideration of environmental impacts. In particular, inclusion of these documents will provide a mechanism to ensure that there is an assessment of avoidance, mitigation and offsets measures as well as consideration of appropriateness in relation to "protected matters" (ie. a matter protected under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) [1]) and other Schedule 4 items (such as significant adverse impacts on endangered or threatened species or a heritage place or object).

Therefore, amendment is proposed to include the EIS exemption, the recent study and the revised EIS exemption application as additional matters which the decision-maker must consider when deciding an application for development approval.

Planning and Development Act ‒ technical amendment

Technical amendment is also proposed to make it clear that the planning and land authority is bound to comply with the advice of the Conservator in relation to a protected matter only. Currently, the Planning and Development Act provides that:

  • the planning and land authority is required to refer certain development applications to the Conservator for advice if satisfied the development application is likely to have a significant adverse environmental impact on a protected matter;
  • the advice of the Conservator must include an assessment of whether the proposed development is likely to have a significant adverse environmental impact on a protected matter and if so, advice about suitable offsets;
  • the Conservator may also provide advice in relation to the development application that is not related to the protected matter; and 
  • development approval must not be given for a development application for a development proposal in the impact track unless consistent with the advice is given by the conservator.

It is because of the Conservator's ability to provide advice that is not related to the protected matter that amendment is required to confirm that it is only the advice regarding a protected matter which the planning and land authority is bound by when making a decision on whether to give a development approval. Advice of the Conservator that is not related to a protected matter must still be taken into account along with advice from any other referral agency but it is not binding.


If the Bill is passed it will commence on the day after its notification day.

If you would like any further information or would like to discuss the implications of the amendments please do not hesitate to contact us.


1 A "protected matter" under the Environment Protection and Biodiversity Conservation Act are referred to as matters of national environmental significance (MNES) which includes world heritage properties, national heritage places, wetlands of international importance (listed under the Ramsar Convention), listed threatened species and ecological communities, migratory species protected under international agreements, Commonwealth marine areas, the Great Barrier Reef Marine Park, nuclear actions and a water resource in relation to coal seam gas development and large coal mining development. [back]

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