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PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2008 (NO 2) (NO 27 OF 2008)
2008
THE LEGISLATIVE
ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
PLANNING AND DEVELOPMENT AMENDMENT
REGULATION 2008 (No 2)
SUBORDINATE LAW No
SL2008-27
EXPLANATORY
STATEMENT
Circulated by authority
of
Andrew Barr MLA
Minister for Planning
PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2008 (No
2)
EXPLANATORY STATEMENT
Overview
The Planning and Development Amendment Regulation 2008
(No 2) is made under sections 426 and 429 of the Planning and
Development Act 2007 (the Act).
Estate Development Plans
submitted for comment prior to 31 March 2008
The main
purpose of the regulation is to clarify and regulate the transitional position
for development applications for approval of an "estate development plan" (EDP)
where processes have begun before the commencement of the Act but the
application is lodged after commencement.
The process for developing new
estates typically involves the submission of a draft EDP to the planning and
land authority (the authority) by the developer. This submission is circulated
by the authority to other Territory government agencies for comment. After
comments are received, the authority prepares a consolidated whole of government
response for the developer who then prepares and submits a revised EDP. Once the
revised EDP has been received by the authority from the developer, and final
endorsement of the revised EDP is received from all government agencies, the
final EDP is lodged as a development application with the authority. The
authority then assesses and decides the application.
The existing
transitional provisions of the Act covered the scenario where the new estate
process reaches the stage where the EDP is lodged as a development application
with the authority prior to the commencement date of the Act (31 March 2008).
In this case, the Land (Planning and Environment) Act 1991 (the repealed
Act), applies to the assessment of the application.
There are also
cases where a draft EDP was submitted to the authority for comment prior to the
commencement date but without lodgement of the development application for the
EDP. Under the current transitional provisions of the Act, if such EDPs become
the subject of a development application lodged after the commencement date,
then the development application will, like all such applications, be assessed
under the new Planning and Development Act 2007 and the new Territory
Plan, not the repealed Act.
The intention is to alter this approach so
that the repealed Act and the old Territory Plan apply to the assessment of all
development applications for EDPs that were submitted to the authority for
comment prior to the commencement date. This is to be the case for all such
applications whether lodged prior to, or after, the commencement date. This
will result in a more consistent treatment of these EDPs.
Specifically,
section 5 modifies the Act by inserting new section 442C. New section 442C
requires the repealed Act and the old Territory Plan to continue to apply to any
development application that:
• is lodged after commencement date but
within six months of this date; and
• relates to or incorporates a
version of a document (or set of documents) that:
o is described as
an "estate development plan";
o included plans/proposals for
subdivision of land and related infrastructure development (e.g. sewers,
footpaths, street lighting);
o was submitted to the Planning and
Land Authority for review/comment prior to the commencement date – with
the intention that it (or a revised version) would ultimately be the subject of
a development application; and
o when it was submitted it appeared
to be a document to which the government publication Guidelines for Estate
Development Plans - Greenfield Land Subdivision – September 2007
posted on the Planning and Land Authority website at: http://www.actpla.act.gov.au/__data/assets/pdf_file/0019/6382/Estate_Dev_Plans.pdf
- applied.
Revised transitional arrangements for "lease and
development conditions"
In addition, the regulation includes
provisions in relation to "lease and development conditions". The repealed Act
and the old Territory Plan permitted the creation of "lease and development
conditions" to apply local specific rules to the relevant area. Under the
repealed Act, lease and development conditions played a role in informing the
market prior to release of land. The conditions were prepared prior to release
of land and contained information to assist the prospective buyers. The lease
and development conditions were able to vary the Territory Plan through local,
specific planning and development conditions, planning control plans, set backs,
block details etc. The authority applied the lease and development conditions
to the assessment of subsequent individual projects following the release of the
land.
The regulation includes new provisions which set out more clearly
the transitional arrangements for these matters and confirms their application
in areas covered by relevant EDPs. Section 7 modifies the Act by inserting new
section 446A (a revision of existing section 446A). This new section permits
the application of lease and development conditions in geographical areas that
were the subject of a relevant EDP. The new section permits both the
application of existing lease and development conditions (that is, conditions
made prior to the commencement date) as well as the application of new lease and
development conditions. Section 7 also modifies the Act by inserting new
section 446 (a revision of existing section 446). New section 446 gives the
authority the power to make new lease and development conditions for application
as noted above.
New section 446A makes it clear that the new Territory
Plan can require lease and development conditions (existing or new) to apply in
the assessment of development applications in geographical areas that were the
subject of an EDP submitted to the authority for comment prior to the
commencement date (provided that the relevant development application for the
EDP has been granted). This ability applies to all such geographical areas
irrespective of whether the development application for the EDP was lodged prior
to or after the commencement date. To be clear, such lease and development
conditions do not apply to the assessment of the EDP but apply to the assessment
of subsequent development applications for individual projects in the
geographical area that was covered by an already approved EDP.
These
arrangements are for transitional purposes only. The intention is for the lease
and development conditions to apply only in respect to land covered by EDPs
submitted prior to the commencement date. For the future, all planning rules
including local specific planning rules are to be incorporated, as necessary,
into the relevant codes of the new Territory Plan.
Commencement
of development approvals
The regulation also corrects an omission
from the transitional provisions of the Act. The transitional provisions in the
Act indicate when a development approval ends under the transitional
arrangements but do not indicate when the approval commences. Section 6 modifies
the Act by inserting new section 444A into the Act to make it clear that the
approval commences in accordance with the repealed Act and not the Act.
Other matters
A regulatory impact statement has not
been prepared for these transitional regulations on the basis that such is not
required under section 36(1)(f) of the Legislation Act 2001.
This regulation modifies the Act as permitted by section 429 of that
Act. Section 431 of the Act requires section 429 and regulations made under
section 429 (including this regulation) to cease two years after the
commencement of the Act (ie two years after 31 March 2008). Section 429 and the
regulations under this section are not saved by section 88 of the Legislation
Act (because of the exception in section 88(2) of the Legislation Act). As such
the modifications made by this regulation are temporary. The wording of the
regulations include time frames that would apply if the regulations were
preserved by Act amendment, should this be considered necessary in the future.
If the provisions were incorporated unchanged into the Act in this way,
then:
• new section 442C (inserted by section 5) would expire two years
after commencement of the Planning and Development Act but section 88 of the
Legislation Act (Repeal does not end effect of transitional laws, etc) would
apply;
• new section 444A (inserted by section 6) would expire two
years after commencement of the Planning and Development Act but section 88 of
the Legislation Act would apply;
• new section 446 (inserted by section
7) would expire entirely after five years post commencement of the Planning and
Development Act, that is, section 88 of the Legislation Act would not
apply; and
• new section 446A (inserted by section 7) would expire five
years post commencement of the Planning and Development Act but section 88 of
the Legislation Act would apply.
Section 1 – Name of regulation – names the
regulation as the Planning and Development Amendment Regulation 2008 (No
2).
Section 2 – Commencement –
provides that the regulation commences on the day after its notification
day.
Section 3 – Legislation amended – states
that the regulation amends the Planning and Development Amendment Regulation
2008.
Section 4 – Schedule 5, new modification
5.1A – modifies the Act by inserting new sections 431(2) (a) and (b)
to reflect the changes in headings made by this regulation.
Section
5 – Schedule 5, new modification 5.3A – modifies the Act
by inserting a new section 442C.
This section applies to a development
application that relates to an Estate Development Plan (EDP) that is lodged on
or not later than 6 months after commencement day and the EDP was given to the
authority before commencement day for consideration.
The development
application may be made and decided in accordance with the repealed Act as if
that Act had not been repealed.
If the development application is
approved, the approval is taken to be under the Act and unless extended under
the Act, continues in force until the time when it would have ended under the
repealed Act. The development application is taken to be a merit track proposal
for section 198(2) (Deciding applications to amend development approvals) of the
Act.
Under section 5(4), the repealed Act applies in relation to any
application for reconsideration, or of review, of the decision on a development
application to which this section applies.
Section 5(5) sets out what the
authority must consider in deciding whether a document is an EDP. The authority
must consider whether the document is identified, by itself or another document,
as an EDP; the document appears to be a document to which government publication
Guidelines for Estate Development Plans- Greenfields Land
Subdivision-September 2007 applies; and whether the document includes plans
or a proposal for the subdivision of land and related infrastructure
development.
Section 5 (6) states that an EDP (the final plan) is taken
to have been given to the authority for consideration if the EDP (the initial
plan) was given to the authority and the final plan is identifiable as a revised
version of the initial plan.
Section 6 – Schedule 5, new
modification 5.4A – modifies the Act by inserting new section 444A.
This section applies to development approvals under section 442, 442B, 442C, 443
or 444 of the Act unless the development approval commenced before commencement
day.
The development approval in relation to these types of approvals
commences, or is taken to have commenced, when the development approval would
have commenced under the repealed Act, if the repealed Act had not been
repealed.
Section 7 – Schedule 5, new modification
5.5A – modifies the Act by inserting new sections 446 and
446A.
New section 446 - Power to make lease and development
conditions
This section gives the authority the ability to make new
lease and development conditions in certain circumstances. The authority may
make such conditions in relation to the following geographical areas, that is,
land that:
• is covered by an EDP that is the subject of a development
approval given under new section 442C (that is, EDPs submitted prior to the
commencement date but the development application for the EDP was not lodged
until after this date - see section 5 above); or
• is covered by an
EDP that is the subject of a development approval given under the provisions of
the repealed Act in relation to an "earlier application" whether the approval
was given before or after the commencement date (that is, EDPs submitted prior
to the commencement date and the development application for the EDP was also
lodged prior to this date).
On or after the commencement day, the
authority may make a lease and development condition in relation to the above
land, or part of the land.
Section 7(3) sets outs definitions for the
section.
"An earlier application" means an application for
development approval if the application –
(a) was made under the
repealed Act before the commencement day; and
(b) relates to land that was
defined land (which means land identified in the old territory plan for the
repealed Act subdivision 2.3.4); and
(c) is for approval to subdivide
whether or not it is also for approval of something else.
"An
earlier approval" means a development approval under the repealed Act of
an earlier application.
"Lease and development condition" means
a lease and development condition that could have been made under the repealed
Act, but for its repeal.
"Old Territory plan" means the
territory plan under the repealed Act.
Section 7(5) states that this
section expires 5 years after the commencement date and section 7(4) states that
section 88 of the Legislation Act (Repeal does not end effect of transitional
laws, etc) does not apply. As noted in the overview, these time frames would
apply only if this provision were to be incorporated into the Planning and
Development Act by Act amendment. In the absence of such an amendment, this
regulation will cease to apply two years post commencement of the Planning and
Development Act.
New section 446A – Transitional - application
for development approval if lease and development condition
This
section provides for existing lease and development conditions to be considered
when assessing some development applications. The section applies to a
development application if the application is:
(i) not in the code track;
or
(ii) for development on land to which a lease and development condition -
a. under section 446 applies; or
b. made under the repealed Act applied
immediately before the commencement day.
The authority (or the Minister,
if the Minister has exercised the power to "call in") must consider the lease
and development condition in making a decision under section 162 (Deciding
development applications) in relation to the application if-
(a) the
territory plan provides that the lease and development condition may vary the
plan; and
(b) the condition is relevant to assessing the application and
granting the approval.
This section expires five years post the
commencement date. Section 88 of the Legislation Act (Repeal does not end effect
of transitional laws, etc) does apply to this section. As noted in the
overview, these time frames would apply only if this provision were to be
incorporated into the Planning and Development Act by Act amendment. In the
absence of such an amendment, this regulation will cease to apply two years post
commencement of the Planning and Development Act.